The StandDown Texas Project

Hill Order & Statement from Warren Hill's Attorney

Judge Tusan's Order Granting Injunction is available as a Google document, as is the Order Granting Certificate for Immediate Review.

Brian Kammer, Warren Hill's attorney has issued a statement, "Regarding Judge Tusan's Ruling on Lethal Injection Secrecy Challenge."  Here's the full text:

"We are deeply relieved that Judge Tusan has stayed tomorrow's scheduled execution of Warren Hill, a man with mental retardation. Judge Tusan rightly found that Georgia's new lethal injection secrecy law goes too far in its extreme secrecy. As Judge Tusan noted, the Act makes it impossible to know whether the Eighth Amendment’s ban on cruel and unusual punishment would be violated in a lethal injection execution, given the secrecy surrounding the protocol.
 
"Warren Hill's Petition for Writ of Habeas Corpus is still pending with the United States Supreme Court, which is, procedurally, the only court which can now consider the fact of his mental retardation. The Supreme Court ruled in 2002 that persons with mental retardation are categorically exempt from capital punishment, so it is important for the Court to hear the new evidence in Mr. Hill's case, that all doctors who have examined him, including three who previously testified for the state, now unanimously agree that Mr, Hill is a person with mental retardation.
 
“We are hopeful that after reviewing Mr. Hill’s petition, the Court will remand his case to federal district court for a hearing on the compelling evidence demonstrating that Mr. Hill is mentally retarded and therefore ineligible for the death penalty.”

Earlier coverage of the stay of execution in Warren Hill's case begins with the preceding post.

News Coverage of Warren Hill's Stay

The New York Times Taking Note blog posts, "Are Georgia’s Lethal-Injection Practices Constitutional?"  It's by Jesse Wegman.

Warren Hill has been given at least a few more days to live. Following a hearing on Monday afternoon, Judge Gail S. Tusan of the Superior Court in Fulton County, Ga., issued a temporary stay of execution to allow argument over whether Georgia’s refusal to reveal its methods and sources for procuring lethal-injection drugs violates Mr. Hill’s due process rights.

The parties are due back in court on Thursday, July 18, at 8 a.m. Mr. Hill’s execution has been re-scheduled for 7 p.m. that evening.

This is a new development in a case that seemed until late last week to be about one issue only—whether the Supreme Court would stop the execution of a man with an I.Q. of 70 whom experts have unanimously deemed intellectually disabled. In 2002, the court ruled in Atkins v. Virginia that people with severe intellectual disabilities may not be executed.

"Fulton judge stays Warren Hill’s execution," is the expanded Atlanta Journal-Constitution report by Rhonda Cook and Bill Rankin.

Superior Court Judge Gail Tusan issued the stay — the third Hill has been granted over the past year — just four hours before his execution was to be carried out at 7 p.m.

“For the court and the public, it is a big issue,” Tusan said of the state’s capital punishment procedure. She scheduled another hearing for Thursday after state attorneys told her the warrant that orders Hill’s execution expires on Saturday at noon.

And:

When Hill’s execution was set, the state Department of Corrections had no lethal-injection drugs in supply. But the agency recently provided Hill’s lawyers with redacted records about a contract it had just signed with a pharmacy to compound drugs specifically for executions.

During Monday’s hearing, Graham said that on July 10 the pharmacy compounded the drug for Hill’s execution and then had it independently tested. On Saturday, Corrections received the drug, which expires on Aug. 8, Graham said.

The state Attorney General’s Office also released a document from an independent laboratory that tested the compounded drug. The one-page document says a July 10 test found that the compounded drug is pure pentobarbital, although the names of the lab that tested the drug and the person who vouched for its results were redacted.

AP coverage is, "Fulton County judge stays execution," by Christina A. Cassidy.  It's via the Augusta Chronicle.

The lawsuit filed Friday focuses on a state law that recently took effect that prohibits the release of identifying information about any person or company participating in an execution. Supporters of the law have said it’s necessary to protect participants from retaliation and could help the state obtain drugs from companies or pharmacies that might not want people to know they are involved in executions.

Nationally, it has become increasingly difficult for states to obtain a lethal injection drug because the manufacturer has said it doesn’t want it used in executions.

Last July, Hill’s execution was put on hold as his attorneys challenged a plan by the state to change from a three-drug process to a single lethal dose of pentobarbital. The state previously used pentobarbital to sedate inmates before injecting pancuronium bromide to paralyze them and then potassium chloride to stop their hearts. The Georgia Supreme Court later sided with the state and cleared the way for the execution.

But then the state’s supply of the drug expired in March. The Department of Corrections used a compounding pharmacy to obtain pentobarbital for Hill’s scheduled execution Monday. The name of the pharmacy was not released, nor was the name of the physician who wrote the prescription for the drug.

Compounding pharmacies custom-mix small batches of a drug for specific clients. They’ve come under scrutiny after a deadly meningitis outbreak was linked to contaminated injections from a Massachusetts compounding pharmacy. The FDA considers compounding pharmacy products unapproved drugs and does not verify their safety or effectiveness.

The Guardian posts, "Georgia inmate Warren Hill granted last-minute stay of execution," by Ed Pilkington, reoirtubg from New York.

The Georgia state courts will now reconsider his case on Thursday. Should the judges decide that the execution can be put back on schedule, it is possible that by the end of this week Hill will be faced with his fourth brush with the death chamber in the space of a year.

Brian Kammer, Hill's lawyer, said he was relieved the stay had been issued just three hours before the execution was due to have taken place. "At this time, there is far too much we do not know about how the state intends to proceed in this, the most extreme act a government can take against a citizen," he said.

The decision to postpone the execution by just three days temporarily gets the US supreme court off the hook. Hill's legal team had appealed to the nine justices to intervene on the grounds that the same court prohibited executions for "mentally retarded" prisoners – as called in US jurisprudence – in 2002.

"Court stays execution of Georgia convict," at CNN.

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

Mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term on the website.

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

Statement From Warren Hill's Attorney

The following is a statement from Brian Kammer, attorney for Warren Hill:

"We are relieved that the Superior Court of Fulton County has stayed the execution of Warren Hill, a man with mental retardation who has an undisputed I.Q. of 70. Today, the Court found that more time is needed to explore Mr. Hill's complaint, which raises serious concerns about the extreme secrecy surrounding the execution process in Georgia, and the new Lethal Injection Secrecy Act, which took effect one day before Georgia issued a death warrant for Mr. Hill. At this time, there is far too much we do not know about how the state intends to proceed in this, the most extreme act a government can take against a citizen.

Ultimately, we are hopeful that the United States Supreme Court will hear Mr. Hill's pending Petition for Writ of Habeas Corpus, and will have the opportunity to consider the important new evidence in this case, that there is unanimous consensus among all the doctors who have examined Mr. Hill, including three who previously testified for the state, that he is a person with mental retardation, and thus ineligible for the death penalty."

Earlier coverage of Warren Hill's case begins with the announcement of the stay of execution.

Stay Issued by Georgia Judge for Warren Hill Due to LI Concerns

The Atlanta Journal-Constitution reports, "Fulton judge stays Warren Hill’s execution."  It's by Rhonda Cook and Bill Rankin.

A Fulton County judge stayed Monday’s scheduled execution of condemned killer Warren Hill.

After a 90-minute hearing, Superior Court Judge Gail Tusan scheduled another hearing for Thursday morning to hear challenges raised by Hill’s attorneys. They are challenging the constitutionality of a new state law that shields from public view the identities of the lethal injection drug’s manufacturer and physician who prescribes it.

The execution was scheduled for 7 p.m.

For the first time, Georgia has turned to an individual pharmacy for its lethal injection drug. It has become virtually impossible to secure the powerful sedative from a mass manufacturer because European-based companies that don’t want their products used for capital punishment.

And:

On July 1, state law made it a state secret to identify the maker of the drug Georgia uses to carry out lethal injections.

Hill’s lawyers say that secret makes it impossible to ensure that the drugs are sterile, properly made and will not cause excruciating pain.

“The use of an unknown, anonymously produced substance to carry out his execution carries an intolerable risk of pain and suffering, and thus constitutes cruel and unusual punishment,” attorney Brian Kammer wrote in a filing with Fulton County Superior Court.

Earlier coverage of Warren Hill case begins at the link.

Federal Judge Stays Virginia Execution

Today's Roanoke Times reports, "Judge stays execution of William Morva pending appeals," by Laurence Hammack.

A federal judge has stayed the scheduled execution of William Morva, convicted of killing a hospital security guard and a sheriff’s deputy during a crime spree in Montgomery County.

Morva had been scheduled for an Aug. 15 execution.

But in an order entered Monday in U.S. District Court in Roanoke, Judge Michael Urbanski stayed the execution, allowing Morva to continue his appeals of three counts of capital murder.

And:

Although an execution date was scheduled in June, Monday’s stay came as no surprise after Morva’s attorneys invoked his right to file a habeas corpus petition in federal court.

Urbanski gave the attorneys until Sept. 19 to file the petition.

The Virginian Pilot posts AP coverage, "Judge blocks scheduled execution of Virginia man."

A federal judge on Monday blocked the scheduled execution of a Virginia inmate who escaped from jail and killed a hospital guard and a sheriff's deputy.

An Aug. 15 execution date was set for William Morva after his state appeals were exhausted in April. But inmates are guaranteed federal appeals, so Judge Michael Urbanski's order in U.S. District Court in Roanoke was no surprise.

Earlier coverage from Virginia begins at the link.

11th Circuit Stays Florida Execution; Orders Expedited Briefing

Today's Miami Herald reports, "Federal court halts execution of Miami killer Marshall Lee Gore," by David Ovalle.

A federal appeals court on Monday temporarily halted the execution of Miami killer Marshall Lee Gore, about an hour before he was set to die by lethal injection.

Gore, 49, was to be executed for the March 1988 strangulation-and-stabbing murder of Lauderhill’s Robyn Novick.

And:

Gore’s reprieve, however, may not last long — the court quickly set a Thursday court date for his lawyers in the case to explore the possibility that Gore is insane. The U.S. Supreme Court has long held that the execution of insane inmates is cruel and unusual punishment.

The 11th Circuit Court of Appeals, based in Atlanta, said it would try to settle the matter before July 1.

Gore’s claim that he cannot be executed because he is insane mirrors that of John Ferguson, a Miami mass killer who earned a stay of execution in October.

The same federal court rejected Ferguson’s appeal, but it took seven months for the judges to rule. A new execution date for Ferguson has not been set.

"Appeals court delays execution," is the AP coverage by Tamara Lush.  It's via Florida Today.

A former escort service owner convicted in the slayings of two Florida women was granted a temporary stay of execution Monday, hours before he was to have received a lethal injection for one of those deaths.

Marshall Lee Gore had been scheduled to die at the Florida State Prison at 6 p.m. for the 1988 slaying of Robyn Novick, a 30-year-old exotic dancer. But the 11th Circuit Court of Appeals approved a motion filed by Gore’s attorney less than two hours before the procedure was expected to begin.

"Protesters celebrate stay of Gore's execution," is by Kristine Crane for the Ocala Star Banner.

For Mark Elliott, of the Floridians for Alternatives to the Death Penalty, “it was a good news day.” That's what he told the crowd of about 50 anti-death penalty protesters gathered outside the grounds of the Florida State Prison early Monday evening.

The protesters had just heard that the execution of Marshall Lee Gore had been temporarily stayed, or canceled, after the federal 11th Circuit Court of Appeals in Atlanta approved a motion by Gore's attorney based on a claim that Gore is insane and therefore ineligible for execution. A hearing on the case will be held on Thursday.

The protesters stood in a circle and said a prayer, and then sang “Amazing Grace” — which they also do in the event of an execution.

“If there was ever a thing not to take place, this is it,” Elliott told the protesters — many of whom were from Our Lady of Lourdes Catholic Church in Daytona Beach, a group that regularly sits in vigil outside the prison during the executions.

They are led by the Rev. Phil Egitto, who has been bringing protesters for the past decade. Egitto's stance on the death penalty is the same regardless of the crimes of those convicted.

Earlier coverage from Florida 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.

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.

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.

Mississippi Supreme Court Stays Willie Manning Execution

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

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

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

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

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

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

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

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

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

No Martyrs in Huntsville

That's the title of a Dallas Morning News editorial on Craig Watkins withdrawal of an execution date last week.  It is reprinted in the Odessa American.

It’s a welcome surprise when the justice system gives deference to the political system on the sensitive subject of capital punishment. Doubt should not linger when the finality of the death penalty is in play.

Case in point is a decision to postpone the execution of convicted killer Kimberly McCarthy this week until after the Legislature’s session, allowing for the possibility that a bill could pass and affect the case’s outcome. Dallas County District Attorney Craig Watkins agreed to that request from McCarthy’s attorney, and the deal was sealed by a state district judge.

And:

Watkins maintains that the prosecutor in McCarthy’s case used no unconstitutional methods to strike blacks from the jury pool. He says her death sentence was not a function of race, considering that jurors decided it after hearing evidence that McCarthy had killed and robbed two other elderly women — both black.

At the same time, Watkins says, it’s naive to think that embedded racial attitudes don’t affect justice in Texas, and for that reason he supports passage of a so-called Racial Justice Act that would give defendants extra protection against bias in death cases. Sen. Royce West, D-Dallas, has filed such a measure (SB 1270), and Rep. Eric Johnson, D-Dallas, has filed a companion (HB 2614).

Today's Dallas Morning News notes a bill being heard today, "Texas House committee looks at death penalty for killing a DA."  It's by Christy Hoppe.

A bill being heard by the House Criminal Jurisprudence Committee on Tuesday has taken on new meaning after the murder of Kaufman County District Attorney Mike McLelland and his wife, Cynthia.

The measure calls for the death penalty as a punishment option for anyone convicted of killing a district attorney over the perfomance of his or her duty.

The bill, as written here, was filed before the McLelland killings, and it wouldn’t apply in this case because that crime was committed before the bill, if it passes, would become law.

Earlier coverage of the Kimberly McCarthy case, Dallas DA Craig Watkins, and the murder of the Kaufman County District Attorney, at the links.  Related posts are in the Texas Legislature categoy index.

Another Texas Execution Date Withdrawn

Today's El Paso Times reports, "Execution date for El Pasoan on death row delayed."  It's by Adriana M. Chávez.

The execution of an El Paso man convicted in the 2000 beating death of his girlfriend's 19-month-old son has been delayed for a second time.

Rigoberto Avila Jr., 40, had been scheduled to be put to death next week. His execution was originally scheduled for Dec. 12.

In 2001, Avila was sentenced to death by the same El Paso jury that convicted him in the death of Nicholas Macias, who was fatally beaten while Avila was baby-sitting Nicholas and his sibling on Feb. 29, 2000.

Following a court hearing Tuesday morning, 41st District Judge Anna Perez ruled additional time is necessary to allow Avila's defense attorney, Cathryn Crawford of the Texas Defender Service, to explore possible new evidence of Avila's innocence. Perez also ordered that Avila's execution be rescheduled for July 10.

Perez had originally denied a motion by Crawford last week seeking to delay Avila's execution, but on Monday Crawford asked Perez to reconsider her ruling.

Related posts are in the execution date and stay of execution category indexes.  Earlier this week a Dallas County execution date was modified.

Kimberly McCarthy Execution Date Reset for June

"Judge Delays Execution Of Texas Women’s Death Row Inmate," is the AP report, via KWTX-TV.

State District Judge Larry Mitchell Monday delayed the execution of convicted killer Kimberly McCarthy, 51, who’s held on women’s death row in Gatesville and who was originally scheduled to die Wednesday in Huntsville for the murder of a retired college professor.

Mitchell's order resetting the execution date for June 26 formalized an agreement last week between Dallas County District Attorney Craig Watkins and McCarthy's attorney to put off the lethal injection until the fate of death penalty-related bills now in the Texas Legislature is determined.

Lawmakers are about halfway through their six-month session.

McCarthy, who avoided execution with a last-day reprieve in January, asked Mitchell in a court filing two weeks ago to delay her execution until the fate of a bill related to issues in her case that was introduced March 6 in the Texas Legislature is determined.

The bill proposed by Sen. Royce West and Rep. Eric Johnson, both Dallas Democrats, would bar racial discrimination in capital case prosecution.

Attorney Maurie Levin contends McCarthy's 1998 trial jury may have been unfairly selected on the basis of race.

The Dallas Morning News reports, "Execution date moved for woman who killed elderly Lancaster neighbor," by Jennifer Emily.

Dallas County District Attorney Craig Watkins requested the change Friday to see if any of the six bills pending in the Texas Legislature pass. The DA’s office would then determine if they impact McCarthy, who killed Booth in 1997.

Watkins has said he has no doubt that McCarthy is guilty and will be executed. He said the delay is more about the process of death penalty cases in Texas than McCarthy’s individual case.

The six pending bills look at issues ranging from whether race was a factor in the prosecution or sentence to whether police interrogations were videotaped.

Earlier coverage of Kimberly McCarthy's case begins at the link.

According to TDCJ, eight Texas executions are currently scheduled during the seven week period between April 9 and May 21.

Dallas DA Agrees to Stay in Case of Kimberly McCarthy

KWTX-TV posts, "Texas Prosecutor Agrees To Execution Stay For Women’s Death Row Inmate."

Dallas County District Attorney Craig Watkins will announce Friday that he’s agreed to a stay of execution for convicted killer Kimberly McCarthy, who’s held on women’s death row in Gatesville and who’s now scheduled for execution next Wednesday.

A statement from Watkins' office says he agreed to the delay of McCarthy's execution because of proposed legislation that would improve the fairness of the death penalty.

Watkins' agreement moves McCarthy's execution to June 26.

McCarthy, who avoided execution with a last-day reprieve in January, asked State District Judge Larry Mitchell in a court filing last week to put off the April 3 lethal injection until the fate of a bill related to issues in her case that was introduced March 6 in the Texas Legislature is determined.

Attorney Maurie Levin contends McCarthy's 1998 trial jury may have been unfairly selected on the basis of race.

A bill proposed by Sen. Royce West and Rep. Eric Johnson, both Dallas Democrats, would bar racial discrimination in capital case prosecution.

Levin argues that McCarthy, who’s black, was the subject of racial discrimination by the jury of 11 whites and only one black that convicted her.

"Dallas County DA Craig Watkins makes rare public appearance to call for stay of execution, refuses to discuss misconduct allegations," is the Dallas Morning News report by Jennifer Emily.

Dallas County District Attorney Craig Watkins appeared at a hearing this morning asking for a temporary stay of execution for a woman sentenced to death in the slaying of an elderly Lancaster woman.

After the hearing, Watkins refused to answer any questions about allegations of prosecutorial misconduct against him or the contempt of court charge he faces after refusing to testify in the case.

It was a rare pubic appearance for Watkins, who has not often been seen since at least Valentine’s Day when he refused to show up at a hearing where he was supposed to testify about allegations of misconduct against him. His staff at first argued the hearing was improper and then said Watkins was too sick to attend. The hearing was reset.

Earlier coverage of McCarthy's case begins at the link.  Also available, Craig Watkins' proposal for a Texas Racial Justice Commission.

Harris County Texas and Race

The research paper, "Racial Disparity in the Case of Duane Edward Buck," is available in Adobe .pdf format.

"Report: Racial Bias Prevalent When TX Man Sentenced to Death," is by John Michaelson for Texas Public News Service.

Advocates for a Texas man on death row filed a petition on Wednesday seeking a new sentencing hearing, pointing to just-released research on racial bias when his execution was ordered. The analysis looked at some 500 cases in Harris County around the time of Duane Buck's sentencing. It found the death penalty was much more likely for blacks, according to Christina Swarns with the NAACP Legal Defense Fund.

"For African American defendants like Mr. Buck, the Harris County District Attorney's office was three times more likely to seek death than for similarly situated white offenders, and Harris County juries were twice as likely to impose the death sentences for offenders like Mr. Buck than they were for similarly situated white offenders," she said.

The petition cites a promise to Buck made more than a decade ago. His attorney, Kate Black, says the promise was made because the prosecution elicited race-based testimony at several sentencings, Buck's included.

"In 2000, then (Texas) Attorney General John Cornyn looked at cases in which the expert who testified at Mr. Buck's trial testified in a number of other trials and found that there was Constitutional error in seven cases," Black said. "In six of the cases, those individuals received new sentencing hearings. Mr. Buck is now the only person who has not received a new sentencing hearing."

The Guardian reports, "Research exposes racial discrimination in America's death penalty capital," by Ed Pilkington.

Black defendants facing trial in Houston – the death penalty capital of America – are more than three times as likely to face a possible death sentence than whites, new academic research has revealed.

The study, by a criminologist at the University of Maryland, exposes the extent of racial discrimination inherent in the administering of capital punishment in Harris County, the ground zero of the death penalty in the US. The county, which incorporates Houston, Texas's largest city, has carried out 116 executions in the modern era – more than any entire state in the union apart from Texas itself.

Professor Raymond Paternoster of the university's institute of criminal justice and criminology was commissioned by defence lawyers acting in the case of Duane Buck, a death row prisoner from Houston whose 1995 death sentence is currently being reconsidered by the Texas courts.

Paternoster, whose report is based on the latest quantitative methods, looked at 504 cases involving adult defendants who had been indicted for capital murder in Harris County between 1992 and 1999 – the period during which Buck was charged for murdering his former girlfriend, Debra Gardner, and a man called Kenneth Butler. Paternoster whittled down that pool to 20 cases that most closely echoed that of Buck's own in terms of the factors involved in the crime that were likely to incur a death sentence.

He found that of the 21 men, including Buck, seven out of the 10 who were African American were sent by the Harris County district attorney for capital trial, compared with just one of the five white defendants.

"The probability that the district attorney will advance a case to a [death] penalty trial is more than three times as high when the defendant is African American than for white defendants," Paternoster writes. He adds: "The disparity by race of the defendant, moreover, cannot be attributed to observed case characteristics because these cases are those that were most comparable".

AFP posts, "Texas urged to overturn a racially-tinged death penalty."

Lawyers for an inmate whose execution was halted at the last minute urged a Texas court Wednesday to overturn his death penalty on the grounds that it was the result of racial discrimination.

Duane Buck, 49, was condemned to die for the 1995 murder of his girlfriend and one of her friends.

Neither Buck's attorney nor prosecutors dispute his conviction for the double-murder, but they have argued that racial considerations factored into the sentencing phase of his trial.

The Supreme Court intervened just hours before Buck's execution on September 15, 2011, with justices Sonia Sotomayor and Elena Kagan arguing that the case needed to be reviewed because "our criminal justice system should not tolerate (a death sentence) marred by racial overtones."

Buck's attorneys urged the Texas court in a brief filed Wednesday to vacate Buck's sentence and give him a new trial as a result of the "long history of racial discrimination" in the administration of criminal justice in Harris County, Texas.

"This case is very simple: no death sentence can be supported by an appeal to racial prejudice," defense attorney Kate Black said.

They cited a study which concluded that from 1992 to 1999 -- the period during which Buck was tried and sentenced -- prosecutors in Harris County were "over three times more likely to seek the death penalty against African American defendants, than against similarly-situated white defendants."

The study also found that juries in Harris County were more than twice as likely to impose death sentences on African American defendants than on whites.

The study also found evidence that race played a role in Buck's particular case.

"Study: Blacks Twice as Likely as Whites to Get Death Penalty in This Texas County," by Tim Murphy at Mother Jones.

In September of 2011, the Supreme Court granted a stay of execution for Texas death row inmate Duane Buck, who was given a death sentence in 1997 for the murder of an ex-girlfriend and a male acquaintance. The reason: Buck's race (he's black) was cited by a psychologist—whose testimony was in turn cited by the prosecutor—as evidence that he may pose a threat to other inmates should he be sentenced to life in prison. Texas' Republican attorney general in 2002, now-Sen. John Cornyn, recommended that Buck and six other inmates in similar situations be tried again; Buck is the only one who hasn't. Buck's case has since returned to the state courts, and his attorneys are still appealing for a re-trial. (No one disputes his actual guilt.)

On Wednesday, Buck's attorneys released a new report from University of Maryland criminology professor Ray Paternoster examining the impact race played on sentencing in Harris County (which includes Houston, where Buck was tried) from 1992 to 1999. Paternoster examined 504 cases. The takeaway:

The probability that the district attorney will advance a case to a penalty trial is more than three times as high when the defendant is African-American than for white defendants (this includes Mr. Buck’s case). This disparity by race of the defendant, moreover, cannot be attributed to observed case characteristics because these cases are those that were most comparable in terms of the estimated propensity score.

This racial disparity is only partially corrected at the jury sentencing stage...Ultimately, among this group of comparable cases a death sentence was twice as likely to be imposed on an African American defendant as a white defendant.

"Study: Harris County, Texas Juries Twice As Likely to Demand Death Penalty for Black Defendants Than White," by Julianne Hing at Colorlines.

Ebony posts, "Racism and the Death Penalty: New Evidence," by Lumumba Akinwole Bandele.

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

Supreme Court Upholds 9th Circuit Stay of Arizona Execution

The Arizona Republic reports, "Arizona inmate's stay of execution upheld by court."  It's written by Michael Kiefer.

Wednesday morning, Edward Harold Schad, the man who was twice convicted of Grove’s murder, was supposed to be executed by lethal injection at the Arizona State Prison Complex in Florence.

But his appeals went down to the last minute. On Tuesday around 8 p.m. Arizona time, the U.S. Supreme Court upheld a stay of execution by the 9th U.S. Circuit Court of Appeals. That court also ordered the District Court in Arizona to re-evaluate Schad’s case in light of a Supreme Court decision to see if it mattered that Schad’s trial attorney had failed to present his mental illness as a good reason not to sentence him to death.

At issue are overlapping Supreme Court decisions controlling when new evidence resulting from “ineffective assistance of counsel” can be introduced in federal appeals. And on Tuesday night, the high court determined that Schad’s case did merit another look.

"Court refuses to clear way for AZ execution," is the AP report, via the Arizona Daily Star.

The 9th U.S. Circuit Court of Appeals had blocked Schad's execution while a judge considers his claim that he was denied effective legal representation after his conviction. The state had asked the U.S. Supreme Court to let the execution go ahead as planned.

Earlier coverage of this Arizona case begins at the link.

Stay Issued in Florida Case with No Federal Habeas Review

TheU.S. Court of Appeals for the Eleventh Circuit stay in Howell v. Secretary, Florida Department of Corrections is available in Adobe .pdf format.

"Florida asks Supreme Court to lift killer's execution stay," is the AP report, via the Tampa Tribune.

The state is asking a U.S. Supreme Court justice to lift a stay of execution obtained by a South Florida drug trafficker who was convicted of killing a state trooper with a pipe bomb 21 years ago.

Paul Augustus Howell was set for execution Tuesday at Florida State Prison near Starke, but the Atlanta-based 11th U.S. District of Appeal on Monday temporarily blocked it.

"Paul Howell Granted Temporary Stay Of Execution One Day Before Scheduled Lethal Injection," is by Hunter Stuart at Huffington Post.

Paul Howell, the 47-year-old man convicted of killing a state trooper in 1992, was granted a stay of execution on Monday, just one day before he was scheduled to be given a lethal injection.

One of Howell attorney's, Michael Ufferman, told The Huffington Post on Monday that he had received an order from the 11th Circuit Court of Appeals that Howell's execution would be temporarily stayed because the district court had granted Howell's certificate of appealability.

Ufferman said the court was currently deciding whether or not Howell would have the opportunity to have his case heard in federal court, an opportunity he has not yet had.

HuffPost reported on Friday that Howell would be put to death Feb. 26 without having his final federal review, a routine right universally recognized for prison inmates, because a former attorney had missed a filing deadline for a crucial piece of paperwork.

Although that filing deadline is stated clearly in the Antiterrorism and Effective Death Penalty Act of 1996, a U.S. Supreme Court decision from 2010 ruled that that deadline can be relaxed in certain circumstances, such as the misconduct of a state-appointed attorney, like Howell's.

Earlier coverage of Paul Howell's case begins at the link; also available, coverage of Florida legislation and editorial calls for reforms.

Supreme Court Refuses to Vacate Warren Hill's Stay

The Atlanta Journal-Constitution posts the AP breaking news report, "Warren Hill stay of execution stands."

The U.S. Supreme Court denied the Georgia attorney general’s request to lift a stay of execution a federal appeals court issued less than an hour before Warren Hill was to have been executed Tuesday evening for a 1990 murder.

The justices in Washington offered no reason, simply writing Thursday that the application to vacate the stay was denied.

A panel of the 11th U.S. Circuit Court of Appeals voted 2-1 Tuesday to stop Hill’s execution to consider his appeal based on “new evidence” that the experts who testified in 2000 that he was not mentally retarded and was eligible for the death penalty had now changed their opinions. A psychiatrist and two psychologists who worked for the state recently told Hill’s lawyer that they had been rushed to make an evaluation 13 years ago, that they are now more experienced than they were then and there had been advances made in the profession’s understanding of mental retardation.

Today's Supreme Court Orders List is available in Adobe .pdf format.

Hill's attorney, Brian Kammer, has just released the following statement:

“The Eleventh Circuit briefing schedule will now be followed over the next month to determine whether Mr. Hill can litigate a second federal habeas action on his claim of mental retardation given the newly available evidence which establishes consensus among every doctor who has evaluated Mr. Hill that he is mentally retarded.”

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

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

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

Second Georgia Execution Stayed Over Lethal Injection Question

"Ga. court halts Andrew Cook's scheduled execution," is the AP report by Christina A. Cassidy, via the Atlanta Journal-Constitution.

The Georgia Court of Appeals has temporarily halted Thursday's scheduled execution of a Georgia inmate convicted of killing two college students.

Andrew Cook is one of two Georgia inmates who had been scheduled to die by injection this week. Warren Lee Hill's execution was put on hold Tuesday, less than an hour before he was set to die.

In a combined legal challenge before the court, attorneys for Cook and Hill argue the state is violating the law by using pentobarbital in executions without a prescription.

The state filed court motions on Wednesday asking the Court of Appeals to deny Cook's request for a stay and lift the one granted in the Hill case. The state argues the prescription challenge is frivolous and seeks to have the case moved to the Georgia Supreme Court for an expedited review.

In its order, the court said it issued the stay so there would be time to consider their appeal.

The Georgia Court of Appeals order in Cook v. Owens is available in Adobe .pdf format.  The emergency motion for stay is also available.

The Macon Telegraph reports, "Cook wins temporary stay, but state presses for execution."  It's by Joe Kovac Jr.

Lawyers for condemned killer Andrew Allen Cook, in a flurry of appeal efforts Wednesday, continued their legal fight to keep him from being put to death Thursday night.

Wednesday evening, the Georgia Court of Appeals temporarily halted his scheduled 7 p.m. Thursday execution.

Word of that move came hours after Cook, 38, was denied clemency by the state Board of Pardons and Paroles.

Earlier coverage from Georgia involves the case of Warren Hill, at the link.

More on Warren Hill's Stay of Execution

"Georgia asks US Supreme Court to vacate execution stay," is the AP report, via the Fulton County Daily Report, part of the Law.com network.

The state of Georgia is asking the U.S. Supreme Court to vacate a federal appeals court order temporarily halting the execution of a death row inmate.

The 11th U.S. Circuit Court of Appeals on Tuesday issued a stay less than an hour before Warren Lee Hill was set to die by lethal injection. The court's order said further review is needed of recent affidavits by doctors who changed their minds about Hill's mental capacity.

Lawyers for Georgia on Wednesday said Hill's federal petition for habeas relief is procedurally barred and said the new statements from the doctors aren't credible.

There is also a great deal of news and commentary on the stays of execution issued by both the U.S. Court of Appeals for the Eleventh Circuit and the Georgia Court of Appeals.

ReutersLegal posts, "Georgia inmate called 'mentally retarded' granted stays of execution," by David Beasley.

Brian Kammer, one of Hill's attorneys, said the execution would be temporarily halted after the stays granted by the 11th Circuit Court of Appeals and the Georgia Court of Appeals.

The federal court decision came in response to appeals by Hill's lawyers arguing he is mentally retarded, Kammer said. The decision by the Georgia state court followed a legal challenge over the state's method of executing Hill by lethal injection, he said.

"We are greatly relieved that the Eleventh Circuit Court of Appeals has stayed the execution of Warren Hill, a person with mental retardation," Kammer said in an emailed statement.

"All the doctors who have examined Mr. Hill are unanimous in their diagnosis of mental retardation," he said.

In 1988, Georgia became the first U.S. state to enact a law banning the execution of mentally retarded defendants. But according to death penalty experts, Georgia has perhaps the toughest standard in the nation for defining mental retardation, requiring proof "beyond a reasonable doubt."

"Warren Hill's second stay of execution: 'this is the cruellest thing imaginable'," is by Ed Pilkington for the Guardian

At 6pm on Tuesday night Warren Hill was given a dose of the drug Ativan. A benzodiazepine, it is known for its potency in alleviating anxiety; at that point Hill believed he had just one hour to live.

At 5pm that evening Hill had been offered the chance to make a final statement, which he declined, and an hour before that he had been presented with a last meal of mac and cheese, baked beans, stir-fry vegetables, cornbread, cookies and iced tea. He chose not to eat a morsel of it.

Two weeks ago Hill, an intellectually disabled man who has displayed symptoms of impaired mental capacity since he was a child, was served a warrant for his execution. The sentence, to be carried out 21 years after he was put on death row, was timed for 7pm on Tuesday.

He had been through it all before. Last July he was offered his final meal, the right to make a final statement, and a dose of Ativan before the courts intervened and granted a stay of execution 90 minutes before his scheduled ending.

Slate posts, "Georgia Came Within 30 Minutes of Executing a Mentally Disabled Inmate Last Night," by Abby Ohlheiser.

"Georgia death row execution of inmate Warren Hill delayed at last minute," from AFP.

"Georgia Almost Executed a Mentally Disabled Man Last Night," by Adam Clark Estes at the Atlantic Wire.

"Mentally disabled man granted last minute stay of execution," by Natasha Lennard for Salon.

Today's Washington Square News publishes the editorial, "Warren Hill case re-engages debate on practicality of death penalty."

The debate over the death penalty in the United States has long been part of the national dialogue. However, media attention over the controversial aspects of Georgia inmate Warren Lee Hill’s case has recently intensified the debate.

And:

The nature of this case is particularly interesting. Hill has been proven to have intellectual disabilities, and the Supreme Court considers execution of the mentally challenged unconstitutional, as decided in Atkins v. Virginia in 2002. However, the Court left the precise definition of what qualifies mental retardation up to the states. Georgia has the strictest standard of any state on this issue, requiring proof of retardation beyond a reasonable doubt.

Whether the death penalty is morally justified is another question. In Europe, there is little debate over the death penalty, as its abolition is a basic requirement for European Union membership. Beyond Europe, most developed countries — with the notable exception of Japan — have done away with the death penalty. Perhaps the American position presents a fundamental cultural difference or an archaic tradition in regard to mental illness in these cases and the death penalty in general. Someday, that will have to change.

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

 

11th Circuit Stays Warren Hill Execution

"Georgia Execution Halted at the Last Minute," is the AP post filed by Kate Brumback.

The execution of a Georgia man who killed a fellow prisoner in 1990 was halted Tuesday at the last minute so courts could consider claims that he's mentally disabled and other issues.

The 11th U.S. Circuit Court of Appeals granted its stay of execution as 52-year-old Warren Lee Hill was being prepared for lethal injection. In a 2-1 decision, a panel of the appeals court said further review is needed of recent affidavits by doctors who changed their minds about Hill's mental capacity.

"In other words, all of the experts - both the State's and the petitioner's - now appear to be in agreement that Hill is in fact mentally retarded," judges in the majority wrote in their order.

The state court of appeals also issued a stay to allow more time to consider a challenge related to the state's lethal injection procedure.

Earlier in the day, the state parole board, the Supreme Court of Georgia and the U.S. Supreme Court had all declined to stop the execution.

"We are greatly relieved that the Eleventh Circuit Court of Appeals has stayed the execution of Warren Hill, a person with mental retardation. All the doctors who have examined Mr. Hill are unanimous in their diagnosis of mental retardation," defense attorney Brian Kammer said in an email.

"Hill granted stays of execution," is by Bill Rankin for the Atlanta Journal-Constitution.

Condemned killer Warren Hill has been granted stays of execution by the federal appeals court in Atlanta and the Georgia Court of Appeals, his lawyer said Tuesday.

After the court rulings, the Department of Corrections said there would be no execution Tuesday night.

Hill was scheduled to be put to death at 7 p.m. He had already taken a sedative to prepare for his execution. The decision to halt his execution were announced with less than an hour to spare.

The state Court of Appeals granted a stay on a challenge to the state’s lethal-injection procedure. The 11th U.S. Circuit Court of Appeals granted the stay on claims by Hill he is mentally disabled and thus ineligible for execution, Brian Kammer, Hill’s lawyer, said.
Earlier Tuesday, the State Board of Pardons and Paroles denied clemency to Hill, rejecting pleas that he be spared execution on claims he is mentally retarded.

The parole board’s decision was issued shortly after the state Supreme Court voted 5-2 to deny Hill a stay of execution.

Andrew Cohen posts, "Warren Lee Hill, and His Cause, Live to Fight Another Day," at the Atlantic.

Condemned Georgia prisoner Warren Lee Hill came within 30 minutes of being executed Tuesday night -- came within 30 minutes of becoming a reluctant martyr to a constitutional principle the United States Supreme Court first announced in 2002 in a case styled Atkins v. Virginia: Thou shalt not execute the mentally retarded. He came that close -- already well into Georgia's death penalty protocol -- despite the fact that he is mentally retarded, and that every medical expert who has evaluated him since 1991 now says so.

You would think with the precedent established in Atkins, and with Hill's mental status now beyond any reasonable doubt, that the justices in Washington would have been eager to block the execution. But it wasn't the Supreme Court that came to Hill's rescue. The justices instead denied Hill's request for a stay. It is unclear tonight whether they did so because they have no interest in his cause, and thus no interest in defending Atkins; or because they were aware of two other stays issued around the same time.

On Tuesday evening, it was the 11th U.S Circuit Court of Appeals, primarily based in Georgia, which blocked Hill's execution so its judges could look more closely at the startling new facts about Hill's mental status which emerged last week. And it was a state appellate court in Georgia which also blocked the execution Tuesday night because the judges there want to look a little more closely at Georgia's lethal injection protocols. This after another Georgia court, and the state's pardons board, had earlier in the day refused to help Hill.

So, for now anyway, Hill will be spared. There will be no execution tonight. And now the burden is on Georgia officials to convince the judges of those two other courts -- one federal, one state -- to permit Hill's execution to proceed.

Earlier coverage of Warren Hill's case begins with the preceding post.  

Louisiana Appeals Stay of Execution

"State to appeal Sepulvado's execution stay," is the Shreveport Times report by Vickie Welborn.

The state of Louisiana is appealing a federal judge’s ruling on Thursday that halted next week’s scheduled execution of convicted child killer Christopher Sepulvado.

An appeal could be filed as soon as today in the U.S. Fifth Circuit Court of Appeals to lift the stay of execution imposed by U.S. District Judge James Brady of the Middle District of Louisiana. If successful, attorneys representing the state Department of Corrections will ask DeSoto District Judge Robert Burgess to issue another death warrant.

It’s unknown how long the appeal will take.

DeSoto District Attorney Richard Johnson said his office is filing a friend of the court brief to support the state’s efforts. While his office has been involved directly in other appeals related to Sepulvado’s case, it is not a part of the litigation that prompted the stay. That civil lawsuit initially was filed in the name of another death row inmate, Jessie Hoffman, with Sepulvado added as an intervener.

And:

Brady stopped Wednesday’s execution two days after the state announced during a court hearing in Baton Rouge that the three-drug chemical previously used in executions has been replaced with a single drug, pentobarbital. DOC officials had never gone on record about the change in procedure because “we’ve never been asked other than what we thought was an improper records request,” said attorney Wade Shows, of the law firm of Shows, Cali & Walsh, LLP, which is representing the state.

The records request is part of a writ of mandamus filed by Sepulvado’s attorneys that is scheduled to be heard today by District Judge William Morvant in the 19th Judicial District Court in East Baton Rouge Parish.

Earlier coverage of the Louisiana lethal injection challenge and stay of execution begins at the link.

Federal Judge Stays Louisiana Execution Over LI Questions

The Associated Press reports, "Federal judge delays Louisiana's plan to execute man next week; convicted of killing stepson, by Melinda DeSlatte.  It's via The Republic.

Louisiana cannot execute a DeSoto Parish man next week because the state has provided too little information about the drug that will be used in the lethal injection and the execution methods, a federal judge ruled Thursday.

U.S. District Judge James Brady canceled the Feb. 13 execution date for Christopher Sepulvado, who was convicted of the beating and scalding death of his 6-year-old stepson two decades ago.

Brady said without more details about the protocol the Louisiana State Penitentiary plans to use in preparing for and carrying out the injection, lawyers for Sepulvado cannot protect his right against cruel and unusual punishment under the Eighth Amendment of the U.S. Constitution.

The state will have the opportunity to execute Sepulvado, Brady said, adding, "But it must do so in a constitutional manner."

Until this week, the Department of Corrections hadn't confirmed it switched from a three-chemical lethal injection process to a one-drug execution method using pentobarbital.

The department gave the name of the drug it plans to use in a hearing in Brady's court, but offered no further details to Sepulvado's lawyers about how and when it was purchased, what training was provided to prison staff, who will carry out the execution and what type of medical supervision if any is involved.

The Baton Rouge Advocate posts, "Federal judge calls off execution scheduled for Wednesday," by Bill Lodge.

U.S. District Judge James Brady also ordered Thursday morning that the attorneys for the state Department of Public Safety and Corrections provide attorneys for the inmate with information sought about how the state carries out the death penalty.

Brady said the execution is stayed until further notice from his court.

And:

Brady held a hearing in the Sepulvado case earlier this week during which an attorney for state corrections officials said the department has replaced a three-chemical lethal injection formula with a single dose of pentobarbital. The Tuesday hearing was held for Sepulvado’s attorneys to express concerns about the three-chemical formula possibly causing an agonizing death.

"Federal judge halts execution scheduled for next week," by John Simerman for the New Orleans Times-Picayune.

A federal judge on Thursday stayed the scheduled execution of Christopher Sepulvado, who was due to die by lethal injection on Wednesday (Feb. 13). U.S. District Judge James Brady of the Middle District of Louisiana stopped the execution pending more information on the state's lethal injection protocol.

Brady had allowed Sepulvado to intervene Wednesday in a federal lawsuit, Hoffman v. Jindal, challenging the state's lethal injection protocol. The injunction Thursday means that Sepulvado's execution is on hold indefinitely while the Hoffman case proceeds, said Gary Clements, director of the Capital Post Conviction Project of Lousiana

And:

"They have never given us everything in writing. They've never given us a document from the state or the department of corrections or anybody. They've not given us a protocol," Clements said. "We're still in the dark about a huge amount of stuff. What's the expiration date on this? The federal government has very strict rules on the inventorying of these drugs.

"Right now their protocol is non-existent to us."

The Louisiana Supreme Court late last month denied Sepulvado's request for a stay of execution. Earlier this week, the state Board of Pardons denied his clemency petition.

Sepulvado's attorneys will return to state court Friday (Feb. 8) to press corrections officials to turn over documents revealing its execution procedure and the drug protocol, under public records laws.

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

Judge Issues Stay for Larry Swearingen Opening Path for DNA Testing

The Texas Tribune posts, "Death Row Inmate Larry Swearingen's Execution Stayed," written by Brandi Grissom.

Montgomery County state district court Judge Kelly Case on Wednesday withdrew an order that had set the execution of condemned murderer Larry Swearingen for Feb. 27. The judge's decision came after a hearing in which Swearingen's lawyers argued that more time was required to accomplish DNA testing they believe will prove his innocence in the 1998 murder of Melissa Trotter.

Montgomery County assistant district attorney Bill Delmore said he was disappointed with the decision, the first ruling in the case from the newly elected judge. Delmore said that prosecutors had offered to conduct the testing at the state's expense in an expedited manner that would allow the execution to proceed as scheduled. Swearingen's lawyers, however, declined.

"Their refusal to negotiate on the timing of doing the testing between now and the execution date suggests their motion was primarily for the purpose of delay," Delmore said.

Bryce Benjet, a lawyer for the New York-based Innocence Project who is representing Swearingen said that more time is needed to conduct the complicated testing that is necessary in the case.

"Condemned man gets another reprieve," is the Houston Chronicle report by Renée C. Lee.

Judge Kelly Case, however, did not rule on a defense motion requesting DNA testing on crime scene evidence. Instead, he ordered both sides to file responses to the motion in 60 days, so he can determine if DNA testing should be done.

Swearingen, 41, was set to die by lethal injection on Feb. 27 for the 1998 murder of Montgomery County student Melissa Trotter. Swearingen, who has maintained his innocence, has escaped three other execution dates over the past six years.

Case, who is newly elected to the 9th State District Court which has presided over the 14-year case, also denied a motion from prosecutors seeking the release of crime scene evidence for immediate DNA testing. The motion was in response to the defense's request for testing filed on Jan. 17.

Montgomery County District Attorney Brett Ligon said he filed the motion last week after Swearingen's attorney agreed to accept his offer to pay for expedited DNA testing to ensure results would be available before the execution. Swearingen's attorney's later rejected the offer, said Montgemery prosecutor Warren Diepraam.

The defense, however, contended that more time is needed because the testing is complicated and could require more analysis. Defense attorneys also accused the prosecution of trying to short cut the legal system.

"Judge withdraws execution date in college slaying," by AP, via KRGV-TV.

A state district judge Wednesday withdrew next month's execution date for a 41-year-old convicted killer who now has avoided the Texas death chamber four times.

Judge Kelly Case ordered that Larry Swearingen's Feb. 27 lethal injection be put off indefinitely, clearing the way for DNA testing in his case.

Swearingen is on death row for the 1998 abduction, rape and strangling of Melissa Trotter, a 19-year-old Montgomery County community college student. His attorneys, who include lawyers from the New York-based Innocence Project, contend he didn't kill Trotter and say evidence that was never tested for DNA would support their contention.

And:

James Rytting, one of Swearingen's lawyers, called the decision "just."

"The judge recognized the need to have the testing pursuant to the statute, pursuant to the law" Rytting said.

Trotter's body was found in January 1999 in the Sam Houston National Forest south of Huntsville, nearly a month after she was last seen leaving the library at a suburban Houston community college.

Prosecutors said they could do DNA testing without withdrawing Swearingen's execution date. Swearingen's lawyers declined, saying the testing would require much more time and need not be rushed. Case also refused to reset Swearingen's punishment for Aug. 28, as suggested by prosecutors.

"I'm not setting an execution date until I'm satisfied all DNA testing is concluded," Case said.

Earlier coverage of Larry Swearingen's case begins at the link.

Texas Execution Stayed

"Texas woman's execution halted; DA won't appeal," is the AP report, via the Mount Pleasant Daily Tribune.

Dallas County prosecutors say they aren't appealing a state judge's decision to halt the scheduled Tuesday evening execution of a Texas woman.

She would have been the first woman put to death in the U.S. since 2010.

State District Judge Larry Mitchell issued a reprieve for 51-year-old Kimberly McCarthy less than five hours before she could have been taken to the death chamber for the 1997 slaying of a neighbor.

Dallas County Assistant District Attorney Shelly Yeatts says McCarthy's execution date now is April 3.

McCarthy's lawyers contend the jury that convicted her of murder was improperly selected on the basis of race. McCarthy is black. Her jury was made up of 11 whites and one black person.

Reuters posts, "Texas judge postpones scheduled execution of woman," by Greg McCune.

A Texas judge postponed until April the execution of Kimberly McCarthy, who was scheduled to die by lethal injection later on Tuesday, to give lawyers more time to present evidence of racial discrimination in selection of the jury which convicted her.

McCarthy, who is African-American, would have been the first woman executed in the United States in more than two years.

And:

Her lawyers argued that only one of the 13 jurors selected in her trial was non-white, in a county which has a population 22.5 percent black.

Jordan Smith writes, "Judge postpones execution until April," for the Austin Chronicle.

A Dallas judge this afternoon halted the impending execution of Kimberly McCarthy, who would have been executed tonight. According to press reports, Judge Larry Mitchell has postponed the execution until April 3. The news comes on the heels of the report below on efforts to halt the execution pending further review of the case.

Additional News Coverage of Ryan v. Gonzales Ruling

The Supreme Court ruling in Ryan v. Gonzales is available in Adobe .pdf format.

"Justices Rule on Staying Death Row Challenges," is the title of Adam Liptak's report in today's New York Times.

The Supreme Court on Tuesday unanimously ruled that federal courts should not automatically suspend postconviction challenges from death row inmates who are mentally incompetent to help their lawyers. The decision left open the possibility that such suspensions may sometimes be warranted, but it said that they should not be indefinite.

“Where there is no reasonable hope of competence,” Justice Clarence Thomas wrote for the court, “a stay is inappropriate.”

The Supreme Court has ruled that it is unconstitutional to put mentally incompetent defendants on trial because they cannot understand the proceedings against them or assist their lawyers. The court has also barred “carrying out a sentence of death upon a prisoner who is insane.”

Tuesday’s decision in a pair of cases — Ryan v. Gonzales, No. 10-930, and Tibbals v. Carter, No. 11-218 — concerned challenges brought after trial and before execution. One involved Ernest Valencia Gonzales, who was convicted of stabbing an Arizona couple in front of their 7-year-old son, killing the father. The other concerned Sean Carter, an Ohio man convicted of raping his adoptive grandmother and stabbing her to death.

By the time the federal courts considered the two men’s challenges to their state court convictions, there was substantial evidence that they were mentally incompetent. Relying on different federal statutes, the appeals courts in the two cases said that the challenges must await their return to mental competence.

When the cases were argued in October, Justice Samuel A. Alito Jr. said he was concerned that the rulings were a ploy “that will permit stays in virtually every capital case” because “a lot of district judges and a lot of court of appeals judges don’t like the death penalty and will go to some length to prevent the imposition of that sentence.”

At SCOTUSblog, Lyle Denniston posts the analysis, "Opinion recap: Rees clarified, after forty-six years."

For more than forty-six years, the Supreme Court’s brief rulings in the Virginia death row case of Melvin Davis Rees, Jr., have remained in the Supreme Court’s records, but few have paid attention to them since and their meaning was never clarified.  The Justices finally did so on Tuesday, ruling that the actions it took in Rees v. Peyton in 1966 and 1967 did not give state prisoners a right to delay their federal court challenges until they are mentally competent enough to proceed.   No federal law, the Court decided unanimously, gives an incompetent state prisoner any right to keep a habeas case on hold until he can regain mental understanding of what is going on.   The habeas case can go ahead with just the lawyers involved, the ruling said.

Although the Court did not say so explicitly, the new decision in Ryan v. Gonzales (10-930) also appeared to mean that state prisoners have no freestanding right to be competent so that they can take part when their case gets into a federal habeas court — an issue separate from whether they had a right to a delay while they remain incompetent.  (Decided along with the Ryan case, from Arizona, was a companion case from Ohio, Tibbals v. Carter, 11-218.)  Justice Clarence Thomas wrote the nine-to-zero decision.

The Rees case of nearly five decades ago has been one of the Court’s most abiding mysteries.   After ordering a test of his mental capacity, and then being told that Rees was incompetent, the Court in 1967 simply placed his case in a state of perpetual inactivity — until Rees died in prison, some twenty-eight years later, in 1995.  Then, the Court responded by dismissing his case in two words.

"Top court says prisoner incompetence no bar to appeal," is by Jonathan Stempel for ReutersLegal.

Two death row inmates were not entitled to a delay of their federal appeals on the grounds that they were incompetent to assist their lawyers, the U.S. Supreme Court said on Tuesday.

In a unanimous ruling against inmates Ernest Valencia Gonzales and Sean Carter, the court also said federal judges cannot indefinitely delay appeals of state criminal convictions in the hope that the defendants might eventually become competent enough to help out.

Justice Clarence Thomas said defense lawyers are "quite capable" of reviewing cases without their clients' help and can identify arguments or state court errors that can be raised on appeal.

He said a district judge who believes an incompetent defendant could substantially aid in his defense should examine the likelihood that the defendant will regain competence.

In contrast, "where there is no reasonable hope of competence, a stay merely frustrates the state's attempts to defend its presumptively valid judgment," Thomas wrote.

Local coverage of the cases includes:

"Ruling: U.S. judges can suspend some death-row appeals," by Michael Kiefer in the Arizona Republic.

"Court rules on Trumbull man’s appeal," is by Christopher Bobby in Ohio's Warren Tribune Chronicle.

Earlier coverage of Ryan v. Gonzales begins at the link.

Competency & Post-Conviction Review

The Supreme Court ruling in Ryan v. Gonzales is available in Adobe .pdf format.

"High Court: judges cannot indefinitely delay death row appeal to wait for convict’s competency," is the AP report, via the Washington Post.

The Supreme Court says federal judges cannot indefinitely delay a death row inmate’s federal appeals to see if the convict can become mentally competent enough to help his lawyer.

The high court unanimously ruled Tuesday against Arizona death row inmate Ernest Gonzales and Ohio death row inmate Sean Carter.

Inmates appealing state death sentences to federal court have a right to a lawyer. But the courts never said whether the inmates have to be mentally competent enough to help their lawyers with their federal appeals. Gonzales and Carter wanted the high court to say that federal judges have discretion to hold up proceedings indefinitely until the inmates are ready.

Courthouse News Service posts,"Incompetency Need Not Stay Habeas Proceedings."  It's filed by Barbara Leonard.

Prisoners cannot use mental incompetency as a reason to suspend their bids for federal habeas relief, the unanimous U.S. Supreme Court ruled Tuesday.

The high court looked at the issue by consolidating the cases of Sean Carter, who won relief from the 6th Circuit, and Ernest Valencia Gonzales, whose case went before the 9th Circuit.

And:

Each federal appeals court cited a different federal law in granting stays to Carter and Gonzales, but neither maneuver passed muster Tuesday with the high court.

"Both the Ninth and Sixth Circuits have concluded that death row inmates pursuing federal habeas are entitled to a suspension of proceedings when found incompetent," Justice Clarence Thomas wrote for the court. "The Ninth Circuit located this right in §3599, while the Sixth Circuit located it in §4241. Neither section provides such a right.

"Section 3599(a)(2) guarantees federal habeas petitioners on death row the right to federally funded counsel. ... But §3599 does not direct district courts to stay proceedings when habeas petitioners are found incompetent."

The court similarly shot down the 9th Circuit's references to the precedent it set in Rohan v. Wood­ford and Nash v. Ryan.

"We are not persuaded by the Ninth Circuit's assertion that a habeas petitioner's mental incompetency could 'evis­cerate the statutory right to counsel' in federal habeas proceedings," Thomas wrote. "Given the backward-looking, record-based nature of most federal habeas proceedings, counsel can generally provide effective representation to a habeas petitioner regardless of the petitioner's competence. In­deed, where a claim is 'adjudicated on the merits in state court proceedings,' counsel should, in most circumstances, be able to identify whether the 'adjudication ... resulted in a decision that was con­trary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States,' without any evi­dence outside the record. Attorneys are quite capable of reviewing the state-court record, identifying legal errors, and marshaling relevant arguments, even without their clients' assistance.

The court also took a dim view of the six-year delay that preceded Gonzales' habeas petition.

"This was certainly ample time for his attorney to research and present the claims," Thomas wrote.

Earlier coverage of the two cases begins at the link.

Pennsylvania Stay Holds

The York Daily Record reports, "Supreme Court leaves Hubert Michael's stay of execution in place," by Rick Lee.

The U.S. Supreme Court denied the Pennsylvania attorney general's appeal to reverse a stay of execution for Hubert Michael Jr. that had been granted earlier in the day.

Six hours before his scheduled execution, Hubert Michael was granted a stay by a Third Circuit Court judge.

The execution had been set for 7 p.m. Thursday at Rockview state prison near State College.

"State prosecutors fall short in late efforts to see Michael executed," is the Harrisburg Patriot-News report by Donald Gilliland.

Six hours before Hubert L. Michael Jr. was to die by lethal injection, the stay of execution was issued.

The decision spared Michael’s life, at least temporarily, and added to the anguish of a family that has waited for his execution for nearly two decades.

The U.S. Third Circuit Court of Appeals on Thursday issued the stay around 1 p.m. Several hours later, the U.S. Supreme Court upheld the order to halt the execution.

And:

The order for a stay directed U.S. District Judge John E. Jones III to hold briefings and submit a background explanation of his decision to allow the execution to proceed. Jones must file his response within 14 days.

The appellate court then will hold its own briefings and determine whether Jones erred in his decision and whether Michael’s habeas corpus petition should be heard to determine its merits.

Michael’s attorneys claim he has “suffered from debilitating mental conditions” most of his life, which have factored into his often erratic posture with lawyers and the courts. His lawyers say he suffers from Asperger’s syndrome.

Michael repeatedly has changed his mind as to whether he wants his appeals to go forward.

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

 

Update From Pennsylvania - 3rd Circuit Issues Stay

The Philadelphia Inquirer posts, "State seeks reversal of Michael execution stay," by Joseph A. Slobodzian.

A federal appeals court in Philadelphia has stayed for 14 days tonight's scheduled execution of Pennsylvania inmate Hubert L. Michael for the 1993 kidnap-murder of a York County teenage girl.

A three-judge panel of the U.S. Court of Appeals for the Third Circuit granted the stay and remanded the case to U.S. District Judge John E. Jones III. The appeals court said Jones should explain the reasons he permitted Michael to appeal further after Jones on Wednesday denied a petition to stay the execution.

With just hours to go before Michael's 7 p.m. execution by lethal injection at Rockview state prison in Centre County, lawyers for the state Attorney General's office filed an emergency petition with the U.S. Supreme Court to reverse the Third Circuit's ruling.

"We are extremely pleased that the federal Court of Appeals has granted Mr. Michael a stay of execution," said Helen Marino, chief of the Federal Defender's death penalty unit, which is representing Michael.

"Mr. Michael has suffered from debilitating mental conditions throughout his life. . . . The Court of Appeals recognized that there are complicated issues involved in this case that should be carefully considered.

If executed, Michael, 56, would be the first person put to death in Pennsylvania since 1999. Only three people have been executed since the state reenacted the death penalty in 1978 and all three had dropped their appeals and asked to die.

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

The John Ferguson Case in Florida

Today's Tampa Bay Times publishes the editorial, "State shouldn't execute severely mentally ill killer."

The battle over John Errol Ferguson's execution is not about who he is — a cold-blooded killer — but about who we are as Floridians. Ferguson is severely mentally ill and has been that way for more than 40 years. His execution is on hold while his mental state and the legal standards for killing someone who is mentally ill are being argued in federal court. The state and federal standards are in conflict, and the more reasonable federal standard should prevail and prevent from being executed a man who has raging hallucinations and thinks he's the Prince of God.

And:

Ferguson's lawyer, Christopher Handman, is now in a legal race to save the mentally ill man from execution. Only a last-minute reprieve by the federal courts prevented his execution last month. The 11th U.S. Circuit Court of Appeals will review whether the proper constitutional standard for executing the mentally ill is being applied, with briefings scheduled this month.

Florida is embracing an interpretation of competency for execution so pinched that it would virtually extinguish limits on executing the severely mentally ill. The state says Ferguson is aware that he is being put to death and that he committed murder, and is therefore competent to be executed. A trial judge in Bradford County accepted this view, as did the Florida Supreme Court, which failed to block the execution.

But Handman persuasively argues that the standard of competency established by the U.S. Supreme Court in a 2007 decision requires a rational understanding of the reason and effect of the execution.

Earlier coverage of John Ferguson's case begins at the link.

Related posts are in the competency and mental illness category indexes. I added the compentency category index in April.  Earlier posts dealing with competency to be executed are available under the Scott Panetti index.

The Supreme Court established standards to assess whether severely mentally ill inmates are competent to be executed in the 1986 case, Ford v. Wainwright; more via Oyez.  Coverage of Scott Panetti's case begins at the link.  More on the U.S. Supreme Court 2007 ruling in  Panetti v. Quarterman is via Oyez.

New Details Emerge in John Ferguson's Stay

"Death Row inmate John Ferguson spared in late night legal scramble," is the title of David Ovalle's Miami Herald report.

But just before 6 p.m., Florida Assistant Attorney General Stephen Ake got a phone call from one of Ferguson’s lawyers. Judge Hurley was on the phone for an emergency hearing.

Hurley this time denied Ferguson’s lawyers’ petition, but issued a “certificate of appealability” on whether the Florida Supreme Court made the wrong decision in upholding Judge Glant’s decision.

The “certificate of appealability” legal designation was crucial. Under its rules of procedure, the 11th Circuit Court of Appeals said it had no choice but to take up the mental health matter.

Around 8 p.m. Tuesday, the Atlanta court issued a stay on Ferguson’s execution.

The Attorney General’s Office, determined to see the execution through, quickly filed an appeal to the U.S. Supreme Court. In a strongly worded motion, Ake accused Ferguson’s lawyers of improper contact with Judge Hurley.

The latest appeal makes a “mockery” of the state’s looking for closure after “35 years of litigation,” Ake wrote.

Handman, Ferguson’s lawyer, shot back, in his reply, that the “mockery” was potentially putting a mentally ill man to death.

“His life hangs in the balance,” wrote Handman, who denied having any improper contact with the judge.

As the clock crept toward midnight Tuesday, the U.S. Supreme Court declined to say the Atlanta court acted improperly. The stay remained in place.

Now, a new round of paperwork will be filed to the Atlanta appeals court in early November.

Earlier coverage of John Ferguson's case begins at the link.

Related posts are in the competency and mental illness category indexes. I added the compentency category index in April.  Earlier posts dealing with competency to be executed are available under the Scott Panetti index.

The Supreme Court established standards to assess whether severely mentally ill inmates are competent to be executed in the 1986 case, Ford v. Wainwright; more via Oyez.  Coverage of Scott Panetti's case begins at the link.  More on the U.S. Supreme Court 2007 ruling in  Panetti v. Quarterman is via Oyez.

Additional Coverage of the Ferguson Stay

"New Stay Granted After Emergency Request Denied By Supreme Court," is the AP report written by Tamara Lush and Curt Anderson.  It's via Huffington Post.

Following a slew of conflicting court rulings, a federal appeals court Tuesday night blocked the scheduled execution of a mass killer convicted of eight slayings that jolted South Florida in the 1970s. The U.S. Supreme Court quickly upheld the stay.

The 11th U.S. Circuit Court of Appeals' decision came during a flurry of legal decisions over claims that 64-year-old John Errol Ferguson suffers from mental illness so severe he cannot be executed. Ferguson, a paranoid schizophrenic with delusions he's the "prince of God," had faced a planned lethal injection at 6 p.m. Tuesday in Florida's death chamber.

The Supreme Court rejected an earlier Ferguson emergency appeal Tuesday – as did the 11th Circuit – but the high court would not agree to the state of Florida's request to overturn the later ruling. The appeals court set a schedule for motions that will likely delay the execution at least until the first week of November, if not longer.

Florida Attorney General Pam Bondi's office argued in court papers that the late ruling "makes a mockery of the state's compelling interest in finality" in Ferguson's case. He has been on death row for 34 years.

In Washington, the nation's high court noted that Chief Justice John Roberts took no part in the case. There was no further explanation.

Lyle Denniston posts, "Florida execution delayed," at SCOTUSblog.

After the Supreme Court acted, the Eleventh Circuit Court delayed the execution and set a briefing schedule on legal issues surrounding the state Supreme Court’s rejection of the challenge.  The state then promptly asked the Supreme Court to vacate that stay, but the Supreme Court quickly refused to do so.  The Justices’ final order is here, thus leaving the stay intact.

ABA Journal posts, "New Stay Granted for Inmate Claiming ‘Grandiose Delusion’ Bars His Execution," by Debra Cassens Weiss.

The 11th Circuit order (PDF) granting the stay on Tuesday called for briefs on two issues: whether the Florida Supreme Court correctly applied U.S. Supreme Court precedent on competence for execution, and whether the Florida Supreme Court made an unreasonable determination in light of evidence that Ferguson has a history of paranoid schizophrenia and “has a fixed grandiose delusion that he is the 'prince of God.' "

The 11th Circuit order said court rules require it to grant the stay pending consideration of the merits. It acted after a federal district judge granted a certificate of appealability on mental health issues.

A day earlier, the 11th Circuit had vacated a federal judge’s stay in a 2-1 decision. On Tuesday, before the stay was granted, both the Supreme Court and the 11th Circuit had rejected emergency appeals, the Huffington Post says.

Earlier coverage of John Ferguson's case begins at the link.

Related posts are in the competency and mental illness category indexes. I added the compentency category index in April.  Earlier posts dealing with competency to be executed are available under the Scott Panetti index.

The Supreme Court established standards to assess whether severely mentally ill inmates are competent to be executed in the 1986 case, Ford v. Wainwright; more via Oyez.  Coverage of Scott Panetti's case begins at the link.  More on the U.S. Supreme Court 2007 ruling in  Panetti v. Quarterman is via Oyez.

Supreme Court Retains ca11 Stay in Ferguson Case

The Supreme Court order in Tucker v. Ferguson is available in Adobe. pdf format.

"Supreme Court stays Fla. inmate's execution," is the UPI report.

The U.S. Supreme Court late Tuesday stayed the execution of a mentally ill inmate on Florida's death row who earlier ate what was to be his last meal.

John Errol Ferguson, 64, had been scheduled to be executed by lethal injection at 6 p.m. EDT at Florida State Prison in Starke, where he has been on death row for more than three decades for murdering eight people. That deadline passed without the sentence being carried out as corrections officials awaited word on a last-ditch appeal filed at the 11th U.S. Circuit Court of Appeals in Atlanta.

The appeals court blocked the execution before 9 p.m., and the Supreme Court upheld the stay shortly before midnight, CNN reported.

Earlier coverage begins with the preceding post.

11th Circuit Stays Ferguson Execution

AP posts, "New Stay Granted After Emergency Request Denied By Supreme Court," by Tamara Lush and Curt Anderson.  It's via Huffington Post.

A federal appeals court on Tuesday night blocked the scheduled execution of a mass killer convicted of eight slayings that jolted South Florida in the 1970s. Florida officials immediately asked the U.S. Supreme Court to lift the stay.

The 11th U.S. Circuit Court of Appeals' decision came during a flurry of court rulings over claims that 64-year-old John Errol Ferguson suffers from mental illness so severe he cannot be executed. Ferguson, a paranoid schizophrenic with delusions he's the "prince of God," had faced a planned lethal injection at 6 p.m. Tuesday in Florida's death chamber.

The Supreme Court, which earlier Tuesday rejected Ferguson's emergency appeal, did not immediately rule on the state's motion to lift the stay. The appeals court set a schedule for motions that, if it stands, would likely delay the execution at least until the first week of November.

In Washington, the nation's high court noted that Chief Justice John Roberts took no part in the case. There was no further explanation.

"South Florida mass killer John Errol Ferguson gets last-minute reprieve," is by David Ovalle for the Miami Herald.

A federal appeals court granted a last-minute request Tuesday to block the scheduled execution of John Errol Ferguson, convicted of killing eight people in South Florida in the 1970s.

The 11th U.S. Circuit Court of Appeals blocked the 64-year-old Ferguson’s 6 p.m. execution by lethal injection after his attorneys argued he should not be executed because he suffers from severe mental illness.

Florida officials immediately asked the U.S. Supreme Court to lift the stay. The Supreme Court, which earlier Tuesday rejected Ferguson’s emergency appeal, did not immediately rule on the state’s motion. The appeals court set a schedule for motions that, if it stands, would likely delay the execution at least until the first week of November.

Eartlier coverage of John Ferguson's case begins at the link.

Federal District Judge Issues Stay in John Ferguson Case

"John Errol Ferguson Case: Daniel T.K. Hurley, U.S. District Judge, Grants Stay Of Execution," is the AP report, via Huffington Post.  It's also available from the Washington Post.

A federal judge on Saturday granted a stay of execution for a convicted mass killer in Florida who is mentally ill and was scheduled to be put to death on Tuesday.

U.S. District Judge Daniel T. K. Hurley granted the motion for a stay in the case of John Errol Ferguson, who was to be executed Tuesday after 34 years on Florida’s death row.

“The issues raised merit full, reflective consideration,” the court said.

The court will hear three hours of arguments on Ferguson’s habeas corpus petition on Friday, according to his attorneys.

They contend that the Florida Supreme Court, in determining that Ferguson could be executed, relied on an outdated definition of competency that conflicts with a 2007 U.S. Supreme Court ruling. Ferguson’s attorneys maintain he is insane and that the Constitution prohibits the state from executing him.

"Court halts execution of John Ferguson," is the Miami Herald report.

A federal court on Saturday put the execution of John Ferguson on hold and scheduled arguments for Friday on whether he is, as he contends, insane.

Ferguson, convicted of killing eight people in a 1970s murder spree, had been scheduled to be put to death Tuesday.

Saturday’s ruling by U.S. District Court Judge Daniel T.K. Hurley in Miami came just three days after the state Supreme Court upheld a lower-court ruling that Ferguson was sane and eligible to be executed.

Ferguson’s lawyers said that he suffers from paranoid schizophrenia and labors under the delusion that he is the “Prince of God.”

Ferguson's attorney Chris Handman issued this statement on the ruling:

“We are pleased that Judge Hurley has stayed the execution of Mr. Ferguson and has concluded that the important constitutional issues raised by Mr. Ferguson’s habeas petition merit full consideration.  In order for the state to execute him, Mr. Ferguson must have a rational understanding of the reason for, and effect of, his execution.  A man who thinks he is the immortal Prince of God and who believes he is incarcerated because of a Communist plot quite clearly has no rational understanding of the effect of his looming execution and the reason for it.”

Ferguson’s filing in the Miami federal court followed the Florida Supreme Court’s determination that Ferguson is competent and may be executed.  In his habeas petition, Mr. Ferguson seeks to prevent his execution on the grounds that he is currently insane and that the Eighth Amendment therefore prohibits the State from killing him."

Tampa Bay Times columnist John Romano writes, "Insanity infects both the mass killer and the justice system."

What price are you willing to pay for justice?

Would you sacrifice compassion? A small slice of morality?

Would you defy a landmark provision within the U.S. Constitution? If you're unsure, consider this:

The state of Florida was scheduled to execute John Errol Ferguson on Tuesday but a federal judge granted an emergency stay on Saturday.

Ferguson, 64, was convicted of eight murders in South Florida in 1978, admitted to two more while in jail, and evidence suggests he also is responsible for the death of a St. Petersburg couple in 1977.

So, no, empathy does not run deep for the man.

The issue, however, is whether Ferguson is sane enough to be put to death.

Earlier coverage of John Ferguson's case begins at the link.

Related posts are in the competency and mental illness category indexes. I added the compentency category index in April.  Earlier posts dealing with competency to be executed are available under the Scott Panetti index.

The Supreme Court established standards to assess whether severely mentally ill inmates are competent to be executed in the 1986 case, Ford v. Wainwright; more via Oyez.  Coverage of Scott Panetti's case begins at the link.  More on the U.S. Supreme Court 2007 ruling in  Panetti v. Quarterman is via Oyez.

Supreme Court Stays Anthony Haynes Execution

The Supreme Court order in Haynes v. Thaler is available in Adobe .pdf format.

"Houston cop killer Haynes granted stay of execution," is Allan Turner's report for the Houston Chronicle.

The high court agreed to consider a review of his case about 3:30 p.m. about 2 ½ hours before Haynes was to be put to death.

Earlier, the Texas Board of Pardons and Paroles and a federal court had rejected the killer's appeals, which essentially said Haynes' previous lawyers had provided inadequate representation.

In his petitions, Haynes' current lawyer Richard Ellis said the earlier attorneys failed to thoroughly research the case, and had handled the punishment phase of the trial as an "afterthought." Friends and relatives who would have testified to Haynes' good character were not allowed to tell their stories to jurors, Ellis said.

Should the high court review Haynes' case, it will also consider whether claims such as his can be considered in federal courts when they have not been heard in state courts. Haynes' claims of insufficient counsel were not heard in state courts because they were not presented in a timely manner mandated by Texas law.

High court justices later this month will consider reviewing a case where the arguments mirror Haynes'. The court in August stayed the execution of Amarillo triple-killer John Balentine.

"Supreme Court stops execution of Houston cop killer," is the AP report, via the Longview News-Journal.

Haynes’ trial lawyers showed “virtual abdication of their duty” by failing to more fully investigate and present evidence of Haynes’ good character to jurors who were deciding his punishment, his appeals attorney, A. Richard Ellis, told the high court in his appeal.

"Supreme Court halts Texas execution of police killer," by Corrie MacLaggan for Reuters.  It's via the Chicago Tribune.

Earlier coverage of Anthony Haynes' case begins at the link.

News Coverage of Oral Arguments in Competency Cases

The transcripts of oral arguments in Tibbals v. Carter and Ryan v. Gonzales are at the links.

"Supreme Court Considers Indefinite Stays of Execution," is Adam Liptak's report in today's New York Times.

In a pair of cases argued Tuesday, the Supreme Court considered what to do when people convicted of capital crimes are mentally incompetent and so unable to help their lawyers with challenges to their convictions and sentences.

The lower courts in the two cases had imposed indefinite stays, saying the proceedings should wait until the prisoners regained their mental competency. There appeared to be little support among the justices for that approach. Some of them appeared to sense gamesmanship from defense lawyers effectively seeking to make sure that death sentences are never carried out.

Justice Samuel A. Alito Jr. said he was skeptical of “a mechanism that will permit stays in virtually every capital case.” The mechanism was particularly problematic, he said, because “a lot of district judges and a lot of court of appeals judges don’t like the death penalty and will go to some length to prevent the imposition of that sentence.”

Justice Stephen G. Breyer appeared to think that critique too harsh, though he seemed to agree that indefinite stays are improper. “Trial judges run their trials,” he said. “You know, that’s what they’re hired for. And once we make it clear” that stays “shouldn’t go on forever, why can’t we trust them to do their job?”

The Supreme Court has allowed the execution of death-row inmates so long as they are, in Justice Antonin Scalia’s words on Tuesday, “aware of what is being done and why it’s being done.”

The standard for being able to assist a lawyer is much tougher, he said, meaning that the stays imposed by the lower courts effectively overrode the execution standard.

"Supreme Court debates whether inmate incompetence can delay appeals in death penalty cases," is the AP filing, via the Washington Post.

The Supreme Court seemed inclined Tuesday to eliminate the authority of federal judges to indefinitely delay a death row inmate’s federal appeals in the hope that the convict would become mentally competent enough to help his or her lawyer with the appeals.

Inmates appealing state death sentences to federal court have a right to a lawyer. But the courts have never said whether the inmates have to be mentally competent enough to help their lawyers with their federal appeals.

Lawyers for Arizona death row inmate Ernest Gonzales and Ohio death row inmate Sean Carter say the answer is yes, and urged the high court Tuesday to rule that federal judges have discretion to hold up proceedings until the inmates are ready. “The court’s answers should reflect the important principle that no individual should lose potentially meritorious claims because of mental illness,” said lawyer Scott Michelman, who represented Carter.

But justices spent considerable time talking about the differences in a proposed delay of six or nine months, or much as a year before ordering that the trial move forward.

SCOTUSblog analysis is, "Argument recap: Judges get no respect," posted by Lyle Denniston.  Here's the beginning:

Well into an argument before the Supreme Court Tuesday morning, Justice Stephen G. Breyer blurted out, in quite a loud voice, “WHY?”  He immediately apologized for the boisterousness of the question.  It was, though, entirely appropriate in the circumstances: he was protesting why nearly everyone seemed to have totally lost confidence in the capacity of federal district judges to use discretion wisely.   Those judges, indeed, were almost totally orphaned in two arguments on how to handle a federal habeas case when the state prisoner involved may be mentally incompetent.

There were essentially two issues before the Justices in the related cases of Tibbals v. Carter (docket 11-218) and Ryan v. Gonzales (10-930): when should a federal court put a hold on a state prisoner’s habeas claim when a competency question arises, and how long should such a delay be?  Justice Breyer may have been the only one on the bench who seemed to feel very strongly that this was something district judges could easily handle, and be trusted to do so.   Most of the Court was pursuing some limits that it could impose on those judges.

The two cases reached the Court on state appeals protesting indefinite delays issued by lower courts in habeas cases in which state inmates were contesting their convictions for murder.  In each case, because of claims of incompetence, the stay was to last until the inmate’s mental health had been sufficiently restored that he could cooperate with his lawyer in pursuing his claims.  Lawyers for the states of Ohio and Arizona and a lawyer for the federal government contended that there should never be indefinite stays, no matter what the circumstances, and in no case should a stay be longer than, say, a year.

It did not take long in the hearings for it to become clear that most of the Justices were sympathetic to the idea of fairly strict limitations, and that the Court itself probably would never again do what it did in 1967 in the case of Rees v. Peyton: impose a stay in a death penalty case involving an incompetent individual, with the delay remaining in effect for some twenty-eight years, lifted only when the man died in prison.   The case of Melvin Davis Rees hung over Tuesday’s session like an uninvited house guest.

The SCOTUSblog case files for Tibbals v. Carter and Ryan v. Gonzales contain all briefing.

"Supreme Court Considers Competency in Death Penalty Cases," at Stateline - Pew Center on the States, by Maggie Clark.

The U.S. Supreme Court on Tuesday (October 9) heard arguments from Ohio and Arizona that federal judges should not be allowed to indefinitely stay a death sentence even if there are questions about an inmate’s mental competency.

“The state has a powerful interest in the finality its conviction and sentence,” argued Alexandra Schimmer, Ohio’s solicitor general, in the Tibbals v. Carter case challenging a stay imposed by the U.S. Court of Appeals for the Sixth Circuit. “Ohio has been standing at the ready for 10 years to defend the judgment of its state courts in this case.”

A key issue for the court to decide is whether death row defendants have the right to assist in their defense during their federal habeas corpus claim, which is filed after they’ve been sentenced to death by a state court. Arizona and Ohio argued Tuesday that there is no specific right for a defendant to assist his or her lawyer, and federal courts should not put a death penalty case on hold indefinitely while attempts are made to restore a defendant back to mental competency.

ABA Journal posts, "High Court Appears Skeptical of Indefinite Stays for Competency in Capital Appeals," by Debra Cassens Weiss.

In oral arguments on Tuesday, the U.S. Supreme Court appeared unlikely to uphold indefinite stays when inmates lack competency to aid their lawyers in capital appeals.

Lawyers for death-row inmates Ernest Gonzales of Arizona and Sean Carter of Ohio argued that inmates must be mentally competent to assist their appellate lawyers, the Associated Press reports. The justices, however, focused on a second question: the propriety of indefinite stays in such cases.

The Arizona Daily Star profiles the defense attorney in Ryan v. Gonzales in, "Neto's Tucson: Attorney to get day in court - the big court."  It's by Ernesto Portillo Jr.

Leticia Marquez, a federal public defense attorney, is a bit nervous this weekend as she preps for a Tuesday court case. It will be unlike any case she's had before.

She'll stand in front of nine jurists - the U.S. Supreme Court.

"It's a real big deal," said Marquez last week in a telephone call from Washington, D.C., where she is preparing her case. That's an understatement.

It's historic for this University of Arizona graduate and daughter of Mexican immigrants.

Marquez, 43, might be the first Tucson Latina attorney to argue a case before the highest court in the country. Nationally, she could be the 16th Latina in history, according to a February article in the National Law Journal.

Earlier coverage of the two cases begins at the link.  Related posts are in the competency index.

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

Stay of Execution Over Flawed Competency Hearing

"Judge stays execution of young girl's killer," is Mike Tolson's Houston Chronicle report.

A federal district judge on Monday blocked the execution of Jonathan Green, two days before he was set to die for the 2000 murder of a 12-year-old Montgomery County girl.

U.S. District Judge Nancy Atlas ruled that a state mental competency hearing violated due process standards and that the judge who conducted it applied incorrect standards for determining competency for execution.

"The inadequacies of the state court's process and the resulting constitutional violations require this court to stay Green's execution," Atlas said in her 17-page order.

And:

Green's lawyers argued the hearing before Michalk was held so quickly after it was granted - two days later - that medical personnel from the Texas Department of Criminal Justice who had treated Green were not available to testify.

They asked for a delay so those workers could be brought to court. The judge denied the request, which Atlas found unreasonable.

"Considering the heavy reliance the state court's opinion places on its credibility determinations of the two experts and the notable absence of any reference to the TDCJ medical records in the state court findings, the state court's denial to Green of the opportunity to present the TDCJ witnesses casts serious doubt on the fundamental fairness of the competency proceeding," she wrote.

Atlas said her order deals only with the fairness of the process.

"Because the state court unreasonably applied Supreme Court precedent and failed to provide due process, a stay of execution is necessary," Atlas' order stated. "The court here is concerned only with the question whether Green is entitled to a stay of execution and not with the ultimate question of whether he is incompetent to be executed."

"Texas judge stays execution of man who raped, killed 12-year-old," is the Los Angeles Times report by Molly Hennessy-Fiske.

A federal judge in Houston on Monday stayed the execution of a Texas man and granted him a competency hearing days before he was to be put to death for the abduction, rape and strangulation of a 12-year-old girl.

Soon after the ruling, the Texas Attorney General’s Office filed a notice of appeal with the U.S. 5th Circuit Court of Appeals in New Orleans. A spokesman for the attorney general declined to comment.

And:

The judge noted that Green’s competency was still an open question that required a hearing — not because he failed to establish that he was incompetent, but because “he was prevented from doing so" through a lack of due process.

Green's Houston-based lawyer, James Rytting, praised the ruling as "a thorough decision."

"Houston judge stays Jonathan Green's execution," is the AP filing by Micahel Graczyk, via the Fort Worth Star-Telegram.

Texas Attorney General Greg Abbott's office filed notice Monday that it will appeal a federal judge's order halting an execution scheduled for Wednesday of a Montgomery County man condemned for the abduction, rape and strangling of a 12-year-old girl in 2000.

Attorneys for the state office rushed to file a one-paragraph notice with the 5th U.S. Circuit Court of Appeals in New Orleans hours after U.S. District Judge Nancy Atlas in Houston granted a stay to Jonathan Green, 44.

The full appeal will be filed today, the attorney general's office said. Green's lawyers would then have the opportunity to respond to the state's arguments.

Atlas' ruling came in an appeal from Green's attorneys challenging a state judge's decision two years ago that Green was mentally competent for execution for the slaying of Christina Neal.

And:

Atlas said her ruling was concerned "only with the question whether Green is entitled to a stay of execution and not with the ultimate question of whether he is incompetent to be executed."

"It is clear from the record that, at a minimum, the trial court prevented Green from presenting testimony by treating mental health professionals, relied on an order solicited from and drafted by the state to which Green had no opportunity to object, and applied at least one incorrect legal standard," Atlas ruled.

Judge Atlas' order in Green v. Thaler is available in Adobe .pdf format.

Earlier coverage of Jonathan Green's case begins at the link.  The Supreme Court established standards to assess whether severely mentally ill inmates are competent to be executed in the 1986 case, Ford v. Wainwright; more via Oyez.

Related posts are in the competency and mental illness category indexes.  Two cases involving competency to be executed are being heard in the Supreme Court this morning.

Terry Williams' Case Coverage

Today's New York Times reports, "Pennsylvania Justices Block an Execution," by Jon Hurdle.

The Pennsylvania Supreme Court on Wednesday halted the execution of Terrance Williams, a convicted murderer who had been scheduled to die by lethal injection only a few hours later.

The ruling upheld a stay of execution granted last week by Judge M. Teresa Sarmina of the Philadelphia Court of Common Pleas on the ground that prosecutors had withheld evidence at Mr. Williams’s 1986 trial that could have led to a lesser penalty.

In a brief statement, the state’s highest court denied an emergency application by the Philadelphia district attorney, R. Seth Williams, to overturn Judge Sarmina’s ruling, which also granted a new sentencing hearing. The defendant remains under sentence of death unless or until the State Supreme Court upholds the ruling for resentencing and a new jury commutes the sentence to life without parole.

The court gave no reason for its decision, which followed defense arguments that the murder victim had sexually abused Mr. Williams for most of his adolescence and that prosecutors had withheld that evidence from the jury.

Mr. Williams had been scheduled to be put to death at 7 p.m. Wednesday. The execution would have been the first in Pennsylvania in 13 years, and the first in the state since 1962 for an inmate who did not choose to die because he had lost all appeals.

"Terrance Williams misses his date with executioner," by Joseph A. Slobodzian in the Philadelphia Inquirer.

In an unsigned one-sentence order, the state's high court decided to take more time - possibly months - to review Friday's ruling by Common Pleas Court Judge M. Teresa Sarmina. Sarmina ruled that the integrity of Williams' 1986 death sentence had been undermined by new evidence that the trial prosecutor withheld information that Williams was sexually molested by his victim.

Williams attorney Shawn Nolan thanked more than 380,000 people who signed an Internet clemency petition.

"The Pennsylvania Supreme Court has wisely decided to consider all of the evidence before making a final decision, and we look forward to presenting our case in the coming months," Nolan said.

Philadelphia District Attorney Seth Williams said in a statement that he continues to believe that Terrance Williams is one of the few who deserves the death penalty and that "his new claims are not true."

"The case will now proceed as a normal appeal to the Supreme Court," Williams said. "This is not the first time the prosecution has appealed a capital case, and it probably won't be the last."

The AP filing is, "Pa. court spares inmate from execution," by Maryclaire Dale, via the Allentown Morning Call.

Terrance "Terry" Williams spent a day on death row waiting for a call that never came.

Williams feared he'd be shipped across the state to be executed on Wednesday, the first person sent to the death chamber in Pennsylvania since 1999. But the call never came. Instead, his defense lawyers phoned him that afternoon to say the state Supreme Court had in effect halted the execution.

A state judge last week granted a stay of execution, and the court said it wouldn't overturn her decision before Williams' death warrant expired at midnight. The court plans to review Williams' case over time.

Additional coverage includes:

"Terrance 'Terry' Williams will not be executed today," by Donald Gilliland for the Harrisburg Patriot-News.

"Pennsylvania high court upholds stay of execution for Terrance Williams," by David Ariosto at CNN.

"Pennsylvania Supreme Court stays Terrance Williams' execution," by Karen Langley in the Pittsburgh Post-Gazette.

"Williams spared from execution," by Mary Wilson at WHYY-FM NewsWorks.

"Pa. Supreme Court Spares Man From Execution," by Jim Malewitz at Stateline - the Pew Center on the States.

Earlier coverage of Terry Williams' case begins at the link.

Statement From Terry Williams' Attorneys

Shawn Nolan has released a "Statement from Attorneys for Terry Williams Re: Stay of Execution."  Here's the statement in full:

“On behalf of Terry Williams we are extremely pleased that the Pennsylvania Supreme Court has affirmed Judge Sarmina’s grant of a stay of execution and want to thank everyone supporting the effort to stop this execution. The Pennsylvania Supreme Court has wisely decided to consider all of the evidence before making a final decision and we look forward to presenting our case in the coming months.
 
After hearing multiple days of testimony and careful consideration of all the records, Judge Sarmina granted a stay of execution and found that the prosecution withheld critical evidence from the jury. As the Pennsylvania Supreme Court has now confirmed, Judge Sarmina’s grant of a stay was factually and legally sound.
 
The Philadelphia District Attorney’s Office should stop its pursuit to execute Terry Williams. The time has now come for them to heed the call from the victim’s widow, jurors, child advocates, victim’s rights advocates, and over 380,000 people who do not want Terry executed.”

Earlier coverage of Terry Williams' case begins with the preceding post.

Pennsylvania Supreme Court Refuses to Lift Stay

"Not tonight. Condemned killer spared execution," is the Philadelphia Inquirer breaking news post by Joseph A. Slobodzian.

The Pennsylvania Supreme Court has refused a prosecution plea to reinstate today's execution of condemned Philadelphia killer Terrance Williams.

At about 3:45 p.m., the court in a one-sentence order denied the District Attorney's emergency motion and ordered court personnel to draft a schedule for filing legal briefs and, perhaps, an oral argument.

The state's high court decision let stand last Friday's ruling by Common Pleas Court Judge M. Teresa Sarmina that the 1986 trial prosecutor made Williams' death sentence more likely by withholding informtion that Williams was sexually molested by his victim.

"Condemned Killer's Life Spared in Last Hours," is the AP filing, via WCAU-TV.

Pennsylvania's top court has denied prosecutors' emergency petition in a death penalty appeal, meaning Terrance Williams will not be executed tonight.

The 46-year-old Williams has a stay of his scheduled execution, which is the first in Pennsylvania in more than a decade. A state judge has vacated his death sentence and ordered a new sentencing hearing after finding last week that prosecutors hid evidence at his 1986 trial.

Judge M. Teresa Sarmina said prosecutors suppressed evidence that Williams' victim was an alleged pedophile who abused boys, including Williams, so jurors were not aware of those allegations when they voted to impose the death penalty.
 
But Philadelphia prosecutors appealed to the state's high court to overturn that ruling and reinstate the death penalty in time to execute Williams on Wednesday. The court rejected the appeal.

CounterPunch posts, "Prosecutorial Misconduct and the Death Penalty," by Linn Washington, Jr.

The recent outrage in Pennsylvania over the scheduled October 3 execution of a man who killed two men who had sexually abused him during his childhood has tarnished the reformer image of Philadelphia DA Seth Williams, exposing him as just another prosecutor willing to trample justice to preserve a death penalty.

When Seth Williams successfully campaigned to become Philadelphia’s top prosecutor a few years ago he used a catchy phrase: “A New Day/A New DA.”

But based on Williams’ recent posturing and positions taken by him, evidence indicates this new DA continues operating in the same old way as his predecessors.

Instead of running his office in accordance with that ‘New Day’ many expected, DA Williams is defending death penalty cases that are stained by prosecutorial misconduct and is pursuing factually bogus charges against victims of police brutality, including one involving a blind man charged with attacking the police who beat him.

The most pronounced example of Williams’ old wine/new bottle stance is his vigorous –and intellectually dishonest — public relations campaign backing the execution of child-sex abuse victim-turned-murderer Terrance Williams.

Earlier coverage of Terry Williams' case begins at the link.

A Flagrant Conflict of Interest

That's the title of Lincoln Caplan's New York Times Taking Note blog post.

Last Friday, a state trial judge stayed Pennsylvania’s execution of Terrance Williams—scheduled for this Wednesday—and ordered a new sentencing hearing. In response to a motion from Philadelphia’s district attorney, the Pennsylvania Supreme Court could overturn the stay and order, putting the execution back on schedule. Yet the court’s chief justice has no business judging this case.

Chief Justice Ronald Castille has a classic and flagrant conflict of interest: he is passing judgment on a prosecution that he approved and oversaw, and on a trial judge’s ruling that strongly censured that prosecution. He was the Philadelphia district attorney in 1986 and accountable for the serious misconduct that led to Mr. Williams’ death sentence.

The current Williams defense team filed motions on Monday for the chief justice to either recuse himself, or refer the matter to his fellow justices, so he was not deciding his own case. But, within hours, Mr. Castille turned down both motions.

And:

When Mr. Castille was elected chief justice in 1993 on a law-and-order platform, his campaign boasted that he had put 45 criminals on death row, including Mr. Williams. He has called previous requests that he recuse himself “ethical lapses”—of the lawyers making the requests. And he has otherwise displayed untenable judicial ethics, as The Philadelphia Inquirer reported, receiving many gifts of dinners, event tickets, golf outings and plane rides, some from people with cases decided by his court.

With the decision not to recuse himself in this case, Mr. Castille has underscored his obtuseness about what basic fairness requires. He has diminished his position, the court he sits on and the rule of law in Pennsylvania. Even if the court upholds the trial court’s stay and order, as the merits dictate, its ruling will be badly tainted. And if it does not, the ruling will simply not be trustworthy.

"Philly DA wants to file new brief in death appeal," is an updated AP article, via the Erie Times-News.

For now, Williams has a stay of his scheduled execution. A state judge vacated his death sentence Friday and ordered a new sentencing hearing after finding that prosecutors hid evidence at his 1986 trial.

But Philadelphia prosecutors appealed to the state's high court to overturn that ruling and reinstate the death penalty in time to execute Williams today. Williams' death warrant expires at midnight, and prosecutors asked on Tuesday to respond to the objection filed by his lawyers.

The state Supreme Court could grant District Attorney Seth Williams' appeal, reject it or allow him to file another legal brief. Seth Williams is no relation to Terry Williams.

A second AP report examines Pennsylvania's execution protocol, "Condemned Killer Could Still Be Executed Wednesday."  It's via WCAU-TV.

If Terrance Williams is executed, it will be an event strictly supervised by the state.

For now, the 46-year-old Williams has a stay of his scheduled execution, which would be the first in Pennsylvania in more than a decade. A state judge has vacated his death sentence and ordered a new sentencing hearing after finding last week that prosecutors hid evidence at his 1986 trial.
 
But Philadelphia prosecutors have appealed to the state's high court to overturn that ruling and reinstate the death penalty in time to execute Williams on Wednesday. His death warrant expires at midnight.
 
If he is executed, his death would be carried out according to a bureaucratic script under the steely supervision of the state government.

The Pittsburgh Tribune-Review reports, "Execution’s stay won’t open ‘floodgates’ in Pennsylvania," by Adam Brandolph.

A Philadelphia judge’s decision last week that brought the state back from the brink of its first execution in more than a decade likely won’t have much of an impact on the remaining 199 inmates sitting on death row, legal observers say.

“Every one of these decisions is unique and idiosyncratic. Every one has his or her own circumstances, different backgrounds, different crimes,” said University of Pittsburgh law professor John Burkoff. “This won’t be precedential, and I don’t think the floodgates will open.”

Judge M. Teresa Sarmina on Friday stayed the execution of Terrance Williams, 46, who was scheduled to be put to death on Wednesday for the death of Amos Norwood, 56, a chemist and church volunteer.

Sarmina said prosecutors suppressed evidence that Norwood had sexually abused Williams as a teenager, a mitigating circumstance never heard by the jury that sentenced Williams to death in 1987.

“This case is a perfect storm of what can go wrong with the death penalty,” said Marc Bookman, executive director of the Atlantic Center for Capital Representation, a Philadelphia-based nonprofit that helps lawyers whose clients face the death penalty. “It’s really a learning moment for Pennsylvania.”

Bookman said Williams’ case may deter juries from imposing the death penalty.

“It’s inconceivable to me that this debacle would encourage our community to seek more executions. I think a lot of people learned from this all the mistakes that can happen, and it shows how frail and full of errors the death penalty can be.”

Earlier coverage of Terry Williams' case begins at the link.

Judge's Stay Should End Williams' Death Sentence

That's the title of an editorial published in today's Philadelphia Inquirer.

The historic ruling Friday by a Philadelphia judge to stay the execution of condemned killer Terrance Williams has given Pennsylvania yet another compelling reason to vacate Williams' death sentence once and for all.

With the clock still ticking, the courts and Gov. Corbett have an opportunity to correct a horrific wrong by sparing Williams' life and commuting his punishment to life in prison, a more appropriate sentence.

Common Pleas Court Judge M. Teresa Sarmina made the right ruling in staying the execution scheduled for Wednesday. At the same time, she upheld the guilty verdict for the murder.

Sarmina found that prosecutors withheld crucial evidence that might have convinced a jury in Williams' 1986 trial to sentence him to life for the killing of a city man, Amos Norwood.

Her findings are stunning in a case that could be a textbook example of the flaws in a capital punishment system already proven to be fallible, a system that puts minority and poor defendants at a greater risk of the death penalty.

And:

The governor should leave Williams to spend the rest of his life in prison without a chance of parole. And Pennsylvania should scrap the death penalty entirely.

"Castille refuses to recuse self in Williams decision," is the Inquirer news report written by Joseph A. Slobodzian.

Chief Justice Ronald D. Castille of the Pennsylvania Supreme Court on Monday rejected a defense motion to disqualify himself from the case of Terrance Williams because he had been the city district attorney when Williams was condemned to death.

Trying to preserve a stay that will keep Williams, 46, out of the execution chamber Wednesday, Williams' lawyers contended that Castille's participation created the appearance of a conflict of interest.

Castille, however, denied the motion in a one-sentence order late Monday. Castille rejected as well a companion bid to leave the decision up to his five fellow justices.

Castille was Philadelphia district attorney in 1986 when Williams was sentenced to death for the 1984 murder of Amos Norwood.

As the city's top prosecutor, Castille approved the decision to seek the death penalty and to defend the sentence on appeal.

Now, as chief justice of the state's high court considering whether to reinstate Williams' execution Wednesday, Castille's history seems a conflict of interest, the defense argues.

In 18 years on the court, Castille has rebuffed recusal motions based on his tenure as district attorney from 1986 to 1991.

And:

The death warrant for Williams expires at midnight Wednesday. If the stay is later reversed, Gov. Corbett would have to sign a new death warrant.

"Pennsylvania has a log-jam of death penalty cases nearing the ends of their appeal processes," by Charles Thompson of the Harrisburg Patriot-News looks at and beyond the Terry Williams' case.

While Williams’ fate has yet to be determined, legal experts suggest that the state will likely soon be dealing with the death penalty for the first time in more than a decade.
    
It appears that in Pennsylvania, the death penalty could soon mean death again.
    
There is a logjam of decades-old death penalty cases that are nearing the end of the appeals marathon. And for some of them, there may be no more valid reasons to apply the brakes that haven’t already been fully litigated.
    
The next test case may be that of Hubert Lester Michael Jr.
    
A former Lemoyne resident, Michael is currently facing a Nov. 8 execution for the 1993 abduction and killing of 16-year-old Trista Eng near Dillsburg.
    
Michael has no more appeals remaining, so he will be forced to seek some sort of emergency stay to avoid execution. His attorney, Ronald Travis of Williamsport, did not respond to requests for an interview for this story.
    
Of the 200 inmates currently on Pennsylvania’s death row, 85 were sentenced to the death penalty before Michael. Thirty-nine of them have been on death row since the 1980s. Three inmates on death row are women.

“I don’t know whether it’s this year or next year... but for Pennsylvania to have three, four executions a year I don’t think would be surprising,” said Richard Dieter, executive director of the Death Penalty Information Center.
    
“There’s just too many cases clicking along in that long, slow system.”

"Disrespecting victims of abuse," is by Sue Osthoff in the Inquirer.  She's the director of the National Clearinghouse for the Defense of Battered Women, based in Philadelphia.

Many advocates for victims of sexual assault, victims of violent crime, children's rights advocates, and others are closely following the case because of the horrific physical and sexual abuse that Terry Williams suffered from age 6 until he killed two of his abusers at ages 17 and 18.

With Pennsylvania's recent history of child sexual-abuse cases, it is unacceptable for the district attorney to write about allegations of sexual abuse with such disdain: "There was a neighbor boy, allegedly, and a friend, and a teacher, and his cellmates at the youth detention center, all of whom supposedly took advantage of him." Whether Seth Williams believes these charges or not, the rape of a child is not "taking advantage of him."

The district attorney's language fails to reflect the gravity of the experience of child sexual abuse and rape, and most importantly, disrespects all victims of childhood sexual abuse.

Earlier coverage of Terry Williams' case begins at the link.

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

More From Philadelphia

Andrew Cohen posts, "A Funny Thing Happened on the Way to the Execution," at the Atlantic.

Twenty-six years after the fact, too late but just in time, a measure of justice finally found Terry Williams on Friday when a Pennsylvania judge, a former prosecutor, stayed his October 3 execution and vacated a death sentence that had been unfairly imposed upon him in 1986. No reasonable review of Williams' case -- no evaluation of the evidence, no respect for his trial jurors or the victim's widow, no fealty to the Sixth Amendment's fair trial guarantees -- can sustain, in law or fact, the imposition of capital punishment here.

And yet today, seeking to defend an indefensible verdict, unapologetic about the misconduct of his predecessor, impervious to the dynamics of child sex abuse cases, tone-deaf to local politics and morality in the Age of Sandusky, unrepentant about misstatements to the state's parole board, Williams' prosecutor pushes on. I have been covering capital cases like this for 15 years and I can rarely remember an instance where a district attorney fought so willfully for so long for the right to do an injustice. It's a risible offense.

And:

Instead of accepting Judge Sarmina's reasoned judgment, instead of acknowledging that defendants like Williams are entitled to a meaningful remedy when the state cheats at trial, instead of preparing for a new sentencing hearing which would include all the relevant evidence, Williams' current prosecutor doubled down.

Late Friday, Seth Williams (obviously no relation) issued a statement that beggars belief. In Seth Williams' world, the prosecutor who cheated in 1986 in a capital case has been "unfairly victimized." In this world, he is obliged to "preserve the integrity of the jury's verdict and sentence" even though nearly half of that jury has walked away from its work. What "integrity" is left to protect about an inaccurate sentence? Seth Williams didn't say. But he was sure to tell the world that he doesn't want to make a villain out of the victim, Amos Norwood, the child sex predator.

None of this excuses what Terry Williams did. But it sure explains it, doesn't it? And isn't that the essence of what the sentencing phase of a capital trial should be about? Terry Williams is not getting away with anything, he's not cheating anyone, and that's never been the point of this round of appeals. If he is not executed, he will spend the rest of his life in prison, which is the sentence he almost certainly would have gotten in 1986 had prosecutors played by the rules, had jurors been given all the relevant evidence, and had a capital defendant been given adequate counsel.

But even this is not good enough for prosecutor Williams. He immediately appealed Judge Sarmina's ruling. Want to know why more and more Americans are skeptical of the death penalty, why the constitutional guarantees of due process and fair trials so often go unmet? It's because of cases like this one, where prosecutors cheat at trial and where their successors, decades later, cannot then admit, to themselves or the world, that such behavior undercuts confidence in the accuracy and integrity of the criminal justice system.

"Lawyers ask state's chief justice to step down from death row case," is the AP filing, via WITF-FM.

Lawyers for a death-row inmate facing a possible execution Wednesday want Pennsylvania's chief justice to step down from the case.

Lawyers for Terrance "Terry" Williams argue that Chief Justice Ronald Castille should recuse himself because Castille supervised Williams' death-penalty case when he was Philadelphia's district attorney.

WHYY-FM posts, "Terrance Williams safe for now, but D.A. falls short of 'zealous, ethical and effective' standards," by Aja Beech, a board member of Pennsylvanians for Alternatives to the Death Penalty.

Williams is one of over 200 people on Pennsylvania's death row and almost half of those people have come from Philadelphia. Of the 95 people on death row that have come from Philadelphia courts, approximately 18 of those cases were tried and sentenced to death in a period from 1983 until 1987, according to an execution list maintained by the state. (See document below.) This four-year period has come under great scrutiny because of issues such as the McMahon tapes, an instructional video made in 1986 by senior prosecutor at the time in the Philadelphia district attorney's office Jack McMahon on excluding "young blacks" from juries.

The verdict in the Williams hearing confirmed that the original prosecutor willfully withheld and suppressed important information relevant to the initial Williams case in the late 1980s, continuing the tragic saga of justice deferred in Philadelphia.

And:

Something is wrong with the capital punishment system in Pennsylvania, and our state is finally starting to see this. There are some in state government working to fix this problem, such as Senators Daylin Leach and Stewart Greenleaf, who on behalf of the bipartisan task force and advisory committee studying the death penalty in Pennsylvania, released a letter requesting "no execution be carried out in the Commonwealth" until the study is completed in December 2013. That we may be sure we are doing the right thing by proceeding with state executions; can we not wait a year until we are sure it is within the law and ethics of our state to do so?

Earlier coverage of Terry Williams' case begins at the link.

Update From Philadelphia

Judge Sarmina's order staying Terry Williams' execution and vacating the death sentence is available in Adobe .pdf format.

Philadelphia Daily News columnist Stu Bykofsky writes,"State has dirty hands in Terrance Williams case," for today's paper.

Judge Sarmina, a former city prosecutor who is no dewy-eyed sap, believes that's what happened.

I am for the death penalty, but only when we are certain the accused committed coldblooded murder. Another stipulation is that the prosecution must play by the rules. The D.A.'s role is to secure justice, not just convictions.

There is, at least, strong suspicion that the D.A.'s office broke the rules. If so, sadly, that wouldn't be a first. It happens more often than we would like.

If you believe in justice, you can't allow prosecutors to put their thumbs on the scales. Some of you are thinking the defense does that all the time, and you are right. But the defense represents an individual; the D.A. represents the state - you and me.

The Philadelphia Inquirer posts, "What next?" by Joseph Slobodzian.

Monday and Tuesday could see a burst of last-minute legal activity as Pennsylvania’s Supreme Court decides whether to affirm or reverse Friday’s ruling staying Wednesday’s scheduled execution of condemned Philadelphia killer Terrance Williams.

Legally, as of now Williams’ death sentence for the 1984 murder of Amos Norwood, 56, is on hold. But that could change in an instant if the state’s high court reverses the stay by Philadelphia Common Pleas Court Judge M. Teresa Sarmina.

The Philadelphia District Attorney’s office filed the emergency motion with the Supreme Court hours after Sarmina’s ruling but since then, according to the court’s website, nothing: no orders for the filing of legal briefs, scheduling of a hearing, response of any kind.

That may not be unusual and District Attorney Seth Williams said Friday that he does not believe it likely that the court will act on his emergency motion before Terry Williams’ death warrant expires at midnight Wednesday.

According to Janet Kelley, a spokeswoman for Gov. Corbett, if the warrant expires the governor is required to sign a new warrant within 30 days from when Sarmina’s stay is lifted. A new execution date would then have to be set within 60 days of the signing of the new warrant, Kelley said.

Any action by the state Supreme Court before Wednesday will trigger appeals by one side or the other to the federal court system or even to the U.S. Supreme Court.

"Judge in Terrance Williams case a "terrier" for the truth," is by Donald Gilliland for the Harrisburg Patriot-News.

When attorneys speak Judge Teresa Sarmina's name, they tend to do so in the respectful tone of the previously wounded.

The diminutive but ferociously intelligent Philadelphia Common Pleas Court Judge has a courtroom demeanor reminiscent of Martin Shaw's Judge John Deed on the BBC, alternately humorous and severe, prone to sparring with attorneys over the nuance of case law and - with a keen ear for the unsaid - taking over the examination of witnesses herself.

Sarmina is known as a terrier: once she gets her teeth into something, she doesn't let it go.

What she usually shakes out is the truth - or something closer to it than would have been presented to her otherwise.

But the habit exasperates attorneys on both sides of the bench. 

This week Sarmina granted a stay of execution for Williams after a last-minute appeal that stretched into three days. Her ruling - which excoriated the prosecution in the case as both unconstitutional and unethical - dropped like a boulder into the pond of current and former state prosecutors, prompting the likes of Ed Rendell to spring to the former prosecutor's defense.

Philadelphia District Attorney Seth Williams accused Sarmina - without speaking her name - of unfairly victimizing former prosecutor Andrea Foulkes and "offering brutal murderers what they don't deserve."

The circling wagons of political reputation aside, the evidence was clear - and much of it had been unearthed and entered into evidence by Sarmina herself.

And:

In the end it was clear that multiple witness interviews had been "sanitized" of references to Norwood's predilection for boys before being handed over to the defense. Critical information - including full details of the prosecution's plea bargain deal with their main witness - had been withheld.

And most importantly, it was clear that Foulkes presented a skewed and misleading portrait of the victim to the jury when they sat down to consider the death sentence.

"Evidence has plainly been suppressed," said Sarmina, who  noted that Foulkes' tendency of "playing fast and loose" inclined her "toward a finding that the suppression was closer to willful" rather than inadvertent.

Sarmina said Foulkes engaged in "gamesmanship" and "had no problem disregarding her ethical obligations" in an attempt to win.

"Judge calls off execution of death-row inmate," by Mensah M. Dean in the Philadelphia Daily News.

CITING GROSS prosecutorial misconduct and evidence suppression, a Philadelphia judge on Friday vacated the Oct. 3 execution sentence of Terrance Williams and ordered that he be granted a new penalty hearing.

The ruling by Common Pleas Judge M. Teresa Sarmina indefinitely halted an execution decades in the making.

Williams' first-degree-murder conviction is unchanged by the ruling, meaning that the jury at his new penalty hearing will determine if he should be sentenced to death or spend the rest of his life in prison without parole.

And:

The defense argued that former Assistant District Attorney Andrea Foulkes, who prosecuted Williams in 1986, kept that evidence from the trial defense attorney and jury and instead presented Norwood as a kindly, sympathetic figure who merely had offered Williams a ride home.

Sarmina agreed with the defense, noting the two boxes of evidence turned over just this week from homicide detectives that, she said, corroborated the defense claims against Norwood and Herbert Hamilton, 50. Williams, at 17, had a sex-for-money, abusive relationship with Hamilton and murdered him five months before killing Norwood.

Additional coverage includes:

"Execution Halted for Killer Claiming Abuse by Victim," by Jon Hurdle in the New York Times.

The updated AP report is, "Judge Halts Execution of Terrance Williams," by Maryclaire Dale, via WCAU-TV.

"Terry Williams, Facing Death for Killing Alleged Abuser, Granted Stay of Execution," by John Rudolf at Huffington Post.

Earlier coverage of Terry Williams' case begins at the link.

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

Philadephia Judge Stays Terry Williams' Execution

CNN reports, "Stay of execution issued for convicted killer."

A Philadelphia judge ruled Friday to stay the execution of Pennsylvania convicted killer Terrance Williams and grant a new penalty phase in the case.

Williams, 46, was scheduled to be executed on October 3. No one disputes that Williams beat Amos Norwood to death with a tire iron in 1984 or that he should be in prison.

But his defense team says information that Norwood had allegedly sexually abused Williams was withheld from the trial, and his life should be spent in a cell.

"Philadelphia judge halts Terrance Williams' execution," at the Harrisburg Patriot-News.

Common Pleas Judge M. Teresa Sarmina took two days of new testimony from the trial prosecutors and an accomplice, then and this morning ruled to stay Williams' execution, citing government suppression of evidence.

She said: "Evidence has plainly been suppressed" and that prosecutor Andrea Foulkes was "playing fast and loose." Sarmina said Foulkes "had no problem disregarding her ethical obligations" in an attempt to win.

The judge's ruling is expected to be appealed to the state Supreme Court.

"Judge stays execution of Terrance Williams," is Joseph A. Slobodzian's post at the Philadelphia Inquirer.

Philadelphia Common Pleas Court Judge M. Theresa Sarmina today issued a stay of execution of condemned killer Terrance Williams.

Williams, 46, had been scheduled to die by lethal injection next Wednesday.

Sarmina's decision came a day after the state Board of Pardons agreed to hear for a second time Williams' plea for clemency plea, but put off any action in apparent deference to the court in Philadelphia.

The board's action to rehear William's clemency plea reversed a Sept. 17 vote in which the panel failed to recommend that Gov. Corbett commute the killer's death sentence to life in prison without parole.

Earlier coverage of Terry Williams' case begins at the link.

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

Are Lengthy Execution Delays Cruel?

Reuters posts, "In U.S. executions, decades of delay, last-minute stays called cruel," by Jim Forsyth.  The article references John Balentine's stay last week from the U.S. Supreme Court.

While three stays of execution for one person is unusual, some Americans say the slow grind of legal justice, sometimes followed by appeals that result in last-minute stays of execution, are cruel both to inmates and the families of their crime victims.

"Preparing for death is torture, and I cannot fathom having to go through it three times," said Randy Steidl, who served 12 years on death row in Illinois before being exonerated of murder and released in 2004. "That's inhuman, that is truly torture. That is not justice. If we are truly a civilized society as all of America claims to be, we should not do anything like this."

Efforts to contact Balentine through his lawyer for comment were not successful.

The U.S. Supreme Court suspended the death penalty through a 1972 decision then reinstated it in 1976. Since 1976, the number of executions in the United States has gradually declined to 43 in 2011 from a peak of 98 in 1999 because of concern about the possibility of killing an innocent person and the fairness of the system.

There have been 27 people put to death so far this year which suggests an end-year figure of around 40, the Death Penalty Information Center (DPIC) said.

The increasing scrutiny of each case is resulting in more stays of execution. There have been 37 stays to date this year, which suggests an end-year figure around 55, compared with 41 in all of 2011, the information centre said.

Fewer executions and more delays also mean longer periods between sentencing and execution. For those executed in 2010, the latest year available, the average time on death row was 14.8 years, the longest for any year since the death penalty was reinstated in 1976. The average for all cases since reinstatement was 10.9 years, according to the Bureau of Justice Statistics.

Gary Alvord in Florida, who according to the Florida Department of Corrections has awaited execution since 1974, is believed to be the nation's longest-serving death row inmate.

And:

Supreme Court Justice Stephen Breyer has several times in recent years expressed concern about long delays in executions. He dissented from a decision in 2011 to allow the execution of Manuel Valle in Florida after 33 years on death row.

"I have little doubt about the cruelty of so long a period of incarceration under sentence of death," Breyer wrote.

The Reuters report is also available via HuffPost as, "John Balentine, On Texas Death Row, Has Execution Delayed 3 Times."

Earlier coverage of John Balentine's case begins at the link.  Coverage of Justice Breyer's written dissent in the Valle case is also avaiilable.

Supreme Court Stays John Balentine Execution

The Supreme Court order in Balentine v. Thaler is available in Adobe .pdf format, as is the earlier ruling and dissent from the Fifth Circuit Court of Appeals.

"Texas inmate set to die gets last-hour reprieve," is Michael Graczyk's AP report via the Houston Chronicle.

The U.S. Supreme Court again halted the scheduled execution of a Texas inmate convicted of a triple murder less than an hour before he could have been taken to the death chamber Wednesday.

Justices decided to stop the punishment of John Balentine, condemned for fatally shooting three teenage housemates in Amarillo in 1998.

Balentine also came within an hour of receiving the lethal injection a year ago and the high court took the same action on an appeal that ultimately was rejected. In 2009, he won a reprieve a day before his death date.

The high court said in a one-paragraph ruling Wednesday that it was giving the reprieve so it could consider Balentine's petition for a review. Attorneys said the appeal would be discussed by the court at a conference late next month.

And:

Balentine's lawyer, Lydia Brandt, argues his legal help was deficient at his 1999 trial and in his early appeals. Lawyers failed to uncover evidence of Balentine's abusive and poor childhood that could have persuaded jurors to sentence him to life in prison, instead of death, Brandt contends.

Brandt says Balentine's lawyers, in his early appeals, didn't question those aspects of his trial defense and that the opportunity to do so has expired under court rules. She contends that a recent court ruling in an Arizona death penalty case should open the door for justices to stop Balentine's execution and allow for a review of his case.

The recent Supreme Court ruling referenced in the article is Martinez v. Ryan; more via Oyez.

Earlier coverage of John Balentine's case begins at the link.

The Georgia Execution Drugs

Today's Atlanta Journal-Constitution reports, "Expired drugs led to cancellation of execution by lethal injection."  It's by Rhonda Cook.

One of the drugs the state was set to use last month in Warren Hill's scheduled execution had expired two weeks before he was supposed to die, records show.

The Department of Corrections tried to keep the execution on track by changing its procedures from using three drugs to only one, a barbiturate. That decision, however, became the basis for a stay issued by the Georgia Supreme Court less than two hours before Hill was to die for a 1990 murder.

Hill's execution is now on hold at least until November when the justices have said they will hear lawyers' arguments as to whether the state's Administrative Procedures Act requires 30 days of public comment before Corrections can make the change.

In an email Thursday, the Department of Corrections said: "The unavailability of pancuronium bromide was a factor in the decision to change Georgia's execution protocol but it was not the overriding concern."

DOC said there were alternatives to pancuronium bromide but the agency decided — the day before the scheduled execution — to switch to one drug instead of three after reviewing expert testimony, court decisions and the experiences of other states.

The agency's said it had been considering the change for a year, since it was forced to replace sodium thiopental with pentobarbital because of a shortage of that drug.

And:

Documents obtained under the Georgia Open Records Act show the agency's supply of the paralytic pancuronium bromide, the second drug administered in the three-drug series, had expired on July 1. The DOC's supply of the sedative pentobarbital and potassium chloride, the final drug that stops the heart, were current.

Usually the potency of out-of-date drugs diminishes, said Randall Tackett, professor at the University of Georgia School of Pharmacy. If a condemned murderer is not completely paralyze, Tackett said, there could be a response to the injection of the potassium chloride, which can be extremely painful, even though sedated.

Also:

According to 2,237 pages the Department of Corrections provided the AJC, there were no meeting notes, calendar entries or internal communications that reflected internal discussions of changing the lethal injection protocol in the months and years before July 17.

"This further proves that there are significant problems when a system is shrouded in secrecy," said Sara Totonchi, executive director of the Southern Center for Human Rights. "If we are going to have the death penalty, then we certainly need to know all of the facts before an execution is carried out."

"Expired drugs led to delay of scheduled execution of man by lethal injection for 1990 murder," is the AP filing, via the Republic.

Records show that one of the drugs that were to be used in Warren Hill's scheduled execution in Georgia last month had expired two weeks before he was scheduled to die.

The Atlanta Journal-Constitution reports that the Department of Corrections tried to change its procedures from three drugs to one — a barbiturate — in an effort to keep the execution on track.

However, the Georgia Supreme Court issued a stay less than two hours before Hill was to be executed for a 1990 murder.

The Department of Corrections said in a statement Thursday that the unavailability of pancuronium bromide was a factor in the decision to change Georgia's execution protocol, but it was not an "overriding concern."

Earlier coverage of Warren Hill's case and his scheduled execution begins at the link.

CCA Stays Marcus Druery Execution Over Competency

The Texas Court of Criminal Appeals Order in Druery v. Texas is available in Adobe .pdf format.

Druery's attorney, Kate Black, issued the following statement:

"We are pleased that the Texas Court of Criminal Appeals stayed the execution of Marcus Druery to allow for careful consideration of our request for a competency hearing. The State has never contested the fact that Mr. Druery suffers from a psychotic disorder, which has been diagnosed by the State's own experts. Executing Mr. Druery, who lacks a rational understanding of his punishment, would stand in clear violation of the Constitution. We are hopeful the Court will find that Mr. Druery is entitled to a full and fair hearing to present the evidence of his severe psychosis and establish his incompetence to be executed."

"Texas death row inmate has Aug. 1 execution stayed," is the AP report, via KTRK-TV.

A Texas death row inmate who was scheduled to die next week had his execution stayed Friday by the state's highest criminal court, which wants to review a petition that argues he is not mentally competent to be executed.

And:

The Texas Court of Criminal Appeals ordered its stay after a lower court rejected Druery's petition. An attorney for Druery, Kate Black, said he was diagnosed with schizophrenia and was deemed incompetent by a defense expert. She says executing Druery would violate the U.S. Constitution's ban on cruel and unusual punishment.

The U.S. Supreme Court has ruled that prisoners can't be executed unless they're aware of the punishment and know why they're being punished.

"Appeals court delays Marcus Druery exceution," by Maggie Kiely for the Bryan-College Station Eagle.

The Texas Court of Criminal Appeals Friday afternoon granted a stay of execution for Marcus Druery, a 32-year-old death row inmate from Bryan who was scheduled to receive a lethal injection Wednesday.

Druery killed and robbed 20-year-old Skyyler Browne on Halloween 2002 before lighting Browne’s body on fire and dumping it in a stock pond.

He was sentenced to death in 2003 by a Brazos County jury.

Druery’s lawyers filed an appeal Wednesday asking the appellate court to review District Judge J.D. Langley’s decision to deny Druery a competency hearing as his attorneys had requested.

The appeals court “determined that further review is necessary” and issued the stay “pending further order,” according to a response from the panel of nine judges.

Defense attorneys Kate Black and Greg Wiercioch of the Texas Defender Service have argued that their client meets the criteria for incompetency and doesn’t have a “rational understanding” of why he’s to be executed, which would make him ineligible for the death penalty.

"Appeals court halts execution over competency issue," by Cindy George for the Houston Chronicle.

Brazos County District Attorney Bill Turner said prosecutors do not dispute that Druery has a mental disorder, but they believe he's competent enough to face execution.

"We anticipated the appellate courts would take a look at it before the execution proceeded," Turner said in an interview Friday.

Druery, who has been on death row for almost six years, was to be executed for the 2002 robbery-murder of Skyyler Browne.

"Bryan Murderer's Execution Put on Hold," on KBTX-TV.

It's unclear when the appeals court will conduct its review.

The last Brazos County killer to be executed was Ynobe Matthews in 2004.

Earlier coverage of Marcus Druery's case begins at the link.