The StandDown Texas Project

Kentucky Judicial Conduct Commission to Examine Judge's Behavior

The Louisville Courier-Journal posts, "Senior Judge Martin McDonald faces ethical charges after threatening to strangle lawyer, suspension possible," by Andrew Wolfson.  There is video at the link.

The Judicial Conduct Commission has charged Senior Judge Martin McDonald with violating the canons of judicial ethics — in part for threatening to strangle an attorney — and also moved to temporarily suspend him.

The agency, which has the power to remove judges from the bench, has set a June 4 hearing on the motion to temporarily suspend McDonald, saying he suffered a stroke about a 1½years ago that may “seriously” interfere with the performance of his duties.

McDonald’s lawyer, Timothy Denison, has filed a response denying the allegations and asking that the case be dismissed because McDonald finished his last day of service as a senior judge on May 31 and “will not adjudicate any more legal issues.”

And:

In the second, in a death-penalty case, in an “intemperate voice” McDonald told a public defender that “if you ever call me on my cell phone again, I’ll strangle you again” and would get the attorney’s law licensed “yanked,” and that his arguments “bordered on the ridiculous.”

"Ky weighs suspending judge over behavior during death penalty appeal; Hearing set for Tuesday," is the AP's coverage by Brett Barrouquere, via the Republic.

Kentucky judicial officials are moving to suspend a senior judge over allegations of misbehavior during two hearings, including an appeal from a death row inmate.

A hearing is set for Tuesday in Paducah for Senior Judge Martin McDonald before the Kentucky Judicial Conduct Commission.

Earlier coverage of the incident begins at the link.

The Death Penalty's Hidden Injustice

That's the title of commentary by Jeb Golinkin at the Week magazine.  It's subtitled, "I believe capital punishment is a just sentence in many cases. But it can also be used as a cudgel to hurt the innocent."

But this abstract debate ignores bigger and less explored dilemmas created by the death penalty. The first is obviously human fallibility. Put simply, innocent people have been convicted of capital crimes and put to death in the United States of America. In the vast majority of those cases, no one acted in bad faith. The jury just got it wrong. In a legal culture that adopted and embraced Blackstone's formulation — "better that 10 guilty persons escape than that one innocent suffer" — the fact that we can get it wrong is deeply problematic, even if, like me, you believe there are crimes for which death is an appropriate sentence and that juries are neither cruel nor inhumane in imposing that sentence on the party they believe perpetrated such an offense.

Now, let's turn to the "Norfolk Four." Their story is long and complicated, but basically, four sailors in Virginia confessed to a rape/ murder that they had nothing to do with after extended questioning and repeated reminders that they could face the death penalty if they refused to admit to their alleged crimes. Later, the true killer came forward and basically said he had no idea who the four fellows the police were talking to him about were. I bring this up because one of those individuals, Eric C. Wilson, still has not been totally exonerated (he is out of prison but he still has to register as a sex offender) and last month filed an appeal to the Supreme Court of the United States asking the high court to permit him a venue through which to clear his name, once and for all.

To borrow from a phrase uttered by one of the attorneys interviewed in the Frontline special on the Norfolk Four, death changes everything. In the coming months, we will see, up close, the upside and downsides of what the mere existence of the death penalty allows law enforcement to do in the stages before the trial even starts.

Earlier coverage of the Norfolk Four begins at the link.

South Florida Sun-Sentinel Calls for Veto of Timely Justice Act

"Gov. Scott should veto bill that speed up death penalty punishments," is the Sun-Sentinel editorial.

Florida is the state most likely to send the wrong person to death row. Twenty-four times since the mid-1970s, we have sentenced an innocent person to death. Twenty-four times. No other state has racked up more exonerations.

So tell us again why we need a law that speeds up executions?

Known flaws in the system are the biggest reason why Gov. Rick Scott should veto the Timely Justice Act, a bill recently passed by the Florida Legislature that would super-charge the death penalty process.

The legislation would require the governor to sign a death warrant within 30 days of a Supreme Court review, with execution to follow within 180 days.

The law would give wrongly condemned inmates about eight months to prove their innocence before our government puts them to death.

And remember, there are no take-backs in the lethal-injections business. That fact alone should guide the governor's decision.

The New York Times recently reported on another Florida death-row inmate, Clemente Javier Aguirre-Jarquin, who has presented DNA evidence that could set him free. It took seven years for the evidence to surface. If the Timely Justice Act were already law, he would not be alive to fight for his own justice. As it stands, he appears poised to become the state's 25th death-row inmate to be exonerated.

Earlier coverage from Florida begins at the link.

Benjamin Todd Jealous on Capital Punishment

"How the death penalty will end: first Maryland, then the nation," is the title of Benjamin Todd Jealous' Baltimore Sun OpEd.  He is president of the NAACP. Here's the beginning:

The death penalty debate in Maryland is finally over. This spring's decision by the General Assembly to replace the death penalty with life without parole was cemented last week, when right-wing activists failed to muster enough signatures to force the issue onto the ballot. We, the people of Maryland, have sent a clear and firm message: capital punishment belongs in our past, not our future.

In doing so, we have joined New Jersey, New York, New Mexico, Illinois and Connecticut as the sixth state in six years and 18th in the nation to abolish the death penalty. We have brought America one state closer to joining the rest of the Western world in putting capital punishment behind us once and for all.

The question in front of us is a simple one: where do we go from here? The answer is both clear and urgent. We must abolish the death penalty in America, and we must shift law enforcement resources toward proven crime-prevention strategies like community-oriented policing and more police on the streets.

That is why the NAACP and our allies will stay focused on abolishing the death penalty in America as a whole. Our strategy is clear: We will outlaw it in a majority of states, and then we will go to the United States Supreme Court and make the argument that the punishment is not only cruel by its very nature but also unusual because most states have passed laws against it.

Earlier coverage of Maryland's repeal of the death penalty begins at the link.

More From California

"Ruling, red tape are a setback for California executions," is by Maura Dolan in the Los Angeles Times.

California may be stymied for years to come in its efforts to resume executions as a result of a new court ruling, bureaucratic requirements and difficulty obtaining lethal injection drugs, advocates on both sides of the death penalty said Friday.

Supporters of capital punishment urged Gov. Brown to challenge a state appeals court's unanimous decision against California's lethal injection protocol, even though an appeal could take years. They also called on the governor to introduce a new single-drug execution method for public vetting.

"This should be attacked on every front," said Kent S. Scheidigger, legal director of the Criminal Justice Legal Foundation. "We have had justice held up for a preposterous seven years now."

Opponents of the death penalty expressed doubt the state could ever restart the death chamber at San Quentin State Prison.

"Any effort to resume executions will cost hundreds of thousands of public dollars and take years, with an extremely limited chance of success," said Natasha Minsker, an ACLU director who managed last year's unsuccessful campaign to repeal California's death penalty.

Earlier coverage of the California appeals court ruling begins at the link.

Hickenlooper's Conundrum: State Needs to Reconsider the Death Penalty

That's the title of an editorial in the Boulder Daily Camera.

Gov. John Hickenlooper, by all accounts, weighed the decision of whether the state should execute murderer Nathan Dunlap very carefully. His decision to grant him a temporary reprieve surprised almost everyone.

Dunlap will not be executed while Hickenlooper is governor.

We acknowledge that Hickenlooper faced a terrible conundrum. He had to make a decision that would anger so many people, and one that could make him seem callous to the victims' families. He could make a decision that might make him the last Colorado governor in history responsible for executing someone.

People who favor the death penalty claimed he was overly political, and "chickened" out of the "tough" decision -- the one that could have scheduled Dunlap's execution by the state in August.

In truth he made the most politically brave decision at all: He made a decision that was unpopular with pretty much everyone.

"No credible evidence on whether death penalty deters, experts say," is the Denver Post news report by Michael Booth.

Go ahead and stake out your opinion on whether a state's death-penalty law will deter future murderers.

But don't pretend that opinion is based on any remotely credible evidence, according to a consensus of criminologists, economists and other academics who have reviewed deterrence studies from both sides and officially declared them useless.

The National Academy of Sciences picked apart decades of deterrence research last year and recommended "that these studies not be used to inform deliberations" on capital punishment. In a blunt report, the academy's National Research Council noted it had made a similar survey 30 years before and was "disappointed" to learn each study since was equally futile.

Such pessimism, and accompanying admonitions to move on to other death-penalty topics, has not stopped statisticians from attempting proofs and rejections of deterrence.

The Death Penalty Information Center points to higher murder rates in states that have the death penalty as proof the sentencing threat does not deter crime. The gap grew in the 1990s, these opponents of executions say, to the point where death- penalty states currently have 35 percent more murders per capita than those who have abolished it.

If deterrence worked, how could Texas, which executes a dozen inmates a year, have a higher murder rate than Colorado, which has executed one murderer in more than four decades?

Boulder Rabbi Joshua Rose writes, "Death penalty -- No value in ending a life," in the Daily Camera.

As a matter of religious conscience I oppose the execution of Nathan Dunlap ("Nathan Dunlap granted temporary reprieve," May 22) and I agree with the governor's decision to stay the execution.

I am one of numerous Colorado religious leaders who urged Gov. John Hickenlooper to commute Dunlap's death sentence to life with no possibility of parole. Many of us from across the religious spectrum who often agree about very little spoke together on this issue because we believe that society cannot affirm the value of life by extinguishing a life.

My own religious tradition views the death penalty as a great moral danger. In addition, the brutal violence of the death penalty does nothing to improve our communities. Dunlap is being held accountable for his awful crime, but in a way that upholds our own humanity.

Earlier coverage of Nathan Dunlap's case begins at the link.  The James Holmes case is also active in Colorado.

North Carolina Editorial Roundup

Today's Winston-Salem Journal publishes the editorial, "The Racial Justice Act: GOP leaders should not kill it."

The groundbreaking Racial Justice Act, which is crucial to curb racial bias in death penalty cases, could essentially be erased by the state House this week. The GOP leaders who control the House should put the brakes on this train.

At a press conference earlier this month, Jonathan Megerian, a Randolph County defense lawyer and a Republican, said, “I cannot imagine a worse time to be rushing people into the execution chamber.”

Senate Bill 306, which would kill the RJA, has already cleared the Senate.

The RJA was pushed through in 2009 by legislators Larry Womble and Earline Parmon of Winston-Salem. Study after study has shown that the imposition of capital punishment in North Carolina often comes with racial bias. In extreme cases, it’s all too obvious: a black defendant who got the death penalty in Stanly County being referred to in trial testimony as a "nigger from Wadesboro." A juror in a Randolph County case who said after the trial in which he voted for death for the black defendant that "blacks do not care as much about living as whites do."

"A law undone," is the Raleigh News & Observer editorial.

State Sen. Thom Goolsby of Wilmington could hardly contain his glee as his bill to repeal North Carolina’s Racial Justice Act of 2009 neared passage in the state House, the final step in doing away with the RJA. He sent out a triumphant-sounding email to constituents on Friday happily noting that his repeal will be effective once the state House passes it next week, almost a certainty. The state Senate already agreed to repeal.

And:

Goolsby’s arguments in favor of repeal, not that he needs to make them with the GOP in overwhelming charge of the legislature and in possession of the governor’s office, include one that the families of the victims of those on death row deserve “justice.” But in that context, the word is interchangeable with “revenge.”

And revenge is not the purpose of the justice system. It may be an understandable emotion that some families of victims feel, of course. And the public, even the members of the public who oppose the death penalty, can sympathize with and comprehend the feelings of those families.

But the justice system is supposed to provide a fair trial, routes to appeal and competent counsel. It also is supposed to safeguard against prejudice in jury selection, racial prejudice in specific, such as the exclusion of jurors of one race or another. That such prejudice in the past has existed in the South is generally not disputed. And while it’s hoped that those times and those problems have passed, the chances of perfection in the justice system are about as great as the chances for perfection in anything.

"Racial Justice Act should stay," is the High Point Enterprise editorial.

Republicans in the Legislature have railed against the Racial Justice Act since first enacted by a Democrat-controlled General Assembly. They specifically targeted language that allowed death row inmates to have their sentences reduced to life in prison if they showed race factored into trial or sentencing proceedings. Many opposed the heavy weight the 2009 law gave to statistical analysis that purported to show racism. The Enterprise also editorialized against that.

But last year, a Republican majority Legislature revised the Racial Justice Act and rewrote the language that gave exaggerated weight to statistical evidence. The Enterprise supported the points in the revised act, which now also states: “Statistical evidence alone is insufficient to establish that race was a significant factor under this article.” Former Gov. Beverly Perdue vetoed last year’s legislation, but the GOP majority overrode that veto, and rightly so. Last year, the Legislature fixed what was wrong with the N.C. Racial Justice Act.

But now, that GOP majority wants to totally eliminate the N.C. Racial Justice Act from state law. Republicans say defendants have protections against race-based decisions in other statutes. Maybe so. But high-profile cases in recent years in North Carolina and elsewhere have shown that more specific language and avenues for review of cases where race might have played a role are necessary. Today’s Racial Justice Act does that, setting reasonable, rational procedures. It should remain a part of state law.

Earlier coverage from North Carolina begins at the link.

Maryland Referendum Petition Fails - Updated

WJZ-TV posts, "Petition To Put Death Penalty Repeal On The 2014 Ballot Fails," by Pat Warren.

Opponents  of the death penalty repeal needed 18,500 signatures by May 31 to get the measure on the November 2014 ballot. They managed to get 15,000.

The petition drive was led by Baltimore County State’s Attorney Scott Shellenberger and MDPetitions.com.

Shellenberger and MDPetitions.com leader Neil Parrott announced Friday afternoon that the drive to put death penalty on the ballot has failed.

Update:  The Baltimore Sun posts, "Efforts to restore capital punishment fall short," by Erin Cox.

The group hoping to put Maryland's new death penalty repeal law before voters in 2014 faced a midnight deadline tonight to give 18,579 valid signatures to election officials — the first hurdle in collecting more than 55,000 signatures to send a law to referendum.

The Maryland legislature voted this year to remove the death penalty from the books, replacing it with life without parole as the ultimate sentence in the state. When Gov. Martin O'Malley signed the law, Maryland became the sixth state in as many years to outlaw the death penalty.

A coalition of prosecutors and the voter advocacy group MdPetitions.com launched the unsuccessful effort to let voters decide whether to keep the death penalty. Friday's announcement means nothing stands in the way of the repeal taking effect in October.

Earlier coverage from Maryland begins at the link.

Maryland Death Penalty Supporters Lagging in Petition Signatures

The Associated Press reports, "MD Death Penalty Supporters to Make Announcement."  It's by Don Rush, via Delmarva Public Radio.

The Baltimore County state’s attorney is joining a state lawmaker at an announcement related to Maryland’s recent repeal of the death penalty.

Scott Shellenberger is scheduled to join Del. Neil Parrott at an event Friday afternoon in front of the Frederick County Board of Elections.

The officials have not said what they’ll announce, though both have been critical of the death penalty repeal.

"Petition on death penalty repeal lacking enough signatures," is by Erin Cox for the Baltimore Sun.

Activists who worked to repeal the death penalty anxiously awaited news Friday that their efforts would not be overturned by a successful petition drive. 

"It sounds like they're going to announce that they don't have the signatures," said Jane Henderson, executive director of Maryland Citizens Against State Executions. "We're happy with that scenario. Democracy's already been served. ... I'm excitedly waiting to see if, come midnight, I'm out of a job." 

Despite a flurry of last-minute signature-gathering, proponents of capital punishment may abandon their efforts to put the death penalty to a referendum vote in 2014.

In the past few weeks, the group pushing the petition was far behind its goals to meet Friday's midnight deadline to turn in 18,579 signatures to election officials, said Frederick County State's Attorney J. Charles Smith III.

A formal announcement on the group's plans has been scheduled for Friday afternoon in Frederick. The time was moved to 2 p.m. 

“We're still counting, and we're still collecting,” said Republican Del. Neil Parrott, chairman of the mdpetitions.com group leading the effort to put death penalty repeal before voters. “When we announced this, we knew it was going to be a long shot. We’re still trying to see what we can do.”

"Drive to overturn death penalty repeal in trouble, lawmaker acknowledges," by John Wagner in the Washignton Post.

One of the supporters of a petition drive to overturn Maryland’s death penalty repeal acknowledged Thursday that the effort has run into trouble.

“I’m concerned we’re not going to make it,” said Sen. James Brochin (D-Baltimore County). “It’s been hard to know where to go for signatures.”

His comments came the day before the deadline for repeal opponents to turn in an initial batch of signatures that would allow the drive to continue.

A successful effort by MDPetitions.com, the group leading the petition drive, would halt the death penalty repeal law pending a statewide vote in November 2014.

The group has until midnight Friday to turn in 18,579 valid signatures to Maryland’s secretary of state. If the group succeeds, it will be given another month to produce an additional 37,157 signatures of registered voters.

Earlier coverage of Maryland's repeal of the death penalty begins at the link.

California Appeals Court Upholds Moratorium; State Erred in LI Procedures

The California First District Court of Appeals ruling in Sims v. CDCR is available in Adobe .pdf format.

ReutersLegal posts, "California appeals court upholds moratorium on executions," by Ronnie Cohen.

A California appeals court upheld a judge's ruling on Thursday prohibiting the state from executing condemned inmates until it adopts a new lethal-injection protocol, in the latest judicial move against capital punishment in the state.

California has 736 inmates on death row but has not executed anyone in seven years.

A federal judge imposed a moratorium on executions there in 2006, ruling that the most populous U.S. state's use of a lethal three-drug cocktail amounted to cruel and unusual punishment.

Since then, corrections officials have tried to fix deficiencies in the injection procedure, but a state trial court last year imposed its own separate moratorium on executions after deeming the process "a substantial failure."

Thursday's California 1st Appellate District ruling came in a challenge by condemned murderer Mitchell Sims, who sued in 2010 arguing that one of three drugs to be used for executions was unnecessary and would cause excruciating pain.

Sims' attorneys also alleged the state failed to follow procedures in formulating its latest combination of drugs to be used in the lethal cocktail.

Superior Court Judge Faye D'Opal of Marin County, the site of San Quentin State Prison's death row, last year ordered a moratorium on killing inmates by lethal injection until the California Department of Corrections and Rehabilitation (CDCR) enacted new regulations in compliance with state rules.

A three-judge appeals court panel upheld D'Opal's decision.

"Calif. appeals court rules state made several errors in adopting new lethal injection rules," is the AP coverage, via the Washington Post.

Executions in California will remain suspended after a state appeals court ruled that corrections officials made several “substantial” procedural errors when they adopted new lethal injection rules.

The 1st District Court of Appeals said the California Department of Corrections and Rehabilitation failed to explain, as required by state law, why it was switching from a three-drug injection method to a single drug.

The court’s opinion, which affirmed a lower court ruling, also said the agency misled the public by not providing the documents and information it used to reach its decision.

Corrections spokeswoman Deborah Hoffman said in an email that the agency was reviewing the ruling.

“In the meantime, at the governor’s direction, CDCR is continuing to develop proposed regulations for a single-drug protocol in order to ensure that California’s laws on capital punishment are upheld,” Hoffman said.

The Los Angeles Times report is, "Appeals court deals California another setback on executions," by Maura Dolan.

In a decision written by Justice J. Anthony Kline, a three-judge panel of the 1st District Court of Appeal upheld a Marin County judge’s decision that the California prison officials failed to comply with public participation requirements when they last revised the state’s lethal injection procedures.

The appeals court said the Department of Corrections and Rehabilitation did not fully inform the public of alternatives to the three-drug method of execution the department favored.

“A hearing is ‘on the merits’ and ‘meaningful’ only if the interested public has timely received all available information that is relevant to the proposed regulations, accurate, and as complete as reasonably possible,” Kline wrote.

Corrections officials never explained why they favored continuing the state’s three-drug lethal injection or their reasons for rejecting other methods, the court said.

That failure was particularly significant because many commentators had complained that one of the three drugs the state has used --  pancuronium bromide -- could both create and mask excruciating pain by paralyzing inmates during executions, the court noted. The state’s own expert also had recommended a single-drug execution method.

Corrections officials told the court that they had responded to 29,416 correspondences from the public, posted notices of its proposal in all California prisons and held a lengthy hearing in which 102 people commented on the proposed lethal injection protocol.

But Kline said the state’s view of the purpose of the public participation law was “far too limited and simplistic.”

“Affected people cannot be thought to have been heard … simply because large numbers of interested people were provided an opportunity to be heard,” Kline wrote. “The public participation contemplated by the [law] is not a numbers game.”

"California's death penalty on hold again," by Howard Mintz for the Silicon Valley Mercury News.

Ensuring California's death penalty system remains in limbo for the foreseeable future, a state appeals court on Thursday scrapped the state's latest attempt to update its lethal injection procedures.

In a 28-page ruling, the 1st District Court of Appeal found that state prison officials failed to comply with administrative rules when crafting new regulations more than two years ago.

The unanimous decision of the three-justice panel sends California back to the drawing board, unless the Brown administration takes the case to the California Supreme Court and keeps more than 700 Death Row inmates on an indefinite reprieve.

"State court rejects new execution rules," by Henry K. Lee for the San Francisco Chronicle.

The ruling bolsters a freeze that state and federal courts have imposed on executions in California since the last one took place in January 2006.

Later that year, a federal judge ruled that the executions, carried out by poorly trained staff in a dimly lit chamber, posed an undue risk of a prolonged and agonizing death in violation of constitutional standards.

If state officials are able to eventually pass valid regulations, they still must convince a federal judge that the new rules eliminate the risk of cruel and unusual punishment.

Earlier coverage of California lethal injection issues begins with oral arguments before the appeals court.  Also available is coverage of California legislation.

Related posts are in the lethal injection category index.

Military Plea Agreement Would Waive Death

The Associated Press posts, "Lawyer: Soldier to plead guilty in Afghan massacre," by Gene Johnson.

Staff Sgt. Robert Bales was "crazed" and "broken" when he slipped away from his remote southern Afghanistan outpost and attacked mud-walled compounds in two slumbering villages nearby.

Next week, Bales will recount what happened next - the slaughter of 16 villagers in one of the worst atrocities of the Afghanistan war. He'll give specific details in open court as he pleads guilty to the massacre to avoid being put to death.

His attorney, John Henry Browne, told The Associated Press that although his client's state of mind should be considered in sentencing, it didn't rise to the level of a legal insanity defense.

Browne said Bales was "crazed" and "broken" the night of the attack.

He said his client, who was on his fourth combat deployment, was suffering from post-traumatic stress disorder and a traumatic brain injury. He continued to blame the Army for sending him back to war in the first place.

"He's broken, and we broke him," Browne said.

The outcome of the case carries high stakes. The Army had been trying to have Bales executed, and Afghan villagers have demanded it.

And:

Any plea deal must be approved by the judge as well as the commanding general at Joint Base Lewis-McChord, where Bales is being held. A plea hearing is set for June 5, said Lt. Col. Gary Dangerfield, an Army spokesman. He said he could not immediately provide other details.

"The judge will be asking questions of Sgt. Bales about what he did, what he remembers and his state of mind," said Browne, who told the AP the commanding general has already approved the deal. "The deal that has been worked out ... is they take the death penalty off the table, and he pleads as charged, pretty much."

A sentencing-phase trial set for September will determine whether Bales is sentenced to life in prison with or without the possibility of parole.

"U.S. soldier accused of killing Afghans in deal to avoid execution - lawyer," is the Reuters report by Eric M. Johnson, via the Chicago Tribune.

A U.S. soldier accused of killing 16 Afghan civilians in two rampages from his Army post last year has reached a plea deal with prosecutors to avoid the death penalty, one of his lawyers said on Wednesday.

Robert Bales, a decorated veteran of four combat tours in Iraq and Afghanistan, is accused of gunning down villagers, mostly women and children, in attacks on their family compounds in Kandahar province in March 2012.

Lawyer Emma Scanlan said in an email that Bales would plead guilty to premeditated murder charges and would then go before a military jury for sentencing to determine whether a life sentence for his crimes would include the possibility of parole.

"There will be a jury for the sentencing phase beginning in August," Scanlan said.

Related posts are in the military category index.

North Carolina Update

"Racial Justice Act: Death penalty measure advances in N.C. House," is the AP report by Chris Kardish.  It's via the Fayetteville Observer.

A North Carolina House panel endorsed a bill Wednesday that repeals a procedure for condemned inmates to challenge death sentences on racial grounds, sending the measure to the full House for final passage.

The bill is intended to restart executions in the state by ending the Racial Justice Act, which was passed four years ago when Democrats controlled state government. The act allows a judge to reduce a death sentence to life in prison if race is found to be a significant factor in the case.

It was weakened last legislative session by new Republican majorities. The state hasn't carried out an execution since 2006 because of various legal appeals.

The bill also protects medical professionals from disciplinary action from licensing boards for assisting in an execution, but the provision repealing the Racial Justice Act has generated the most attention, drawing debate from district attorneys on both sides of the issue, the families of murder victims and religious leaders.

The bill already passed the Senate. Republicans control both chambers of the General Assembly and the governor's mansion.

The bill originally allowed inmates to cite statistics in their appeals, but Republicans repealed that provision last session. A Cumberland County judge reduced the sentences of four convicted murderers on racial grounds last year, ruling on three of the cases after the rollback of the act.

Earlier coverage from North Carolina begins at the link.

Florida Executes Amid Religious Calls for Repeal

"Florida bishops say use of death penalty 'sanctions revenge'," is by Catholic News Service.

Using capital punishment to show that killing is wrong "sanctions revenge," Florida's seven Catholic bishops said in a letter to Gov. Rick Scott.

Asking that Scott commute the death sentences of inmates Elmer Carroll, William Van Poyck and Marshall Gore to life in prison, the bishops said the violence of capital punishment would do little to relieve the pain of the survivors of the men's victims or be helpful to society.

Scott recently signed warrants for the executions of the men over a span of 26 days starting May 29. Observers said the executions would be the most in such a brief period of time in more than two decades.

"Governor, will our citizenry be any safer, will Floridians be any better protected, if we execute these men? Will not the safety of persons and the preservation of public order be as secure if instead you commute these sentences to lifelong confinement?" the bishops asked.

"Killing people to show that killing is wrong is a piercing contradiction and one that touches our very souls," the church leaders added. "Executions coarsen us. We daily condemn the glorification of violence, but what example is set when our state legitimizes killing? What results can we expect?"

The Tampa Tribune posts the AP report, "Carroll executed for rape and murder of Apopka girl, 10."

A convicted child molester condemned for the 1990 rape and murder of a 10-year-old Florida girl was executed Wednesday at the Florida State Prison.

Elmer Carroll, 56, was pronounced dead at 6:12 p.m. Wednesday after an injection at the prison in Starke, Florida Gov. Rick Scott's office said.

It was Florida's second execution in 2013.  To date, there have been 13 executions in American death penalty states this year; a total of 1,333 post-Furman executions since 1977.

Earlier coverage from Florida begins at the link.

Colorado Judge Rules State's Insanity Defense Laws Constitutional

The Denver Post reports, "James Holmes trial: Judge clears insanity plea's constitutionality," by John Ingold.

Colorado's laws for insanity pleas do not violate the U.S. Constitution, the judge in the Aurora movie theater shooting murder case has ruled.

The judge's order clears up the last disputed issues around a tendered insanity plea for theater shooting suspect James Holmes. Judge Carlos Samour, who issued Wednesday's ruling, is expected to decide at a hearing on Friday whether to accept Holmes' insanity plea.

Attorneys for Holmes argued that the state's laws on insanity pleas violated Holmes' rights against self-incrimination.

The laws require defendants pleading not guilty by reason of insanity to cooperate in a court-ordered independent psychiatric evaluation. If defendants do not cooperate, they will be barred from calling any mental-health experts of their own to testify on their behalf at trial — or at a death-penalty sentencing hearing.

Holmes' attorneys said the laws amounted to a compulsion to confess. They also said the law hurts Holmes' rights to due process because evidence of noncooperation could be used against him. "[I]t is well settled and fundamental that a defendant may not be penalized for the exercise of his Fifth Amendment right to remain silent," Holmes' attorneys wrote in a motion earlier this year.

"James Holmes' Insanity Challenge Rejected: Judge Upholds Colorado Laws As Constitutional," is Dan Elliott's AP filing, via Huffington Post.

Colorado's laws on insanity pleas and the death penalty are constitutional, a judge ruled Wednesday, rejecting a key argument by lawyers for the defendant in the deadly movie theater shootings.

Attorneys for James Holmes contended the laws could work in combination to potentially cripple the insanity defense if the case ever gets to a jury. They wanted Judge Carlos A. Samour Jr. to address their concerns before Holmes formally enters a plea of not guilty by reason of insanity.

Wednesday's ruling could clear the way for Samour to accept Holmes' insanity plea at a hearing scheduled for Friday. But the defense could ask the state Supreme Court to overturn the ruling, further delaying the case.

And:

In his ruling, Samour said the law's restrictions on presenting mitigating evidence about a defendant's mental state are not as broad as the defense claimed.

Samour also said he would require state doctors to get Samour's permission to use a narcoanalytic interview, noting that prosecutors have already agreed to such an arrangement.

Holmes needs court permission to change his plea because a judge entered a standard not guilty plea on his behalf in March. Samour is likely to approve the change, but Holmes would first have to agree to the conditions, including the requirement that he cooperate during the mental evaluation.

"Theater-Shooting Suspect Loses Death Penalty Law Challenge," is by Joel Rosenblatt for Bloomberg News.

Samour ruled the Colorado death penalty law is constitutional “on its face” without applying it to Holmes’s case in particular, Steinhauser said. Lawyers for Holmes may appeal the ruling or wait to see if the alleged flaws in the law end up applying to their client and challenge it later, she said.

Public defenders representing Holmes objected on due process grounds to a provision of Colorado law blocking him from calling witnesses at any sentencing hearing to present evidence about his mental condition if he doesn’t cooperate with court-appointed psychiatrists. Under state law, psychiatrists can require Holmes to submit to interviews under the influence of a so-called truth serum, according to Steinhauser.

The judge who previously handled the case, William Sylvester, ruled that prosecutors may require Holmes to submit to a “narcoanalytic interview” under the influence of “medically appropriate” drugs. Such drugs can enable a person to recall something they’re having difficulty remembering.

Earlier coverage of the James Holmes case begins at the link.  The Nathan Dunlap case is also active in Colorado.

Nevada Cost Study Progresses

"Death penalty audit clears Nev. Senate panel," is the AP report by Sandra Chereb, via the Nevada Appeal.

A bill requiring a study on the cost of the death penalty in Nevada cleared a state Senate committee Tuesday on a party-line vote, with Republicans raising concerns the study is a veiled attempt to abolish capital punishment.

The Senate Committee on Legislative Operations and Elections endorsed AB444, with Sens. James Settelmeyer, R-Minden, and Barbara Cegavske, R-Las Vegas, opposed.

Assemblyman James Ohrenschall, a prime sponsor of the bill, said the goal is to give legislators a thorough analysis on how much it costs Nevada taxpayers to keep the death penalty.

Backers of the bill note that condemned inmates typically remain on death row for decades as countless appeals wind through the courts. Most die in prison or are executed only when they volunteer for lethal injection.

There are 83 people on Nevada’s death row. The last execution was in 2006 and none is imminent.

And:

A similar bill was vetoed in 2011 by Republican Gov. Brian Sandoval, who said it lacked specifics to ensure the result would be fair.

Earlier coverage from Nevada begins at the link.

In North Carolina

"Racial Justice Act Repeal goes to House floor," is the WRAL-TV report by Laura Leslie.

A proposal to repeal the remainder of the 2009 Racial Justice Act could be on the House floor for a vote Thursday after passing a House judiciary committee on a straight party-line vote Wednesday. 

Senate Bill 306 would strike the Racial Justice Act from state law, voiding all pending cases for relief under the statute. 

The 2009 law allows death row inmates to seek to have their sentences commuted to life without parole if they can prove to a judge that racism played a role in their sentencing. 

And:

Rep. Rick Glazier, D-Cumberland, one of the 2009 law's original supporters, said successful cases under RJA have proven beyond a doubt that the state's justice system is "infected by institutionalized racism."

Repealing the law in the face of evidence that it's needed, he said, "comes perilously close to state-condoned racial discrimination in our justice process." 

"RJA created an opportunity to get behind what many of us knew was out there, and that is that we're a product of our time" in practices like jury selection, Glazier said. "If we're afraid to confront where we have been, it's not a good place where we're going."

Earlier coverage from North Carolina begins at the link.

In Today's Wall Street Journal

"A Few States Want More Executions," is by Ashby Jones in the Wall Street Journal.

Bucking the trend of states scrapping their death penalties, a handful of legislatures are trying to amend their capital-punishment systems to speed up the process and help ensure that more executions take place.

Florida’s Republican Gov. Rick Scott is currently considering a bill the Legislature passed in April that would mandate that the state execute a prisoner within 180 days after the governor signs a death warrant. The ‘Timely Justice Act’ would create tighter time frames for judges considering death-penalty appeals, and make some types of post-conviction motions harder to bring, including whether a defendant should get a new trial as a result of lawyer incompetence.

In North Carolina, legislators are expected to pass a bill that would overturn a 2009 law allowing death-row inmates to challenge sentences on grounds that they were racially biased. Legislators in other states are pushing bills that fix problems with their lethal-injection procedures, which have led to a host of legal challenges, and in some cases years-long moratoriums on executions.

The efforts to carry out more executions run counter to a growing tide of disenchantment with the death penalty in parts of the country, often because of a widespread belief the death penalty as practiced is costly and inefficient.

Maryland Democratic Gov. Martin O’Malley made cost a centerpiece of his successful campaign to get rid of the death penalty earlier this year. The state became the sixth to abolish capital punishment since 2007.

Earlier coverage of the Florida legislation and Maryland repeal begins at the link.  I'll have updates from North Carolina next.

Exceptions to Harsh Rules

That's the title of an editorial published by the New York Times regarding yesterday's Supreme Court rulings in criminal cases, Trevino and Perkins.

On Tuesday, the Supreme Court handed down two important criminal procedure decisions, both allowing defendants to seek habeas corpus review of their convictions in federal court. The 5-to-4 majority, with Justice Anthony Kennedy joining the court’s four moderate liberals, reached the right result in each case. But, in a larger sense, the two decisions show how much the scope of habeas review has been curtailed by the Supreme Court in the last three decades, so that it now must work around earlier precedents to avoid doing injustice.

In a case from Texas, Trevino v. Thaler, the court ruled that a death-row inmate in Texas can make the claim of ineffective counsel for the first time in a federal habeas petition because the rules of Texas procedure made it virtually impossible for him to raise that issue during an appeal in state court.

And:

The Michigan and Texas cases show how heavily engaged the court has gotten in the regulation of criminal justice. Even when the court does the right thing, as it did in these two cases, it often appears to be finding exceptions to harsh rules that it created or upheld in earlier cases. In the Texas case, the court further tinkered with “the machinery of death,” to use Justice Harry Blackmun’s phrase, rather than doing what it should have done by now: shut down the machinery by abolishing the death penalty.

"Divided Court, in 2 Rulings, Makes It Easier to Challenge Criminal Convictions," is the Times news coverage of the two cases, written by Adam Liptak.

In a pair of 5-to-4 decisions that divided along ideological lines, the Supreme Court on Tuesday made it easier for inmates to challenge their convictions.

In McQuiggin v. Perkins, No. 12-126, the majority said that a one-year filing deadline for prisoners seeking federal review of their state court convictions under a 1996 law may be relaxed if they present compelling evidence of their innocence. The new “miscarriage of justice exception” to the deadline, Justice Ruth Bader Ginsburg wrote for the majority, “applies to a severely confined category” — cases in which no reasonable juror aware of the new evidence would have voted to convict the defendant.

The decision did not seem likely to help the prisoner whose case was under review, but the exception it announced drew a barbed dissent from Justice Antonin Scalia, who called the majority opinion “a series of transparent non sequiturs” and “a flagrant breach of the separation of powers.”

And:

In dissent, Justice Scalia wrote that “there is not a whit of precedential support” for the idea that the Supreme Court was entitled to alter the deadline set out in the 1996 law. Chief Justice John G. Roberts Jr. and Justice Clarence Thomas joined all of the dissent, and Justice Samuel A. Alito Jr. joined most of it.

Justice Ginsburg dismissed the dissent as “bluster.”

In the second decision issued Tuesday, in Trevino v. Thaler, No. 11-10189, the same five-justice majority extended a ruling last year that had allowed prisoners to challenge their state convictions in federal courts based on the argument that their trial lawyers had been ineffective, even though the prisoners had not raised the issue in earlier proceedings.

In the decision last year, in Martinez v. Ryan, a seven-justice majority considered Arizona’s criminal justice system, which required claims of ineffective assistance of counsel to be raised in a separate state post-conviction challenge, in which there is no right to a lawyer, and not in the direct appeal from the conviction, in which there is. The Supreme Court ruled that federal courts may hear challenges to Arizona convictions based on claims of ineffective assistance at trial if the prisoner had no lawyer in the separate proceeding or if that lawyer was also ineffective.

“By deliberately choosing to move trial-ineffectiveness claims outside the direct-appeal process, where counsel is constitutionally guaranteed, the state significantly diminishes prisoners’ ability to file such claims,” Justice Kennedy wrote for the majority in the Martinez decision.

The new case considered Texas’ system, which appears to encourage but not require that such claims be raised in a separate proceeding. Justice Breyer, writing for the majority, said that difference did not matter. “What the Arizona law prohibited by explicit terms,” he wrote, “Texas precludes as a matter of course.”

"Supremes Agree Texas Inmate Should Have Appeal Heard," is the Ausin Chronicle report by Jordan Smith.

A 5-4 majority of the U.S. Supreme Court on Tuesday ruled that Texas death row inmate Carlos Trevino may raise for the first time in his federal appeal a claim that his trial lawyer was ineffective in not investigating and presenting mitigating evidence at trial that may have spared his life.

The Court of Criminal Appeals and the federal district and appeals courts previously ruled that Trevino forfeited that claim by not raising it in his state habeas appeal; Trevino argues that the appellate lawyer was also ineffective for not discovering and raising the issue that his trial attorney's performance was deficient.

The ruling, penned by Justice Stephen Breyer, makes applicable to Texas a 2012 ruling in an unrelated case from Arizona. In that case, the court concluded that an inmate could revive in federal court a state-court defaulted claim of ineffective assistance of counsel if there was no meaningful way to previously raise the issue.

In arguing before the Supremes in February, the state argued that the ruling in that Arizona case – Martinez v. Ryan – was not applicable to Texas because, unlike in Arizona, defendants have an opportunity to first raise ineffective assistance claims on their first, record-based direct appeal.

But because of deadlines and other constraints inherent in the Texas legal scheme, there really becomes no ability to meaningfully raise on direct appeal a claim of ineffective assistance at trial, the court ruled.

"U.S. Supreme Court Expands Post-Conviction Appeals," is by Joy Diaz for KUT-FM News.

Jim Marcus with UT Law School’s Capital Punishment Clinic, says today’s 5 to 4 decision means people will now be able to appeal their convictions on the basis of poor representation even in federal court. Marcus filed a “friend of the court brief” in the case of Treviño v. Thaler.

“This is a capital case, the Treviño case,” Marcus said, “but this decision applies to all prisoners, not just death sentence prisoners.”

Even with today’s Supreme Court decision, Marcus says it’s extremely difficult to prove poor representation. Although sleeping attorneys are not very common, he said poor representation by omission is widespread.

Slate posts, "An Innocent Extension," by Emily Bazelon, focused on the Perkins case.

In 1996, Congress cracked down on defendants who repeatedly try to go to court to overturn their convictions. The Antiterrorism and Effective Death Penalty Act (AEDPA), signed by President Bill Clinton, created a thicket of new requirements for people in prison who file last-ditch appeals—called habeas corpus petitions. The idea was that once you’ve lost your first and only direct appeal, you should only get a single try at habeas corpus (the “great writ,” dating from the 14^th century, that allows a prisoner to sue his warden for release). And you were supposed to get moving quickly: The law generally imposed a new deadline of one year from the date on which you lost your direct appeal.

Congress made an exception, however: If you say you have new evidence, then you have one year from the day you could have discovered it through “the exercise of due diligence.” But what if you miss the deadline without any good excuse—and yet the new evidence could show that you are innocent? On Tuesday, the Supreme Court widened what it called the “gateway” to reviewing claims of actual innocence that are made long after the one-year deadline expires. It’s a 5-4 decision, split between liberals-plus-Kennedy and conservatives. The opinions, by Justice Ruth Bader Ginsburg and Justice Antonin Scalia, read like a pitched battle in a long-simmering war. At the end, Ginsburg succeeds in opening what she calls a “gateway” to court for innocence claims that blow by the one-year deadline. But it’s probably not wide enough for Floyd Perkins, the prisoner at the center of this case, to get his own habeas petition heard.

And:

For Scalia, the moral of the story is clear: Innocence doesn’t—and shouldn’t—always win. “This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent,” he wrote in 2009. Scalia lost that time, too. But in the end, the man he was writing about—Troy Davis—was executed for the murder of a Georgia police officer even though seven of the nine witnesses who testified against him at trial had recanted.

The Supreme Court ruling in Trevino v. Thaler is available in Adobe .pdf format; as is, McQuiggin v. Perkins.

Earlier coverage of Trevino and Perkins, at the links.

An OpEd on Maryland Repeal

The Frederick News Post publishes the OpEd, "Maryland's death penalty decision," by Karl Bickel.

As a former death penalty proponent, I applaud the actions of our lawmakers in Annapolis during their recent session for repealing the death penalty. I still believe there are people who are such a danger to society and have committed such heinous crimes as to deserve the death penalty. Over the years, in a professional capacity, I have met such people. However, it is not that simple.

The problem is you cannot fix mistakes, and there have been many mistakes, many who had been sentenced to die and only later found to be innocent of the crimes that put them on death row. Criminal justice system fallibility and the finality of an execution are at the heart of the problem. Once a person has been wrongly executed, there is nothing that can be done to make it right.

And:

During a recent trip to Oklahoma, to interview an incarcerated serial killer (a story for another time), I spoke with a retired Oklahoma City homicide detective who had been involved in several high-profile cases, some of which were featured in Mark Fuhrman’s book “Death and Justice.” He said that having been involved in a high-profile case that resulted in a wrongful conviction, he now knows how easy it is to give undue weight to evidence that was too good to be true, evidence that should have raised suspicion.

Though we all may not agree with them, there are many legitimate objections to the death penalty, ranging from religious beliefs to the inconsistencies in its application. Mine is simple. You can’t fix a mistake, and there are too many mistakes.

Earlier coverage of Maryland's repeal of the death peanlty begins at the link.

Kansas City Star Editorial Calls for Repeal

"End the death penalty in Kansas and Missouri," is the title of the Kansas City Star editorial.

Earlier this month Maryland did away with the death penalty, which now is banned in 18 states and the District of Columbia.

Sadly, Missouri and Kansas are not among the states whose lawmakers have understood what an unjust and costly system capital punishment is. Measures to abolish or even temporarily halt the death penalty have gone nowhere over the years in both legislatures.

So it’s time for citizens and enlightened lawmakers to plan ways to make this matter of life and death a top priority in these two states for the next legislative sessions.

And:

There’s a compelling argument that the death penalty is cruel and unusual punishment. What’s incontestable is that by permitting the death penalty the United States is keeping company with such countries as Iran, Iraq, Yemen, Saudi Arabia, Cuba and Uganda. By contrast, all 47 members of the Council of Europe have either established a moratorium on the death penalty or abolished it altogether.

Surely it’s time for the U.S. to join the abolition movement. Kansas and Missouri should follow Maryland’s recent example and become the 19th and 20th states to adopt a sane and civilized approach to this matter.

Earlier coverage from Kansas and Missouri, at the links.  Related posts are in the abolition and editorial category indexes.

'Timely Justice Act' Still on Florida Governor's Desk

The South Florida Sun-Sentinel reports, "Timely Justice death penalty bill still awaits governor's decision," by Rafael Olmeda.

Gov. Rick Scott doesn't appear to be in any hurry to speed up the state's death penalty appeals process.

The Timely Justice Act passed both houses of the Florida Legislature in late April, but nearly a month later, Scott has still given no indication whether he has studied the bill or intends to sign it.

Forty percent of the 406 condemned prisoners awaiting execution in Florida have been there 20 years or more. The bill would require the governor to sign a death warrant within 30 days after all appeals are concluded and the governor has reviewed clemency.

And:

"We want to hear from Floridians about the merits of this legislation, which our General Counsel's office is currently reviewing," said governor's spokeswoman Jackie Schutz.

The governor has until mid-June to decide whether to sign or veto the bill.

Political analysts are hesitant to predict what Scott will do. A tough stance on the death penalty is a typical conservative position, they say. But a sitting governor might also be unwilling to sign a law that would remove some of his own power to use discretion while exercising a profound duty.

Preparing for what's likely to be a challenging re-election campaign next year, Scott has room for flexibility with the death penalty in a politically moderate state that went Democratic in the last two presidential elections but Republican in the last four gubernatorial contests.

"I'm not surprised that he hasn't jumped full force into the death penalty debate," said Susan McManus, a political science professor at the University of South Florida. "I don't think it's an issue he feels as passionately about as the economy. He didn't run on it. It wasn't his issue."

"Vengeance isn't justice," is the title of Howard Simon's Tampa Bay Times OpEd. He's executive director of the ACLU of Florida.

The concept of justice was tossed around like a Frisbee during this past session of the Florida Legislature. It's a cherished value. It deserves more respect.

Justice is contained in both hands of the blindfolded Roman goddess Justitia. The scales she holds symbolize distributive justice, the moral evaluation of how fairly the benefits and burdens of life are allocated. The sword carried in the goddess' other hand represents retributive justice, which requires that those so deserving receive punishment that "fits the crime" — meaning the severity of the punishment shall be proportional (not equivalent) to the crime.

"Justice" was thrown around in debates over the Timely Justice Act, which is an attempt by the Legislature to impermissibly dictate to the courts and the current and all future governors how judicial and executive powers shall be exercised with regard to the death penalty.

And:

Legislators can twist themselves into a pretzel attempting to justify anything. But they shouldn't be allowed to dress up extracting vengeance and pretend that they are seeking justice.

Earlier coverage from Florida begins at the link.

Florida is set to execute this week.  "Man set to be executed for Fla. girl's murder," is the AP report by Mike Schneider, via the San Francisco Chronicle.

A 56-year-old man convicted of raping and strangling a 10-year-old girl is set to be executed this week.

Elmer Carroll is scheduled to be put to death Wednesday at Florida State Prison in Starke.

Florida has carried out one execution this year. To date, there have been 12 executions in American death penalty states this year; a total of 1,332 post-Furman executions since 1977.

Also From the Supreme Court - An Important Innocence Case

The Supreme Court also ruled today in McQuiggin v. Perkins.  The opinon is available in Adobe .pdf format.

Also from SCOTUSblog:

Amy Howe:
Justice Ginsburg has second opinion, in McQuiggin v. Perkins. Sixth Circuit is vacated and remanded. The opinion is 5-4. So much for unanimity.
 
Actual innocence if proved serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar or expiration of the AEDPA statute of limitations, as in this case.
   
Scalia dissents, joined by the Chief and Thomas and in part by Justice Alito.

Earlier coverage of Perkins begins at the link.

5th Circuit Rebuffed in Trevino v. Thaler

The Supreme Court ruling in Trevino v. Thaler is available in Adobe .pdf format.

First word of the ruling comes from SCOTUSblog:

Amy Howe: First is Trevino v. Thaler. Opinion by Breyer, but in his absence it is being announced by Kennedy. Fifth Circuit is vacated and remanded. Vote appears to be 5-4.
 
Holding: When as here a state's procedural framework by reason of its design and operation makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise an ineffective assistance claim on direct appeal, the exception recognized in Martinez v. Ryan applies. (It is an exception to the procedural bar rule.)

The Chief dissents, joined by Alito; Scalia wrote a dissent, joined by Thomas.

At issue was whether the Supreme Court's 2012 ruling, Martinez v. Ryan - that prisoners who have compelling claims of ineffective assistance of trial counsel can have those claims heard even if an ineffective state habeas lawyer's failure to raise those claims would have otherwise barred them from being heard in federal court - applied in Texas.  The 5th Circuit had held that it did not because of Texas criminal law procedures.

Earlier coverage of Trevino begins at the link.

I'll update with additional news coverage as it's posted.

San Antonio Express-News Columnist O. Ricardo Pimentel

San Antonio Express-News columnist O. Ricardo Pimentel writes, "The unfinished business: the death penalty."  Here's the beginning of this must-read:

The photo of Gov. Rick Perry signing legislation that diminishes the chances of wrongful convictions in Texas is rich in irony. More important, it projects an indelible sense of job undone.

The irony is embodied in the now-deceased person of Cameron Todd Willingham, who also points to the unfinished work. Those intimately familiar with Texas' criminal justice history can tell you that Willingham, even more than Michael Morton — whose case prompted this legislation — is the state's prime example of wrongful conviction.

Morton's story is incredibly tragic. He spent nearly 25 years in prison after being convicted in the beating death of his wife. The prosecution withheld evidence that would have cleared him. Thanks to the work of the New York-based Innocence Project, Morton was exonerated by DNA evidence that pointed to another man, who has since been convicted.

But Morton is alive. Texas executed Willingham in 2004, convicted on the strength of highly flawed arson evidence for the deaths of his three daughters in Corsicana. The evidence actually points to no arson.

The photo shows Perry signing the bill at his desk, flanked by Morton and legislators. The irony: a report discrediting the evidence used to convict Willingham came across that desk or one similar in plenty of time for Perry to have spared Willingham's life.

Earlier coverage of the new criminal discovery law - aka, the Michael Morton Act - begins at the link.  Related posts are in the Michael Morton and Todd Willingham category indexes.

Florida Roundup

The Gainesville Sun reports, "Sides debate whether Scott should sign 'Timely Justice Act'," by Patrick Kelly.  Here's the beginning:

With 405 prisoners awaiting execution — a death row population exceeded only by California — Florida is looking for a way to speed up the death penalty process.

The Legislature has sent Gov. Rick Scott a law on capital punishment reform that critics say would limit defendants’ opportunities to vindicate themselves in the courts.

Called the “Timely Justice Act,” the law would require Scott to sign a death warrant within 30 days of receiving confirmation of a capital conviction from the Florida Supreme Court. Scott has not yet said whether he will sign or veto the legislation

Seth Miller, executive director of the Innocence Project of Florida, says that if Scott signs the Timely Justice Act, “It’s gonna just create a big, giant mess.”

Florida’s Attorney General’s Office counters that ending unnecessary delays in the death penalty process is something the surviving family members of those slain by death row inmates think is only fair.

Miller worries that speeding up the death penalty process in Florida “will lead to the execution of an innocent person” — which Miller says is a real concern because Florida leads the nation in death row exonerations.

“There’s been 24 death row exonerations in Florida, and we know the vast majority of those 24 individuals spent 15 years or more on death row,” Miller said.

Pennsylvania's Pocono Record publishes the editorial, "Death penalty darkens Fla.'s golden image."

Florida, the Sunshine State, known for its orange groves, deluxe retirement communities and Disney World, seeks another, darker distinction: Death penalty capital of the United States.

The Florida Legislature is mulling a bill that would speed up executions for death row inmates by requiring the state to execute a condemned prisoner within 180 days of a warrant being signed.

Wisely, 18 states have abandoned capital punishment (Pennsylvania, sadly, is not among them), recognizing that the risk of putting to death an innocent person outweighs any perverse satisfaction in putting to death a guilty one. They've also recognized the long-standing disparity in meting out sentences that send a disproportionate share of poor and minority inmates to death row.

And:

No state in this otherwise modern nation should still condone, much less carry out, the death penalty. Around the world, most countries have halted the practice. Among those who retain it are Iran, Iraq, North Korea (remember "the axis of evil"?), Afghanistan and Nigeria, to name a few.

Also from Florida, the News Service of Florida reports, "Miami-Dade public defender allowed to pull out of cases because of workload," by Jim Saunders.  It's via the Miami Herald

Describing what it called a "damning indictment" of representation for poor criminal defendants, the Florida Supreme Court on Thursday ruled that the Miami-Dade County public defender's office could withdraw from a large chunk of felony cases because of excessive workloads.

The court divided 5-2 on the issue, with Justice Peggy Quince writing a majority opinion that said attorneys who represent defendants in third-degree felonies often have as many as 50 cases set for trial in a week.

"Clients who are not in custody are essentially unrepresented for long periods between arraignment and trial,'' wrote Quince, who was joined in the majority by justices Barbara Pariente, R. Fred Lewis, Jorge Labarga and James E.C. Perry. "Attorneys are routinely unable to interview clients, conduct investigations, take depositions, prepare mitigation, or counsel clients about pleas offered at arraignment. Instead, the office engages in 'triage' with the clients who are in custody or who face the most serious charges getting priority to the detriment of the other clients."

But Chief Justice Ricky Polston, joined by Justice Charles Canady, wrote a dissenting opinion that said the Miami-Dade public defender's office had not proved harm to defendants. Polston and Canady would have upheld rulings by the Third District Court of Appeal, which rejected the public defender's attempt to withdraw.

"Florida Supreme Court Sides with Public Defenders," is the AP report, via WTXL-TV.

The Florida Supreme Court is siding with public defenders who believe they should be able to reject cases if they don't have the budget and lawyers to adequately represent poor people charged with crimes.

Thursday's ruling overturns an appeals court decision that said public defenders had to accept the cases to represent those who can't afford lawyers.

The Supreme Court cited statistics that show public defenders in Miami-Dade were taking on 200 to 300 cases beyond what they should have been able to handle. It also mentioned conditions that often meant defenders had to start trial before they could interview witnesses or visit crimes scenes.

The court asked the original Miami-Dade County court to determine whether public defenders are still overburdened.

The Florida Supreme Court ruling in Public Defender v. Florida is available in Adobe .pdf format.

Capitol News Service reports, "Death Penalty Dilemma," by Mike Vasilinda.

Five people are now set for execution in Florida. Convicted cop killer William Van Poyck’s execution is set for June 12th. But controversy is swirling around his legal representation.

In this November 2011 file video, renowned  capital punishment attorney Mark Olive told a symposium about a crisis in Florida. “There’s a crisis in the state with respect to representation.”

Olive now has a representation crisis of his own. The Florida Supreme Court is forcing Olive and two others, against their will, to represent William Van Poyck, Van Poyck is scheduled to die June 12th. The problem, Olive hadn’t met Van Poyck until a week ago, and he knows little about the case. He asked to withdraw or have more time. The court said no.

It also refused to let Sandy D’Alemberte intervene on Olive’s behalf. “It just doesn’t seem right to execute someone who doesn’t have a lawyer. And when you have lawyers who are telling the court that they’re not able to perform that is the moral equivalent of not having a lawyer.”, says D’Alemberte, former American Bar Association President.

The idea of forcing over worked lawyers to represent someone has the legal community in an uproar. “Mark is being asked to stand there and pretend like he’s acting as a lawyer in order to  legitimatize this execution.”, says Attorney Steve Hanlon.

Now comes the biggest irony. In this opinion issued Thursday, this court told the lower court that it was wrong when it refused to let overworked public defenders limit their caseloads.

Earlier coverage from Florida begins at the link.

Colorado News & Commentary Coverage

"Death penalty debate focuses on Colo. governor's view of flawed system," is by Karen Augé in today's Denver Post.

As an obviously distraught Gov. John Hickenlooper explained his decision to spare the life of convicted killer Nathan Dunlap, he called the state's death-penalty system imperfect and flawed.

"If the state of Colorado is going to undertake the responsibility of executing a human being, the system must operate flawlessly. Colorado's system for capital punishment is not flawless," he wrote in his executive order Wednesday.

After hearing a firestorm of commentary from all sides, Hickenlooper said Thursday none of his own choices were flawless, either.

"There's no perfect decision here," he said, while traveling outside of the metro area.

People need to learn as he did, Hickenlooper said, that the death penalty is meted out unfairly, that it has no deterrent effect on crime, and that even victims' families don't find closure after the punishment.The search for a perfection was just one facet of the announcement that death-penalty supporters and the governor's political opponents pounced on.

Denver Post columnist Vincent Carroll writes, "Gov. Hickenlooper settles nothing on Dunlap, death penalty."

Hickenlooper told 7News' Mike Landess that he supported repeal of the death penalty but meanwhile insisted it "ought to be raised with the people of Colorado and not just their elected representatives." If the people demonstrate "they are moving away from [the death penalty], like the citizens of many states, then that's the only time it will change."

Really? So those of us who oppose the death penalty must wait for a public clamor for repeal even though we have a governor who considers it immoral and describes state law as deeply flawed — not to mention a majority in the legislature who may well agree?

How will we know when the clamor is underway? What will be the signs?

And:

He says people aren't aware of the death penalty's inequities, aren't aware that deterrence is a myth disproven by social science, aren't aware that innocent people have been sentenced to die in other states. The geologist in him strides forth and suggests that facts will prevail and consensus gain ground in a debate whose judgments are fundamentally, and inevitably, personal and moral.

I'm glad Hickenlooper didn't let the despicable Dunlap die in August. Yet this was a year when the governor probably could have settled everything regarding Colorado's almost-never-used death penalty and instead he has settled nothing, not even Dunlap's fate. He chose an off ramp to limbo and then hit the brakes so the rest of us can finish our "conversation" — you know, the one that's been going on in this country since all of us were kids.

"Executive clemency is an essential part of Colorado’s legal process," is a Denver Post OpEd written by H. Patrick Furman, a clinical professor of law, emeritus, at the University of Colorado, Boulder.

As Colorado Gov. John Hickenlooper weighs whether to commute the death sentence of Nathan Dunlap to life in prison without the possibility of parole, there has been some discussion about the nature of executive clemency itself.

Specifically, there have been suggestions that the governor’s commutation power is either a) unusual or b) represents an attack on the jury’s verdict. As a law professor who teaches students about the criminal justice process, I think it’s important for the public to be clear that neither argument is accurate. Executive clemency is an essential and routinely used part of our justice system.

The governor has had the power to commute sentences since Colorado became a state. The power is set out in Article IV, Section 7 of the Colorado Constitution. The power to commute sentences exists in every state, although some states give the power to a commutation board or other authority. In the federal system, the U. S. Constitution grants the president the power to grant reprieves and pardons. It is a power that exists throughout our nation and it is a power that, far from being unusual, is exercised regularly.

Here in Colorado, Gov. Bill Ritter, a career prosecutor, issued some 29 pardons and commutations. His predecessor, Bill Owens, a relatively conservative Republican, granted 14 pardons and commutations during his time in office. Again, executive clemency is not unusual.

Westword posts, "Nathan Dunlap or number 89148: Was Hickenlooper right not to use killer's name?"  It's by Melanie Asmar.

When Governor John Hickenlooper announced yesterday that he's offering a reprieve to Nathan Dunlap, who was convicted in 1996 of killing four people at a Chuck E. Cheese restaurant, he never uttered Dunlap's name. Instead, he chose to call him "offender number 89148," reasoning that he'd already gotten enough notoriety for his terrible acts.

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

Additional Coverage of the Dunlap Reprieve in Colorado

"Death penalty is Gov. Hickenlooper's issue now," is the Denver Post editorial.

Gov. John Hickenlooper's decision Wednesday to spare the life of convicted murderer Nathan Dunlap was admirable, no matter how messy and perhaps temporary that decision was.

From our perspective, it wasn't ideal because the executive order granting a temporary reprieve can be undone by a future governor. But it gives Coloradans a chance to have a broader conversation about the effectiveness and justness of the death penalty. And we think that's a discussion the governor, by virtue of his actions, has an obligation to lead.

The rapidly approaching August execution date for Dunlap, who murdered four people at an Aurora Chuck E. Cheese restaurant in 1993, forced the governor to examine the death penalty and its application in Colorado in minute detail.

It was a process of immersion, Hickenlooper told us, and his staff went to great lengths to research the issue.

He came to the conclusion, as this editorial board has, that the death penalty is not a deterrent to crime and its application is inconsistent.

Salon posts, "Hickenlooper strikes major blow to death penalty," by David Sirota.

Colorado Gov. John Hickenlooper is known for a lot of things – his cheery nature, his loyalty to his oil and gas donors – but he is not known for being a particularly courageous conviction politician. After all, much of the high-profile change that has happened in Colorado has come not from his strong leadership, but from the Democratic-controlled legislature forcing his hand.

But in a stunning  announcement today, Hickenlooper displayed a burst of genuine courage rarely seen anywhere in politics, much less in Colorado’s ultra-cautious Democratic Party culture. Facing the decision of whether to execute convicted murderer Nathan Dunlap for his role in 1993′s infamous Chuck E. Cheese killings, Hickenlooper used a temporary reprieve order for Dunlap to raise huge questions surrounding the death penalty itself.

Specifically, unlike the few pro-death-penalty-reform governors from other states who have cited fears that the capital punishment may be executing wrongly convicted citizens, Hickenlooper halted the Dunlap execution by making a larger critique of the entire capital punishment system. Saying the “question is about the use of the death penalty itself, and not about (Dunlap),” the governor cited “information that exposes an inequitable system” to argue more broadly that “it is a legitimate question whether we as a state should be taking lives.”

Andrew Cohen posts, "On Death Penalty, Colorado Governor Buys Himself Some Time," at the Atlantic.

Faced with a life or death choice over the fate of convicted murderer Nathan Dunlap, Colorado Governor John Hickenlooper decided instead Wednesday afternoon to buy himself, and the condemned man, more time. Infuriating some family members of the victims of Dunlap's 1993 crimes, and delaying a substantive decision on the fate of the state's beleaguered capital punishment regime, the governor issued a "temporary reprieve" indefinitely blocking Dunlap's scheduled August execution until further notice, the Denver Post reported.

That "further notice" may never come, at least from this governor. At a dramatic press conference held immediately after the reprieve was announced, Gov. Hickenlooper said it "is highly unlikely that I will revisit" the order. Dunlap's attorneys immediately praised what they called the governor's "well-reasoned decision." The prosecutor in the case quickly suggested that the reprieve was motivated by the governor's political ambitions in 2014.

The Denver Post has extensive coverage.  "Hickenlooper accused of trying to have it both ways with death penalty," is by Lynn Bartels.

Gov. John Hickenlooper on Wednesday stunned Colorado by indefinitely delaying the execution of a death-row inmate, a decision that didn't give any outright victories to either side of the death-penalty debate and set the Democrat up for accusations of trying to have it both ways.

If Nathan Dunlap remains in prison as long as Hickenlooper is governor, a future governor could allow the death sentence to proceed.

A Republican lawmaker called the decision "gutless." The father of one of the victims called the governor a "chicken." Even a Democratic district attorney who called the decision "thoughtful" said he would have preferred Hickenlooper commute Dunlap's sentence to life in prison.

"I think that Hickenlooper's gift is to try to find that sweet spot in between two polar positions, but I'm not convinced that this was a decision that lent itself to that approach," said Denver political consultant Eric Sondermann. "I think he runs the risk of seeming too cute by half and of really leaving both sides feeling unfulfilled."Republicans vowed to make the reprieve an issue in Hickenlooper's 2014 re-election bid.

"Nathan Dunlap victims' families express outrage, resolve over reprieve," is continuing Post coverage by Ryan Parker, Kurtis Lee and Lynn Bartels.

Reactions from the families of those slain during the Chuck E. Cheese's killings were as intense as they were different after Gov. John Hickenlooper announced he would halt the execution of Nathan Dunlap.

"Colorado AG criticizes Gov. Hickenlooper over death penalty decision," is by Lynn Bartels at the Post's the Spot blog.

Attorney General John Suthers issued an exceptionally strong statement today about Gov. John Hickenlooper’s decision to grant death row inmate Nathan Dunlap a reprieve.

Suthers, a former district attorney, doesn’t usually criticize the other constitutional officers, but he clearly was upset.

“I have an excellent working relationship with the governor and I respect him very much,” Suthers said, in his comments. “Yet it’s been apparent to me that issues of crime and punishment are not his strength. John Hickenlooper is an optimist. He has proven to be uncomfortable confronting the perpetrators of evil in our society.”

Suthers is a Republican, Hickenlooper a Democrat.

"Boulder DA, legislator support reprieve for convicted killer Nathan Dunlap," is by Mitchell Byars for the Boulder Daily Camera.

Boulder District Attorney Stan Garnett and Boulder Rep. Claire Levy applauded the decision Wednesday by Gov. John Hickenlooper to grant convicted killer Nathan Dunlap a "temporary reprieve" from an execution and expressed hope it would help spark a conversation about repealing the death penalty in Colorado altogether.

Hickenlooper did not grant Dunlap the full clemency Dunlap's attorney had asked for, but did sign an executive order granting him a reprieve, meaning Dunlap will not be executed unless Hickenlooper or a future governor lifts it.

Dunlap was convicted in 1996 of fatally shooting four people and wounding a fifth in an Aurora Chuck E. Cheese's on Dec. 14, 1993. He had been scheduled to die by lethal injection Aug. 13.

While the reprieve did not sit well with many officials -- Colorado Attorney General John Suthers and Arapahoe DA George Brauchler among them -- Garnett and Levy both said they agreed with the decision.

Garnett -- who has said previously he believes the death penalty is impractical from a prosecution standpoint and would like to see it repealed in Colorado -- would have preferred outright clemency, but said Hickenlooper made a "courageous decision."

"Nathan Dunlap Reprieve: Hickenlooper's Decision To Block Execution Sharply Criticized," is the updated AP filing by Dan Elliott, via Huffington Post.

Democratic Gov. John Hickenlooper's decision to block the execution of convicted killer Nathan Dunlap for as long as he is governor infuriated victims' relatives and drew quick criticism from Republicans ahead of the 2014 election.

Hickenlooper on Wednesday granted an indefinite reprieve to Dunlap, who is on death row for the ambush slayings of four people – three teenagers and a 50-year-old mother – in an Aurora Chuck E. Cheese restaurant in 1993.

AP also posts, "Republican former US Rep. Tom Tancredo running for Colorado governor." via the Republic.

Former U.S. Rep. Tom Tancredo has become the latest Republican to announce plans to challenge Democratic Gov. John Hickenlooper.

Tancredo said Thursday on radio station KHOW the last straw was a decision by Hickenlooper to delay the execution of convicted murderer of Nathan Dunlap, who killed four people in 1993. Tancredo said he is also upset with Hickenlooper's approval of sweeping gun legislation this year, including a law limiting the size of ammunition magazines.

"I'm going to run for governor for the state of Colorado, and I'm going to do it this time as a Republican," Tancredo said Thursday.

Hickenlooper cruised to victory in 2010 after the Republican side of the ticket imploded. Tea party favorite Dan Maes won the party nomination when a better-funded candidate, former U.S. Rep. Scott McInnis, was accused of plagiarism. Tancredo then declared Maes unelectable and briefly left the party to run as a third-party candidate.

"Colorado governor grants reprieve to quadruple killer on death row," is Reuters' coverage by Keith Coffman.

It was unclear what effect, if any, the reprieve would have on two more inmates now on Colorado's death row, or on other cases in which prosecutors are seeking the death penalty, including that of accused movie theater gunman James Holmes.

Legal analysts called the reprieve a victory for death penalty foes because it cast further doubt on the future of capital punishment in a state that has executed just one inmate in 46 years.

The Denver Post has also posted video:

• Colorado Gov. Hickenlooper grants Nathan Dunlap “temporary reprieve”
• Phil Cherner, Nathan Dunlap attorney, grateful for client’s temporary reprieve
• DA George Brauchler expresses outrage at Gov. Hickenlooper’s decision on Nathan Dunlap

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

Lawyers for Warren Hill File Habeas Petition in Supreme Court

The Petition for a Writ of Habeas Corpus is available in Adobe .pdf format.

"Lawyers for Ga. death row inmate ask US Supreme Court to prevent execution," is the AP report, via the Republic.

Lawyers for a Georgia death row inmate are asking the U.S. Supreme Court to step in to prevent the execution of their client, who they say is mentally disabled.

Lawyers for Warren Hill have long argued he is mentally disabled and shouldn't be executed. Three experts for the state who originally said Hill was not mentally disabled now say he is, citing advances in research.

A federal appeals court temporarily halted Hill's execution in February to consider whether he should have a new hearing on the new testimony. The court ruled last month Hill is procedurally barred from having a new hearing. No execution date has been set.

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

More on the Nathan Dunlap Reprieve

Governor Hickenlooper's Executive Order is available in Adobe .pdf format. I'd urge everyone to read this four page document.

A "Statement from Nathan Dunlap’s attorneys re: Reprieve by Governor Hickenlooper," has just been issued.  Here's the full text:

“We agree with Governor Hickenlooper’s well-reasoned decision to grant Nathan Dunlap a reprieve and indefinitely stay his execution. There has been widespread and diverse support from hundreds of people and organizations in Colorado who support permanently commuting Nathan Dunlap’s sentence to life in prison without the possibility of parole.

As the Governor notes in his statement, ‘Colorado's system for capital punishment is not flawless.’ Faith leaders, civil rights organizations, former judges and prosecutors, academics and many others have expressed serious concerns about Colorado’s capital punishment system, which is unfair in its application of the death penalty. Colorado’s broken death penalty system reflects racial discrimination, geographic concentration, and is used in an arbitrary manner.

The Governor also recognizes that the death penalty is not a deterrent, and ‘is not making our world a safer or better place.’ Further, as the Governor explains, ‘Colorado is not equipped to carry out a death sentence.’

Given the problems with Colorado’s use of capital punishment and the apparent inability of the Colorado Department of Corrections to move forward with a legal execution, Governor Hickenlooper made a fair and correct decision to indefinitely stay Mr. Dunlap’s execution.”

-- Philip A. Cherner and Madeline Cohen, attorneys for Nathan Dunlap

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

4th Circuit Allows Justin Wolfe Retrial - Updated

"Fed. appeals court allows capital murder retrial of Wolfe; lower court had ordered him freed," is the AP report, via the Washington Post.

A federal appeals court will allow Virginia to pursue a capital murder case against an alleged drug kingpin from northern Virginia.

In a 2-1 ruling, the 4th U.S. Circuit Court of Appeals in Richmond overturned a federal judge in Norfolk who had ordered a halt to the prosecution of Justin Wolfe and his immediate release. The judge said misconduct by prosecutors in Prince William County made it impossible for Wolfe to get a fair trial.

But a majority on the appellate court disagreed. They ruled that a new trial can be done fairly. A dissenting judge said the misconduct was so bad that freeing Wolfe was the only proper outcome.

Wolfe was sent to death row in 2002 for a drug-related murder, but his original conviction and sentence were overturned.

The U.S. Court of Appeals for the Fourth Circuit ruling in Wolfe v. Clarke is available in Adobe .pdf format.

AP has expanded its original coverage.  It's available as, "4th Circuit allows capital retrial of alleged drug kingpin," via the Daily Record.

U.S. District Judge Raymond Jackson said misconduct by prosecutors in Prince William County made it impossible for Wolfe to get a fair trial.

But a majority on the appellate court disagreed. Judges Robert Bruce King and Allyson Kay Duncan ruled that a new trial can be done fairly. They wrote that Jackson “fashioned an overbroad remedy and thereby abused (his) discretion by precluding the Commonwealth from retrying Wolfe.”

A dissenting judge, Stephanie Thacker, said the misconduct was so bad that freeing Wolfe was the only proper outcome. She reeled off a long list of examples of misconduct, including failures by Prince William County Commonwealth’s Attorney Paul Ebert to disclose evidence that would have undermined the credibility of the state’s star witness — Owen Barber, the triggerman in Petrole’s death who initially testified that Wolfe hired him to do the killing.

Barber subsequently changed his story several times, and Thacker said prosecutors compounded their misconducting by visiting Barber in jail last year and pressuring him to go back to his original story implicating Wolfe.

“The Commonwealth’s misconduct has continued far too long, and the cumulative misconduct permeating this case has tainted it in such a way that it is doubtful Wolfe will receive a fair and just trial. Enough is enough,” Thacker wrote.

And:

While Wednesday’s ruling allows the state to prosecute Wolfe, the majority judges said Wolfe’s allegations of prosecutorial misconduct may be grounds for an appeal if he is convicted in a retrial.

Earlier coverage of Justin Wolfe's case begins at the link.

Colorado Governor Issues Indefinite Stay of Execution in Dunlap Case

"Nathan Dunlap granted temporary reprieve by Colorado Gov. Hickenlooper," is by Karen Augéand Lynn Bartels for the Denver Post.

Gov. John Hickenlooper on Wednesday issued an executive order granting convicted killer Nathan Dunlap a "temporary reprieve" from an execution that had been just three months away.

In an executive order that provides an indefinite stay of execution, Hickenlooper writes that the decision has weighed heavily on him.

He calls Dunlap's crimes "horrendous" — although nowhere in the order does he refer to Dunlap by name — and declares his respect for the jurors who handed down the death sentence.

But more than 15 years have passed since that decision, and those years have provided "the benefit of information that exposes an inequitable system," Hickenlooper's order states.

"It is a legitimate question whether we as a state should be taking lives," the order says. "Because the question is about the use of the death penalty itself, and not about Offender No. 89148, I have opted to grant a reprieve and not clemency in this case."

The executive order will remain in effect until it is modified or rescinded by a future executive order.

Prosecutors and Dunlap's attorneys have each scheduled press statements for Wednesday afternoon.

"Colo governor delays execution of convicted killer," is the AP filing by Dan Elliott.

Hickenlooper said he was granting Dunlap a reprieve, not clemency. Clemency would have changed Dunlap's sentence to life without parole.

Under a reprieve, Dunlap could conceivably be executed one day. The reprieve will stay in force until Hickenlooper or another governor lifts it.

Hickenlooper said Colorado's capital punishment system is flawed, citing a study that showed the death penalty was sought and imposed inconsistently.

He also said the state doesn't have the drugs in place to carry out an execution by lethal injection, and that many states and nations are repealing the death penalty.

Hickenlooper said he granted a reprieve instead of clemency because he saw the question before him as being about the use of the death penalty, not about Dunlap.

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

ProPublica on the State of Lethal Injection

ProPublica posts, "A Prolonged Stay: The Reasons Behind the Slow Pace of Executions," by Raymond Bonner. He's the author of the 2012 book, Anatomy of Injustice: A Murder Case Gone Wrong.  This extensive report is a must-read.  Here's the beginning:

States that impose the death penalty have been facing a crisis in recent years: They are short on the drugs used in executions.

In California, which has the country's largest death row population, the chief justice of the state supreme court has said there are unlikely to be any executions for three years, in part due to the shortage of appropriate lethal drugs. As a result, state prosecutors are calling for a return of the gas chamber.

Ohio, which is second only to Texas in the number of executions carried out since 2010, said it will run out of the drug it uses in executions, pentobarbital, on Sept. 30. The state has two men scheduled for execution in November, and eight more set to be killed after that. Every state's supply of pentotbarbital, which has been the principal execution drug, expires at the end of November.

The shortage has forced death penalty states to scramble on two fronts: They are hunting for new suppliers or different drugs to use, and enacting changes to public records laws to keep the names of suppliers and manufacturers of those alternative drugs secret.

The lack of lethal drugs, and the fight over keeping new ones secret, are partly the result of a remarkably effective campaign by opponents of the death penalty, who have, in effect, taken their efforts from the court room to the boardroom.

Earlier coverage of the availability of lethal injection drugs begins at the link.  Related posts are in the lethal injection and international category indexes.

 Notable posts include:

• The Arkansas Lethal Injection Drugs
• Scott Christianson on a California Legislator's Push to Bring Back Gas
• Nebraska Lethal Injection Drug News
• Georgia Lethal Injection Drug Legislation
• News Coverage of DC Court of Appeals Oral Arguments
• Drugmaker to Block Sales of Propofol for Use in Executions
• Ohio Executes & Steps Up Search for Pentobarbital
• More on the Georgia Lethal Injection Drug Supply
• European Concerns Over Drugs Used in Lethal Injection Executions

Andrew Cohen on the Big Question in Colorado

"Time's Up: Colorado's Governor Needs to Pick a Death Penalty Position," is Andrew Cohen's latest post at the Atlantic.

In late March, the Democrats who control the Colorado House of Representatives thought they were on the verge of repealing the state's death penalty law, used sparingly but not without controversy since the Supreme Court reinstated it in 1976. "I have the votes in the House to pass the bill and it's not just partisan, it's bipartisan," said the repeal bill's co-sponsor, Representative Claire Levy (D-Boulder). But in a private meeting that week with lawmakers, Governor John Hickenlooper, his local chops high, his national stature growing, voiced doubt about the bill.

"He did not say, 'I will definitively, undoubtedly with no question veto this,'" Rep. Dan Pabon (D-Denver) told the Denver Post. "But he did say that is something he is bouncing around. He used the 'v' word." The "v-word" from the governor was enough to block the measure. "I think had the governor not signaled so strongly that he wouldn't sign the bill, I think we would have had those votes," Rep. Levy said. "We would have repealed the death penalty in Colorado, and I think we could all stand up proud and strong and know that we did the right thing."

Without even a public threat of a veto, Gov. Hickenlooper had imposed his will on the issue. And everyone in Colorado seems to have a theory about why. He didn't want the repeal effort to cloud the legislature's frenetic work on gun safety. He believes in capital punishment more than he has let on. He was saving his fellow Democrats from scorn in the next election. He genuinely thinks the issue should be resolved by a popular vote, which would almost certainly ensure that capital punishment stays a part of the state's sentencing scheme.

Whatever the case, the time for private vetoes and backroom maneuvering is over. The time has come for Gov. Hickenlooper to make a very public choice between life and death -- and, in so doing, to shape the contours of a debate that has sounded furiously all over Colorado for the past few months. In the next few weeks, perhaps even in the next few days, the governor will have to decide whether Nathan Dunlap, one of the state's most notorious murderers, lives or dies. And this time there will be no legislature to hide behind.

Earlier coverage of Nathan Dunlap's case begins with the previous post.

Nathan Dunlap Case Roundup

"Hickenlooper may announce decision on Nathan Dunlap's fate Wednesday," is the breaking news report by Ryan Parker at the Denver Post.

A decision from Governor John Hickenlooper whether Nathan Dunlap will be executed for the Chuck E. Cheese killings may come as soon as Wednesday.

Eric Brown, spokesman for the governor's office told The Denver Post on Tuesday night an announcement on Wednesday was "not out of the question."

Hickenlooper has met with dozens of advocates on both sides of the issue since Arapahoe County District Judge William Sylvester set the week of Aug. 18 as the time Dunlap should die for killing three teenage employees and their 50-year-old manager during the robbery of a Chuck E. Cheese's restaurant in Aurora nearly 20 years ago.

The acting Department of Corrections chief will pick the exact date of execution.

A press conference has been scheduled at the state Capitol Wednesday afternoon by the Arapahoe District Attorney's office. The DA originally planned a Friday news conference.

The Denver Post also reports, "ACLU suit: Public is entitled to know how Nathan Dunlap will be killed," by Karen Augé.

The ACLU lawsuit asks the court to compel the corrections department to make public documents outlining exactly how an execution would be carried out, as well as the training those who will administer the deadly drugs will receive.

"I think the DOC is infringing, without adequate justification, on the public's legitimate right to information with regard to what surely is one of its most serious undertakings," said Mark Silverstein, legal director of ACLU of Colorado.

So far, the DOC has refused requests by attorneys for Dunlap and by media outlets, including The Post, to provide that information.

The Colorado Independent reports, "Nathan Dunlap Execution: Colorado Officials Decline To Detail How Dunlap Will Be Executed," by Susan Greene.

On Tuesday, the ACLU filed suit in Denver District Court, arguing that information about the execution would facilitate public discussion about the death penalty here. Debate over execution by lethal injection often includes consideration of how the injection can be administered least painfully and of the ethical questions the procedure raises for the pharmacists supplying the drugs, for example.

“By refusing to disclose the details of the execution procedure, including the drug or drugs that may be used and how they are obtained, as well as information about the companies that may be supplying the chemicals, CDOC infringes, without adequate justification, on the public’s legitimate right to information about how its government operates with regard to one of its most serious undertakings,” said ACLU of Colorado Legal Director Mark Silverstein in a release.

The ACLU complaint cites the Colorado Board of Pharmacy Rules of Professional Conduct, which prohibits “any practice which detrimentally affects the patient” and state that a “pharmacist may not dispense a prescription drug or a controlled substance based on an order that does not list a specific patient.”

"Nathan Dunlap Death Penalty Case: ACLU Files Lawsuit To Reveal Execution Protocols," is by Andrea Rael for Huffington Post.

The lawsuit seeks to compel the state's Department of Corrections to reveal its communications with pharmacies regarding what drug or drugs will be used to carry out the execution of convicted death row inmate Nathan Dunlap.

“By refusing to disclose the details of the execution procedure, including the drug or drugs that may be used and how they are obtained, as well as information about the companies that may be supplying the chemicals, CDOC infringes, without adequate justification, on the public’s legitimate right to information about how its government operates with regard to one of its most serious undertakings,” said ACLU of Colorado Legal Director Mark Silverstein.

Last month the CDOC sent a letter to compounding pharmacists requesting “sodium thiopental, pentobarbital, pancuronium bromide, potassium chloride, or similar drug or drugs that the CDOC can purchase” in preparation for what may be the state's first execution in over 15 years. Colorado has only put one man to death in the past 45 years.

The letter had been sent by then-CDOC Director Tom Clements to 97 compounding pharmacies in the state just before his death in March, and was prompted by the rejection of Dunlap's appeals to the U.S. Supreme Court.

"For the first time since 1997, the CDOC is facing the task of carrying out an execution," Clements wrote in the letter. "I am reaching out to compounding pharmacies throughout the state of Colorado in order to comply with state law that the CDOC acquire sodium thiopental or other equally or more effective substance to cause death."

And:

The ACLU's complaint also mentions that the Colorado Board of Pharmacy Rules of Professional Conduct prohibits “any practice which detrimentally affects the patient.”

“If compounding pharmacies in Colorado plan to participate in Colorado’s next execution, the public has a right to know,” said Silverstein, “and the State Board of Pharmacy might be interested in investigating whether pharmacies violate their license and state rules when they supply a drug for the express purpose of killing rather than healing.”

Think Progress posts, "In Colorado, Blacks Make Up 4 Percent Of The Population And 100 Percent Of Death Row."  It's by Nicole Flatow.

Few dispute that Nathan Dunlap committed a horrific crime and murdered several people at a Chuck E. Cheese. But judges, university professors, and other prominent state leaders are urging Gov. Hickenlooper to commute Dunlap’s sentence, both because crucial errors that defined his trial may have led him to get a harsher sentence than others, and because killing anyone under the perverted state system would be a miscarriage of justice. According to letters filed with Hickenlooper’s office:

• All three people on death row are black men. In a state that is only 4.3% African American, Colorado’s death row is 100% African American.
• All three men on death are from the same one county, out of Colorado’s 64.
• All three men committed their crime when they were under the age of 21.
• Two law professors who studied Colorado’s application of the death penalty concluded it was unconstitutional, after finding that prosecutors pursue the death penalty in less than one percent of the cases where it is an option, and that the state failed to set “clear statutory standards for distinguishing between the few who are executed and the many who commit murder.”

“It appears that race, geography and youth largely determines who gets the death penalty in Colorado,” wrote a group of NAACP leaders in a letter urging Gov. Hickenlooper to grant clemency. They note that not a single black juror served on the panel that sentenced Dunlap to death.

Earlier coverage of Nathan Dunlap's case begins at the link.  In the next post, a link to Andrew Cohen's latest writing on clemency for Dunlap.

Supreme Court Rejects a Florida Ring Challenge

The Palm Beach Post reports, "U.S. Supreme Court rejects Florida death penalty challenge."

The U.S. Supreme Court declined to take up a case that tested the constitutionality of part of Florida’s system for imposing the death penalty. The 1991 case, Evans v. Crews, stemmed from a customary practice in Florida of judges holding hearings and making factual findings on aggravating and mitigating factors to help determine whether to impose death sentences.

A 2002 U.S. Supreme Court decision, known as Ring v. Arizona, held that juries, not judges, must determine the existence of aggravating factors in death-penalty cases. As a result, a U.S. District judge in 2011 found that Florida’s death-penalty sentencing process was unconstitutional. But that ruling was overturned by the 11th U.S. Circuit Court of Appeals, prompting an appeal to the Supreme Court.

Earlier coverage from Florida begins at the link; more on Ring, via Oyez.

Thoughts on the the Texas Legislature

Today is the 133rd day of the 140-day legisltive session.  Sine Die - aka, adjournment - is Monday, May 27.  You can view the various deadlines that limit legislative activity as the days peel off the calendar.

Andrew Cohen writes about the passage of a major criminal discovery law, "In Texas, a Bold Step Toward Justice," for the Brennan Center.  He recently joined the Center as a Fellow.

It is altogether fitting that Texas, a state where some of the worst of these transgressions have taken place, is confronting part of its unconstitutional past the same week America commemorates the 50th anniversary of the Brady ruling, which came down unanimously from the high court on May 13, 1963. The Morton Act, which now awaits Gov. Rick Perry’s signature after passage in both houses of the Texas legislature, is a bold, progressive step that creates an “open-file” discovery rule requiring prosecutors to share more information more quickly with defense attorneys.

The new law means prosecutors now have an affirmative duty under state law to comply with Brady by making sure defendants and their lawyers can see and copy all police reports and witness statements. Prosecutors will be able to protect the identity of witnesses — which always has been a sticking point in these measures — but will have to provide defense counsel with a list of the disclosed evidence. In other words, Texas now has taken a significant step toward giving its criminal defendants, whose life or liberty are on the line, many of the same discovery protections routinely afforded litigants in state court civil cases, where neither life nor liberty are at stake.

It’s about time. Morton spent 25 years in prison for the murder of his wife before a DNA test exonerated him just a few years ago. The behavior of his prosecutor, Ken Anderson, was so egregious that Anderson himself now faces criminal charges of tampering with evidence. Michael Toney also spent nearly 25 years in a Texas prison because his prosecutors suppressed evidence about the credibility of the only witnesses to testify directly against him. Anthony Graves was relatively lucky — he spent just 18 years behind bars for a crime he did not commit.

The Morton Act will require prosecutors to play more fairly in criminal trials. And a related measure, Senate Bill 825, also passed by the Texas House this week, addresses what will happen when they don’t. This measure will give aggrieved criminal defendants more time to challenge prosecutorial errors once they are discovered. And, critically, it will publicly reprimand prosecutors who cheat. I’d like to see harsher sanctions in these cases — more teeth to the measure — but if the new law is faithfully observed by state court judges no longer will the legal community in a particular jurisdiction be able to close ranks around district attorneys who violate the law.

Cohen's essay was written before Governor Perry signed the measure into law.

The Austin Chronicle posts, "Junking Junk Science?"  It's by Jordan Smith.

It appears the third time filed is the charm for a bill that allows defendants to challenge their criminal convictions based on the state's use at trial of junk or outdated science – but will it actually cure the problem it seeks to address?

The Texas House Thursday morning unanimously passed Senate Bill 344, by Sen. John Whitmire, D-Houston, queueing up the bill for Gov. Rick Perry's signature, but whether it will have any bite to it is unclear.

As passed, the measure tells the Court of Criminal Appeals how to consider scientific evidence challenged in writs of habeas corpus – an issue that, aside from those cases involving DNA, remains a source of some uncertainty and tension – including in cases that involve pure junk, like dog scent-lineups, or cases that involve more evolved scientific understanding, as with the now discredited trifecta of "symptoms" once considered the hallmark of so-called "shaken baby syndrome."

As the law had to be changed in order to allow the CCA to consider appeals specifically citing DNA evidence, so too SB 344 amends habeas law to allow the court to grant relief where sufficient facts demonstrate that relevant, and admissible, scientific evidence contradicts that which the state used to convict, or that was unavailable at the time the defendant was convicted. The bill also prohibits the court from denying relief based on the fact that a defendant either confessed to the crime or took a plea deal.

Earlier coverage of the 83rd Regular Session of the Texas Legislature begins at the link.

Helen Prejean Keeps Campaigning for Repeal

"Sister Helen Prejean's passion to end the death penalty is a challenge to others," is the New Orleans Times-Picayune profile written by Sheila Stroup. It's available in a slightly abbreviated version, "After 2 decades, nun's crusade continues," via AP and NECN.  Here's the beginning:

For two decades, Sister Helen Prejean has traveled around the country and the world, speaking out against capital punishment. She tells audiences about being a spiritual adviser to inmates on death row and talks about what it means to accompany a man to his death. She tells of meeting the families of the doomed men and the families of their victims. She talks about how the court system works, and how it doesn’t. She speaks of forgiveness.

She calls her passion to end the death penalty “a journey that’s still happening.”

During an interview many years ago, she took me back to the beginning of that journey, when her audiences were considerably smaller than they are now. “I had my smallest crowd right here in New Orleans, at the St. Christopher Home,” she said. “Three people showed up, and two of them nodded off.”

That was before her book “Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States,” was published in 1993, and before Susan Sarandon won an Oscar portraying her in the movie.

Since then, Sister Helen has given hundreds and hundreds of talks and filled countless auditoriums. She wrote a second book, “The Death of Innocents: An Eyewitness Account of Wrongful Executions,” which came out in 2004.

Related posts are in the activism and religion category indexes.

Former Prosecutor Backs Dunlap Commutation

"CO's Death Penalty System Too Broken to Use: Commute Dunlap's Sentence," is Richard Bloch's essay at Huffington Post.  He's the former Arapahoe County Chief Deputy District Attorney.

In the twenty years I spent with the Arapahoe County District Attorney's Office, I prosecuted dozens of homicides, including three death penalty cases. Based on my experiences, I believe that Colorado does not need and should not use capital punishment to maintain our public safety. I hope that Governor Hickenlooper commutes Nathan Dunlap's death sentence to life in prison without the possibility of parole.

Having worked on many homicides, visited dozens of murder scenes, and, most importantly, spoken to many people who have committed violent actions against others, I understand from personal experience what so many studies show: that there is no evidence whatsoever that the death penalty deters crime and enhances public safety.

My work experience convinces me that the threat of a death sentence does not deter criminal activity. In my years as a prosecutor and in my subsequent private legal practice, I have observed that some of the most egregious crimes are committed due to mental illness, desperation, overwhelming emotions, and political extremism -- none of which are subject to rational cost/benefit calculations, like weighing potential criminal sentencing consequences.

And:

Our system is broken. Something is clearly wrong with our state when all the death sentences are coming out of one county. We are in a crisis when our state, which is 4.3 percent African-American, has a death row that is 100 percent African American. A broken system has produced flawed results.

One of these results is Nathan Dunlap's death sentence. That is why I join so many other individuals and groups speaking out to support clemency in this case. The crime he committed was horrific, and he should spend the rest of his life in prison without the possibility of parole, to ensure public safety and severe punishment for his crimes. Yet we cannot ignore that the system that sentenced Mr. Dunlap to die is a system in crisis. Colorado can do better; Colorado is better than that.

Westword posts, "Nathan Dunlap clemency backers cite broad support as calls for death continue," by Michael Roberts.

The campaign to either save Nathan Dunlap from the death penalty or execute the man convicted of four brutal murders at a Chuck E. Cheese restaurant in 1993 has turned into something of a public-relations competition. As the Arapahoe District Attorney's Office continues to dole out statements from victims and associates who believe he deserves the ultimate punishment, Dunlap's advocates are working to humanize him even as they emphasize broad support for Governor John Hickenlooper to alter his sentence to life in prison without the possibility of parole.

You can view the clemency petition and other supporting documents in Nathan Dunlap's case at the link.

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

Exoneree Curtis McCarty

Omaha World-Herald columnist Matthew Hansen writes, "Decades on death row drive death penalty fight."  Here's the beginning of this must-read:

Oklahoma is killing a man at midnight, and so as darkness falls, another man on H Block slips off his prison-issue shoes.

He sits crossed-legged in front of the open toilet in his cell. He grips a shoe in each hand. He begins.

Bang. Bang. Bang.

As far as Curtis McCarty can remember, it just happens.

Another inmate takes off his shoes, and Curtis does, too, and the drumbeat spreads up and down the hallway and through the dozens of two-man cells commonly known as death row.

Bang! Bang! Bang!

The visitors begin to arrive. The grieving family members of the victim who has been brutally murdered. State officials upholding the laws of the state of Oklahoma. News reporters bearing witness in their constitutionally protected role. And the men whose job it is to administer a lethal dose of drugs to a convicted murderer and then watch as he dies.

As the visitors wait for the clocks to strike midnight, the banging grows louder and louder until it reverberates all the way through the Oklahoma State Penitentiary. The pipes shake. The walls and the floors tremble. Louder and louder until it seems like the building might crumble. Until it seems like the world might end.

BANG! BANG! BANG!

Earlier coverage from Nebraska begins at the link; also availble, earlier coverage of Curtis McCarty.

The Kansas Death Penalty Has Cobwebs

That's the title of a lengthy report by Dave Helling for the Kansas City Star.

It may be weeks before Kansans know if prosecutors will seek the death penalty for Kyle Flack, accused of killing four people in Franklin County this spring.

It will take far longer — 10 years or more — before anyone in the state is actually put to death for a crime.

And that time gap, advocates on both sides of the death penalty debate say, suggests the state remains deeply uneasy about the punishment — an ambivalence that muddies its value.

“When a law isn’t applied, it isn’t really a law,” said David Muhlhausen, a death penalty supporter and expert with the conservative Heritage Foundation.

Capital punishment opponents aren’t eager to speed up executions, of course. But they say the state’s lengthy death penalty procedure is costing taxpayers millions of dollars in legal fees and other expenses without significantly improving public safety.

“Constituents have said to me, ‘We have a theoretical death penalty, but we don’t carry it out in practice,’” said Mary Sloan, executive director of the Kansas Coalition Against the Death Penalty.

“So if we’re not going to carry it out in practice, why do we pay all that cost?”

No one has been put to death in Kansas since 1965.

“Kansas is 10 years and $20 million away from its first execution,” predicted lawyer and capital punishment opponent Sean O’Brien of Kansas City.

Earlier coverage from Kansas begins at the link.

Florida News & Commentary

The Palm Beach Post publishes the editorial, "Scott should veto ‘Timely Justice Act’ on the death penalty."  It's by Randy Schultz for the Post Editorial Board.

In 2006, the American Bar Association showed Florida how to fix the state’s death penalty system in the best way. Having ignored those ideas for seven years, the Legislature now proposes to fix the system in the worst way.

Heading to Gov. Rick Scott is House Bill 7083, titled “The Timely Justice Act.” Rather than seek to make sure that executions are carried out fairly, the legislation seeks to have executions happen sooner. In the state with the most exonerations from Death Row — 24 since 1979 — this would be like giving Bernie Madoff a new line of credit.

Rep. Matt Gaetz, R-Fort Walton Beach, is the sponsor of HB 7083. As he put it, there are “problem judges” and lawyers who needlessly drag out Death Row appeals. It is true that of the 405 people awaiting execution, 16 committed their crimes before 1980. But as the legislative staff said in analyzing the bill, the average time between conviction and execution in Florida is 13.22 years, less than the national average.

HB 7083 rests on another faulty premise: All capital punishment cases are the same. A current case is the latest to debunk that premise.

Gov. Rick Scott has signed a death warrant for William Van Poyck. In 1987, as an inmate at Glades Correctional Institution, Van Poyck tried to escape from a doctor’s office in West Palm Beach. Guard Fred Griffis was shot and killed. Van Poyck should be in prison for life. But last week, the wife of the other inmate in the incident backed up Van Poyck’s story that he didn’t fire the fatal shot.

And:

Seven years ago, the American Bar Association recommended that Florida require a 12-0 jury vote to recommend a death sentence, as is required for conviction. Currently, a simple majority is enough to recommend death. That inconsistency is only one reason why Florida has a flawed capital punishment system. Gov. Scott should veto HB 7083 because justice matters more than timeliness.

Syndicated columnist Leonard Pitts writes, "On death penalty, wrongly accused are victims, too."  It's via his home paper, the Miami Herald.

At great political peril, George Ryan did the right thing.

Not to canonize the man. After all, the then-governor of Illinois was later imprisoned on corruption charges.

But that doesn’t change the fact that, in 2000, stung that 13 inmates had been exonerated and freed from death row in the previous 23 years, Ryan committed an act of profound moral courage, imposing a moratorium on capital punishment. In 2003, in the waning days of his term, he one-upped himself, commuting every death sentence in his state.

Recalling what Gov. George Ryan once did provides interesting context as Floridians and death penalty opponents around the country wait to see what Gov. Rick Scott will do.

Florida’s chief executive has on his desk awaiting his signature — or, dare we hope, his veto — a piece of legislation called the Timely Justice Act, passed by his state legislature in the apparent belief Florida is not killing people fast enough.

There are 404 people awaiting execution in Florida. We learn from a report by my colleague, Mary Ellen Klas, that 155 of them have been there longer than 20 years, and 10 have been there longer than 35 years. The average wait:13 years.

And:

Read more here: http://www.miamiherald.com/2013/05/18/3402949/on-death-penalty-wrongly-accused.html#storylink=cpy

More to the point, there’s this: Since the death penalty was reinstated in the mid-70s, Florida has executed 75 people. But it has exonerated 24, many of whom spent more than a decade on death row. According to the Death Penalty Information Center, Florida has the highest error rate in the country.

So how can a state that gets it wrong at least one time in every four want to speed up the process? Does no one care about the increased likelihood of executing someone who committed no crime?

We are always called upon to be solicitous of the pain suffered by victims’ families. Where is our solicitude for innocent people, wrong place, wrong time, people — usually indigent people of color — who are rushed, perjured, bumbled, erred and “oopsed” onto death row? Why does their pain affect us less? Why are they less deserving of our compassion? Are they not victims, too?

"Gov. Rick Scott speeds up warrants for Death Row inmates," is by Steve Bousquet, Tallahassee Bureau Chief for the Miami Herald and the Tamp Bay Times.

Gov. Rick Scott has accelerated the pace of signing death warrants in Florida by lining up three executions over the next few weeks, the most in such a brief period of time in more than two decades.

Scott and his chief legal adviser say they are doing nothing unusual. But legal experts who oppose the death penalty wonder whether other factors are at work — such as Scott’s desire to improve his standing with voters as he seeks re-election next year.

Not since 1989, when an unpopular Gov. Bob Martinez set a record by signing six death warrants in a single day, has a Florida governor been so eager to use the death penalty.

“In the past, governors wouldn’t do multiple warrants at a time. It was a much more orderly process than this,” said Martin McClain, an attorney who has defended many Florida Death Row inmates. “It appears that every 10 days, Gov. Scott is signing a death warrant.”

And:

The timing of death warrant signings, and which inmates are chosen, has long been shrouded in mystery in Florida, and has been a subject of consternation among lawyers who represent Death Row inmates. Inmates are allowed to appeal their convictions in both the state and federal courts, and every case undergoes an investigation by the Florida Parole Commission before the governor can sign a death warrant.

But in case after case, the Florida Supreme Court has rejected claims that the death penalty selection process is arbitrary or without standards, and the court has upheld the governor’s “unfettered discretion to select inmates for execution,” as it noted last week in the case of Elmer Carroll, condemned to die for the rape and murder of a 10-year-old girl in Apopka in 1990.

AP coverage is, "Gov. Scott steps up pace on signing death warrants," by Brendan Farrington.  It's via the Tallahassee Democrat.

Gov. Rick Scott is signing death warrants at a pace rarely seen in Florida since the death penalty was reinstated in 1976.

Scott already has signed five death warrants this year, including three in a recent span of less than four weeks.

“I go through them and when people have exhausted their appeals and when they’re finished with their clemency process, then I continue to move the process along,” Scott said.

But death-penalty opponents see the surge in death warrants signed as upsetting.

“He’s clearing out death row,” said the Rev. Phil Egitto, a Roman Catholic priest from Daytona Beach who organizes protests at each execution. “It’s very, very crazy. It’s very unusual. It is my understanding that Gov. Scott wants to be hard on crime, but I don’t think this is the answer.”

So far only one of the five condemned men has been executed — Larry Eugene Mann was put to death by lethal injection last month for kidnapping and murdering 10-year-old Elisa Vera Nelson on Nov. 4, 1980. Still, there are five active warrants. Scott signed John Errol Ferguson’s death warrant last year, but the execution has been delayed as his lawyers seek appeals. Florida law states that once a warrant is signed, it remains in full effect even if the initial execution date passes.

If the sentences are carried out this year for each of the active warrants, it would guarantee at least the most executions in Florida in one year since six people were executed in 2000, Gov. Jeb Bush’s second year in office.

David A. Love of  Witness to Innocence writes, "Florida's Timely Justice Act Is Neither Timely Nor Justice," for Huffington Post.

George Orwell himself could not have come up with a more deviously named piece of legislation than Florida's ill-advised Timely Justice Act. In the world of doublespeak, it conveys the image of efficiency, effectiveness and fairness, while doing exactly the opposite. Surely, its sponsors wanted to misrepresent and mislead, confuse and obfuscate, and change the subject. Here's why:

The bill -- passed by the Florida legislature and now awaiting the signature of Governor Rick Scott -- would expedite the death penalty process in the Sunshine state. This bill would radically change the death penalty process by taking the power of issuing execution warrants out of the hands of the governor, in favor of an automatic timetable to determine which death row prisoner is next scheduled for execution. The Act would require the governor to sign an execution warrant within 30 days of review by the State Supreme Court. And the state of Florida would be compelled to execute the defendant within 180 days of the warrant.

Supporters say that death penalty appeals take too long, perhaps as long as 20 years, and point to this reality as proof the system is broken.

However, by placing death row prisoners on a fast track to execution, the Timely Justice Act will only increase the risk of executing the innocent. Florida has distinguished itself as the state with the highest number of prisoners exonerated from death row -- 24 out of the 142 individuals exonerated nationwide since 1973.

Earlier coverage of the Florida legislation begins at the link.

DSM-5 News & Commentary Roundup

ReutersLegal posts, "Psychiatrists unveil their long-awaited diagnostic 'bible'," by Sharon Begley.  It's an excellent overview of the debate raging over the new publication.

The long-awaited, controversial new edition of the bible of psychiatry can be characterized by many numbers: its 947 pages, its $199 price tag, its more than 300 maladies (from "dependent personality disorder" and "voyeuristic disorder" to "delayed ejaculation," "kleptomania" and "intermittent explosive disorder"), each limning the potential woes of being human.

But to the psychiatrist who shepherded the tortuous creation of the "Diagnostic and Statistical Manual of Mental Disorders," perhaps the single most important number is the "5" in its title: This is the DSM-5, not the DSM-V.

That may seem like a cosmetic change, but the American Psychiatric Association, which will release the book on Saturday at its annual meeting, decided to use Arabic instead of Roman numerals because "we want it to be a living document," said Dr David Kupfer of the University of Pittsburgh, the chairman of the task force that produced the DSM-5. Rather than waiting another generation to revise the manual - the DSM-IV was published in 1994 - psychiatrists will regularly update it with, for example, findings from genetics and neuroscience, labeling the revisions DSM-5.1 and DSM-5.2 and so on.

"We used '5' because V.0 and V.1 just don't look good," said Kupfer.

The fact that the world's most powerful psychiatrists (their decisions determine what counts as a mental disorder, and thus what insurers cover and which children receive special services in school) are already building in ways to change the manual is commendable, even its critics say.

"Lawyers worry new measure of mental retardation could prompt more executions," by Elizabeth Dilts is also from ReutersLegal.

Earlier editions of the DSM defined mental retardation as an IQ score below 70 accompanied by an inability to meet certain developmental norms, such as bathing regularly or maintaining work. Based on that IQ benchmark, the U.S. Supreme Court ruled in Atkins v. Virginia in 2002 that it is illegal to execute a mentally handicapped person.

But the editors of DSM-V have dropped the 70 IQ score as an indicator of mental retardation and instead recommend that clinicians consider IQ scores while analyzing an individual's behavior to determine if he or she meets the developmental standards.

Making the definition of mental retardation more subjective could prompt more courts to subvert Atkins, said David Dow, a death penalty lawyer in Houston whose client Marvin Wilson was executed in Texas last summer despite his IQ score of 61.

"There are a lot of courts that are hostile to the basic legal doctrine the Atkins case established," Dow said. "When you replace a test that is one part objective, one part subjective with a solely subjective test, it becomes easier for courts that are hostile to the constitutional principle of Atkins to evade that criterion."

The Sunday New York Times Week in Review published the OpEd, "Why the Fuss Over the D.S.M.-5?"  It's by Sally L. Satel, M.D.

LATER this month, the American Psychiatric Association will unveil the fifth edition of its handbook of diagnoses, the Diagnostic and Statistical Manual of Mental Disorders. Fourteen years in the making, the D.S.M.-5 has been the subject of seemingly endless discussion.

The charges are familiar: the manual medicalizes garden-variety distress, leads doctors to prescribe unnecessary medications, serves as a cash cow for the association, and so forth.

But many critics overlook a surprising fact about the new D.S.M.: how little attention practicing psychiatrists will give to it.

There are dozens of revisions in the D.S.M. — among them, the elimination of a “bereavement exclusion” from major depressive disorder and the creation of binge eating disorder — but they won’t alter clinical practice much, if at all.

This is because psychiatrists tend to treat according to symptoms.

So why the fuss over D.S.M.-5? Because of the unwarranted clout that its diagnoses carry with the rest of society: They are the passports to insurance coverage, the keys to special educational and behavioral services in school and the tickets to disability benefits.

 

The New York Times also has news coverage, "Psychiatry’s Guide Is Out of Touch With Science, Experts Say," reported by Pam Belluck and Benedict Carey.

Just weeks before the long-awaited publication of a new edition of the so-called bible of mental disorders, the federal government’s most prominent psychiatric expert has said the book suffers from a scientific “lack of validity.”

The expert, Dr. Thomas R. Insel, director of the National Institute of Mental Health, said in an interview Monday that his goal was to reshape the direction of psychiatric research to focus on biology, genetics and neuroscience so that scientists can define disorders by their causes, rather than their symptoms.

While the Diagnostic and Statistical Manual of Mental Disorders, or D.S.M., is the best tool now available for clinicians treating patients and should not be tossed out, he said, it does not reflect the complexity of many disorders, and its way of categorizing mental illnesses should not guide research.

“As long as the research community takes the D.S.M. to be a bible, we’ll never make progress,” Dr. Insel said, adding, “People think that everything has to match D.S.M. criteria, but you know what? Biology never read that book.”

The revision, known as the D.S.M.-5, is the first major reissue since 1994. It has stirred unprecedented questioning from the public, patient groups and, most fundamentally, senior figures in psychiatry who have challenged not only decisions about specific diagnoses but the scientific basis of the entire enterprise. Basic research into the biology of mental disorders and treatment has stalled, they say, confounded by the labyrinth of the brain.

"DSM, NIMH on mental illness: both miss relational, historical context of being human," is by Claudia M Gold for the oston Globe Child in Mind blog.

It seems that the National Institute of Mental Health (NIMH) may have dealt a death blow to the recently published Diagnostic and Statistical Manual of Mental Disorders (DSM 5) when the organization declared they would no longer fund research based on the DSM system of diagnosis. The views of NIMH director Thomas Insel were referenced in the recent New York Times article on the subject.

And:

I am no fan of the DSM system, which reduces complex experience to lists of symptoms; focusing on the "what" rather than the "why."  However, the NIMH model has limits as well. There seems to be a wish to study mental illness in the same way we study cancer or diabetes. While I certainly have great respect for the complexity of the pancreas, or the process of malignant transformation of cells, trying to understand the brain/mind in an analogous way seems to be an unnecessary and even undesirable reduction of  human experience.

What is missing from both paradigms is recognition of the relational and historical context of being human.

Earlier coverage of the DSM-5 begins at the link.

Public Defender Heads to 8th Circuit Bench

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

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

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

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

And:

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

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

There's additional federal court news, as well.

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

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

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

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

And:

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

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

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

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

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

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

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

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

Related posted are in the judiciary and politics category indexes.

Innocence Commission Bill Update

Today is the 130th day of the Texas Legislature's 140 day regular session.

"Senator Says Innocence Commission Bill is in Trouble," is by Brandi Grissom at the Texas Tribune.

Legislation that would create a commission to review wrongful convictions in Texas is in peril after an advocate for the bill — the brother of an exoneree who died while wrongfully imprisoned — lambasted a state senator who opposes it during a committee hearing this week.

"I don't have my votes in committee," state Sen. Rodney Ellis, D-Houston, said Thursday. He is the Senate sponsor of House Bill 166, which would establish an innocence commission in Texas. "I had them, but I don't have them now."

And:

Under the bill, which is pending in committee, the commission's governor-appointed members would investigate wrongful convictions, identify why they occur and examine appeals filed with the state’s courts for evidence of ethical violations by attorneys and judges.

The Houston Chronicle posts, "Session apologizes for outburst; exonerees bill left pending again," by Eva Ruth Moravec.

The brother of Timothy Cole, a man who died while incarcerated for a crime he didn’t commit, said he regrets an outburst during a hearing in which he called a senator a “bitch,” but says the senator’s actions were “deplorable.”

The emotional testimony took place Tuesday during the Senate Committee on Criminal Justice meeting, in which House Bill 166 was discussed. Authored by Rep. Ruth Jones McClendon, D-San Antonio, the bill would establish a nine-member commission that would evaluate future exoneration cases.

And:

Several exonerees also gave testimony, and the item was left pending in committee because a quorum wasn’t present – Sen. Dan Patrick, R-Houston, said he left the meeting because “I had something else to do.” On Wednesday, committee members met at Whitmire’s desk to take up the pending items, but again didn’t vote on HB 166, this time because there weren’t enough votes.

Earlier coverage of HB 166 begins in the previous post; you can also jump directly to more on the Committee kerfuffle.

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Perry Signs Criminal Discovery into Law

The Texas Tribune posts, "Perry Signs Michael Morton Act," by Brandi Grissom.

With exoneree Michael Morton by his side, Gov. Rick Perry on Thursday signed a measure that aims to avoid wrongful convictions by preventing prosecutors from suppressing evidence.

"This is a major victory for integrity and fairness in our judicial system," Perry said of Senate Bill 1611, which was named for Morton, who spent 25 years in prison before being exonerated. It was the governor's first public signing ceremony of the session.

And:

Since his exoneration, Morton has lobbied lawmakers to pass legislation that would prevent others from suffering the same fate. Under SB 1611, prosecutors will be required to turn over evidence to defendants accused of crimes and to keep a record of the evidence they disclose. The landmark 1963 U.S. Supreme Court ruling in Brady v. Maryland already requires prosecutors to give defendants information that is “material either to guilt or to punishment.” The Morton Act requires disclosure of evidence regardless of its materiality to guilt or punishment. It is the first significant reform to Texas discovery laws since 1965.

Perry said it was fitting that his signing of the Michael Morton Act fell almost exactly 50 years after the Supreme Court issued the Brady ruling.

"Perry signs Morton Act into law," is by Chuck Lindell in the Austin American-Statesman.

State Sens. Rodney Ellis, D-Houston, and Robert Duncan, R-Lubbock, wrote the bill and worked through a series of compromises during several weeks of intense — and at times seemingly futile — negotiations.

Reps. Senfronia Thompson, D-Houston, and Tryon Lewis, R-Odessa, moved the bill rapidly through the House, ensuring that the delicate compromise forged in the Senate was not undone by late changes or amendments.

Perry used four pens to sign the bill into law, then presented them to Morton, Ellis, Duncan and Thompson. At the end of the ceremony, Thompson presented Morton with the gavel used to mark House passage of his namesake legislation.

And:

• Ensures that defendants can view, and electronically copy, all police offense reports and witness statements in prosecution files.

• Protects witnesses and victims by requiring defense lawyers to redact identifying information, such as addresses and phone numbers, from documents shared with defendants and potential witnesses.

• Allows defense lawyers to share prosecution information with the defendant, investigators, experts and consulting lawyers, but all others must be approved by the trial judge.

• Requires prosecutors to list the evidence provided to defense lawyers, creating a record for potential appeals or future legal disputes.

• Requires prosecutors to promptly disclose favorable evidence uncovered during and after trial.

The Dallas Morning News reports, "Gov. Perry signs Michael Morton Act into law," by Claire Cardona.

Gov. Rick Perry on Thursday signed the Michael Morton Act into law with Morton and the senators and representatives who made it possible at his side.

Morton didn’t speak to the press, just smiled while Perry put ink to paper and kissed the pen after Perry was finished.

Authored by Sen. Rodney Ellis, D-Houston, and Sen. Robert Duncan, R-Lubbock, the act creates a uniform open-file policy that requires prosecutors to hand over all exculpatory evidence such at witness testimony or offense reports.

"‘Michael Morton Act’ signed into law," is Houston Chronicle and San Antonio Express-News coverage by Eva Ruth Moravec.

Ellis said the case’s widespread media attention, and proximity to Austin, may have helped it get passed during this legislative session.

“The trial put the issue of discovery front and center for months,” he said. “It put such a bright spotlight on the need for discovery reform.”

Ken Anderson, then-Williamson County District Attorney, is accused of deliberately withholding evidence from the defense that indicated Morton’s innocence. As the bill passed the Texas House on May 14, Morton was present and was recognized by lawmakers.

The bill is one of several Ellis has authored or sponsored to aid exonerees. House Bill 166, which would create a commission to review future exonerations, has passed the Texas House, but is awaiting a vote in a senate committee. In Texas, 117 people have been exonerated of crimes they didn’t commit, causing the state to lead the nation in exonerations.

More on the innocence commission legislation in the next post.

"Gov. Perry Signs Senate Bill 1611, The Michael Morton Act," is the governor's news release with his signing statement.  Here's the full text:

Gov. Rick Perry today signed Senate Bill 1611, the Michael Morton Act, which will help prevent wrongful convictions in Texas. The governor was joined by Sens. Rodney Ellis and Robert Duncan, Reps. Senfronia Thompson and Tryon Lewis, and Michael Morton for the bill signing.

"Texas is a law-and-order state, and with that tradition comes a responsibility to make our judicial process as transparent and open as possible," Gov. Perry said. "Senate Bill 1611 helps serve that cause, making our system fairer and helping prevent wrongful convictions and penalties harsher than what is warranted by the facts."

The Michael Morton Act will allow Texas' criminal justice system to be more responsive to a case, even after it has been tried, by ensuring a more open discovery process. The bill's open file policy allows for broader discovery, and removes barriers for accessing any evidence, except for items that would affect the security of a victim or witness.

"Discovery reform is simply vital to the reliability and quality of our justice system," Sen. Ellis said. "The Michael Morton Act will help safeguard the innocent, convict only the guilty, and provide justice the people of Texas can have faith in."

"I have long been an advocate for an efficient, effective and uniform court system across Texas. This legislation is a giant step forward in reaching that goal," Sen. Duncan said. "I am proud that stakeholders from across the state were able to come together and set aside their differences to improve our criminal justice system."

"The Michael Morton Act is an incredibly important step in creating a more just Texas criminal justice system," Rep. Thompson said. "It will improve the reliability of criminal convictions and ensure that we have a quality justice system where all relevant evidence and facts are brought to light, and allow for more efficient resolutions to criminal proceedings."

Senate Bill 1611 becomes law on Jan. 1, 2014.

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

Give the Death Penalty the Chair

That's the title of a Nebraska editorial column in the North Platte Telegraph written by Peter Rogers, the Telegraph's Publisher.

It happens about this time every year: the Nebraska Legislature debates the wisdom of eliminating the death penalty. (Or not: the bill Tuesday was subject to filibuster and cannot return before the end of the session.)

It has been effectively rendered ineffective anyway - the death penalty, not the Legislature, although that could be discussed - but for purposes that are not all that mysterious to most of us, members of the Legislature make this annual attempt to mandate its removal as law.

Editorially we have supported eliminating the death sentence. It tends to raise eyebrows amongst conservatives and liberals alike. Conservatives generally applaud our positions and liberals tend to not applaud our positions. Our death penalty position runs contrary to those conservative leanings.

But frankly, it is difficult to understand how anyone who adamantly opposes abortion can accept killing an adult. I understand the revulsion of aborting an innocent. And the rationalization of executing a convicted murderer - an eye for an eye, so to speak.

But the fact remains that to honor life, we need to honor all life. It is doubtful the death penalty acts as a great deterrent to crime. It is debatable what it does to us as a society.

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

Texas Execution Date Withdrawn for DNA Testing

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

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

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

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

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

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

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

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

Related posts are in the DNA category index.

More Calls for Florida Veto

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

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

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

And:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Earlier coverage from Florida begins at the link.

The Dust-Up in the Senate Criminal Justice Committee

"Drama in committee hearing — Sen. Joan Huffman chewed out by witnesses on exoneree bill," is Rodger Jones' post at the Dallas Morning News Opinion blog.

Sen. Joan Huffman was chewed out today by witnesses at a Senate hearing after she hit a nerve about whether the state is doing enough to fight wrongful convictions.

One of the witnesses was Cory Session, brother of Timothy Cole, the state’s only posthumous exoneree, who raised his voice at her and said he was “pissed off” and “sickened” at her opposition to a bill (HB 166) to establish a wrongful convictions panel.

Huffman was chairing the Senate Committee on Criminal Justice at the time, and she flat out dumped on the bill as unnecessary. Angered and agitated, Session ended his testimony by telling Huffman she needed to get another job, and he stormed off.

The emotion boiled over after a long recitation by Huffman, R-Houston, in which she listed the various justice reforms that the Legislature has passed over the past 12 years, essentially saying enough is enough. It was a tedious beatdown. Huffman may have thought supporters of the bill would be impressed and mollified, but some of them obviously were insulted by her tactic.

Huffman, a former judge, was addressing bill sponsor Sen. Rodney Ellis, D-Houston, who is carrying the House-passed bill in the Senate. The bill would create a panel to study wrongful convictions and recommend improvements in the justice system.

Next came the witnesses. Four exonerees and Session walked to the witness table, and Session went first. He reached a boil fast.

Click to read the rest of the post and Jones' transcription of the hearing.

You can also view the archived video of Tuesday's Senate Criminal Justice Committee meeting, using Real Player.  Sen. Rodney Ellis begins testimony on HB 166 at about 2:33 into the hearing. You can slide the bar at the bottom of the screen to fast forward to that point.

Earlier coverage of the Committee meeting and this Texas legislative session begins at the

 

Texas Editorials Applaud Legislature's Criminal Justice Reforms

"Morton Act a victory for justice," is the Austin American-Statesman editorial.  It's a must-read on the state of major criminal justice reforms in the Texas Legislature.

All that remains to be done to make the Michael Morton Act state law is for Gov. Rick Perry to do the expected and sign it. This necessary legislation, which once appeared doomed in the Texas Senate before winning unanimous approval there and, on Tuesday, in the Texas House, brings statewide consistency to criminal cases by requiring prosecutors to share information with defense lawyers.

When the governor puts his signature on this important act, a statewide “open file” policy will be created. Such a policy should help prevent the kind of wrongful conviction that sent Morton to prison for almost 25 years for the murder of his wife, Christine.

And:

The Michael Morton Act, which was co-authored by Democratic state Sen. Rodney Ellis of Houston and Republican state Sen. Robert Duncan of Lubbock, almost didn’t make it out of the Senate. District attorneys had expressed concern that the bill put at risk the safety of witnesses and victims, prompting Lt. Gov. David Dewhurst to push a reasonable compromise that allows prosecutors to delete identifying information from their files before turning them over to defense lawyers.

A related bill giving exonerated Texans four years from the date of their release from prison to pursue allegations that a prosecutor hid evidence also has been sent to the governor for him to sign. Under current law, the four-year statute of limitations begins at the time a violation occurs, a preposterous provision that makes it all but impossible to hold prosecutors accountable.

Today's Dallas Morning News publishes the editorial, "Legislative progress report."

Haven’t we done enough?

The implied question hung like a stink bomb over what should have been a satisfying day of landmark reform of criminal justice in Texas.

Just a few hours earlier on Tuesday, the Texas House gave final legislative OK to breakthrough legislation, the Michael Morton Act, to clarify and broaden a defendant’s access to evidence that could prove innocence. Passage of the bill, SB 1611, comes the week of the 50th anniversary of the Supreme Court decision in Brady vs. Maryland, which established access to exculpatory evidence as a constitutional right.

It was inspiring to see the Texas House rally to that founding principle and pass SB 1611 unanimously, 146-0, and send it to the governor.

Then came the sour note from Sen. Joan Huffman, R-Houston, as she chaired a Senate hearing on HB 166 to study cases of proven exoneration, like Morton’s. The goal is to apply lessons learned after analyzing cases of government overreach that robbed people of their freedom.

But Huffman lectured the committee — and a group of exonerees waiting to testify — that the state of Texas has done just fine by victims of wrongful conviction and has compiled an impressive list of reforms in recent years. Her recitation was as boneheaded as it was insulting to people who had lost decades of their lives because of slipshod work, backward practices or ethical lapses by cops and prosecutors.

Learning from breakdowns in justice should be an ongoing process. The state has adopted some new safeguards, but there is little track record.

I'll have more of the Huffman episode in the next post.

"Texas Senate must move quickly to pass exoneration bill," is the Fort Worth Star-Telegram editorial.

There is a stain on the Texas criminal justice system that no spot remover can erase.

But Texas’ indelible shame of having sent too many innocent people to prison should not keep lawmakers, law enforcement officials, judges and prosecutors from working to improve the procedures whose flaws have led to serious mistakes.

With 117 exonerations, Texas leads the nation in erroneous convictions. Since 1994, there have been 49 exonerations based on DNA testing; 41 of those occurred in the last 12 years.

To its credit, the Legislature in the last few sessions has passed legislation aimed at reducing the chances of convicting innocent people, including strengthening the reliability of eyewitness identification such as through photo lineups.

This week, the state House passed the Michael Morton Act on a vote of 146-0. Named for a man who was wrongly convicted of murder in Williamson County after a district attorney withheld important evidence, the bill requires prosecutors to have an “open file” policy of sharing information with defense attorneys.

And:

The Morton case and many others in which the system failed make it extremely important that another pending bill is not allowed to die in the Senate.

HB166, which passed the House with strong bipartisan support, would create the Timothy Cole Exoneration Review Commission, a nine-member body that would examine all Texas cases in which a conviction was erased through exoneration.

The panel is named for a Fort Worth man who died in prison before his innocence was proven. Timothy Cole became the first person in the state to be exonerated posthumously.

The commission’s role would be to “identify errors and defects” in the criminal justice process and point out “ethical violations or misconduct by attorneys or judges.”

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