The StandDown Texas Project

Arizona PDs Question State's Capital Punishment Scheme

The ABA Journal reports, "PDs argue Arizona’s death penalty law is unconstitutional because it is indiscriminate," by Debra Cassens Weiss.

The motion in Arizona v. Gittens, Jackson, Noonkester, McMahan is at the link.

Two public defenders in Arizona’s Maricopa County contend that the state’s death penalty law is unconstitutional because its aggravating factors allow for a death sentence in virtually every first-degree murder case.

The statute, they argue in the motion filed in February, “has no method of meaningfully distinguishing the few cases in which death is deserved from the many cases in which it is not.” The New York Times mentions the motion in a story about less culpable defendants who draw harsher sentences than co-defendants.

One of those defendants is Patrick Bearup, who helped three co-defendants in the murder of a man they had accused of stealing $200 from his roommate. By all accounts, the Times says, Bearup was not directly involved in the killing, though he did help dispose of the body and severed one of its fingers to retrieve a ring. Bearup was the only defendant in the Maricopa County case to receive the death penalty. The three others, including a defendant who shot the victim, accepted plea deals and avoided execution.

Coverage of the Arizona case begins at the link.

Culpability & Punishment

The New York Times reports, "Less Culpable, but With Longer Sentences," by Fernanda Santos.

Such cases, in which a defendant with lesser culpability draws the harshest sentence, are not uncommon in Arizona, and elsewhere around the country. Of the six inmates executed in this state last year, four were equally or less culpable than co-defendants implicated in the same crimes, according to Dale A. Baich, the supervisor of the capital habeas unit in the federal public defender’s office, which handles appeals of capital cases in federal court. (Prison records show that three of those four co-defendants have been released.)

In many of the 32 other states that carry the death penalty, similar stories unfold as prosecutors, when deciding whom to charge, weigh the cost of mounting a capital trial, which can reach $1 million, against the likelihood of a conviction.

In 2011 in Ohio, Gov. John R. Kasich, using his clemency powers, commuted to life in prison the death sentence of a man convicted of killing two people. The governor, a Republican, said it was unclear if he had been the one to actually commit the murders. Another Ohio inmate, John Getsy, was executed in 2009 for killing the mother of his intended target in a murder-for-hire plot, despite a clemency recommendation by the state parole board, which said that other participants in the crime, including its architect, had not been sentenced to die. (The governor at the time, Ted Strickland, a Democrat, overruled the board.)

Mr. Bearup’s case was one of 135 pending capital cases in Maricopa County in 2006, more than the combined number of cases in the next three jurisdictions at the top of the list: Los Angeles County and Clark County, Nev., each with 36; and Harris County, Tex., with 17.

“In an ideal world, the prosecution would have ironclad proof against all the co-defendants to be able to pick the worst for the death penalty, but we have an inequitable system, a bargaining system,” said Richard Dieter, the executive director of the Death Penalty Information Center in Washington, which tracks the number of executions across the country.

And:

In 1972, the Supreme Court voted 5 to 4 to invalidate all death penalty laws in the country because they had been too arbitrarily applied. One of the concurring justices, Potter Stewart, wrote that the Constitution could not “permit this unique penalty to be so wantonly and freakishly imposed.” States moved to rewrite their statutes, narrowing their definition of first-degree murder or the number of aggravating factors used to define a capital crime. The idea was to make sure the death penalty would be reserved for the worst of the worst.

Related posts are in the Law of Parties and proportionality category index.

Mistrial Declared in Brazos County Capital Case

The Bryan-College Station Eagle posts, "Judge declares mistrial in Falk capital murder case after 55-day delay," this morning.  It's by Maggie Kiely.

District Judge Ken Keeling Monday morning declared a mistrial in the capital murder trial of John Ray Falk Jr.

Brazos County jurors returned after 55 days of trial delay to hear closing arguments but instead were dismissed after Keeling explained he didn't believe they could remain impartial in reaching a verdict considering the highly unusual circumstances.

“Asking jurors to return a verdict in a complicated case such as this places an impossible and unconscionable burden on them,” Keeling said.

“I don't believe justice can be done in this case when y'all were sitting on the sidelines for 55 days,” he said.

The article notes that the prosecutor intends to retry the case and seek the death penalty.

A Saturday Eagle report by Kiely is, "Capital murder case to resume: Judge blunt in comments regarding appeals court."  Kiely also wrote, "Appeals court approves change to jury instructions in murder trial," which appeared in the January 17th edition of the Eagle.

The Court of Criminal Appeals ruling and Judge Tom Price's dissent are available in Adobe .pdf format.

Earlier coverage of the case begins at the link.

The Jury Instruction Case

"Appeals court decision could come soon in murder trial," is the Bryan-College Station Eagle report written by Maggie Kiely.

Tuesday came and went without word from the state's 10th Court of Appeals on a request from prosecutors that put the capital murder trial of John Ray Falk Jr. on hold last week, just minutes before closing arguments were set to begin.

The appeals court is reviewing a writ of mandamus filed by Walker County District Attorney David Weeks and assistant attorney general Jane Starnes asking that the justices take action to amend what the prosecution says is a legal error that unfairly increases their burden of proof.

Arguments surrounding the state's petition for mandamus -- a legal tool not commonly used in criminal cases, especially in mid-trial -- were heard by appeals justices in Waco on Monday, a week after both sides rested their cases in the guilt-innocence phase of Falk's trial.

The state contends that District Judge Ken Keeling was wrong in adding language to the court's charge -- legal instructions jurors receive heading into deliberations -- that requires them to prove an element not necessitated by law.

Prosecutors also contested Keeling's decision to exclude the option of finding Falk guilty as a party to the crime, instead of a party conspirator.

But defense attorneys and Keeling's appeals lawyer argued the judge followed the law in constructing the jury instructions and insisted that granting the mandamus would lead to similar tactics being attempted by upset prosecutors in the future.

Although an appeals ruling is still pending, Keeling said he instructed jurors to return Monday in hopes of being able to resume at that point.

The Huntsville Item reports, "Attorneys await high court ruling," by Cody Stark.

The capital murder trial in the death of correctional officer Susan Canfield has been delayed for another day as attorneys from the state and defense await the ruling by the 10th Court of Appeals about the appropriateness of jury instructions.

Walker County District Attorney David Weeks and special prosecutor Jane Starnes are challenging the “fairness” of 278th District Judge Ken Keeling’s instructions to the jury in the trial of Texas prison inmate John Ray Falk Jr., claiming the wording made it more difficult for the prosecution to prove that Falk —who escaped with Jerry Duane Martin from the Wynne Unit in Huntsville five years ago — is responsible as a co-conspirator for Canfield’s death.

Trial officials made oral arguments before the Court of Appeals on Monday morning at the McLennan County Courthouse in Waco. Falk’s trial, which began Nov. 26 in Bryan, has been on hold since Dec. 3 after Weeks filed a writ of mandamus asking the high court to halt the trial court’s proceedings until it could rule on the state’s objections to the jury’s instructions. Weeks filed his writ before closing arguments began in the trial.

And:

The instructions — which in capital cases typically include four questions the jurors must answer to determine Falk’s guilt — in this case say that Falk should have anticipated that Martin would murder Canfield by striking her horse with a vehicle. The state is asking the Court of Appeals to amend the instructions, arguing there are no previous cases in which the prosecution had to prove the defendant anticipated the specific manner and means in which a murder was committed.

Co-defense attorney Lane Thibodeaux and Rick Metzel, an Austin lawyer representing Keeling, say that the instructions were written that way because of the language of the state’s indictment of Falk. Thibodeaux also contends that there are not any previous cases that say a judge cannot include manner and means in the jury instructions.

Earlier coverage of the case begins at the link.

Texas Capital Case on Hold Over Jury Instruction

Today's Bryan-College Station Eagle reports, "Attorneys make case to appeals court in murder trial."  It's by Maggie Kiely.

The capital murder trial of John Ray Falk Jr. remained on standby Monday as attorneys awaited a ruling from the 10th Court of Appeals on a rarely used request from prosecutors filed last week. State attorneys asked the appeals court to instruct District Judge Ken Keeling to change wording in the court's charge that they contend puts them at an unfair advantage. The motion was filed with an emergency stay of proceedings that was granted last Tuesday, the morning closing arguments were set to begin.

Until justices come back with an opinion, the trial will remain on recess with jurors not knowing exactly why they were released until further notice.

Falk, 45, was serving a life sentence at a Huntsville prison when he and another inmate were accused of killing Susan Canfield, a 59-year-old correctional officer, during their brief escape in 2007.

Walker County District Attorney David Weeks, who is prosecuting the case alongside Assistant Attorney General Jane Starnes, insisted to the appeals court that Keeling didn't have authority to add wording to the court's charge that required jurors find Falk should have anticipated the specific way Canfield was killed before they could arrive at a guilty verdict.

Weeks argued to justices that to find Falk guilty as a party conspirator -- his codefendant was driving the truck that struck Canfield's horse, leading to her death -- the state didn't need to prove that Falk knew the truck would be used as the murder weapon, just that he should have anticipated her murder.

"What we have here is a judge who clearly did not follow the law," Weeks said. "At this point, we have no other remedy."

But Lane Thibodeaux, who's handling Falk's appeals and working with defense attorney Michele Esparza and Kyle Hawthorne, dismissed the state's argument on the grounds that the court's charge follows the allegations listed in the indictment.

"The jury charge did nothing more than track the indictment," he said.

According to court documents, the indictment accuses Falk of killing Canfield by striking her with a vehicle while escaping from prison.

But in the writ of mandamus, Weeks pointed to several cases supporting his argument that the law of parties didn't have to be included in the indictment for the defendant to be charged as a party.

Rick Wetzel, Keeling's appeals attorney, argued that Keeling constructed a charge that came "together to represent the allegations, the evidence and the law."

"Keeling was up on a bench having two sides talking on him -- this is what he came up with and this is what trial courts do," he said.

A condensed AP version of the report is, "Jury instructions disputed in Texas inmate's trial," via the San Francisco Chronicle.

An appeals court has been asked to clarify jury instructions over a Texas inmate's alleged role in the 2007 death of a guard during an escape attempt.

The Eagle newspaper reported Tuesday that the Bryan capital murder trial of John Falk Jr. remains on hold pending a ruling.

Prosecutors seeking the death penalty told the 10th Court of Appeals in Waco on Monday that the jury instructions are too limiting.

The defense says the wording follows what's in the indictment.

Officer Susan Canfield died after being thrown from a horse that was hit by a truck at the Wynne Unit. The driver, inmate Jerry Martin, received a death sentence for the slaying.

Related posts are in the law of parties category index.

The Reggie Clemons Hearing in Missouri

The St. Louis Post-Dispatch is providing extensive coverage of Reggie Clemons' hearing in Missouri.  Today's updating coverage is, "Clemons testifies police beat him to get murder confession in Chain of Rocks case."  It's by Jennifer Mann.

Reginald Clemons, under a death sentence for a double murder in 1991, testified in court here this morning that police beat a confession out of him after telling him they "have ways of making people talk."

He denied on the witness stand that he had participated in the rape and murders of sisters Julie Kerry, 20, and Robin Kerry, 19, at the old Chain of Rocks Bridge. But he declined to elaborate.

While Clemons lawyers focused solely on how the confession was conducted, attorneys for the state Attorney General's Office went straight to what it contained: a detailed accounting of the rapes and murders of the young women that night.

Clemons asserted his Fifth Amendment rights against self-incrimination more than 30 times, to every single question about those events.

While allowed in criminal trials, there are repercussions to doing so in a civil proceeding, like this one.  

Jackson County Circuit Judge Michael Manners, who was appointed "special master"  to hear the case and make a recommendation to the Missouri Supreme Court, reminded Clemons of that risk after the questioning ended.

"You understand that the inferences I will draw from your testimony will be unfavorable to you," he warned Clemons. Clemons acknowledged he understood.

Manners' recommendation could range from upholding the death sentence, to ordering a new trial or reversing the conviction.

"Hearing for Reginald Clemons in 1991 Chain of Rocks murder case is delayed," also by Mann, was posted Tuesday.

A special review of Reginald Clemons' 1993 death row case has been delayed a day because of unspecified legal issues.

The "special master" hearing ordered by the Missouri Supreme Court began Monday and had been scheduled to resume Tuesday, but after about two hours in which attorneys met behind closed doors in the judge's chambers, a bailiff announced it would resume Wednesday morning. At that point, Clemons is expected to take the stand.

Clemons is one of four men convicted in the 1991 murders of Julie and Robin Kerry on the old Chain of Rocks Bridge.

On Monday the prosecutor who won convictions against the four had to fend off claims that he bolstered his case by having a police report altered and ignoring signs of police brutality.

Late Monday, a judge appointed to make a recommendation on the case to the Missouri Supreme Court was presented a video-taped deposition of Robert Baumann, who was captain of the St. Louis Police unit that investigated the double murder of Julie and Robin Kerry. Baumann, in response to Clemons' attorneys' questions, said he would consider it inappropriate to make changes to a police report.

Lawyers for Clemons on Monday also highlighted crime lab results — which they argue would have raised doubt of his culpability — that never made it into the 1993 trial in which their client was sentenced to death.

A stay of execution, 12 days before Clemons was to die in June 2009, paved the path for the information to be discovered, his attorneys said. Now they are hoping to convince the special master, Jackson County Circuit Judge Michael Manners, that it's enough to reverse Clemons' conviction, or at least to spare him from execution.

One of the others convicted has been executed, another is serving a life term and a third received early parole in exchange for testimony against the others.

"Clemons' lawyers claim he was coerced into confessing 1991 bridge murders," was posted Monday afternoon.

Attorneys for Reginald Clemons argued this morning that an altered police report, a coerced confession and withheld lab evidence cast doubt on the 1993 conviction that sent him to death row.

Lawyers from the Missouri attorney general's office disputed those characterizations and said many of the debated points have already been litigated.

Clemons, now 41, was one of four men convicted in the murders of Julie and Robin Kerry, sisters who were raped and forced to leap into the Mississippi River from the old Chain of Rocks Bridge on April 5, 1991. The women's cousin, Thomas Cummins, said that he was made to watch and then forced off the bridge himself. He alone managed to swim to shore.

Under interrogation in 1991, Cummins confessed the crime before recanting. His statements took center stage today, at the start of an evidentiary hearing to help determine whether Clemons' death sentence or even conviction might be overturned.

Clemons' lawyers produced a draft police report of Cummins' statements to detectives, which differed from a final report that was entered into the record at Clemons' trial.

Earlier coverage of Reggie Clemons' case begins with a preview of this week's hearing.

Monday Hearing in Missouri for Reggie Clemons

"Hearing may decide fate of man on Missouri's death row in Chain of Rocks case," is by Jennifer Mann in the St. Louis Post-Dispatch.  Here's the beginning of this thorough review of the issues in the case:

One is dead, one is on parole and one is serving a life term, but the fourth man convicted of throwing two sisters to their deaths off the Old Chain of Rocks Bridge two decades ago still has the court's attention in his bid for freedom.

Lawyers for Reginald Clemons, 41, will make their case here next week to a judge appointed by the Missouri Supreme Court to hear evidence and make recommendations on the claim he was wrongfully convicted.

The high court could do anything from leaving him on death row to throwing out his conviction.

The case has been watched by activists around the world, and is the primary focus of Amnesty International USA's Death Penalty Abolition Campaign, its director, Laura Moye said Thursday. She plans to be at the hearing. The organization plans a rally for Clemons on Saturday.

"We were very struck by a long list of problems with the case, which to us was emblematic of the worst things that can happen in a death penalty," Moye said. She recited complaints about police misconduct, a lack of physical evidence and reliance on shaky witness testimony.

Not all of it will necessarily be a rehash of old issues.

A DNA test on evidence that might have been overlooked at the time of the trial may surface during what is expected to be a weeklong hearing at the Carnahan Courthouse downtown. What it shows has never been publicly revealed; lawyers in the case are under a gag order.

The St. Louis American reports, "Clemons hearing is Monday," by Chris King.

Missouri death row inmate Reginald Clemons finally will have his new day in court on Monday, September 17 when Judge Michael Manners convenes a hearing in St. Louis. Manners is the Special Master appointed by the Missouri Supreme Court on June 30, 2009 to gather new evidence in the case and submit a report to the court.

The instigation of a new evidence phase in the Clemons case by a court that had recently set an execution date for him was startling. For many years, Clemons and his pro bono defense team have claimed that the trial court permitted inadmissible evidence and that relevant evidence has appeared since his conviction that calls the verdict into question.

Indeed, on the day Clemons was sentenced to death, the key witness against him, Thomas Cummins, settled a police brutality claim against the St. Louis Metropolitan Police Department. Clemons alleged almost identical acts of brutality by some of the same detectives working the same case. Clemons’ coerced confession was permitted in court and helped to convict him, whereas Cummins’ coerced confession was retracted and he was paid $150,000 to settle his claim.

Earlier coverage of Reggie Clemons' case begins at the link.

The Trial of Reggie Clemons

That's the title of a four-article series this week in the Guardian.  It's written by Ed Pilkington, reporting from Potosi, Missouri on a long-controversial death penalty case.  Most of the articles are accompanied with video by Laurence Topham.  It's a must-read series.

The four articles in the order of publication are:

"Death penalty on trial: should Reggie Clemons live or die?  Reggie Clemons has spent 19 years on death row. Next month his case will be reviewed for one last time in a hearing that cuts to heart of the debate about capital punishment in America."

Reggie Clemons has one last chance to save his life. After 19 years on death row in Missouri for the murder of two young women, he has been granted a final opportunity to persuade a judge that he should be spared execution by lethal injection.

Next month, Clemons will be brought before a court presided over by a "special master", who will review the case one last time. The hearing will be unprecedented in its remit, but at its core will be a simple issue: should Reggie Clemons live or die?

That question is as deadly serious as it sounds. One of Clemons's three co-defendants has already been executed, and Clemons himself came within 12 days of being put to death in 2009.

The Reggie Clemons case has been a cause of legal dispute for the past two decades. Prosecutors alleged that he and his co-defendants brutally cut short the lives of Julie and Robin Kerry, sisters who had just started college and had their whole adult lives ahead of them.

"Julie and Robin Kerry: anti-racism activists opposed to the death penalty."

Julie Kerry was 20 when she died, studying English literature at college. She devoured all sorts of poetry and ballads, from Chaucer to Sinead O'Connor. She and McClain volunteered for numerous causes together, working with groups on HIV and Aids and joining charity walks for the homeless.

Robin was equally passionate about social justice. The Christmas before they died, the sisters were so moved by a feature in the St Louis-Post Dispatch about needy families in the city that they announced they were each going to help out. In a matter of days they raised $600 and delivered several car loads of food and Christmas gifts to two of the families.

If Julie was a poet, Robin, a year younger, was a fighter. In her book A Rip In Heaven: a Memoir of Murder, Jeanine Cummins, a cousin of the sisters, recounts the story of how Robin dealt with a bully at her school who was picking on another pupil. "She simply could not stand by while this jerk tormented the little guy day after day. She slammed her locker, marched over to the bully, and punched him in the jaw."

"Reggie Clemons: 21 discrepancies that cast doubt on his conviction. 

Was Reggie Clemons' confession beaten out of him? We look at the discrepancies thrown up during the course of the prosecution.

"Reggie Clemons: 'I know, and God knows. I know I'm innocent'."

Reggie Clemons knows what it's like to prepare for imminent death. In 2008, he came within 12 days of execution by lethal injection. In May that year he was issued with a death warrant and for the next 18 days he sat and waited in his prison cell, a short dead-man-walking distance from the death chamber. It was, he says, "a real strange time."

"Each day was real slow. You're paying attention to each and every little detail – every crack on the floor, how your shoe strings are laying that day – because these might be the very last moments of your life."

Earlier coverage of Reggie Clemons' case begins at the link

Virginia Triggerman Bill Again Voted Down

WAVY-TV posts the AP report, "Triggerman bill killed by Senate panel," written by Larry O'Dell.

For the fifth year in a row, the Virginia General Assembly has rejected legislation to expand the state's death penalty law.

The Senate Courts of Justice Committee voted 8-6, with one abstention, on Wednesday to kill a proposal to allow the death penalty for accomplices who share a murderer's intent to kill. The bill would have revised Virginia's "triggerman rule," which in most cases allows capital punishment only for the person who does the actual killing.

Two weeks ago, the Senate's own version of the Republican-backed bill died in the courts committee on a 7-7 party-line vote, with one GOP senator abstaining because he accepts court appointments to represent capital murder defendants. Sen. Bill Stanley of Franklin County abstained again Wednesday. Republican Sen. Bryce Reeves of Fredericksburg switched sides and voted against the bill.

Reeves said after the committee meeting that he changed his vote "based on my faith," but he declined to elaborate.

Similar bills cleared both the House and the Senate in 2008 and 2009, but were vetoed by then-Gov. Tim Kaine, a Democrat, and supporters of the legislation could not muster the two-thirds majority needed in both chambers of the General Assembly to override the vetoes. The Senate courts committee rejected the bills in 2010 and 2011, when Democrats held the majority.

"A step in the right direction," is the title of Nelson Graves' News Virginian column.

It’s really amazing how the now Republican controlled Virginia General Assembly works. For every step the General Assembly takes forward it takes two backward. Look at recent examples of how it seems the conservative state senators and delegates have their priorities backwards.

A step forward – two weeks ago, the assembly’s senate failed to pass the “triggerman” bill. According to the Associated Press, “A Senate committee killed a bill to expand Virginia’s death penalty.” The bill failed after party line voting ended in a 7-7 tie. As it happened a Courts of Justice Committee Republican abstained because he accepts court appointments to represent defendants in capital murder cases.    

The AP report goes on – “Death penalty opponents say Virginia should not expand capital punishment because the commonwealth ranks behind only Texas in the number of state executions conducted in the United States.

“They also said there is too much danger of executing an innocent person because there is no DNA or fingerprint evidence that would prove a conspirator’s intent.” A similar bill is working its way through the House of Delegates but must clear the same Senate committee.

One step backward involves the sales of guns.

Earlier coverage of the Virginia death penalty expansion legislation begins at the link.

Legislative Update - South Dakota, Virginia

We have brief AP reports from South Dakota and Virginia.

From South Dakota, the Rapid City Journal posts, "SD Legislature passes limit on inmate appeals."

The South Dakota Legislature has given final approval to a measure aimed at preventing death-row inmates from filing repeated appeals in an effort to delay their executions.

The House voted 60-5 to approve a bill that has already been passed by the Senate. It will become law if signed by Gov. Dennis Daugaard.

Attorney General Marty Jackley proposed the measure, saying limits are needed in death-penalty cases because some cases are tied up in appeals for two decades.

Virginia's WRIC-TV posts, "House Committee Voting On Death Penalty Expansion."

Legislation to expand the death penalty in Virginia is up for a key vote at the General Assembly.

The Republican-backed bill would redefine the so-called triggerman rule, which in most cases restricts the death penalty to the person who does the actual killing. The bill would allow the death penalty for accomplices who share the intent to kill.

Del. Todd Gilbert's bill is on the docket for Wednesday afternoon's Senate Courts of Justice Committee meeting.

Two weeks ago, the Senate's own version of the bill died in the courts committee on a 7-7 party line vote, with one Republican abstaining because he accepts court appointments to represent capital murder defendants. The same vote on the House bill would doom the triggerman revision for the fifth consecutive year. 

Earlier legislative coverage from South Dakota and Virginia at the links.  Related posts are in the state legislation index.

Virginia Death Penalty Expansion Voted Down in Senate Committee

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

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

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

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

And:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Texas Execution

Texas carried out its 10th execution of 2011, tonight in Huntsville.  It was the state's 474th execution since 1983. Texas has far and away the most active execution chamber in the nation accounting for more than 37% of America's post-Furman executions.

It was the 235th execution conducted under the administration of Rick Perry.  He became Governor of Texas upon the resignation of George W. Bush in December 2000.  152 men and women were executed in five years under Governor Bush's tenure.

Reuters posts, "Texas executes man for Dallas-area slayings," written by Karen Brooks.

Texas on Tuesday executed a man who was convicted for his involvement in the slayings of two people in north Texas, even though an alleged accomplice admitted to the killings.

Steven Michael Woods, 31, was convicted in the shooting and slashing of a young Dallas-area couple under a controversial Texas law that allows a defendant to be put to death for a murder someone else committed.

Woods was given a lethal injection of drugs and pronounced dead at 6:22 p.m. local time, said Michelle Lyons, a Texas Department of Criminal Justice spokeswoman.

In his last words, Woods told his mother he loved her, accused the state of committing a murder, and named his co-defendant, Marcus Rhodes, who pleaded guilty to murdering the couple and is serving a life sentence.

"You're not about to witness an execution. You are about to witness a murder. I am strapped down for something Marcus Rhodes did. I never killed nobody, ever," he said. "Justice has let me down. Somebody completely screwed this up. Well, Warden, if you're going to murder someone, go ahead and do it. Pull that trigger."

And:

The law allows a jury to find a defendant guilty of murder if they were involved in the crime, even if they did not directly commit the killing, or were involved in crimes that lead to the killing, or if they should have known the crime would happen and showed a "reckless disregard" for human life.

Woods maintains that all he did was witnesses a horrible crime, and then run for his life, but that the law he has called "barbaric" in web postings punished him for a crime he did not commit. Witnesses who said he told them he had killed the pair were lying, he has said.

To date, there have been 33 executions in the nation this year; 1,267 post-Furman executions since 1977.  

According to TDCJ, six additional executions are scheduled in Texas this year.

Related posts are in the law of parties index.

Sixth Circuit Again Reverses Ohio Death Sentence

"Federal court sets aside death sentence for condemned Ohio killer convicted in 1984 slaying," is the initial AP post, via the Republic.

A federal appeals court has once again set aside the death sentence of a man condemned to die for killing a woman during a 1984 robbery in eastern Ohio.

Thursday's decision by the 6th U.S. Circuit Court of Appeals in Cincinnati confirms the court's 2004 decision that the death sentence for John Stumpf was flawed because prosecutors told conflicting stories of his involvement in the killing.

The U.S. Supreme Court has previously upheld Stumpf's conviction.

And:

The appeals court said it was improper for prosecutors to argue that Stumpf shot Stout yet contend at a separate trial that Stumpf's companion was the triggerman.

The Zanesville Times Recorder reports, "Appeals court overturns conviction of man accused of killing New Concord woman."  It's written by Kathy Thompson.

This morning, the U.S. Sixth Circuit Court of Appeals ruled Stumpf’s due process rights were violated.

For the murder, Stumpf received the death penalty and was also sentenced to 25 years in prison, to run consecutively, for the attempted murder connected to the shooting of Mary Jane’s husband, Norman.

In 2004, the 6th Circuit vacated the conviction and death sentence based on an involuntary guilty plea and inconsistent prosecution theories and remanded the case back to Guernsey County for a retrial.

Then in 2005, the U.S. Supreme Court reversed that decision and placed the case back in the hands of the 6th Circuit Court.

Today's Sixth Circuit ruling in Stumpf v. Houk is available in Adobe .pdf format.  More on the 2005 U.S. Supreme Court ruling, Bradshaw v. Stumpf, is via Oyez.

Texas House Committee Hears Death Penalty Bills

"Bill to ban death penalty doomed, but supporters undeterred," is the title of Karen Brooks' report for the Dallas Morning News.

If there is one proposal that is already on death row in the staunchly conservative Legislature, it’s the bill to abolish the death penalty.

But that didn’t stop the lively discussion on the issue in a House committee Tuesday.

“We need to end the death penalty. Not sit around and think about it,” said Gratia Winship, an Austinite whose friend, Michael Cahill, was murdered in the 1970s.

After years of being shut out of the discussion, Winship and others like her gave lawmakers hours of testimony on bills that would mostly chip away at, or do away with, the death penalty.

Among them were measures to create a moratorium, limit testimony that can be allowed in a death penalty case, and require confessions to be recorded on video. Two bills would abolish the death penalty altogether.

One would expand the death penalty to include people who kill while under a restraining order.

Death penalty opponents are not a popular lot in Texas, which has far more executions than any other state. When former state prisons director Charles Terrell of Dallas called for a moratorium, his name was stripped off the Livingston Death Row unit.

And:

Rep. Pete Gallego, D-Alpine, was undeterred by the idea that his hours-long hearing on an unpopular bill was unnecessary because “democracy is never a waste of time,” he said

And, he argued, recent cases of people who were wrongfully convicted could have opened some minds.

“I don’t think there’s a large number who would say in good faith that the justice system hasn’t made mistakes,” Gallego said.

The AP report is, "Texas House panel considers death penalty bills," by Sommer Ingram.  It's via the Houston Chronicle.

A Texas lawmaker wants to suspend executions in the nation's most active death penalty state and create a commission to study whether the process needs to be fixed.

A state House committee heard testimony Tuesday on a bill by Rep. Harold Dutton, D-Houston, that would create the Texas Capital Punishment Commission and establish a two-year moratorium on executions while the commission completes its study.

And:

Dutton's bill was just one of several bills the committee left pending to change the state death penalty and alter procedures in capital felony cases.

Dutton and Rep. Borris Miles, D-Houston, are working to amend a state law that has prompted nationwide criticism.

A Texas statute known as the law of parties allows a person to be held liable for a murder as a co-conspirator and possibly face the death penalty even if they didn't physically commit the crime.

The bills would allow co-defendants to have separate trials in death penalty cases. Dutton's bill would prohibit death sentences in such cases.

Family members and friends of Texans convicted under the law testified before the committee, pleading with lawmakers to fundamentally change the statute that unfairly sent their loved ones to death row.

The statute caught lawmakers' attention in 2007 when the case of Kenneth Foster spurred national outrage and a massive grassroots effort to prove his innocence.

Dave Montgomery writes, "Bill calls for two-year moratorium on executions in Texas," for the Fort Worth Star-Telegram.  An abbreviated version is available from McClatchy DC.

Clarence Brandley spent 10 years on Death Row for the slaying of a 16-year-old girl, a crime he didn't commit. Now, more than two decades after being cleared, the former custodian hopes to convince Texas lawmakers that it's time to abolish the death penalty in Texas -- or least impose a moratorium on executions.

"To me, it's just a tool that prosecutors use to enhance their political careers," he said.

And:

Former Gov. Mark White, who oversaw 19 executions while he was in office from 1983 to 1987, endorsed the moratorium in a letter to the committee. White, a Democrat who has previously raised questions about the death penalty, said he believes that the review is needed to deflect "the possibility of our justice system executing an innocent individual."

Charles Terrell, former chairman of the Texas Criminal Justice Department, also supports the moratorium and investigative commission, calling Dutton's bill a "matter of common sense."

"Texas does not need to be executing innocent people, and what harm does a moratorium do?" he said. He noted that Death Row inmates "would not be released from prison while the study is done."

More than 40 exonerations in Texas -- including several of Death Row inmates -- have fueled efforts to abolish or suspend the death penalty.

Opponents also cite the high-profile case of Cameron Todd Willingham, who was executed in 2004 after a Corsicana jury convicted him of killing his three daughters in a house fire.

Several fire experts have said that the arson investigation was based on outmoded science, raising the possibility that the fire may have been accidental. The Texas Forensic Science Commission is reported to be nearly finished with an inquiry into the case.

The bills were left pending in the House Criminal Jurisprudence Committee.

Virginia Senate Panel Rejects 'Triggerman' Bill

That's the title of the news report in today's Virginian Pilot.  It's written by Julian Walker.

Legislation described as a “pared-down” expansion of the death penalty died in a Senate committee Wednesday.

Sen. Mark Obenshain’s bill, SB1200, was drafted to redefine the so-called triggerman rule to a make it clear in the law that a principal co-conspirator in the rape and murder of another would be eligible for the death penalty even if the offender didn’t commit the killing. Under current law, only the person who commits capital murder can be sentenced to death.

The bill to change that policy was defeated on an 8-6 vote in the Senate Courts of Justice Committee.

It came up in that committee Monday, but action was delayed after Senate Majority Leader Richard Saslaw, D-Fairfax County, requested an amendment to the bill to exempt a person who was present during a rape and murder but didn’t actively participate in either act.

The revised bill, Obenshain told the committee Wednesday, achieved his goal of targeting criminals “who are truly culpable” in rapes and homicides.

And:

Sen. Donald McEachin, D-Charles City County, pleaded with his colleagues to reject the proposal because people can sometimes be wrongfully convicted and sentenced to death.

“This is the ultimate penalty,” he said. “There is no exoneration.”

A Pilot editorial against the measure begins the earlier coverage.

Wrong Direction for Death Penalty

That's the title of an editorial in today's Virginian Pilot.

Sen. Mark Obenshain is once again pushing a proposal to expand Virginia's use of capital punishment by doing away with the so-called "triggerman rule."

The move comes despite the state's reputation for putting to death more people - 108 - than any other state except Texas since 1976.

The bill is an unfortunate piece of legislation that, if history is any indicator, would ultimately cost taxpayers more and do little or nothing to deter crime.

Worse, it's not needed. Exceptions to the triggerman rule already exist, as the Teresa Lewis case and others have shown.

And:

Unfortunately, Obenshain's proposal could open the door to more instances in which defendants who never pulled the trigger end up on death row. Such an outcome highlights the arbitrary nature of the death penalty and increases the risk of an innocent person being mistakenly condemned.

It also ignores the fact that capital cases are extremely costly to the state, dragging on for months and nearly always mired for years in the appeals process.

Last year, when the same proposal was made in the General Assembly, the state's former chief executioner was among those who spoke against expanding the death penalty. Jerry Givens oversaw 62 executions between 1982 and 1999 and concluded that more death simply wasn't the answer.

Life in prison without parole is a severe but humane punishment, an option that more states are choosing.

Earlier coverage of the Virginia legislation from this year, at the link; and from last year's legislative session.  There is also more on last year's controversial execution of Teresa Lewis.

Legislation in the States

In New Jersey, the Star-Ledger reports, "N.J. lawmaker introduces bill reinstating the death penalty."  It's written by Megan DeMarco.

A New Jersey legislator has introduced legislation that would reinstate the death penalty in New Jersey.

The bill, introduced by Sen. Robert Singer (R-Ocean), would reinstate the death penalty for those convicted of murdering a child, killing a police officer in the line of duty, or committing a fatal terrorist attack.

Singer represents Lakewood, where officer Christopher Matlosz was shot execution-style. Ten police officers in the United States have been killed by gunfire in the line of duty this year, he said.

And

Former Gov. Jon Corzine repealed the death penalty in New Jersey in December 2007. When Corzine signed the bill into law, New Jersey had not executed anyone in 44 years.

North Carolina's alt-weekly Indy Week reports, "The Racial Justice Act: GOP could repeal or amend landmark legislation."  It's by Samiha Khanna.

With surprising poise for a man who insists he's quite shy, Ed Chapman, 43, stood before an audience of strangers. Smiling, and even joking at times, Chapman recounted the lies and negligence that wrongfully sent him to prison for the deaths of two Catawba County women. The moment of his conviction, Chapman said, "was an out-of-body experience."

A judge later found investigators withheld evidence in Chapman's case. One of the women he allegedly murdered may actually have died of a drug overdose. A police officer lied on the witness stand. And, Chapman said, one of the white men on his jury admitted openly to being racist.

"He didn't hide it," said Chapman, who is black. "And to this day, I respect him for being up front about it."

Chapman has repeated these details dozens of times. He was one of three black death-row inmates cleared between 2007 and 2008 because of incomplete investigations or insufficient evidence. After they were released, the former prisoners became part of a campaign for criminal justice reform, specifically the N.C. Racial Justice Act.

The Racial Justice Act passed in August 2009, propelled through the Legislature by death penalty opponents, civil rights advocates and a coalition of dogged Democrats. The law allows death row defendants to appeal their sentences on grounds of racial discrimination. If defendants can show statistics proving that race played a role in their sentencing or in a prosecutor's decision to seek the death penalty, they would avoid being put to death. The defendants would instead be allowed to serve life sentences without parole.

The legislation has been heralded nationally as a leap for civil rights, notable especially for the South and a state with a history haunted by racial inequity. But erasing part or all of the statute is on the agenda for the new Republican majority when it takes hold of this legislative session on Wednesday. Although other priorities—balancing the budget and easing unemployment—are expected to take precedence, incoming House Majority Leader Paul "Skip" Stam, R-Wake, has said he's pushing to repeal the Racial Justice Act.

From Virginia, AP posts, "Push for Va death penalty expansion advances," via WRIC-TV.

A renewed, scaled-back push to expand the death penalty is advancing in the Senate.

Republican Sen. Mark Obenshain has tried for years to repeal Virginia's triggerman rule, which allows only the person who does the actual killing to receive the death penalty. When it has advanced, the measure was vetoed.

On Thursday, a subcommittee of the Senate Courts of Justice Committee gave preliminary approval to Obenshain's bill to allow the death penalty for co-conspirators only in cases where a victim was raped and murdered. He argued that it shouldn't matter which defendant pulled the trigger.

Opponents argue any expansion of the death penalty increases chances of executing someone who is innocent.

Related posts are in the state legislation index.

Ford Competency Hearing in Bexar County

Today's San Antonio Express-News reports, "Death row convict's lawyers argue he's incompetent," by Guillermo Contreras.

A man convicted of participating in a fatal robbery in Kerrville is arguing he is mentally incompetent to be put to death.

At a hearing that began Tuesday, lawyers for Jeffrey Lee Wood, 36, tried to convince U.S. District Judge Orlando Garcia that Wood is too delusional to understand why he is to die.

Wood believes, among other things, that he is the victim of a Freemason conspiracy and that bribing the trial judge would have fixed his problems, court records show.

In 1998, Wood was convicted and sentenced to die for the murder of store clerk Kris Keeran under Texas' “law of parties,” which makes all who are involved in a felony, like robbery, subject to the death penalty if one of them commits murder in the course of it.

And:

On the eve of Wood's execution in August 2008, Garcia issued him a stay, finding Wood had made bizarre statements at his trial and in prison that “at least arguably suggest the petitioner lacks a rational understanding of the causal link between his role in his criminal offense and the reason he has been sentenced to death.”

Garcia said at the time that the Texas courts erred when they refused to hire mental health experts to determine whether Wood was insane or to appoint a lawyer to represent him at a competency hearing.

The U.S. Supreme Court has held it is unconstitutional to execute insane people who can't understand why they are being put to death or that their execution is imminent.

Wood's mental problems gave one jury reason to find him incompetent to stand trial. After spending time in a mental hospital, he was found competent by a second jury.

Evidence of his mental troubles never was brought before the jury that imposed the death penalty because Wood, who once tried to represent himself, became angry and told his lawyers to do nothing during the penalty phase. They complied.

The article notes that the hearing is continuing today. Earlier coverage of the Wood case is here.

The question of competency to be executed was addressed in a 1989 Supreme Court case which set the standard for evaluating competency to be executed, Ford v. Wainwright.  The Supreme Court revisited the subject in 2007 in the Texas case of Scott Panetti; more on Panetti v. Quarterman, via Oyez.

Several notable posts on the question of competency to be excuted:

• The Criminally Mentally Ill
• Scholarship -Mental Illness & Competency to Be Executed

Related posts are in the mental illness index, including recent coverage of the case of Steven Staley, another severely mentally ill Texas death row inmate.

State Legislative Roundup

In Nebraska, today's Lincoln Journal Star reports, "Death penalty cost bill to be debated in Legislature," by JoAnne Young.

The Legislature will get a chance to debate a bill this session that would require a study of death penalty costs.

Omaha Sen. Brenda Council made the bill (LB1105) her priority. At its hearing Council said its aim would be to set aside the emotion of the death penalty debate and get a handle on the financial costs.

Supporters of the bill said it would help to answer the question of whether having the death penalty is impeding progress on pursuing better ways to address violent crime.

Opponents have said people who support the death penalty don't care how much money it costs.

The bill was amended by the committee to authorize the Community Corrections Council to supervise the study, which would likely be done by the College of Public Affairs and Community Service at the University of Nebraska at Omaha.

"This is a critical study," said Omaha Sen. Brad Ashford, Judiciary Committee chairman.

It would examine the direct and indirect costs of administering both death penalty and non-death penalty sentences resulting from first-degree murder cases.

It would include costs to the attorney general's office, the department of corrections, counties that prosecute and defend the cases, the courts and appellate courts, advocacy offices and law enforcement.

Those capital punishment cases would be compared with noncapital cases of people convicted over the past 25 years.

Virginia's Culpeper Star Exponent carries the Media General News Service report, "Panel gives split decision on death penalty bills."

The Senate Courts of Justice Committee Tuesday rejected a House version of a bill that would have expand those eligible for the death penalty to include accomplices and accessories to the murder of a law enforcement officer.

But the panel approved an expansion of the death penalty for the murder of fire marshals and auxiliary police officers.

House Bill 502, sponsored by Del. C. Todd Gilbert, R-Shenandoah, was a narrower version of a previously defeated Senate bill that would have repealed the so-called “triggerman” law. The “triggerman” law stipulates, with limited exceptions, that only the actual killer can be eligible for the death penalty upon conviction of capital murder.

Gilbert’s bill, defeated by a 9-6 vote, would have only applied to law enforcement officers, essentially adding their category to the other exceptions to the statute, which include murder for hire, terrorism and organized crime killings.

The committee’s action means the “triggerman” legislation is essentially done for the year. Last year it narrowly passed the Senate and was vetoed by then-Gov. Timothy M. Kaine.

The committee approved House Bill 166, which would add fire marshals with law enforcement powers to the capital murder statute. Also approved was House Bill 934, which adds the murder of auxiliary police to the capital murder statute. Both measures now come before the full Senate.

Earlier coverage from Nebraska and Virginia at the respective links.

Editorial Roundup

Today's Wichita Eagle carries the editorial, "At least Senate had debate, vote," written by Rhonda Holman for the editorial board.

Under Kansas' death penalty statute, it takes 12 jurors to hand down a death sentence, which must be unanimous. But as Kansans learned last week, a 20-20 tie vote in the state Senate lets the death penalty itself stand as state law.

Because of House disinterest, that likely is the end of this year's effort to end the death penalty, starting with crimes committed July 1 and beyond, in favor of creating a new charge of "aggravated murder" with a sentence of life without parole.

Still, the Senate's emotional debate Friday revealed that support for capital punishment has weakened some since it passed the chamber in 1994 on a 22-18 vote. This time, 12 of 31 Republicans opposed the death penalty (compared with 7 of 27 Republicans in 1994).

State Sen. Carolyn McGinn, R-Sedgwick, deserves credit for bringing up the issue last year and framing a repeal as one way to help the state's fiscal problems, suggesting Friday that the savings could be invested in solving cold cases. Capital punishment's costs are secondary to other concerns — such as justice — but they aren't irrelevant, especially now.

And on its face, the statute has nothing to show for itself but the high cost of capital cases — an estimated 75 percent higher than cases in which the death penalty is not sought. Yes, 10 men are on Kansas' death row, including notorious area killers Jonathan and Reginald Carr, Douglas Belt and Justin Thurber. But their appeals are pending, with no end in sight. The state last executed someone in 1965.

The News Leader of Staunton, Virginia carried the editorial, "Death penalty not always just,"

State lawmakers running for reelection in November won't be able to tout that they were tough on crime by having been able to kill more fellow Virginians.

This potential setback to the lawmaker's political livelihood was dealt a huge blow this week when a bill to expand the death penalty to include accomplices, who don't actually pull the trigger, was rightfully defeated in a Senate committee.

Obviously buoyed by the swinging of the balance of power to the Republicans, proponents of the expansion must have been salivating to get a bill to Gov. McDonnell, who has indicated he would sign it into law. What he didn't count on was the testimony of Jerry Givens who was the state's chief executioner from 1982-1999. Having presided over 62 executions, Given admonished the committee that neither he nor they should have the right to decide who lives and who dies.

How right he is. We agree that giving prosecutors such discretion to widen the scope of individuals who will leave prison feet first is a dangerous slope that could lead to overzealous implementations based largely on the testimony of others involved in the crime, which could be dubious testimony, at best.

At a time when executions are being curtailed, why is Virginia pining to ramp up and widen the net to those who didn't actually fire the gun or thrust the knife? Perhaps we don't like the distinction of being second to Texas in the number of executions carried out since 1976 — we want to be No. 1! Why? Not because it is a deterrent, because it isn't. Studies have shown that there is no correlation between availability of the death penalty and lower murder rates. In fact, the opposite correlation exists. According to1997-2007 data from the Death Penalty Information Center, the murder rate in states without the death penalty was nearly 40 percent lower than states with the death penalty.

Earlier coverage from Kansas is here; Virginia, here.

More on Defeat of Virginia 'Triggerman' Legislation

Virginia's Augusta Free Press carries, "Gilbert: 'We are back to square one' on triggerman bill," by Chris Graham.

Legislation known as the triggerman bill that would extend exposure to the death penalty to people complicit but not actually participants in capital murders failed in a State Senate committee on Monday, and its proponents are blaming partisanship.

“Democrats stacked the Courts committee this year, and it shows,” State Sen. Mark Obenshain, R-Harrisonburg, wrote in an e-mail newsletter on Monday after the 9-6 party-line vote that killed his triggerman bill, SB 7, which would allow principals in the second degree and accessories before the fact to be charged as principals in the first degree in the cases of murder for hire, murder involving a continuing criminal enterprise, and terrorism.

“It wasn’t a total shock,” said State Del. Todd Gilbert, R-Woodstock, the author of a similar piece of legislation that passed the House on Feb. 3 by a 74-24 vote, saying the move by Senate Democratic leaders to stack the Courts of Justice Committee with a 9-6 Democratic majority was a sign of things to come on criminal-justice matters.

The bill had passed out of the Senate three times before falling victim to former Gov. Tim Kaine’s veto pen.

And:

Gilbert’s bill is still technically alive, but it would have to pass the Courts of Justice Committee. Gilbert doesn’t have high hopes for its passage.

Brian Evans of Amnesty International posts, "Former Executioner Helps Sink Virginia Death Penalty Expansion," at Opposing Views.

With a new Governor in place who was eager to sign the legislation, the bill was widely expected to pass, despite the fact that such an expansion would have greatly increased the risk of wrongful convictions and wrongful executions.

The drama came when former Virginia executioner Jerry Givens, who took part in 62 executions, testified against the bill. Mr. Givens told the committee how traumatic the execution process is for those enlisted to participate. Afterwards, he told The Washington Post<: “The people who pass these bills, they don’t have to do it. The people who do the executions, they’re the ones who suffer through it.”

Support for the death penalty is often inversely proportional to one’s distance from the realities of the process. Those with first-hand experience see how traumatic and degrading it can be, while those on the sidelines cheerlead for more executions comfortable in the knowledge that they will never have to deal directly with the ugly consequences.

Dallas Morning News journalist Diane Jennings noted Givens opposition in a post at the paper's Death Penalty blog, "Former executioner in Virginia opposes death penalty."

In Virginia, a state that, like Texas, is known for its use of the death penalty, legislators recently rejected several efforts to expand capital punishment. The only measure to survive was one that would allow the death penalty in cases where an auxiliary police officer is killed on duty.

But what caught my eye in this Associated Press story was a comment by the state's former executioner, Jerry Givens of Henrico, who presided over 62 executions and now opposes the ultimate sanction.

Earlier coverage, including Givens' opposition, begins with this post.  It's not the first time that the former Virginia executioner has spoken out.

ABC News profiled Givens in 2007.  "Interview With an Executioner," was produced by Jim Avila, Mary Haris, and Chris Francescani.

Jerry Givens spent 17 years as a professional killer. From 1982 to 1999, he killed 62 people.

He was never punished. His work was paid for by the Commonwealth of Virginia.

As the state's chief executioner, Givens pushed the buttons that administered lethal doses of electricity to the condemned. He could even choose how many volts to administer. And he is the first to admit that it was largely guesswork.

"If he was a small guy, I didn't give that much. You try not to cook the body, you know. I hate to sound gross,'' he told ABC News in a rare interview.

Only a handful of executioners in America have ever spoken publicly about their experiences, and fewer, if any, have revealed the emotional toll the job can take on a person or the mind-set of the man behind the proverbial mask.

Givens told ABC News that his experiences in the death chamber have caused him to change course and oppose the death penalty.

Givens was also profiled in 2008 by Australia's Sydney Morning Herald, noted in this post.

Virginia Senate Committee Rejects Expansion

"Va. Senate panel rejects death penalty use for accomplices," is the title of Rosalind Helderman's article in today's Washington Post.

A key committee of the Virginia Senate rejected a bill Monday that would have expanded the use of the death penalty to accomplices of murder after the former chief executioner of the commonwealth testified that he thought the death penalty should be limited. The same measure passed the Democratic-led senate last year, and only a veto by then-Gov. Timothy M. Kaine (D) kept it from becoming law.

The Virginian Pilot reports, "Most Va. death penalty expansion bills rejected."  It's written by Alicia P.Q. Wittmeyer.  Here's an extended excerpt:

With a governor supportive of expanding capital punishment finally in office, this was going to be the year a perennial effort to repeal the state’s so-called  triggerman  law finally found success.

But  Monday, a Senate committee that had reliably approved the effort in past years voted it down  in the face of arguments about the costs of making more crimes eligible for the death penalty  – and a plea from Virginia’s former chief executioner to stop expanding capital punishment.

The Senate Courts of Justice Committee also voted against a bill that would have expanded capital punishment to include those who killed  various emergency responders while they were on duty, including fire marshals, firefighters, special forest wardens, and emergency medical  technicians .

The triggerman repeal bill, sponsored by Sen. Mark Obenshain, R-Harrisonburg, is an effort to make accomplices to murder eligible for the death penalty  along with those who actually did the deed.

The triggerman law “draws distinctions that are artificial between two people,” Obenshain said. “They share the intent to commit that capital murder and they should be subject to capital punishment.”

Proponents of changing the law cite the trial of Washington-area sniper John Allen Muhammad, in which prosecutors were initially hampered because Muhammad’s younger accomplice, Lee Boyd Malvo actually pulled the trigger during the shootings.

Obenshain’s bill passed both the House and Senate last year, and was stopped only by Gov. Timothy M. Kaine’s veto. Many believed that with Gov. Bob McDonnell now in office, the bill would again pass through the legislature and become law.

But some small changes on the Senate Courts of Justice committee barred its way. Former Sen. Ken Stolle, R–Virginia Beach, who had previously voted for the bill, was replaced by a Democrat.

And former gubernatorial candidate Sen. Creigh Deeds, D–Bath County, who had previously been supportive of Obenshain’s measures, voted against the bill this time around. The bill failed on a 9-6 vote.

“I went in the room intending to vote for the bill,” Deeds said. But he said he changed his mind after hearing the people who’d come to speak against it. “The testimony today was very compelling.”

Those included Virginia’s former chief executioner Jerry Givens, who oversaw 62 executions between 1982 and 1999. He was in favor of the death penalty at the time, he said, but since then, time and too many state-ordered deaths had changed his mind, he said.

AP reports, "Bill allows police killers to be executed," via the Roanoke Times.

A Senate committee has rejected proposals to dramatically expand the number of crimes in Virginia that qualify for the death penalty. But it approved one to allow those who kill auxiliary police officers to be punished by death.

The Charlottesvile Daily Progress carries, "Senate panel defeats death penalty expansion," by Jim Nolan.

The hearing on the bill was highlighted by nearly more than a dozen speakers, all but one of whom expressed opposition to the measure.

Opponents included death-penalty opponents and the Virginia chapter of the American Civil Liberties Union as well as Richmond Commonwealth’s Attorney Michael N. Herring. He parted with the position of the Association of Commonwealth’s Attorneys, which spoke in support of the legislation.

The Chatham Star-Tribune focused on House passage of the bill, rather than the Senate action, in, "House votes to repeal 'triggerman rule'." by Meghan Spellman and Sarah Sonies. 

A divided House of Delegates has passed a bill to expand the death penalty by repealing Virginia's "triggerman rule." On a 74-24 vote, the House approved a bill that would make it easier for judges to hand down a death sentence to an accomplice in a capital murder case

House Bill 502, sponsored by Delegate Todd Gilbert, R-Woodstock, cleared the House on Feb. 3 and has been referred to the Senate Courts of Justice Committee. That committee also has been considering a companion measure - Senate Bill 7, sponsored by Sen. Mark Obenshain, R-Harrisonburg.

Under existing Virginia law, only the gunman in a murder is eligible for the death penalty unless there is proof "beyond a reasonable doubt that accomplices in a capital murder share the premeditated intent of the actual perpetrator."

Earlier coverage from Virginia begins with this post.  Perhaps someone in Virginia read Michael Landauer's post, "Virginia headed in wrong direction on death penalty, following Texas' lead," at the Dallas Morning News Death Penalty blog, noted here.

Virginians Should Say No to Expanding Death Penalty

That's the title of John Whitehead's latest commentary at the Rutherford Institute.  LINK

As capital punishment studies have shown, whether or not you are sentenced to death often has little to do with the crime and everything to do with your race, where you live, and who prosecutes your case.

This is especially so in Virginia, which is one of the most pro-death penalty states in the country, second only to Texas in the number of executions carried out since 1976. Nevertheless, despite the fact that the Commonwealth continues to labor under an egregiously flawed (and expensive) justice system--and is once again in the throes of a massive budgetary crisis, the Virginia General Assembly is pushing through legislation that will only serve to worsen this state of affairs by expanding its death penalty. The various proposals to expand the death penalty include adding fire marshals, assistant fire marshals, auxiliary police officers, and uncompensated auxiliary police officers to the capital murder statute. One bill would also abolish Virginia’s “triggerman rule” by making accomplices in capital murder cases eligible for the death penalty.

At a time of economic uncertainty, when Americans are looking to their elected representatives for fiscally sound, responsible leadership and a wise use of taxpayer funds, here are five good reasons to minimize, rather than expand, the applicability of the death penalty--especially in the Commonwealth of Virginia, which currently faces a roughly $4 billion budgetary shortfall.

And:

It is time for our elected representatives to ensure that their legislative efforts reflect the priorities of their constituents. For most Virginians, that means keeping a roof over their heads, food on the table and ensuring that their taxpayer dollars are being used where they can do the most good. At a time when Virginia lawmakers are being forced to eliminate thousands of jobs, slash agencies’ spending and trim millions from education and Medicaid programs for the indigent, elderly and disabled, the last thing our representatives need to be doing is adding to the tax burden by expanding the scope of the death penalty.

Earlier coverage from Virginia begins with this post.

More on Virginia Legislation

The Washington Examiner reports, "Va. House passes death penalty expansion," by William Flook.

Virginia's House of Delegates on Wednesday easily passed an expansion of capital punishment that had long been vetoed by former Gov. Tim Kaine.

The bill, which would abolish Virginia's "triggerman" rule by making accomplices in capital murder cases eligible for the death penalty, cleared the Republican-controlled chamber on a 72-24 vote. Current law allows only the killer himself to be put to death, with some exceptions.

The House also approved legislation that would allow killers of EMS personnel, fire marshals and auxiliary police officers to be executed.

And:

Gov. Bob McDonnell, a Republican who took office last month, is expected to sign the legislation into law if it reaches his desk.

Similar legislation remains in committee in the Senate, which now stands as the last hope of death penalty opponents to keep the triggerman rule in place. Beth Panilaitis, executive director of Virginians for Alternatives to the Death Penalty, said the group is disappointed by the House's passage of the bill, which she calls "unnecessary and excessive."

"This bill will not make the citizens of Virginia any safer and will exacerbate the already arbitrary application on the basis of race and geography," she said. "With Virginia facing a major budget shortfall, it is irresponsible to expand the death penalty and take away funding from critical programs."

The governor was pleased by the vote, said spokesman Tucker Martin. McDonnell, a former local prosecutor and state attorney general, "strongly believes that equal culpability demands equal punishment," Martin said.

Virginia has put to death 105 people since 1976, when the Supreme Court ruled reinstated the death penalty, making the commonwealth second only to Texas in executions.

Reacting to the legislation, Michael Landauer posts, "Virginia headed in wrong direction on death penalty, following Texas' lead," at the Dallas Morning News Death Penalty blog.

Texas is always at the top of the list in terms of executions, but with the election of a pro-death penalty governor, Virginia may be making a surge. That's what the Virginian-Pilot reports.

Specifically, Virginia has passed a bill creating a law of parties, allowing for the death penalty for accomplices. That's the wrong direction, and it gives cover to Texas law-makers who defend our practice of executing accomplices if the triggerman talks first. Essentially, under our system, if a triggerman breaks the case with a confession in a plea deal, the accomplice can be the one who faces death. It can also mean that an accomplice tried first can get death when another jury finds that the triggerman didn't even commit a crime worthy of death. I've written about a simple fix for that problem.

Earlier coverage begins with the Pilot article, noted here.

Death Penalty Likely to Expand in Virginia Under McDonnell

That's the title of Bill Sizemore's report in today Virginian.  LINK

With a new governor in office, Virginia appears poised to significantly expand its use of the death penalty.

Two death-penalty bills won preliminary approval by overwhelming margins Tuesday in the House of Delegates. One would make accomplices to a murder eligible for capital punishment. The other would extend the ultimate penalty to the killers of emergency personnel other than police officers.

Both measures have been passed by the General Assembly before and vetoed by former Gov. Timothy M. Kaine. Gov. Bob McDonnell, a Republican who took office last month, is favorably disposed toward both, a spokeswoman said Tuesday.

HB502, sponsored by Del. Todd Gilbert, R-Woodstock, would repeal the state's "triggerman rule," which provides that only the actual perpetrator of a capital murder is eligible for the death penalty. Gilbert's bill would make accomplices eligible as well if it is proven they had the same intent to kill as the actual murderer, or if they ordered or directed the slaying.

The measure "ensures that equally guilty defendants are treated equally under the law," Gilbert told the House. He noted that under existing Virginia law, such figures as Osama bin Laden and Charles Manson could not have been put to death.

Arguing against the bill, Del. Joseph Morrissey, D-Richmond, called it "unwarranted, unworthy and un-Christian." He said capital punishment is more costly to administer than life in prison, ineffective as a deterrent, disproportionately applied to minorities and occasionally meted out to innocent people.

During questioning from Morrissey, Gilbert acknowledged that under his bill, someone who wasn't present at the scene of a murder could be put to death for it.

The bill was approved 73-25.

The second measure, HB166, sponsored by Del. Brenda Pogge, R-Yorktown, would expand the death penalty to cover the killers of auxiliary law-enforcement officers, emergency medical services personnel, fire marshals and assistant fire marshals.

And:

Pogge's bill was approved 71-24. Pending final House passage today, both measures will go to the Senate.

Already, Virginia has executed more convicted criminals than any other state except Texas since the resumption of capital punishment in the United States in 1976.

The pace of executions has slowed in recent years. Kaine, a Democrat and death-penalty opponent, vetoed several legislative attempts to expand the state's capital punishment laws during his just-completed four-year term.

Earlier coverage from Virginia begins with this post.  Related articles are in the law of parties/felony murder rule index.

More State Legislatures Gearing Up

In addition to Kansas, there are news stories and an editorial regarding legislative sessions gearing up in Connecticut, Maryland, and Virginia.  

The Sunday Norwich Bulletin addressed Connecticut's agenda in, "Here's how to fix state."

This morning, we’d like to offer some ideas to solve the state’s fiscal problem. We concede that some of our ideas cannot be implemented immediately, thus there is no immediate savings to be realized.

But the size and scope of the fiscal crisis is not just an immediate problem, it’s long term. What’s been the problem, we believe, is the solutions offered only look at the immediate — and thus contribute and compound the long term problem.

It will require a combination of spending cuts and revenue increases to solve this problem. The priority, however, must first be on reducing the size of government and state spending — and that’s where we begin.

Let’s start by reducing the size of government by looking first at the General Assembly.

And:

Repeal the state’s death penalty. How do we justify cutting services to the state’s needy while at the same time spending hundreds of thousands of dollars a year on decade-long appeals of sentences that never get carried out? If the governor vetoes the measure again, override it.

Today's Baltimore Sun carries, "On eve of Assembly session, specters of budget woes, fall elections loom," written by Julie Bykowicz.

Gov. Martin O'Malley and the Democratic-controlled General Assembly will begin the 90-day legislative session Wednesday with one eye on the battered budget and the other on this fall's election.

Even as they grapple with the budget, lawmakers are also expected to contend with a raft of policy issues of interest to voters. Chief among them is whether to re-regulate energy, an idea that O'Malley pushed last year but might back away from this session.

Topping the public safety agenda are tweaks to the new death-penalty regulations and changes to sex-offender and gang laws. And lawmakers may revamp the unemployment-insurance program and the way teachers are evaluated and compensated.

All 188 lawmakers and the Democratic governor are up for re-election in November. A primary challenger and Republican challenger, both relatively unknown, have said they will square off against O'Malley, but he is preparing for the possibility that former Gov. Robert L. Ehrlich Jr., who lost to O'Malley in 2006, will get into the race.

And, this excerpt refers to Democrat Thomas V. Mike Miller, the Senate President:

Also on the public safety front, Miller said he will put forward a bill that would expand the list of evidence that can be used in death penalty cases. Senators last year side-stepped a full repeal of capital punishment, proposed by O'Malley, by instead requiring that prosecutors have either DNA evidence, a videotaped confession of the killer or a video recording of the crime.

Miller said the new capital punishment statute is too narrow. He said the list of acceptable evidence should have included fingerprints and still-photographic evidence.

"We made a mistake that needs to be corrected," he said.

Jim Nolan writes, "Bills, resolutions already filed by state lawmakers," for the Richmond Times-Dispatch in Virginia.

While a good deal of the 2010 General Assembly will be spent wrangling over the state budget, lawmakers also will propose legislation that could fundamentally change state law regarding guns, wireless-device usage and the death penalty.

Measures addressing those issues are among the more than 325 bills and 69 resolutions already filed by lawmakers in advance of the session, which convenes Wednesday and runs through March 13.

With Republican Gov.-elect Bob McDonnell prepared to take office Saturday, a number of bills that passed the legislature but were vetoed by Gov. Timothy M. Kaine could find their way into the Virginia code. For example, Kaine vetoed a number of firearms bills and all attempts to expand the death penalty.

And:

Death Penalty

• Senate Bill 7, sponsored by Sen. Mark D. Obenshain, R-Harrisonburg, would repeal the "triggerman" rule, effectively allowing the death penalty to apply as a sentencing option to accomplices in capital murders.

• Senate Bill 54, sponsored by Sen. Stephen H. Martin, R-Chesterfield, would expand eligibility for the death penalty to include murders of firefighters and emergency personnel.

Earlier coverage from Virginia is here.

Virginia Governor on Capital Punishment

"Kaine: A look back," by Jim Nolan appears in today's Stafford County Sun of Virginia.

It’s just before 7:30 a.m. on a December Monday, and the fog in Richmond is so thick that the twin-engine plane in which Gov. Timothy M. Kaine planned to crisscross the commonwealth to christen a series of work-force centers is grounded.

No matter, Kaine said. We’ll just drive.

Heading to traffic-clogged Northern Virginia at the peak of rush hour isn’t the optimal way to make a 9 a.m. appointment. But then, Kaine’s four years as governor haven’t been about cruise control and blue skies.

The 51-year-old Democrat has governed during the worst national economic crisis since the Great Depression. He has cut $7 billion from state spending since 2007, and he recently presented a budget for 2010-12 that slashes an additional $2.3 billion.

Kaine is the first governor in the state’s modern history to leave office with a budget that has less revenue than the one he inherited.

“I didn’t have a bumper sticker that said, ‘Kaine will cut more out of the state budget than anybody in history,‘“ he tells a gathering at the opening of a Woodbridge center for employment and job-training services.

And:

Kaine also vetoed attempts to expand the scope of the death penalty.

“I took a personal pleasure in vetoing every death-penalty bill that came to my desk” said the governor. “We don’t need to expand the death penalty to make Virginia safer.“

Kaine personally opposes capital punishment, but he allowed 11 executions to proceed during his tenure.

During his term, Kaine also restored the rights of 4,300 felons who had served their time — more than any previous governor.

Earlier coverage of "Triggerman" legislation in Virginia, which would be similar to Texas' law of parties, begins with this post.

More Commentary Following Robert Thompson's Execution

"Another life gone because of bad law," is the Fort Worth Star-Telegram editorial.  It appeared in the Friday edition.

On Nov. 19, Robert Lee Thompson, 34, became the 23rd person to be executed in Texas this year.

He should still be alive.

Not because he was a good man, because he wasn’t — or least he was not 13 years ago when the 21-year-old Thompson and his buddy, Sammy Butler, were involved in the armed robbery of a Houston store in which clerk Mansoor Bhai Rahim Mohammed was killed.

Evidence showed that Butler shot Mohammed to death, and for this act a Harris County jury sentenced him to life in prison.

Another jury sentenced Thompson to death.

Thompson was guilty of a crime that day. He shot a different store clerk, who survived the incident.

But now this criminal has fallen prey to a flawed, often-misinterpreted law and the callous decision of a governor focused on political ambition rather than justice.

The Thompson case speaks to the capriciousness of how capital punishment is applied in Texas: an actual killer gets to live while his accomplice dies for the same crime. It also brings into clear focus once again the bad piece of state legislation known as the "law of parties."

And:

On a 5-2 vote on Nov. 18, the Texas Board of Pardons and Paroles made a rare recommendation that the governor commute Thompson’s sentence to life in prison. Gov. Rick Perry, who is not obligated to follow the board’s recommendation, denied the request the afternoon of Nov. 19 and Thompson was executed 45 minutes later.

"After reviewing all of the facts in the case of Robert Lee Thompson, who had a murderous history and participated in the killing of Mansoor Bhai Rahim Mohammed, I have decided to uphold the jury’s capital murder conviction and capital punishment for this heinous crime," the governor said in a statement. "There is no reason to set aside the capital murder conviction handed down by a Texas jury and upheld by numerous state and federal courts."

Wrong, governor. There was a reason. You simply were blind to it.

The governor, who is engaged in a tough re-election campaign against U.S. Sen. Kay Bailey Hutchison, perhaps could not see past next March’s Republican primary.

In 2007, Perry did follow the recommendation from the Board of Pardons and Paroles in commuting the death sentence of Kenneth Foster six hours before Foster was to have been executed. Foster also had been convicted under the "law of parties" statute, but the governor did not cite that as his reason for the commutation. Instead, he noted his concern that Foster and his co-defendant had been tried together.

Texas is one of only five states with a law of parties statute. It is the only state that applies that law in death penalty cases.

The Star-Telegram Editorial Board is on record calling for the Texas Legislature to address this awful and misapplied law. Bad people should be held accountable for their crimes, but execution based on the law of parties is not right.

A half dozen people have died under this law. That’s six too many.

Patrick McCann, Thompson's attorney, wrote the OpEd, "Texans deserve public, open clemency process," for the Sunday Houston Chronicle.

I represent the indigent condemned. This means that I try to keep those men and women on death row from being executed. It is not all I do as a criminal defense lawyer, but it is what I started doing fresh out of law school 15 years ago, and it is a still a large part of what I deal with every day. I started doing this work out of a combination of the intellectual arrogance of a young man and a curiosity as to how this system worked. I have satisfied the second, and the first has been, as my father once told me it would be, beaten out of me pretty thoroughly. I have stayed in this work because I cannot find a morally acceptable way to walk away from something that needs doing.

My colleague, Rodney Brown and I, recently persuaded the Board of Pardons and Paroles to recommend sparing the life of our client, Robert Lee Thompson. We were grateful for that vote, and for the consideration of the men and women who serve on the board. We were both deeply saddened when Gov. Rick Perry declined to follow the advice of his own appointees and did not exercise his powers of mercy. That is how it goes in this line of work. I wish brighter and better people than me were doing it most days, but I wanted the reader to know this information before they decide whether to continue on.

I am not starting a debate on the death penalty, as people's opinions are their own on this topic. I am simply here to discuss whether it is time we as a state looked hard at the way we decide who is or is not worthy of mercy, and thus, how our clemency and pardon process works. I cannot think of a better time to do this than around Thanksgiving, and as we approach the celebration of the life and death of history's most well known wrongfully convicted man. One of that gentle man's last acts was to forgive a condemned thief, if I recall correctly. We could probably do well to relearn this lesson.

And:

Our current procedures for requesting either a pardon in a noncapital case or a commutation of sentence in either a capital or noncapital case do not require an actual hearing. They do not require a public meeting, open to those who wish to attend. They do not require any explanation to the public for whatever reasons a person's request to have such relief was denied. They require no record, no witnesses, no affidavits, no depositions, nor even a short explanation of the board's reasoning, or the governor's in those rare cases where the two views diverge on a particular case. There is no rational standard for deciding when to grant commutation in non-capital cases, as no one seems to know or to have laid out when too much time is enough. To any outsider, the process seems shrouded in mystery, or at the very least difficult to understand.

This is a shame, because having dealt with the people whom the governor appointed to the Board of Pardons and Paroles, I have found them to be dedicated and hard-working men and women who take their jobs quite seriously. They deserve a more open procedure, one that would inspire confidence in the people of the state, who could see their system hard at work, and who could review the notes or witness statements of an open, public process. This is not what we have now, and it is a shame. It is a shame because given the number of individuals who have been publicly exonerated by the Innocence Project, and given the impact of the Texas habitual offender laws, it would seem sensible to have some process to correct or mitigate the impact of bad laws, mistakes in trials or the actions of corrupt police or other public officials. As it stands now, we do not, at least not in reality. The Houston Chronicle and other news agencies have detailed at some length the lack of clemency here in Texas, and the truth is that there are literally thousands of individuals who are in prison for nonviolent crimes, often for lengthy terms that do not comport with any actual public threat. They deserve the real chance for commutation. Likewise, there are individuals who finished their terms of sentence for minor crimes years ago and went on to lead enormously productive lives as law-abiding citizens. They merit the opportunity for an actual pardon. Finally, there are the wrongfully convicted, who deserve some accessible and open process to clear their names. As has been sadly shown these last few years, that process does not yet truly exist. Courts are reluctant to admit mistakes, nearly as much as police, prosecutors and defense attorneys.

All Texas citizens deserve to have an open, public clemency process, with actual mandated hearings, by which deserving individuals, without the intrusion of politics, can present recorded evidence of rehabilitation, reform, mitigating evidence and even actual innocence, in order to have a means of ensuring that the original results in their cases were the just ones. Whether that comes from a change in the rules the board uses, or an actual constitutional amendment to make that system a reality, it needs doing. The Supreme Court has always believed, perhaps a bit hopefully, that the clemency process could correct the all too human possibility of errors in the system. It is time we made that hope the truth here, and gave Texans a system that could be a model for others across the country. Shakespeare once wrote, in his play The Merchant of Venice, that “mercy is mightiest in the mighty.” It is time we proved that.

Earlier coverage begins is here and here.  More on the law of parties -- treatment of non-trigger-person accomplices -- is in the law of parties index. Our coverage of the 2007 Foster commutation is here. Two commentaries are:

• Kenneth Foster and Clemency
• The Law of Parties and Kenneth Foster

Another commentary on Texas clemency is:

• Eric Nenno and Texas Clemency

In 2005, Texas Appleseed and the Texas Innocence Network published, "The Role of Mercy: Safegaurding Texas Justice Through Clemency Reform," which examined best practices in executive clemency.

Crime and Punsihment: 1 Dies, 1 Lives

That the title of an Austin American-Statesman editorial.  It appeared in the Saturday edition.  LINK

Two criminals, both with guns fired at the scene. Two shooting victims. One dies, one does not.

Two trials, both for capital murder because of a state law that makes all participants in a crime that includes a slaying potentially just as guilty as the triggerman.

For whatever reason, one jury sentences the man who killed someone to life in prison. For whatever reason, another jury sentences the man who didn't kill anyone to death by injection.

The latter case winds its way through the courts and to the governor's desk. The courts uphold the conviction and sentence. But, en route to the governor's desk, a panel of gubernatorial appointees recommends commutation from death to life in prison for the man who did not kill anybody.

No, says the governor, the jury and the criminal justice system have spoken and must be respected.

For whatever reason, that's the system we have in Texas today. It again has produced inconsistent results that should give pause to even the most ardent of death penalty supporters.

Thursday evening, about 30 minutes before Robert Lee Thompson was scheduled to die, Gov. Rick Perry announced he was rejecting the Board of Pardons and Paroles recommendation to commute the sentence.

And:

But the Thompson and Turner cases offer a chilling reminder that the death sentence is meted out inconsistently in Texas. Evidence in the trials showed that both men were evil. But Thompson was executed for a slaying committed by an accomplice who prosecutors failed to show intended to commit murder.

Once again: Thompson — though not for lack of effort — did not kill anybody. Under state law, he was equally culpable for any slayings that took place at the crime scene. There was a slaying, but jurors returned a life sentence for the man who committed it because they were not convinced he intended to kill somebody.

Taken individually, it's possible to justify the outcome of the two cases. Perhaps Thompson deserved to die. Perhaps Butler deserved to spend life in prison.

But lined up side-by-side, it's hard to see the cases as anything other than another example of inconsistency in the Texas death penalty.

Earlier coverage begins with this post.  Related articles are in the law of parties category index.

Texas Execution

Following Rick Perry's rejection of clemency for Robert Thompson, recommended by the Board of Pardons and Paroles, Texas conducted its 23nd execution of 2009, last night in Huntsville.  It was the 446th Texas execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's post-Furman executions. 

To date, there have been 48 executions in the nation this year; 1,184 since 1977.

According to TDCJ, one more execution is scheduled in Texas during 2009, on December 3rd.  Five execution dates have already been set in Texas for  2010.

As noted in the preceding post, Governor Perry's statement is here.

"Perry rejects clemency in death penalty case," is the title of Mike Ward's report in today's Austin American-Statesman.

Thompson did not fire at the slaying victim, though he participated in the robbery and shot another clerk four times, according to official reports. The second clerk lived.

Perry's decision came after the state Board of Pardons and Paroles had voted 5-2 on Wednesday to recommend that Perry commute Thompson's death sentence to life in prison, a rare move for the panel.

It was the second time in two years that the parole board had made such a recommendation in a case involving Texas' controversial "law of parties," which allows accomplices in capital crimes to face the death penalty even if they did not actually kill. Perry commuted the other sentence.

More than a half dozen other Texas inmates have been executed under the law of parties in recent years, despite last-minute requests for clemency.

Thompson was sentenced to death for being an accomplice when Mohammed, 29, was shot. Thompson's partner in crime and the triggerman, Sammy Butler, was sentenced to life in prison.

Allan Turner writes, "Killer executed after Perry rejects panel's advice," for the Houston Chronicle.

Robert Lee Thompson, 34, didn't fire the shot that killed clerk Mansoor Rahim, also identified as Mansoor Rahim Mohammed, during a robbery of the Seven Evenings convenience store on Braeswood Boulevard. But a Harris County jury sentenced him to death under the state's “law of parties,” which holds accomplices as responsible for a murder as the person who does the killing. The triggerman, Sammy Butler, was sentenced to life in prison after prosecutors failed to prove he intended to kill Rahim.

In the punishment phase of Thompson's trial, prosecutors contended the men had been involved in at least eight other robberies, some of which resulted in the deaths of store employees.

Thompson's case marked the third time the Texas Board of Pardons and Paroles has recommended that a death sentence be commuted to life in prison during Perry's years as governor. He has voluntarily commuted only one death sentence during his tenure as governor.

The AP report by Michael Graczyk is"Man executed after Perry rejects parole board's clemency, via the Fort Worth Star-Telegram.

The parole board’s 5-2 vote came in response to a petition from Patrick McCann, Thompson’s attorney, who argued that Thompson’s case was similar to that of Kenneth Foster, who was also convicted and sentenced to die under the law of parties.

Foster was only the second inmate since Texas resumed carrying out executions in 1982 who won a recommendation from the parole board as his execution loomed. The first recommendation was for Kelsey Patterson, a mentally ill inmate, in 2004

Perry rejected the board’s recommendation, and Patterson was executed. But he commuted Foster’s sentence.

Perry’s explanation for commuting Foster’s sentence was that Foster and his co-defendant were tried together on capital murder charges for a slaying in San Antonio. In Thompson’s case, he and Butler were tried separately.

At least a half-dozen other Texas inmates have been executed under the law of parties.

Since 1982, the U.S. Supreme Court has barred the death penalty for co-conspirators who don’t kill. The justices made an exception in 1987, however, ruling that the Eighth Amendment didn’t prohibit the execution of someone who plays a major role in a felony that results in murder and whose mental state is one of reckless indifference.

At the Dallas Morning News Death Penalty blog, Michael Landauer posts, "A simple reform on law of parties."

If lawmakers are not willing to change the so-called law of parties in Texas, where an accomplice can be executed for a capital crime, then I have one simple proposal. Why not require by law that the triggerman be tried first?

In the case of Robert Lee Thompson, executed last night despite a rare recommendation of clemency from the parole board, it would have made the trial a bit fairer. As it is, Thompson was tried first. In his punishment phase, others testified about other crimes he had committed. Prosecutors argued that he had wanted to deliver a fatal shot to the clerk he inujured, but his gun was out of bullets.

Later, int he trial of the gunman who did fire a fatal bullet, prosecutors failed to secure a death penalty because jurors were not sure murder was the motive. Robbery seemed to be.

There's a lot of assuming going on in cases like this. But one jury found as a matter of fact that the accomplice knew that murder was going to be the result of the crime. Another jury didn't see it that way. Duel trials aren't fair, either.

Still Waiting on Word From Governor Perry

Robert Thompson's execution date is just over an hour away.  Thompson, his attorneys, and reporters are waiting on Governor Rick Perry to accept or reject the Board of Pardons and Paroles that Thompson's death sentence be commuted to life in prison.

Earlier today, AP writer Michael Graczyk filed, "Texas governor to decide condemned killer's fate."

The fate of a man facing execution Thursday evening for his role in a fatal robbery was in the hands of Gov. Rick Perry after the state parole board recommended the death sentence be commuted to life in prison.

The Texas Board of Pardons and Paroles made the rare recommendation Wednesday for Robert Lee Thompson, 34, who was not the triggerman in the fatal shooting of a Houston convenience store clerk. The shooter, Sammy Butler, was convicted and received life in prison.

Perry was not required to follow the recommendation of the board, whose members he appoints.

"The governor has received the board's recommendation but has not made a decision," spokeswoman Allison Castle said Wednesday.

Thompson's lawyer, Patrick McCann, also had an appeal before the U.S. Supreme Court to stop the lethal injection, which would be the 23rd this year in Texas and second in as many nights.

The parole board's 5-2 vote came in response to a petition from McCann, who argued that the case was similar to that of Kenneth Foster, who was also convicted and sentenced to die under the law of parties. Under that law, offenders conspiring to commit one felony like robbery can all be held responsible for another ensuing crime, such as murder.

Perry commuted Foster's sentence to life two years ago. Foster became only the second inmate since Texas resumed carrying out executions in 1982 who won a recommendation from the parole board as his execution loomed.

Allan Turner has updated, "Parole board urges Perry to spare Houston killer," at the Houston Chronicle website.

Texas' Board of Pardons and Paroles on Wednesday recommended that Gov. Rick Perry spare the life of Houston killer Robert Lee Thompson, who is scheduled to be executed tonight in Huntsville.

A Perry spokeswoman did not indicate when the governor, who has voluntarily commuted only one death sentence in his tenure as chief executive, might rule in the case. As of this afternoon, the execution still was scheduled.

Thompson, 34, was sentenced to die in a law-of-parties case stemming from the December 1996 slaying of clerk Mansoor Rahim during a robbery at a Braeswood Boulevard convenience store. Thompson's lawyer, Pat McCann, argued that the fatal shot was fired by his client's accomplice, Sammy Butler. Under Texas' law of parties, both robbers were eligible for the death penalty. But Butler, the gunman, was sentenced to life in prison.

The pardon board's action marked the second time in two days that Houston killers received hope of escaping execution.

On Tuesday, U.S. District Judge Lee Rosenthal granted a 90-day stay to Gerald Eldridge, 45, who was sentenced to die for the 1993 murder of his former girlfriend, Cynthia Bogany, and her 9-year-old daughter, Chirrisa. Eldridge's lawyer argued that the killer might be seriously mentally ill and incompetent to be executed. Under Texas law, one must understand that he will be executed and why in order to legally be put to death.

After Wednesday's initial victory before the pardons board, McCann acknowledged that he was “too scared to be optimistic.” Still, he noted the only time Perry voluntarily commuted a death sentence also involved a law of parties case.

Earlier coverage is here.

Board of Pardons & Paroles Recommends Commutation in Law of Parties Case

Allan Turner writes, "Board: Commute death sentence in Houston case," for the Houston Chronicle.

The state pardons board today recommended that Houston killer Robert Thompson's scheduled Thursday execution be commuted to life in prison after his lawyer successfully argued that he was not the triggerman in a December 1996 convenience store robbery-murder.

Gov. Rick Perry, who has only once in his tenure as chief executive voluntarily commuted a death sentence, was expected to rule on the case tonight or tomorrow.

“I'm too scared to be optimistic,” said Thompson's attorney Pat McCann, “but Perry has been receptive to law of parties cases.”

Thompson was sentenced to death in a law of parties case stemming from the slaying of Mansoor Rahim in a Dec. 5, 1996, robbery of a Braeswood Boulevard convenience store. Thompson's partner in the crime, Sammy Butler, fired the fatal shot, but was sentenced only to life in prison.

Under the state's law of parties, all participants in a crime are held fully responsible and can be assessed the death penalty.

Perry's office did not immediately respond to queries about when the governor might decide the case, but McCann said the governor's legal counsel advised him a decision likely would come tonight or tomorrow.

Although Perry has commuted death sentences in accordance with U.S. Supreme Court decisions, only once, in the case of San Antonio killer Kenneth Foster, has the governor commuted of his own accord.

Foster was convicted of capital murder in a law of parties case although he was not the triggerman. His death sentence was commuted in August 2007.

McCann said executing Thompson would neither deter crime or provide retribution.

Governor Perry may accept the Board's recommendation and commute Thompson's death sentence, however, he is not obligated to do so.  He will announce a decision Thursday.

In 2004, the Board recommended that he commute the death sentence of Kelsey Patterson due to Patterson's severe mental illness.  Perry rejected that recommendation and Patterson was executed.  As noted by Allan Turner, Perry's only commutation of an inmate facing imminent execution was that of Kenneth Foster.

More on the law of parties -- treatment of non-trigger-person accomplices -- is in the law of parties index. Our coverage of the 2007 Foster commutation is here. Two commentaries are:

• Kenneth Foster and Clemency
• The Law of Parties and Kenneth Foster

Death Penalty Expansion in Virginia?

"Death Penalty Legislation Could Change," is the title of Philip Townsend's report for WHSV-TV of Harrisonburg, Virginia.

Local legislators say there could be changes to Virginia's death penalty legislation when Bob McDonnell becomes governor.

Since 2004, both chambers in the Virginia General Assembly have passed a reform to something that's known as Triggerman Rule. However, each time the reform was sent to the governor's desk, it was vetoed.

State Sen. Mark Obenshain says, "I fully understand that fair-minded people might disagree about the death penalty. However, this is an important reform."

Obenshain has been one of the key sponsors of the bill that would make co-conspirators of murder eligible for the death penalty, regardless of whether or not they physically committed the crime.

And:

However, when Bob McDonnell takes over as governor, the Triggerman loophole may be removed.

It is not good news for opponents of the death penalty, like Harrisonburg resident Chris Edwards.

Edwards says, "There is no evidence that there is less serious crime in the states that don't have capital punishment."

Edwards says the change could open up the gates for even more executions in Virginia.

The report also notes:

Currently, there are three exceptions to the Triggerman Rule in Virginia.

In order for a person, co-conspirator, to be eligible for capital murder charges and thus the death penalty, the crime would have to involve a murder-for-hire, an enterprise group such as a gang or mob, or be related to terrorism.

Earlier coverage of the issue in Virginia begins with this post.  No other state currently seeks the death penalty for accomplices as aggressively as Texas does under its law of parties.  Related posts are in the law of parties / felony murder rule index.

OpEd Roundup - Texas' Broken Criminal Justice System

"Texans too quiet about their state’s broken justice system," is the title of an OpEd by J. Todd Moye in the Sunday Fort Worth Star-Telegram.  Moye is a member of the Star-Telegram's 2009 Community Columnist Panel.

U.S. Supreme Court Justice Antonin Scalia famously dismissed concerns about the death penalty in 2005 by claiming that his colleagues could not cite "a single case — not one — in which it is clear that a person was executed for a crime he did not commit." He scoffed, "If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby."

I wonder whether he’s weary of hearing the name Cameron Todd Willingham by now.

I’m normally one to advocate less hollering in the public square, not more, but I think Texans need to make sure our elected officials are sick and tired of hearing that name and others shouted from the rooftops, whether Scalia is or not. More about that in a moment.

First, in a May column, I wrote about the need for reform in the Texas criminal justice system. I made a boneheaded factual error that I could have — and should have — easily avoided. Tarrant County District Clerk Tom Wilder and District Attorney Joe Shannon rightfully informed readers of these pages that Tarrant County preserves DNA evidence in criminal cases after conviction and appeal, contrary to what I wrote.

That was embarrassing, and I sorely wish I had it to do over again, but I haven’t changed my mind about the state’s need for stronger post-conviction review processes and safeguards against overzealous prosecution of the sort that doomed Willingham. I believe that subsequent events — including the release of Michael Toney, whom Tarrant County had convicted of three 1985 murders (prosecutors, it was later found, withheld evidence favorable to his defense during trial; Toney died in an accident in October before he could be retried), and Gov. Rick Perry’s politicized handling of the Texas Forensic Science Commission — underline the urgent need for reform.

Either way, the issue of post-conviction review is not going to disappear. It persists because Willingham is not the only Texas death penalty recipient about whose guilt substantial reasonable doubts remain. (See for instance the award-winning documentary At the Death House Door, which all but proves the innocence of Carlos De Luna, whowas executed for the murder of a Corpus Christi convenience store clerk in 1989.) It will endure because every time you think you’ve heard the worst our criminal-justice system can offer, the system will surprise you with an even more heinous outrage.

For example, consider the plight of Robert Lee Thompson, who has been on Death Row since being convicted for his part in the 1996 robbery and murder of Houston convenience store clerk Mansoor Rahim. There’s no question that Thompson is guilty of multiple violent crimes and has a significant debt to repay to society. Based on the evidence presented at his trial and recounted in an Oct. 26 Houston Chronicle report, he belongs behind bars, and I have no doubt that Texans are safer with him there.

But here’s the rub: Thompson did not pull the trigger on the gun that killed Rahim. Everyone agrees that his accomplice, Sammy Butler, did. Harris County prosecutors could not prove that Butler intended to kill Rahim, so they were only able to win a noncapital conviction in the Butler case. It carried a life sentence with a possibility of parole in 2036.

Prosecutors won Thompson’s capital murder conviction under the state’s Kafkaesque law of parties. That law is terrifically complicated, but for all intents and purposes it allows Texas prosecutors to blur the distinction between a murderer and his accomplice under certain circumstances in capital cases. In this case, if the Board of Pardons and Paroles doesn’t stay the execution, Thompson will die Thursday — and if the state kills him in our name, Texans won’t be one bit safer than they are now.

For the Sunday Amarillo Globe News, Dave Atwood wrote, "Execution system unjust in Texas."

Each time Texas executes another of its citizens, I ask myself why the state continues to use this form of inhumane punishment that is increasingly rejected by nations around the world and, indeed, by a number of U.S. states.

A lot of people do not realize that there are now 15 states that no longer have the death penalty and executions are rare in states that do have it, with the exception of Texas. In fact, many of the states that do have the death penalty on the books no longer carry out executions. Texas clearly stands alone in its strong support of this form of punishment.

The state has had 443 executions since 1982 and five more are scheduled before year's end.

One thing that the Cameron Todd Willingham case clearly illustrates is that politics plays a strong role in what happens in Texas. By dismissing the chair of the Texas Forensics Science Commission that was investigating Willingham's case and putting in his own man, a strong proponent of the death penalty, Gov. Rick Perry showed to the whole world that he did not want the truth to come out - that Texas had probably executed an innocent person.

Politics also plays a strong role in what happens in the courts. By denying a poor person the best legal defense possible, the state ensures that someone who is poor is more likely to go to death row than a person who has the financial resources to hire the legal "dream team."

But it goes deeper than that. Our legal system is permeated with politics because most of our district attorneys and criminal court judges are elected officials who think that they must support the death penalty in order to get elected.

This has been particularly obvious with the Texas Court of Criminal Appeals, a court that has often let obvious miscarriages of justice in the lower courts go uncorrected. For example, in the case of Khristopher Oliver who was executed on Nov. 5, the jury consulted the Old Testament of the Bible when deciding on the punishment for Oliver. Consulting the Bible during jury deliberations is clearly prohibited and the fact that this happened should have resulted in a retrial at the very least. But this did not happen for Oliver. Neither the TCCA, nor the 5th Circuit Court of Appeals, nor the U.S. Supreme Court, intervened in Oliver's case. However, this is not surprising considering the extremely conservative nature of these courts (think Associated Justice Antonin Scalia on the U.S. Supreme Court).

Our criminal justice system is not only permeated with politics, it is also permeated with ideology. Many people who believe in an "eye for an eye" type of justice serve on Texas juries. In fact, if you don't believe in the death penalty, you can't serve on a Texas jury in a capital murder case.

Earlier Willingham coverage begins with the preceding post; more OpEds in the OpEd category index.

Texas Execution

Texas carried out its 18th execution of 2009, this evening in Huntsville.  It was the state's 441st execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's post-Furman executions.  To date, there have been 39 executions in the nation this year; 1,175 since 1977.

Mike Tolson reports, "Killer in '95 Houston ambush executed," for the Houston Chronicle.

Prosecutors said the three were murdered because of a drug debt owed by Enrique Andrade Mosquera. Rather than pay it, he arranged a meeting and hired Coleman and a third man, Derrick Graham, as enforcers. The two groups met about 2 a.m. on a quiet residential street in the Acres Homes neighborhood of Houston. The shootings took place while the victims were in their car.

Coleman's attorneys contend that the state's key witness against him, Prado, was not credible. In recent years and days they have obtained affidavits from her and Mosquera acknowledging a previous relationship. Both were from the same town in Colombia. At the time of the trial, Prado insisted all the men were strangers.

Prado admitted in 2007 that she knew Mosquera, though only as an acquaintance. Mosquera says their relationship went well beyond that and that they had done drug deals together.

Coleman's lawyers contend that the jury in his case might have viewed her identification of him with skepticism if they had known of her original deception.

Mosquera and Graham are serving life sentences. Prosecutors eventually sought death against Mosquera as well because they believed he was responsible for Coleman's actions, but the jury could not agree on punishment, thereby triggering a life sentence.

Recent questions had been raised in the Coleman case, as noted here.

Coleman's was the 110th execution ordered from Harris County; more executions than any other state has conducted.  To date, Virginia has carried out 103 executions; Oklahoma, 91.

According to TDCJ, eight additional executions are scheduled in Texas over the next nine weeks.  It's possible that more may be added.

Texas carried out its 18th execution of 2009, this evening in Huntsville.  It was the state's 441st execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's post-Furman executions.  To date, there have been 39 executions in the nation this year; 1,175 since 1977.

Mike Tolson reports, "Killer in '95 Houston ambush executed," for the Houston Chronicle.

Prosecutors said the three were murdered because of a drug debt owed by Enrique Andrade Mosquera. Rather than pay it, he arranged a meeting and hired Coleman and a third man, Derrick Graham, as enforcers. The two groups met about 2 a.m. on a quiet residential street in the Acres Homes neighborhood of Houston. The shootings took place while the victims were in their car.

Coleman's attorneys contend that the state's key witness against him, Prado, was not credible. In recent years and days they have obtained affidavits from her and Mosquera acknowledging a previous relationship. Both were from the same town in Colombia. At the time of the trial, Prado insisted all the men were strangers.

Prado admitted in 2007 that she knew Mosquera, though only as an acquaintance. Mosquera says their relationship went well beyond that and that they had done drug deals together.

Coleman's lawyers contend that the jury in his case might have viewed her identification of him with skepticism if they had known of her original deception.

Mosquera and Graham are serving life sentences. Prosecutors eventually sought death against Mosquera as well because they believed he was responsible for Coleman's actions, but the jury could not agree on punishment, thereby triggering a life sentence.

Recent questions had been raised in the Coleman case, as noted here.

Coleman's was the 110th execution ordered from Harris County; more executions than any other state has conducted.  To date, Virginia has carried out 103 executions; Oklahoma, 91.

According to TDCJ, eight additional executions are scheduled in Texas over the next nine weeks.  It's possible that more may be added.

Texas Execution ... And New Questions in Another Texas Death Case

Texas is scheduled to carry out its 18th execution of 2009, this evening in Huntsville.  It would be the state's 441st execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's post-Furman executions..  To date, there have been 38 executions in the nation this year; 1,174 since 1977.

UPI reports, "New claim surfaces in death penalty case."

New information regarding a 1995 drug slaying may help spare a former U.S. soldier sentenced to die this week, attorneys say.

Defense lawyers for Christopher Coleman, 27, say the only survivor of a drug-related shooting -- who fingered Coleman as the trigger man -- has changed her story since her testimony 12 years ago. The change is sufficient to create doubt as to Coleman's guilt, the Houston Chronicle reported Monday.

Coleman, a former Army reservist with a clean criminal record, is set to be executed Tuesday in the slayings of Daisy Prado's brother, boyfriend and 3-year-old son in Houston. The newspaper said Prado originally told authorities she and her family were simply lost when they were attacked by a group of three men, but now one of the men swears Prado was involved in a drug deal with them.

Coleman's attorneys say they hope to convince an appeals court to delay the execution long enough to further examine the claim.

"(Prado's) testimony came in unimpeached because (Coleman's) lawyers did not have the information to impeach it," Coleman appellate lawyer Pat McCann told the Chronicle. "I don't think anyone can sit there and say they know the truth."

Earlier coverage of the Coleman case is here.

Unless there is a stay of execution, Houston's KPFT-FM will host Execution Watch on the web and it's HD radio broadcast signal beginning at 6:00 p.m. (CDT), tonight.

According to TDCJ, eight additional executions are scheduled in Texas this year, through November 19.  It's possible that more may be added.

The Case of Christopher Coleman

Mike Tolson reports, "New issue emerges in murder case," in today's Houston Chronicle.

Elsy “Daisy” Prado was the sole survivor of a nighttime assault that claimed the lives of her brother, boyfriend and 3-year-old son in north Houston. Wounded and scared, the native of Colombia had trouble in the following days recalling the shooter from the three men responsible for the ambush.

Prado would identify Christopher Coleman, a 27-year-old Army veteran, as the gunman, and her testimony provided the key evidence that led a jury to convict him of capital murder and sentence him to die. That she had originally told authorities the four were simply lost on the night they were attacked in December 1995, when in fact they were parties to a drug deal gone wrong, did not sufficiently undermine her claim that Coleman had been the one to riddle their Toyota Paseo with bullets.

It seemed like a routine conviction until two years ago, when Coleman's lawyers began to raise questions about Prado's testimony. For the first time, she admitted to an investigator that she knew one of the attackers. She had testified at Coleman's trial that they were strangers.

Now, just days away from Coleman's execution, his attorneys have obtained a sworn statement from co-defendant Enrique Mosquera insisting that Prado not only knew him — the two came from the same town in Colombia — but was involved in the drug transaction on the night of the attack. Coleman's lawyers hope the disclosure will persuade an appeals courts to stay his execution and examine the effect the relationship of Mosquera and Prado could have had on the trial's outcome.

“Her testimony came in unimpeached because his lawyers did not have the information to impeach it,” said Pat McCann, Coleman's appellate lawyer. “I don't think anyone can sit there and say they know the truth. Who the shooter was is a huge question, and for that reason, this has to be looked again.”

And:

Though Coleman may still have been guilty under the law of parties, in which all participants of a crime may be held equally liable, it is possible he would have escaped the death penalty, which is typically reserved for the trigger man. Mosquera and Graham are serving life sentences.

Both of Coleman's original trial attorneys have submitted sworn statements saying Prado's admission would have significantly altered the way they approached the trial. If Prado had reason to avoid fingering Mosquera, either out of loyalty or fear for her family's safety in Colombia, that possibility could have led jurors to distrust her testimony, they argue.

“The fact that these two people knew each other has tremendous importance in this case,” lead attorney Dick Wheelan said in his statement. “It would give Ms. Prado a reason to lie. It would also indicate that she was much more deeply involved in the drug trade than she admitted. It … calls into question her truthfulness in general. Had I known there was a prior connection … it would have changed my investigation on both guilt-innocence and punishment, as well as significantly altering my strategy and tactics for the trial.”

Wheelan, who died of cancer last year, said Prado's failure to disclose their relationship “changed the complexion of the entire event.”

Former prosecutor Luci Davidson, who tried Coleman, said the evidence available to authorities left them with no doubt about the shooter. She said a statement from Graham described where the trio stood around the car. He placed Coleman on the passenger side, which is where the shooter stood.

Tolson notes that Coleman had no prior criminal record before the death sentence.  Coleman's scheduled execution tomorrow evening is one of nine set over the next nine weeks, according to TDCJ.

Texas Law of Parties to Remain in Place

"Veto threat dooms change in death penalty law," is Mike Ward's report in today's Austin American-Statesman.

Death penalty opponents have long decried a Texas law that allows the state to impose the ultimate punishment — execution — on people who have not killed anyone.

Legislation to change that was working its way toward Gov. Rick Perry's desk Thursday, when its sponsor said a threatened veto forced him to drop the controversial provision that would have exempted participants in capital crimes who did not pull the trigger.

"We wanted that provision to stay in, but the governor's office made it clear they would veto the bill if that went through," said state Sen. Juan "Chuy" Hinojosa, D-McAllen.

Hinojosa amended the legislation to require only separate trials for co-

defendants in capital murder cases in which one or more of the defendants did not kill anyone.

Though he was not satisfied with the change, Hinojosa said, "we're not going to get any progress on this area of law until we get another governor. I realize that, so we do what we can."

Perry's office did not return phone calls Thursday evening.

And:

As approved by the House last week, the bill would have made a significant change in the state's death-penalty law, a change vehemently opposed by prosecutors and cheered by death-penalty opponents.

Under current law, multiple defendants in a capital murder case can face execution, even though not all caused a death.

Texas has been criticized nationally in past years for cases in which the triggerman cut a deal with police and escaped execution, while a co-defendant who did not kill anyone was executed.

Although other states also hold accomplices responsible for others' crimes under the so-called law of parties, few of those states have a death penalty. None executes as many people as Texas, which has put to death more than 400 people since the state resumed executions in 1982.

Prosecutors in the past have argued that if defendants participate in a crime, even if they stood and watched an accomplice commit murder, they should be held equally accountable — and several have been sentenced to death.

After the disputed wording was deleted Thursday, the bill was passed unanimously by the Senate Criminal Justice Committee, the last stop before the measure goes to the full Senate for a vote.

More on HB 2267 is here.  Related posts are in the law of parties/felony murder rule index.  Earlier this year Virginia Governor Tim Kaine vetoed legislation that would have expanded the state's death penalty, allowing capital punishment for a non-triggerman accomplice.

Virginia Death Penalty Expansion Vetoed

As expected, Virginia Governor Tim Kaine vetoed legislation that would have expanded the state's death penalty.  AP reports, "Va. governor vetoes bills to expand death penalty,"via Google News.

Gov. Timothy M. Kaine vetoed legislation Friday that would have extended the death penalty to murder accomplices, a measure that would have increased the population eligible for execution in the nation's second-busiest death chamber.

It was the third consecutive year that Kaine, a Democrat, has vetoed bills to expand Virginia's "triggerman rule," which reserves the death penalty only for those who commit a murder.

"While the nature of the offenses targeted by this legislation is very serious, I do not believe that further expansion of the death penalty is necessary to protect human life," Kaine said in a statement announcing the vetoes.

Virginia has executed more inmates than any other state except Texas since the U.S. Supreme Court reinstated capital punishment in 1976. During his tenure as governor, Kaine has allowed nine executions and commuted one sentence. Currently, the state has 15 inmates awaiting execution on death row.

And:

Those bills passed the General Assembly with veto-proof majorities, so it is possible lawmakers could override him when they reconvene April 8. The legislation extending the death penalty to accomplices was a few votes shy of becoming veto-proof in the Senate.

"Kaine vetoes death-penalty, gun bills," by Tyler Whitley is from the Richmond Times-Dispatch

As expected, Gov. Timothy M. Kaine yesterday vetoed five death-penalty bills and a bill that would allow holders of concealed weapons permits to carry guns into bars and restaurants.

Kaine may have trouble sustaining his veto of a couple of the death-penalty measures when lawmakers reconvene in Richmond on April 8.

Two of the bills would extend eligibility for the death penalty to murderers of auxiliary police officers. Another would extend eligibility for the penalty to murderers of fire marshals.

Each passed both houses of the General Assembly by a veto-proof majority. Two-thirds of the members of each body are required to override a veto.

As he did a year ago, Kaine likely will succeed in sustaining his veto of the two so-called "triggerman" bills. They would extend the death penalty to an accomplice who helped plan, but did not actually commit a murder.

"Virginia is already second in the nation [to Texas] in the number of executions we carry out," Kaine said in explaining his vetoes.

"While the nature of the offenses targeted by this legislation is very serious, I do not believe that further expansion of the death penalty is necessary to protect human life."

Earlier coverage begins here.

Change Ways Accomplices Are Punished

That's the title of an editorial from the Saturday edition of the Dallas Morning News.  It's one of an occasional series by the News on capital punishment in Texas.  LINK

Conventional wisdom suggests that the death penalty is reserved for the worst of the worst criminals – those who commit the most heinous murders.

But in Texas, we sometimes execute accomplices, people who never pulled the trigger and who might have been only peripherally involved in a crime. The law of parties permits the court to hold someone criminally responsible for the acts of another.

Incredibly, an accomplice can be put to death for the triggerman's crime. That accomplice might not even get his own trial, as Texas allows joint trials in capital cases.

But proposed legislation would change that.

Several lawmakers are pushing for needed reforms that would guarantee a defendant's right to his own trial in a death penalty case. Other bills would rule out sentencing an accomplice to death using the law of parties.

This common-sense legislation, which got a hearing Thursday in a House subcommittee, would ensure that defendants in capital cases have their own day in court and are not punished for another's actions. Even death penalty proponents should welcome these safeguards.

Gov. Rick Perry, who has shown little hesitancy about the death penalty, expressed concerns about simultaneous trials in 2007 when he blocked Kenneth Foster's execution and reduced his sentence to life in prison. The governor urged the Legislature to look at the issue.

And:

Adopting this legislation would send the message that Texas no longer plans to impose the ultimate punishment for crimes that someone else committed. These bills, as well as one filed by Rep. Harold Dutton, would take aim at let's-make-a-deal gamesmanship that pits defendants in capital cases against one another.

Dutton's HB 298 would exclude testimony from accomplices and informants who have cut a deal for a reduced sentence. While this common practice certainly makes a prosecutor's job easier, relying on testimony from a witness determined to spare himself is a dangerous proposition in life-and-death decisions. The legislation also would require that statements from prison snitches be corroborated by a recording.

Prosecutors and police no doubt will argue that these witnesses are an important part of building a case. But unimpeachable evidence should be required to take someone's life.

Related articles on the law of parties is here.

The Jeffery Wood Case

"Death row inmate loses appeal," is Michael Graczyk's AP report from the Sunday Austin American Statesman.

A Texas death row inmate who came within hours of being executed last summer has lost an appeal in federal court, where his lawyers argued that he is too mentally ill to be put to death.

The 5th U.S. Circuit Court of Appeals, based in New Orleans, rejected the appeal from Jeffery Wood, 35, who received the death penalty for the January 1996 slaying of Kriss Keeran at a convenience store in Kerrville.

Evidence showed that Wood waited in a car outside the convenience store while his roommate, Daniel Reneau, fatally shot 31-year-old Keeran in the face with a .22-caliber pistol.

Both men then robbed the store, taking more than $11,000 in cash and checks.

Reneau was executed in 2002.

Wood's execution was scheduled for August, but the lethal injection was delayed by a federal judge, who ruled that Wood could be tested to determine whether he is mentally competent to understand why he should be executed.

In the appeal to the New Orleans-based court, Wood's lawyers said they needed a second expert, a neuropsychologist, to examine Wood. He had already been examined by a forensic psychologist.

"Mr. Wood lacks a rational understanding of his death sentence and of the reasons for his imminent execution," Wood's attorney Scott Sullivan said in the motion filed last week.

The Fifth Circuit's ruling is here.  Earlier coverage of the Wood case is here.

Costing Out Capital Punishment

That's the title of an editorial in the Sunday edition of Virginia's Roanoke Times.  LINK

Slashing the state's budget dominated this year's General Assembly session, but Virginia lawmakers did take a little time to vote to expand the state's list of capital crimes.

They would have done well to do a cost-benefit analysis first.

While legislators were busily adding to the supposedly special circumstances that elevate a murder charge to capital murder, other states have been considering doing away with the death penalty altogether to save on costs.

Affordability is neither the most high-minded nor urgent of reasons to challenge state executions. Taking a life in vengeance is an evil that feeds the darker side of human nature. In practice, the death penalty is arbitrarily applied, an injustice that eludes all efforts to correct it. And DNA has laid bare how vulnerable the system is to miscarriages of justice.

All of these issues give better cause to eliminate state executions, but the cost-benefit ratio is a legitimate consideration.

And:

Granted, Virginia considers it a bragging right that its court system operates far more efficiently than most. It has executed 103 people since reinstating the death penalty in the 1970s, second only to Texas.

Still, it would be useful to know how much the state spends in pursuit of the death penalty as opposed to seeking life sentences for people convicted of crimes heinous enough to qualify.

Rather than take a critical look at the commonwealth's death penalty law, Virginia politicians remain wedded to trying, year after year, to expand it.

More on the Virginia legislation is here.

In Virginia

"Expansion of "triggerman rule" goes to Kaine," by Jim Nolan is in today's Richmond Times-Dispatch.

A bill that could expand application of the death penalty and a bill that would prohibit text messaging while driving are among notable measures that are heading to the governor after a busy day in the General Assembly.

For the second year in a row, lawmakers in the House of Delegates and the state Senate approved bills that would expand application of the death penalty in cases of capital murder.

And for the second year in a row, the measure is likely to be vetoed by Gov. Timothy M. Kaine.

"His position hasn't changed," Kaine spokesman Gordon Hickey said yesterday.

House Bill 2358, sponsored by Del. C. Todd Gilbert, R-Shenandoah, would redefine the "triggerman rule" of Virginia criminal law, which currently holds that only the actual perpetrator of a capital murder is eligible for the death penalty.

The legislation, which yesterday cleared the Virginia Senate by a 23-14 vote, would allow accessories and principals in the second degree to be tried the same as the actual killer in cases involving murder for hire, terrorism and organized crime. Such participants would have to be shown to have the same intent to kill or be involved in planning the killing.

Last year, Kaine's veto of Gilbert's legislation was upheld in a close vote in the Senate.

"Virginia is already second in the nation in the number of executions we carry out," Kaine said at the time.

"While the nature of the offense targeted by this legislation is very serious, I do not believe that further expansion of the death penalty is necessary to protect human life."

"Fairfax Senator's Unlikely Stand," by Fredrick Kunkle is in Washington Post.

The General Assembly once again passed a bill that would eliminate the triggerman rule, making criminals who participate in a murder eligible for the death penalty even if they didn't actually commit the killing.

And once again the governor has pledged to veto it.

But the vote on Tuesday has cast a spotlight on an unlikely opponent of expanding the use of the death penalty: Sen. Ken Cuccinelli II, a conservative law-and-order Republican from Fairfax County who hopes to become attorney general.

Cuccinelli is a supporter of capital punishment and has backed other measures to expand its use, including a bill this year to broaden the definition of law enforcement officers whose killing could be punished by the death penalty. Under that bill, sponsored by Del. Brenda L. Pogge (R-York), the state could seek the death penalty for any person who killed an auxiliary police officer, auxiliary sheriff's deputy, a fire marshal or an assistant fire marshal with police powers.

But Cuccinelli was the only Republican senator to vote against eliminating the triggerman rule.

And:

Cuccinelli, who is a patent attorney, said juries could be too easily swayed by the heat of a capital prosecution, overlooking nuances of guilt to punish someone whose intent was perhaps ambiguous. "More than anything else, it will catch people in a robbery gone bad," Cuccinelli said.

Earlier coverage of this legislation is here.

Virginia Expansion Legislation

"Va. House votes to expand death penalty," is the AP report in Virginia's Daily Press, written by Dena Potter.

The nation's second-busiest death chamber could see even more action if bills that have passed the House of Delegates and Senate become law.

The House on Tuesday passed bills to expand capital punishment to include those who assist in a murder but don't do the actual killing and those who kill a fire marshal or auxiliary police officer who is on duty.

The Senate passed similar bills last month, but one didn't get the two-thirds majority that would be needed to overturn a likely veto.

For the past two years, Gov. Timothy M. Kaine has vetoed bills to expand Virginia's "triggerman rule," which reserves capital punishment for the person who actually does the killing. The bills would allow the death penalty for any accomplice who shares the triggerman's intent to kill.

The House voted 73-25 Tuesday in favor of Republican Del. Todd Gilbert's bill. The Democrat-controlled Senate passed Republican Sen. Mark Obenshain's version 24-16, three votes shy of being veto-proof.

Kaine, a Roman Catholic, has said he does not favor expanding the death penalty, but his staff would not promise a veto.

"The governor will look at each bill individually, as he always does," said Gordon Hickey, a Kaine spokesman.

The House voted 75-22 to allow capital punishment for those who kill fire marshals and auxiliary police while on duty.

The Senate already passed similar bills by enough votes to override a veto.

Earlier coverage of Virginia legislation is here .

The Tennessean Speaks Out

"Execution still leaves questions," is the editorial in today's newspaper.  Here's an extended excerpt:

Tennessee executed Steve Henley early Wednesday for the 1985 killings of a couple in Jackson County, applying a final solution to a case that had no final answers.

Just as the state moved ahead to put Philip Workman to death 16 months ago, despite finding he did not fire the gun that killed a Memphis police officer, questions surround the conviction of Henley, 55.

Chief among them is whether any death-penalty case should hinge on the testimony of a co-defendant, in whose interest it is that the other man receive the blame.

Henley's co-defendant, Terry Flatt, received a reduced sentence of 25 years after testifying that Henley shot Fred and Edna Stafford and set fire to their house because of a money dispute. And Flatt served only five years of that sentence. Henley always maintained his innocence, even from the gurney where he was administered the lethal injection.

Henley's account may have been as credible as that of his co-defendant. But we will never know since, with capital punishment, there is no recourse.

Yes, Henley spent more than 20 years on death row, in which he could have mounted a more thorough appeal. But Henley could not afford it — and that is the other element of this tragedy. In Tennessee, and in other states that apply capital punishment, you are more likely to be put to death if you are indigent.

Henley could not afford a lawyer to prepare a petition for clemency, which could have resulted in his sentence being commuted to life in prison.

The U.S. Supreme Court is currently considering a separate Tennessee case, that of inmate Edward Jerome Harbison, who argues indigent death-row inmates seeking clemency should have a right to adequate legal representation. But the justices refused a stay in Henley's execution, without explanation, while that case is decided.

Inadequate counsel; income and racial disparities; lack of deterrence to other criminals; and the use of lethal injection which, despite a ruling by the conservative-leaning Supreme Court, is questionable on constitutional grounds — all leave Tennessee's death penalty system on shaky ground.

A special committee of the legislature studied the state system last fall and recommended an agency be set up to ensure capital-case lawyers have sufficient experience and are adequately paid. If that plan is adopted, it will help toward ensuring fair trials. However, the methods of execution employed by the state should be studied further. Until those things happen, Tennessee should put executions on hold.

The Tennessean also carries the OpEd, "Death penalty law needs to be overturned."  It's by Tennessean editorial page editor Dwight Lewis. 

Let me say this upfront: As a columnist who has long spoken out against the death penalty, I owe the readers of this newspaper an apology.

I let you down; at least, those of you who, like me, are against the state putting people to death. And that's whether in an electric chair, by lethal injection, by using a firing squad or even the gas chamber.

In this particular case, unlike any other time before an execution was allowed to take place by former Gov. Don Sundquist or current Gov. Phil Bredesen, I have not written at least one column urging that such action not be taken.

What good is it to take someone's life — whether that life is being taken by a criminal or by the state? And yes, I am fully aware that Tennessee has a death penalty law and when the question was put before them, both Sundquist and Bredesen said they would carry it out.

There's not going to be an execution Wednesday morning, I kept saying to myself recently. Gov. Bredesen is not going to let this execution take place.

I don't know why I got so comfortable that that would be the case. But that is exactly how I felt after considering that Steve Henley's co-defendant, Terry Flatt, only served a little more than five years in prison for the 1985 murder of Fred and Edna Stafford in Jackson County.

I should have known better, especially since before Wednesday, Bredesen had allowed two other executions to take place since being elected governor in November 2002. Under Sundquist, who preceded Bredesen, convicted murderer Robert Glen Coe was put to death on April 19, 2000. That was the first execution that had taken place in Tennessee since William Tines died in the state's electric chair on Gov. Buford Ellington's watch on Nov. 7, 1960.

The newspaper also carries the news report on Henley's execution, "Tennessee executes man who killed couple."  The Nashville City Paper's coverage of the execution was noted in this post yesterday.

More on Harbison v. Bell is from ScotusWiki.  Coverage of last month's oral argument in Harbison v. Bell is here.

Commentary from Virginia

"Expanding the Death Penalty Is Fiscally Irresponsible," is John Whitehead's commentary from the Rutherford Institute.

The Commonwealth of Virginia is in the throes of a massive budgetary crisis, with a current shortfall of just under $3 billion. As a result, a reduction in services, job losses and funding cuts for secondary and higher education are expected. Lawmakers, officials and state employees also face the difficult task of paring down their budgets in the face of dwindling financial support from the Commonwealth. As Delegate Terry G. Kilgore stated, "Everyone needs to be concentrating on the budget this year. The budget transcends everything."

Yet in the midst of this financial crisis, the Virginia legislature is expanding the death penalty, which will only further burden Virginia taxpayers. The various proposals to expand the death penalty include adding fire marshals, assistant fire marshals, auxiliary police officers, and uncompensated auxiliary police officers to the capital murder statute. One bill would also redefine the "triggerman rule," which says that only a person who pulls the trigger in a capital murder case is eligible for the death penalty, so that accomplices could also be eligible for the death penalty.

Unfortunately, as other states have learned to their detriment, expansive use of the death penalty only increases the financial burden upon state coffers--and taxpayers. In fact, studies in Maryland, North Carolina and Florida show that, due to the lengthy nature of death penalty trials and appeals, states incur costs far exceeding those of non-death penalty cases.

Virginia Tech's Collegiate Times carries the column, "Questions for Death Penalty Debate," by Michelle Skeen .

Death is a hard thing to confront. People who cause death are even harder. Many of us have experienced the pain and grief of losing someone we love, and, of course, it is far more intense if there is someone to blame for it.

Yet the issue remains whether it is right to stoop to the level of taking life as retribution. Does it make our government legitimate in killing, even if the result is killing a killer? If we continue to take human lives, even unworthy ones, we cannot claim to be completely innocent ourselves.

And now, the state of Virginia is looking to create more opportunities to expand capital punishment. If nothing else, I think it should become more narrowed down to only the most vile and deserving crimes, if it's not eliminated altogether.

The death penalty question is a hard one to answer. It's a question of gray areas and specific situations and cases. But in the end, the quote still stays in my head: "Why do we kill people who are killing people to show that killing people is wrong?"

Earlier coverage of Virginia legislation is in this post.

State Legislative Roundup

There is news today from North Carolina, Nebraska, and Virginia.

In North Carolina, The Raleigh News & Observer has, "12 issues that will present serious challenges."

DEATH PENALTY - North Carolina is in the third year of a de facto moratorium on executions brought on by a legal dispute that has reached the N.C. Supreme Court. The N.C. Medical Society objects to a state requirement that a doctor be present at executions because it violates their tenet of doing no harm. Republicans want the legislature to step in.

Earlier coverage of issues in North Carolina begins with this post.

"Heineman says state needs to OK lethal injection," is in Nebraska's Omaha World-Herald, today.

Gov. Dave Heineman on Tuesday urged the Legislature to rebuff efforts to repeal the death penalty and to instead enact lethal injection as the state's method of execution.

During a press conference call, Heineman said he has no hesitations about capital punishment, despite his vote Monday to grant pardons to five people wrongfully convicted in the 1985 slaying of an elderly Beatrice woman. DNA testing cleared them of involvement in the woman’s slaying. "DNA gives us the opportunity to prove someone is guilty beyond a reasonable doubt," he said. "That’s the way we ought to use it."

"There’s no doubt in my mind that we need the death penalty,’ he said, citing the murders of five people in a botched bank robbery in Norfolk in 2002.

He said that death penalty opponents have been given ample opportunity in the Legislature to repeal the death penalty, with it coming up for debate three times during the last legislative session.

"Now’s the time to have serious and thoughtful debate about implementing a legally acceptable method," he said. "We need to get this situation rectified."

Although Nebraska has the death penalty on its law books, it has lacked a legal method for carrying out executions since the Nebraska Supreme Court ruled the electric chair unconstitutional nearly one year ago.

Earlier coverage of the Nebraska legislature is here and here.

"Bill allowing death penalty for murder accomplices clears Senate: Legislation likely to be vetoed by Gov. Kaine," is from the Northern Virginia Daily.

A local legislator's bill that would allow the death penalty for accomplices to murder who had the intent to kill but didn't pull the trigger has again cleared the Virginia Senate.

But Senate Bill 961, patroned by Sen. Mark Obenshain, R-Harrisonburg, likely has its own date with execution, in the form of a veto by Democratic Gov. Timothy M. Kaine.

Obenshain has backed identical legislation for the past three years, winning passage in both the House and Senate.

Tuesday's vote was 24-16, three votes short of the 27 needed to override a gubernatorial veto.

StandDown's state legislation category index is here.

News Coverage of the Jeff Wood Stay

Judge Orlando Garcia's order staying the execution of Jeff Wood is in the Breaking News Documents in the right column.  The Supreme Court established the standard determining competency to be executed in 1986, in Ford v. Wainwright.  The Court revisited the issue last year in Panetti v. Quarterman.

"Federal Judge, Chastising the Texas Courts, Orders a Stay of Execution," is James McKinley's New York Times report.

With only hours until his scheduled execution, a man won a stay Thursday when a federal judge granted him a hearing to determine whether he was mentally competent.      

The condemned man, Jeffery Lee Wood, 35, was to be put to death Thursday evening for a killing committed by his partner in a 1996 robbery. But the execution was put off for at least six months by the decision of the judge, Orlando Luis Garcia of the Federal District Court in San Antonio, who suggested that he would hold the hearing next February or March.

And:

Mr. Wood’s lawyers argue that he is too delusional to understand why he is to die and thinks that among other things he is the victim of a Freemason conspiracy.

Judge Garcia wrote that Mr. Wood’s bizarre statements at his trial and in prison “at least arguably suggest the petitioner lacks a rational understanding of the causal link between his role in his criminal offense and the reason he has been sentenced to death.”

The judge said the Texas courts erred badly in the last week when they refused to hire mental health experts to determine whether Mr. Wood was mad or to appoint a lawyer to represent him at a competency hearing.

The United States Supreme Court has held that it is unconstitutional to execute insane people who cannot understand why they are being put to death or that their execution is imminent.

Judge Garcia said lawyers for Mr. Wood had submitted enough evidence of a delusional state of mind to warrant a hearing on the matter, and he strongly chastised the state courts for denying Mr. Wood a lawyer and a psychologist to help make that claim.

Mr. Wood was caught in a Catch-22, the judge said. The state courts ruled that he had to show he was insane for them to appoint a lawyer and a psychologist to help him prove he was insane. That, the judge said, is “an insane system.”

Mr. Wood has a very limited intellect and a history of emotional problems, learning disabilities and, in prison, suicide attempts.

"Judge Delays Execution, Blasts ‘Insane System’ to Determine Sanity," is Debra Cassens Weiss' report in the ABA eJournal.

Garcia said the state had argued Wood had to make a “substantial showing of incompetency” before a court could appoint a lawyer and psychiatrist to make his case.

"With all due respect," the judge wrote, "a system which requires an insane person to first make a 'substantial showing' of his own lack of mental capacity without the assistance of counsel or a mental health expert, in order to obtain such assistance is, by definition, an insane system."

AP, via Google News, has, "Judge delays execution of condemned Texas inmate," by Juan Lozano.

But U.S. District Judge Orlando Garcia in San Antonio granted a request by Wood's attorneys to delay his execution so they could hire a mental health expert to pursue their arguments that he is incompetent to be executed. Texas courts had previously refused similar appeals.

Wood's "motion presents non-frivolous arguments suggesting (he) currently lacks a rational understanding of the connection between his role in his offense and the punishment imposed upon him," Garcia wrote in his order.

While Garcia wrote that the evidence was far from compelling, there were enough facts to conclude Wood had made a "substantial threshold showing of insanity."

Garcia wrote that his decision was based on the state trial court's refusal to afford Wood fundamental due process protections mandated by the U.S. Supreme Court's 2007 decision, which blocked the execution of a mentally ill Texas murderer because lower courts failed to consider whether he had a rational understanding of why he was to be killed.

Wood's attorneys say he suffers from paranoia and delusions, but the state does not recognize he suffers from mental illness.

"We applaud the (court) for upholding Jeff Wood's rudimentary due process right to have his competency evaluated," said Andrea Keilen, executive director of Texas Defender Service, a legal group also representing Wood.

The Texas Attorney General's Office, which argued Wood had failed to show he was incompetent to be executed, did not immediately return telephone calls seeking comment Thursday.

AFP, also via Google News, has, "Execution of mentally ill man put on hold in Texas."

A US court on Thursday granted a stay of execution to a mentally ill Texas man who was set to die for his role in a murder-robbery, even though he did not pull the trigger.

"Today, the Federal District Court granted a stay of execution in the case of Jeff Wood to allow the court to consider compelling evidence that Jeff Wood is too mentally ill to be executed," said a statement by the defense lawyers.

The court "held that the Texas state courts have not carefully reviewed the question of Wood's competence and that a stay of execution is necessary to ensure that Wood's mental health issues are fully presented and considered by the courts."

Wood, 35, was convicted and sentenced to die for his role in the robbery and killing of a store manager, Kris Keeran, even though Wood was outside the building at the time of the killing.

According to Texas' "law of parties" statute, participants in a crime can be convicted even if they have no role in or advance knowledge that a killing is to take place.

Wood's partner in crime, Daniel Reneau, was executed in 2002 for the murder.

"At Reneau's trial, the prosecution had argued that Reneau was the person chiefly responsible for the crime and that Wood's role was secondary," the Death Penalty Information Center said.

The federal court intervened after the Texas Board of Pardons denied Wood's application for clemency on Wednesday. Prosecutors said they would not appeal.

In 1997, Wood was initially found incompetent to stand trial after a neuropsychologist said he had "a delusional system, an inability to grasp the reality surrounding the issues specific to this case, his role in it, in the crime," defense lawyers said in their statement.

However, Wood was later tried and convicted.

Allan Turner writes, "Accomplice in 1996 slaying gets execution delay," in today's Houston Chronicle.

In a blistering opinion that labeled state court proceedings "an insane system," a federal judge Thursday halted the execution of Jeffery Wood to allow mental health experts to determine whether the killer is sane enough to be put to death.

U.S. District Judge Orlando Garcia's ruling came less than six hours before Wood, 35, was to be executed for his role as getaway driver in the 1996 murder-robbery of a Kerrville convenience store clerk.

Wood was en route to Huntsville's death house when the decision was handed down. His guards returned him to death row in Livingston.

Earlier coverage of the Wood case is here.   StandDown's mental illness index is here.

In Missouri Accomplice Case, Stay for Clemency Petition

The St. Louis Post-Dispatch carries the AP report, "Missouri court delays scheduled execution."

The Missouri Supreme Court on Wednesday postponed the state's first scheduled execution in three years after attorneys for the condemned man claimed prison officials obstructed their efforts to prepare a clemency petition.

The state's highest court delayed Dennis Skillicorn's scheduled Aug. 27 execution by at least 30 days. The court said his attorneys were entitled to interview inmates and prison staff, on a voluntary basis, so long as that was consistent with prison security needs.

And:

The state Supreme Court said July 25 that it would set Skillicorn's execution date for Aug. 27. On July 28, attorney Jennifer Merrigan sent a letter to the Corrections Department's legal counsel seeking permission to interview seven inmates in preparation for a clemency petition to Gov. Matt Blunt.

Merrigan said in an affidavit to the Supreme Court that she never received a response.

Crawford said Wednesday that was because "we've been working on how they can do that."

Skillicorn's attorney also said the department's general counsel had not responded to a request to interview a prison employee. Crawford said such interviews need to occur on the employee's own time.

The department denied an April request by Merrigan to obtain videotaped statements from prisoners. Crawford said that cameras aren't allowed in prison for security reasons.

In her court filing, Skillicorn's attorney asserted that prison officials were "using their enormous power" to interfere with her work "with the obvious intent of putting their thumbs on death's side of the scales."

"Clemency petition postpones Skillicorn execution," is the report in the Kansas City Star.

Since going to prison, Skillicorn has become the editor of a magazine published by death-row inmates, written a book for troubled youths, founded a program for families with incarcerated parents and led the prison’s hospice program for terminally ill offenders, according to the Missouri Catholic Conference, which has asked the governor to grant him clemency.

According to the court order, his execution will be rescheduled for the first date available after 30 days from Aug. 27.

Today's St. Louis Post-Dispatch also has a lengthy editorial, "The quality of mercy."  Here are two brief excerpts:

Late Wednesday afternoon the Missouri Supreme Court postponed for at least 30 days the state's plans to administer the death penalty for the first time in almost three years. It was the correct decision.

We say that not only because this editorial page long has opposed capital punishment in all circumstances, believing that it has no place in a civilized society. And in this particular case, the arguments against the ultimate punishment are particularly strong.

And:

If the fact Skillicorn had very little to do with the actual murder isn't enough to convince Gov. Blunt to commute his sentence, perhaps his record as a model prisoner will. The Supreme Court's action should help him consider that record more completely. Skillicorn's lawyers had been denied access to prison staff and inmates as part of their efforts to draw up a clemency petition. On Wednesday, the court said this amounted to "obstruction of clemency advocacy."

Skillicorn's lawyers now have one month to do conduct interviews on a voluntary basis with the people who know Skillicorn best. It's in the best interest of the Department of Corrections to cooperate.

As Neal Turnbrough, a former guard at the Potosi Correctional Center in Mineral Point, put it: "You'd like to have a whole prison of Dennises; it makes the job easier."

Skillicorn is a leader in several Christian prison ministries. He helped create a hospice program to care for inmates who are sick and dying. He is the editor of "Compassion," a bi-monthly newsletter for death row inmates nationwide, the mission of which is "promoting restorative justice and reconciliation."

Earlier coverage of the Skillicorn case is here.

Texas Accomplice Execution Set for Tonight

Today's Washington Post reports, "Texas Appears Set to Execute Accomplice."  It's written by Darryl Fears.

The state of Texas is scheduled to execute Jeffery Lee Wood by lethal injection tonight, even though he did not actually kill anyone. Wood was sitting in a truck outside a convenience store when an accomplice shot and killed a cashier in a botched robbery 12 years ago.

If the execution moves forward, Wood, 35, will become only the eighth person to be put to death as an accomplice since capital punishment was reinstated in 1976, according to the Washington-based Death Penalty Information Center. More than 1,100 people have been executed during this period. The executed accomplices do not include those who were put to death for hiring someone to commit murder.

"It is very, very rare," said David Fathi, U.S. program director for Human Rights Watch. "This is a case that illustrates everything that is wrong with the death penalty in Texas."

The Texas Board of Pardons and Paroles recently voted 7 to 0 against clemency. Gov. Rick Perry (R) can issue a reprieve, but experts said that is unlikely in the face of such a strong decision by the board.

Wood has lost challenges to his conviction in state and federal courts, and his lawyers recently filed a motion for a stay of execution to pursue an "incompetency to be executed" claim. A spokeswoman for the Texas attorney general said the office would not comment on the Wood case.

"It certainly doesn't look good," said Richard Dieter, executive director of the Death Penalty Information Center. "The governor can't grant clemency without a recommendation for it. We've seen cases get stayed literally at the eleventh hour, so it's not over."

Since the case began, lawyers and family members have argued that Wood was mentally unfit for trial. They say he has a severe learning disability, is easily coaxed into doing what he is told and is delusional. Wood signed a statement confessing to the crime.

At first, a judge agreed with the lawyers, sending Wood to a hospital for evaluation. A jury later determined that he could stand trial.

Wood's crime fell under the Texas "law of parties" statute that allows an accomplice to be charged with a capital crime if his actions contributed to a murder.

And:

Death penalty opponents argue, however, that Texas has applied its law-of-parties statute too loosely.

A 1982 decision by the Supreme Court appears to support such a view. The court decided 5 to 4 in Enmund v. Florida that imposing the death penalty on a defendant when a murder was committed by others was a violation of the Eighth Amendment if the defendant "does not himself kill, attempt to kill, or intend that a killing take place, or lethal force will be employed."

But a second 5 to 4 decision by the court appears to support Texas. In Tison v. Arizona, a case in which family members broke their father out of prison and then killed a family of four that they flagged down to help repair their getaway car, the court said that the death penalty could apply if it could be shown that the defendant was a "major participant" in the felony and acted with "reckless indifference to human life."

"That's why I think this issue may come back to the Supreme Court," Dieter said. "This is an area that needs some clarification."

Texas, which has put more people to death since 1976 than any other state, executed three men as accomplices between 1985 and 1993.

Steven Hatch of Oklahoma was the last person executed as an accomplice for his role in the torture and shooting of a family and the slaying of the parents. Hatch died in 1996, but his accomplice, Glen Ake, who shot the family members, is serving a life sentence after cooperating with police and prosecutors.

In July, Dale Leo Bishop was put to death in Mississippi for the 1998 kidnapping and beating of Marcus Gentry. Bishop held the 22-year-old victim while another man, Jessie Johnson, bludgeoned him with a carpenter's hammer.

Dieter said the Bishop case was not included on his organization's list of accomplice executions "because we made a decision that this wasn't the same kind of thing."

"He held the man while another man killed him," Dieter said.

The Post also has a sidebar, "Similar Cases," with details of each case.  Texas has carried out three of the seven executions of accomplices.

There have been 1,119 executions carried out since the Supreme Court reinstated the death penalty in 1976. Of those, seven have been of people who were not directly involved in the actual murder or were not the instigators of a contract killing.

In the Houston Chronicle, Allan Turner and Rosanna Ruiz team up to report, "Accomplice law led to execution set for today."

Wood's case was a rare death sentence under Texas' law of parties, which holds accomplices in murders just as culpable as the person who pulled the trigger or wielded the knife. The case has prompted protests by those who contend that the law and the punishment are archaic.

"Put them together," said David Fathi, U.S. program director for Human Rights Watch, "and you have a situation that the rest of the world views with shock and incomprehension."

If Wood is executed, he would be at least the fourth murder accomplice — as opposed to actual killer — put to death through Texas' law of parties in recent years. The law has been part of the state penal code since at least 1879.

"It's a pretty traditional criminal law that accomplices and co-conspirators are equally held culpable," said University of Houston law professor Sandra Thompson, a criminal law specialist. "You don't have to specifically agree to commit a killing. You agree to commit the target crime. Then any other crimes that are foreseeable, you're responsible."

Supporters of the law, she said, suggest that the mere presence of an accomplice can embolden a criminal to kill. Under this theory, a crime might not have been committed without the presence of an accomplice to support the act.

University of Texas law professor Jordan Steiker, however, argued that the law's application to Wood "flies in the face of a broader effort to reserve the death penalty for extreme cases."

Fathi said prosecutors in Reneau's case mocked defense attorneys when they tried to deflect responsibility onto Wood.

"They argued clearly and unambiguously that Reneau was the bad actor," he said. "Then, after getting the death sentence, at Wood's trial they essentially conflated the two men. They argued that they were in this together."

Kerr County District Attorney Bruce Curry, whose office prosecuted the case, did not return telephone calls.

The law of parties, derived from English common law, is on the books in 24 of 36 American death penalty states, but internationally, Fathi said, it is increasingly rare. England abolished it 51 years ago.

"Texas to execute mentally ill man in controversial case," is the AFP dispatch via Google News.

In right-leaning Texas, support for the death penalty and the state's tough "law-and-order" approach remains high, with advocates arguing the punishment is just, deters crime and provides comfort to victims' families.

Ambiguity surrounding mental illness also makes Wood's case controversial.

Wood's lawyers asked the governor of Texas to delay Wood's execution by one month, after he had been in solitary confinement on Death Row for ten years, 23 hours a day, to evaluate his mental health.

In 1986, the Supreme Court effectively banned executing anyone too mentally ill to understand what was to happen to them and why. But it did not establish criteria for evaluating mental competency.

"If a person is only mentally ill and not incompetent, the decisions are less clear and are up to individual judgments by the governor or the jury," Richard Dieter, director of the Death Penalty Information center, told AFP.

In March 2008, Richard Taylor, condemned to death for murdering a prison guard 27 years earlier when he was gravely afflicted with schizophrenia, saw his death penalty commuted to life in prison in the southern state of Tennessee.

But Kelsey Patterson was executed in Texas in May 2004 despite having been diagnosed with paranoia and schizophrenia prior to his criminal act.

The Pennsylvania Supreme Court recently authorized the state penal system to administer, by force if necessary, psychotropic medicine to two convicts on Death Row, to render them mentally competent and subject to execution.

"It is awkward and quite strange to see states force inmates to take medication so they can be killed, but this is the hateful nature of our capital punishment system," Rick Halperin of the Texas Coalition to Abolish the Death Penalty told AFP.

"It has very little to do with logic, and certainly nothing to do with compassion."

"Former Texaco manager remembers shooting," is Caleb Chapman's article in the Kerrville Daily Times.

The Texaco station at Texas 16 and Interstate 10 where Kriss Keeran was murdered during a robbery on Jan. 2, 1996, no longer stands, but the memories are vivid for the man who was manager at the time.

“It still has an impact on me,” James Skinner said. “Just about the time I think it’s almost out my mind, I read another article about it in the newspaper.”

Skinner remembers being called in more than 12 years ago to identify Keeran’s body shortly after he was fatally shot in the face with a .22-caliber pistol.

“Kriss was lying behind the counter, and I had to step over him,” Skinner said. “I had to check the register tape to see the what time the last transaction was and had to look around to determine what was missing.”

Skinner said Keeran’s death had an impact on everyone who worked at the station.

“He was a strange bird, but a nice kid,” Skinner said. “He would do anything for people.”

Keeran reportedly was privy to the robbery and had been in discussions with roommates Daniel Reneau and Jeffery Wood prior to the incident. Apparently on the day of the incident, Keeran changed his mind and did not cooperate when Reneau entered the store just before dawn.

And:

As far as the death penalty, Skinner isn’t sure what to think.

“I don’t know how I feel about execution,” he said. “We’ve already had one death. I don’t know if another death solves the problem.

“I have mixed emotions about the death penalty. It’s a hard one.”

Earlier coverage is here.  John Gramlich's Stateline briefing on the felony murder rule (also known as the law of parties) is noted in this post.