The StandDown Texas Project

AG Opinion Limits FSC Investigations - UPDATED

AG Opinon GA 866 is available in Adobe .pdf format.  Here is the Opinion Summary:

Although the Forensic Science Commission may conduct investigations of incidents that occurred before September 1, 2005, the law that created the Commission prohibits the FSC from considering evidence that was tested or offered into evidence prior to that date.  The Forensic Science Commission’s investigative authority is limited to those laboratories, facilities, or entities that were accredited by the Department of Public Safety at the time the forensic analyses took place. The FSC may not investigate fields of forensic analysis expressly excluded from the statutory definition of “forensic analysis.” Forensic analysis that is neither expressly included nor excluded by the Act or DPS rule, but that falls under the generic definition of “forensic analysis” found in section 38.35(a)(4), is generally subject to FSC investigation, assuming all other statutory requirements are satisfied.

"AG says Forensic Science Commission can’t consider Willingham case, others before Sept. 2005," is Tim Eaton's post at the Austin American-Statesman.

Texas Attorney General Greg Abbott said today that the Forensic Science Commission is prohibited from considering evidence that was tested or offered into evidence prior to Sept. 1, 2005.

The result of the ruling is that commission didn’t have the authority to look into the case of Cameron Todd Willingham, who was convicted in 1992 in the 1991 deaths of his three children, who died in a Corsicana house fire that jurors decided he set. Willingham was executed in 2004.

The AP filing is, "Texas AG: Forensic panel can't consider older evidence in Willingham case," by Christopher Clausen.  It's via the Beaumont Enterprise.

Texas Attorney General Greg Abbott ruled Friday that the state's Forensic Science Commission can't consider evidence that was tested or offered into evidence in court prior to Sept. 1, 2005, the official date set by the Texas Legislature.

That blocks the commission's formal review of the case of Cameron Todd Willingham who was executed in 2004 for the 1991 deaths of his three children, who died in a Corsicana house fire that jurors decided he intentionally set.

And:

In 2008, the Innocence Project - which works on behalf of those it believes were wrongly convicted - filed a complaint with the Forensic Science Commission and alleged professional negligence and/or misconduct by arson investigators in the case.

The State Fire Marshal's Office and Corsicana Fire Department objected to the Willingham investigation, saying the commission did not have authority to examine the case. While proceeding with its investigation, the commission asked the Attorney General's Office to decide the question.

The commission ultimately issued a on the Willingham that found arson investigators relied on now-discredited practices to conclude the fire was intentionally set.

The case has both scientific and political angles.

Allan Turner posts, "AG: Forensic panel off the Willingham case," at the Houston Chronicle.

Forensic commissioners, who in April issued broad recommendations for improving fire investigations in Texas, asked Abbott to rule on the extent of their authority.

Abbott responded that the panel lacked authority to review complaints that involved unaccredited forensic laboratories. At the time of the arson investigations, the state had no mechanism for such certifications.

Additionally, Abbott concluded that while the commission may consider cases that occurred before the panel's Sept. 1, 2005 birth, it did not have authority to review evidence that was tested or offered into evidence before that date.

And:

Steve Saloom, policy director for the New York-based Innocence Project, which had asked the commission to review the quality of the arson probes,says responded that Abbott's ruling does not preclude the commission from considering a key assertion in the complaint: The state fire marshal's office failed in its duty to apprise authorities when investigation protocols were dramatically improved.

That responsibility, he said, existed before Sept. 1, 2005, but continues through today.

"Texas attorney general blocks forensic panel from continuing Willingham case," by Yamil Berard is from the Saturday edition of the Fort Worth Star-Telegram.

Current commission Chairman Nizam Peerwani declined to comment on specifics but said the commission will take up the matter at its next meeting.

"What we intend to do is open up the discussion at our September meeting and determine how each commissioner feels about the opinion," said Peerwani, the Tarrant County chief medical examiner.

The opinion gives the commission some latitude for investigating pre-2005 cases. It states that though the time limitation prohibits the commission from taking any action with respect to forensic evidence tested or offered in court before Sept. 1, 2005, there is no limitation on the commission's power to investigate any allegation of professional negligence or misconduct.

Under that provision, said state Sen. Rodney Ellis, D-Houston, the commission should continue its review of the Willingham case.

"Nothing in this AG's opinion prevents the Texas Forensic Science Commission from completing its report and ruling that the fire marshal was negligent in its failure to correct the flawed arson science that was used in numerous arson cases," Ellis said in a statement.

And:

The commission's April report included other broad findings and recommendations based on issues raised by the its inquiry into the Willingham case and the case Ernest Ray Willis, who spent 17 years on Death Row after being convicted of setting a fire that killed two women. Prosecutors dropped the case against Willis after an inquiry suggested that the fire was an accident.

The report found that many forensic investigators in Texas lacked necessary resources or fell short on the scientific background needed for the work. It called for a uniform standard of practice and a code of ethics and said investigators should be better-trained in documenting their analyses and preserving records.

In the Willingham case, a debris analysis report could not be found.

Earlier coverage of the Todd Willingham case begins at the link. All Willingham coverage is available through the Todd Willingham index.

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

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

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

Hearing in the Rhode Island Standoff

"Lawyer tells appeals panel Chafee has right to refuse transfer of murder suspect to federal system," written by Katie Mulvaney is in today's Providence Journal.  The article has extensive coverage of the hearing for readers who want more detail.

A lawyer for Governor Chafee argued Thursday that he has the right to refuse to surrender a murder suspect to federal authorities under an agreement governing the transfer of inmates between states.

Claire Richards, Chafee’s chief counsel, told a three-judge panel of the 1st U.S. Circuit Court of Appeals that federal prosecutors have two options when seeking custody of an inmate in state prison. They can get a court order forcing a state to relinquish custody, or they can invoke the Interstate Agreement on Detainers, a federal law that sets the government on par with states, Richards said.

In the case of accused murderer Jason Wayne Pleau, Richards said, prosecutors opted to pursue custody through the interstate agreement by placing a detainer on Pleau. Prosecutors now must abide by all the agreement’s provisions, including one that gives the governor authority to refuse a custody request, she said.

The government cannot, Richards said, seek a court order as an alternative means to get Pleau when it dislikes Chafee’s response, as prosecutors have done in Pleau’s case.

And:

Of the 216,679 federal inmates, 60 are under a federal death sentence, according to the U.S. Bureau of Prisons. The last person executed under the federal system was Louis Jones Jr., a decorated Army veteran who kidnapped, raped and bludgeoned Tracie Joy McBride with a tire iron on Feb. 18, 1995. He died by lethal injection in 2003.

The Boston Globe reports, "R.I. tries to bar defendant transfer to US."  It's by Milton J. Valencia.

A lawyer for Governor Lincoln D. Chafee of Rhode Island argued before a federal appeals court panel in Boston yesterday that the state had a right to refuse to turn over a defendant charged with murder to federal authorities, a move intended to protect the man from the death penalty.

The governor exercised his discretion on a public policy basis and refused the request,’’ Claire Richards, Chafee’s chief legal officer, told the three-member panel of the US Court of Appeals for the First Circuit.

And:

It is believed to be the first case testing a governor’s refusal to hand over a defendant under a decades-old Interstate Agreement Detainers Act, which allows for the US government to act like a state in the handing over of defendants.

But Donald Lockhart, a lawyer for Rhode Island US Attorney Peter Neronha, argued that the governor’s office has no standing in the case and that the US government was exercising its right to prosecute because the homicide occurred under its jurisdiction.

"Prosecutors oppose move by Chafee to join appeal in custody battle over RI murder suspect," is the AP report, via the Republic.

An appeals court must decide whether to turn Pleau over to federal authorities or honor Chafee's decision to keep him in state custody. Chafee opposes the death penalty. Pleau has agreed to plead guilty to state murder charges and serve life in prison without parole.

Ealier coverage of the standoff between state and federal officials begins at the link.

Lethal Injection Roundup - News From Ohio & Delaware

From Ohio, the Columbus Dispatch carries, "Examine lethal-injection procedures, legislator says," written by Alan Johnson.

Rep. W. Carlton Weddington, a Columbus Democrat, asked Gov. John Kasich on Monday to take a close look at execution procedures in line with a recent court decision and resulting delays.

"I am concerned that now, after the second delayed execution, Gov. Kasich and Director (Gary) Mohr have not done more to address this very sensitive issue," Weddington said in a statement. "The citizens of Ohio need justice that is fair and balanced but also humane and cost-effective. Today, I raise the question of, is lethal injection the right form of justice, and how do we administer it in the best possible way?"

Weddington is a member of the House Criminal Justice Committee and the Correctional Institution Inspection Committee.

Two scheduled executions have been postponed because of a federal judge's decision calling Ohio's adherence to its execution procedures "haphazard."

After courts rejected a lethal injection challenge, Delaware carried out its first exeuction since 2005, this morning.  The AP report is, "Delaware man executed for woman's 1992 ax slaying," via USA Today.

Robert Jackson III was pronounced dead at 12:12 a.m. after being given a lethal injection at the James T. Vaughn Correctional Center in Smyrna.

And:

When the execution began, Jackson started making a snoring sound, his lips sputtered and his breath began to quicken. Prison officials closed the curtain between the execution chamber and witnesses after about four minutes to check whether he was conscious, calling out twice, "Inmate Jackson, can you hear me?" There was no response.

When the curtain reopened a minute later, Jackson made no more movements or sounds. From start to finish, the execution took about 10 minutes.

The Wilmington News Journal has extensive coverage, "Jackson put to death by lethal injection, written by Esteban Parra, Beth Miller, Adam Taylor, and Kim Manahan.

Jackson was the first person put to death in Delaware since Brian D. Steckel on Nov. 4, 2005. He is the 15th person put to death in Delaware since 1992, the year that marked Delaware's first execution since the state reinstated the death penalty in 1961.

"The state of Delaware this morning carried out the penalty for Robert W. Jackson III for the brutal murder of Elizabeth Girardi," Gov. Jack Markell said in a statement." Mr. Jackson's death sentence was recommended by a jury, imposed by a judge, and reviewed by state and federal appellate courts at all levels. It is my prayer that his victim rests in peace and her family finds some closure. May God have mercy on Mr. Jackson."

Markell had earlier rejected a request by Jackson's attorneys for a reprieve for their client.

And:

Jackson's attorneys continued to maintain his innocence after the execution was announced.

"The state of Delaware executed an innocent man tonight and ought to be ashamed of itself," said Shawn Nolan, one of Jackson's lawyers. "Bobby was a good man. He didn't kill Elizabeth Girardi. .. Our condolences to the Girardi family who have had to live with this nightmare for years. Bobby was always sorry that he participated in the burglary that ended in such a terrible way."

Marc Bookman, executive director of the Atlantic Center for Capital Representation, a nonprofit that backed Jackson, also said he was not Girardi's killer.

"Later evidence showed he was an innocent man, and he never got one single chance to present that evidence in a court of law," he said in a statement.

The Delaware execution was the 30th in the nation this year; the 1,263rd post-Furman execution in America since 1977.

Earlier lethal injection coverage from Delaware and Ohio begins at the links.  Related posts are in the lethal injection index.

Florida Lethal Injection Hearing Coverage

"US justices let Florida stay of execution stand," is the breaking news AP report this morning, via the Palm Beach Post.

The U.S. Supreme Court has refused to lift a stay of execution ordered by the Florida Supreme Court.

The federal justices Friday rejected a request by Florida Attorney General Pam Bondi to vacate the stay for Manuel Valle.

And:

The Florida justices, though, stayed the execution and ordered a Miami judge to hold a fact-finding hearing on a change in the state's lethal injection procedure.

That hearing begin Thursday and will continue next week.

Today's Miami Herald reports, "Lethal injection drug hearing to continue next week."  It's written by Patricia Mazzei.

A hearing that began Thursday morning on the new use of an anesthetic drug in Florida’s legal injections will continue next week, after a Miami judge decided that scientists for both sides should testify in person and via video conference on Tuesday.

The hearing stems from the case of Manuel Valle, sentenced to death for shooting and killing Coral Gables Police Officer Louis Pena in 1978. Valle’s execution, initially set for Aug. 2, was temporarily stayed by the Florida Supreme Court on Monday until Sept. 1, pending a hearing on the safety and efficacy of the drug in question, pentobarbital.

The defense’s expert witness on the drug was unable to be in Miami before Tuesday, when the judge was scheduled to be on vacation. The prosecution’s expert could have testified by phone Thursday, but Circuit Court Judge Jacqueline Hogan Scola — apparently postponing her vacation — said she would be more comfortable seeing the witness’s face by video to establish his credibility. That expert will testify Tuesday, too.

And:

Testifying for the defense, a federal public defender, described the June 16 execution in Alabama of Eddie Duval Powell. The witness, Matt Schulz, said by phone that Powell jerked up, clenched his jaw and looked confused for about a minute before passing out and later dying.

On the other side, John Harper, an employee of the Georgia Department of Corrections, described the June 23 execution in that state of Roy Blankenship — expected to come up when the defense’s expert takes the stand next week — as relatively non-eventful.

The Florida Department of Corrections signed off last month on using pentobarbital, a barbiturate, to sedate inmates before a second drug paralyzes them and a third stops their heart.

The state had to switch sedatives after the Illinois pharmaceutical company that sold it the previous drug, sodium thiopental, discontinued the production of it because it did not want the drug used in executions.

The defense on Thursday admitted into evidence four letters sent to the state by Lundbeck, the Danish company that manufactures the pentobarbital, urging Florida not to use the drug for capital punishment.

Earlier lethal injection coverage from Florida begins at the link.

CCA Orders Stay in Larry Swearingen Case - UPDATED

The Texas Tribune reports, "Criminal Appeals Court Grants Rare Execution Stay."  It's by Brandi Grissom.

In a rare move today, the Texas Court of Criminal Appeals, the state’s highest criminal court, stayed the scheduled August 18 execution of Larry Swearingen.

He was convicted of the 1998 rape and murder of 19-year-old Melissa Trotter. The Montgomery Community College student’s body was discovered in the Sam Houston National Forest on Jan. 2, 1999, nearly a month after she disappeared from campus. Witnesses said they saw Trotter leaving the campus with Swearingen on Dec. 8, 1998 — the last time she was seen alive.

Swearingen’s lawyers have filed repeated pleas in state and federal court urging jurists to consider their arguments that forensic science proves that the 40-year-old inmate could not have committed the crime, because he was in jail when Trotter was murdered.

And:

Entomologists, pathologists and an anthropologist who examined the evidence from Trotter’s body have said that she could not have been in the forest for longer than two weeks. Her body, the experts report, showed only enough decomposition to have been in the woods for a few days to, and at most, two weeks. That means her murder would have happened after Swearingen was jailed.

In 2007, Dr. Joye Carter, the Harris County medical examiner who testified at Swearingen’s trial that Trotter had been in the forest for 25 days, reviewed new evidence and submitted an affidavit in which she concluded the murder happened within two weeks of the day Trotter's body was discovered.

James Rytting, Swearingen’s lawyer, said he hopes the stay will give defense lawyers the opportunity to have a full court hearing on the forensic science.

The CCA order staying the execution is available in Adobe .pdf format.

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

UPDATE - The Saturday Houston Chronicle carries, "Condemned inmate Swearingen gets reprieve."  It's written by Renee C. Lee.

Death row inmate Larry Swearingen has dodged an execution date for a third time in the 1998 slaying of a Montgomery County college student.

The Texas Court of Criminal Appeals ruled Thursday that new evidence in Swearingen's appeal raised the issue of due process violation. The court remanded the case to the 9th state District Court in Montgomery County for a hearing.

Swearingen was set to die by lethal injection Aug. 18. He won reprieves in January 2007 and January 2009, each handed down a day before his execution.

Swearingen's attorney, James Rytting, said his client was convicted on false forensic testimony. A former Harris County medical examiner who testified during Swearingen's capital murder trial changed her testimony in 2007.

"It was a courageous decision by the Texas Criminal Court of Appeals," Rytting said. "It was the right decision, and it acknowledges the science in this case is powerful proof that Mr. Swearingen could not have committed the crime."

Florida Lethal Injection Hearing to Proceed

"Miami judge to hear testimony in lethal injection drug challenge," is the title of Patricia Mazzei's Miami Herald report.  The updated report is via the Sun-Sentinel.

A Miami judge will hear arguments Thursday morning for and against the new use of an anesthetic drug in Florida's lethal injections.

The hearing stems from the case of Manuel Valle, sentenced to death for shooting and killing a Coral Gables police officer in 1978. Valle's execution, initially scheduled for Aug. 2, was temporarily stayed on Monday until Sept. 1, pending a hearing on the safety and efficacy of the drug, pentobarbital.

The hearing will be held at 10 a.m. before Circuit Court Judge Jacqueline Hogan Scola. Valle's lawyers had tried to get a different judge, arguing that Hogan Scola has already found some of Valle's likely witnesses not to be credible, but the Florida Supreme Court rejected the attempt to disqualify the judge.

And:

A divided Supreme Court ruled 4-3 to grant him a hearing — and ordered the corrections department to provide documents from the drug's manufacturer, Lundbeck, on the safety and efficacy of pentobarbital.

The head of Lundbeck, a Danish company, has twice written Gov. Rick Scott urging him not to use the drug for capital punishment. Staffan Schüberg, president of Lundbeck, wrote to Scott in May and again in June after he said his letters to the corrections department went unanswered. It is unclear if Scott's office has responded, either.

"The use of pentobarbital outside the approved labeling has not been established," Schüberg wrote. "As such, Lundbeck cannot assure the associated safety and efficacy profiles in such instances. For this reason, we are concerned about its use in prison executions."

The News Service of Florida files, "Hearing on cop killer's execution can go forward."  It's via the Fort Myers News-Press.

The Florida Supreme Court rejected a request by lawyers for a death row inmate to change the judge in a hearing over the state's lethal injection drug.

And:

The drug was changed in June, and the Valle execution is set to be the first in Florida in which it is used.

The question is over the efficacy of the first of the three drugs used, pentobarbital, which is used to make the prisoner unconscious before the other two drugs paralyze and kill him.

At the Palm Beach Post, Dara Kam posts, "Danish manufacturer of lethal injection drug twice asked Scott not to use it to kill prisoners."

The Danish manufacturer of the controversial drug now being used to execute prisoners pleaded with Gov. Rick Scott twice to abandon its use, saying it “contradicts everything we are in business to do.”

Staffan Schüberg, president of Lundbeck Inc., wrote to Scott twice before the first-term governor signed his first death warrant ordering Manuel Valle to be executed on Aug. 2.

“We are adamantly opposed to the use of Nembutal to execute prisoners because it contradicts everything we are in business to do – provide therapies that improve people’s lives,” Schüberg wrote to Scott on May 16.

And:

DOC issued a new protocol with the replacement drug pentobarbital sodium, also known as Nembutal, on June 8.

That same day, Schüberg wrote another letter to Scott, again asking him not to use the drug.

“The use of pentobarbital outside of the approved labeling has not been established. As such, Lundbeck cannot assure the associated safety and efficacy profiles in such instances. For this reason, we are concerned about its use in prison executions,” he wrote.

In his first letter, Schüberg said he had written to DOC officials urging them not to use the drug but had not received a response.

Earlier coverage of the Florida lethal injection challenge begins at the link.  Related posts are in the lethal injection index.

Delaware Lethal Injection Challenge Rejected

The AP report is, "Del. prepares to execute first death row inmate since 2005, requests to halt execution pending," by Jessica Gresko.  It's via the Republic.

Delaware is moving closer to executing its first prisoner since 2005 as time runs out for the legal appeals of a man convicted of killing a woman with an ax.

Robert Jackson III is scheduled to die by lethal injection early Friday, between 12:01 a.m. and 3 a.m. On Wednesday, the Delaware Supreme Court and a federal judge in Wilmington both rejected requests by Jackson's lawyers to halt his execution. Now it's up to the Court of Appeals for the Third Circuit in Philadelphia and the U.S. Supreme Court to decide whether to allow the execution to proceed.

And:

Like other states, Delaware said it would use pentobarbital after a nationwide shortage of another key execution drug, sodium thiopental, the first of three drugs Delaware was using to carry out executions. Supplies of sodium thiopental dried up after the drug's only U.S. manufacturer ceased production. As a result, the Delaware Department of Correction changed its procedures in May to allow for the use of pentobarbital. Both drugs are used to anesthetize a prisoner before two other lethal chemicals are administered.

Jackson's lawyers tried to argue that his execution should be stayed so he could challenge the addition of pentobarbital to the state's execution procedure. Using pentobarbital creates an unconstitutional risk of pain and suffering, one of Jackson's lawyers argued, because it might not properly anesthetize a person before the two remaining drugs are administered.

That argument was rejected by U.S. District Court Judge Sue Robinson late Wednesday, who sided with lawyers for the state of Delaware. Robinson concluded that the state's use of pentobarbital is not likely to cause pain and suffering during an execution because officials check that the individual is unconscious before continuing with the remaining drugs.

"There has been no affirmative evidence presented that the administration of pentobarbital as the first drug in Delaware's three-drug protocol creates a demonstrated risk of severe pain," Robinson wrote.

She refused to halt Jackson's execution and rejected his request to reopen a legal challenge to Delaware's execution procedures.

"Jackson loses two appeals for stay; execution set for early Friday," is by Esteban Parra for the Wilmington News Journal.

For nearly two decades, convicted ax murderer Robert W. Jackson III has fended off execution by lethal injection.

But his options were running out late Wednesday afternoon when the Delaware Supreme Court and U.S. District Court denied requests for stays of execution.

What's left is whether Gov. Jack Markell or other federal courts decide to intervene in the execution, which is scheduled for between midnight and 3 a.m. Friday for the 1992 killing of 47-year-old Elizabeth Girardi during a robbery at her Hockessin home.

As of late Wednesday, Markell's office had not received any requests for a reprieve, spokeswoman Catherine Rossi said.

Because of that, Jackson stands to be the first person executed in Delaware since Brian D. Steckel was put to death on Nov. 4, 2005.

And:

If the state goes ahead with the execution, Jackson will become the 15th person to be put to death in Delaware since 1992, the year that marked Delaware's first execution since the state reinstated the death penalty in 1961, according to the state Department of Correction.

During Steckel's execution, DOC officials appeared to encounter procedural problems. While lethal injections are supposed to cause nearly instantaneous death, Steckel lingered for 12 minutes and, at one point, looked up at prison officials and said, "I didn't think it would take this long."

That set off a series of filings, including from Jackson, who claimed the chemicals used by the state and the apparent lack of training for those carrying out the execution would make his punishment cruel and unusual.

Earlier coverage of the Delaware lethal injection challenge begins at the link.

Meyers to Challenge Keller for CCA

"Meyers to take on Keller for top judge post," is the title of Christy Hoppe's report in today's Dallas Morning News.

Presiding Judge Sharon Keller is being challenged for her top spot on the Court of Criminal Appeals by a fellow Republican colleague who has served with her for more than a decade.

Judge Larry Meyers, who has served on the court for 23 years, has told colleagues that he will file for Keller’s seat in the Republican primary next year, setting up a rare contest between jurists on the same bench.

Keller was buffeted by challenges last year, including a high-profile legal battle against the state Commission on Judicial Conduct. Keller successfully fought a “public warning” issued against her by the commission for declining to keep the court open for a last-minute death row appeal.

And:

In a memo obtained Wednesday by The Dallas Morning News that Meyers presented to the other eight members of the court, he never mentioned Keller’s legal fight, but instead stated that all federal appellate courts and several state Supreme Courts rotate their chief justice positions.

“Therefore, I have decided to seek my party’s nomination for this position in next year’s election — I will make a formal announcement to this effect later this week,” he said.

Meyers is the longest-tenured member on the appellate court — the highest venue to review criminal cases in Texas.

"Judge from Fort Worth to seek top post on Texas Court of Criminal Appeals," by Aman Batheja and Dave Montgomery for the Fort Worth Star-Telegram.

Texas Court of Criminal Appeals Judge Lawrence "Larry" Meyers confirmed Wednesday that he is planning to run for the court's top spot, challenging controversial Presiding Judge Sharon Keller in next year's Republican primary.

Meyers, of Fort Worth, was the first Republican elected to the Court of Criminal Appeals, in 1992, and is its longest-serving member.

On Tuesday, he sent a brief memo to his colleagues explaining his decision to seek the post, implying that Keller has been presiding judge for too long. Keller has been on the court since 1994 and has been presiding judge since 2000.

"The normal term for this position is 8-10 years. As such, it is time to rotate the presiding judgeship on our Court," Meyers wrote in the memo.

Keller, in her second term as presiding judge, said she wasn't aware of Meyers' plan until the memo was circulated to court members.

At the Texas Lawyer Tex Parte blog, Mary Alice Robbins posts, "Court of Criminal Appeals Judge Larry Meyers to challenge CCA Presiding Judge Sharon Keller in 2012 Republican primary."

The election season is about to heat up at the all-Republican Texas Court of Criminal Appeals.

In a memo sent Tuesday to other judges and staff at the CCA, Judge Larry Meyers announced his intention to run for presiding judge of the CCA in the 2012 Republican primary. Meyers has served on the CCA for 18 years. He did not immediately return a telephone call seeking comment.

At Meyers’ request, Austin public affairs consultant Russ Keene confirms Meyers’ intention to enter the race. “We’re putting out a full press release tomorrow [Thursday] to the media,” Keene says.

And:

One recipient, who declines to be identified, says Meyers indicated in the memo that several state supreme courts and all federal courts have term limits or mandatory rotation of the chief judge and that the term normally served is from eight to 10 years. The memo recipient says Meyers wrote that “it’s time to rotate” and Meyers indicated he would make a formal announcement of his candidacy later this week.

Earlier coverage of CCA Presiding Judge Keller begins at the link.  Related posts are in the Texas Court of Criminal Appeals index.

Florida Editorial Roundup

Today's Orlando Sentinel carries the editorial, "Don't blame Florida Supreme Court for the backlog of inmates on state's death row."

When the Florida Supreme Court delayed a condemned cop killer's execution this week, it seemed to bolster an argument heard in the state Capitol this year that the justices are to blame for a pileup of prisoners on death row.

But the evidence doesn't support that argument. And state House Speaker Dean Cannon's plan to radically restructure the high court to speed up its handling of death-penalty cases remains unjustified and unworthy of revisiting.

And:

Earlier this year, state House Republican leaders pointed to the backlog of inmates on death row in calling for the seven-member Supreme Court to be expanded by three justices, then split into five-member criminal and civil divisions. The House Office of Public Information cited "current processing delays created by the existing Supreme Court structure."

Lawyers might call this a specious argument. We'd call it bunk.

Valle's death warrant, signed earlier this month, was the first from Gov. Rick Scott since he took office in January. Because Scott's predecessors also signed warrants infrequently, there are at least 45 inmates on Florida's death row awaiting executive execution orders.

Inmates don't reach that point until their federal court appeals are exhausted. The state Supreme Court has no control over that process, which often takes years.

But Cannon's plan to split the high court would have let Scott pack it with three new appointees. It would have concentrated justices named by Republican governors in the civil division, turning it into a more-friendly venue to rule on the GOP-led Legislature's actions. The speaker unveiled his plan after the court struck from the ballot three proposed constitutional amendments from legislators.

And there are other legal issues clouding capital punishment in Florida besides what drug is administered to execute prisoners. Last month a federal judge in Miami ruled that the state's method of imposing the death penalty is unconstitutional, because juries can recommend it without specifying a reason.

The Fort Myers News-Press has the editorial, "Fix death penalty in Florida."

The latest delay in the execution of Manuel Valle for killing a police officer 33 years ago shows how absurd the administration of the death penalty in Florida has become.

That's not to say the death penalty should be abolished; we think it still has merit. But years of delays in carrying out executions while the death row population mounts make a mockery of justice.

A meaningful limit should be placed on how long execution can be delayed unless significant new issues are raised.

But that has to be accompanied by a review of the whole death penalty process, as recommended by the American Bar Association. Florida, according to the Death Penalty Information Center, has exonerated more death row inmates than any other state since 1973. This year's mistaken abolition of the state Commission on Capital Cases, which was charged with reviewing the system and recommending reforms, didn't help.

If the state can't fix this system, the death penalty should be abolished.

Earlier coverage from Florida begins at the link.

Goodwin Liu Nominated to California Supreme Court

Today's Los Angeles Times reports, "Gov. Jerry Brown appoints Goodwin Liu to California Supreme Court."  It's writtein by Maura Dolan, Maria L. La Ganga, and Jessica Garrison.

Gov. Jerry Brown has appointed UC Berkeley law professor Goodwin Liu to the California Supreme Court, picking a liberal legal scholar whose nomination for a seat on a federal appeals court was stubbornly blocked by conservative Republicans.

Liu, 40, whose nomination is expected to be approved by a three-member confirmation panel, will become the fourth Asian on the seven-member, moderately conservative court and probably its most liberal member. He will take the seat left vacant by Justice Carlos Moreno, the court's sole Latino and Democrat who retired Feb. 28.

Liu became a top candidate for the post after Republicans scuttled his nomination by President Obama to the U.S. 9th Circuit Court of Appeals. The day after a U.S. Senate vote ensured that Liu would not get the federal judgeship, the governor's office called him about the state high court.

Rather than viewing the lost confirmation battle as a strike against Liu, Brown said he considered it an asset. His advisors said they considered Liu's opponents in the Senate to be conservative extremists.

"The dysfunctionality in Washington and the blockage at all costs by the more extreme Republicans — I don't think that should be given a lot of intellectual weight," said Brown, who sources said offered Liu the job Sunday.

And:

Liu's writings suggest he is skeptical of the death penalty, although he has said he would have no difficulty enforcing it.

In 2006, during U.S. Supreme Court Justice Samuel Alito's confirmation hearings, Liu wrote: "Whatever one may think of the death penalty, Alito's record should give pause to all Americans committed to basic fairness and due process of law" because his "opinions show a troubling tendency to tolerate serious errors in capital proceedings."

Liu later said he regretted some of his hard-edged remarks about Alito.

"Brown nominates Goodwin Liu for state high court," by Bob Egelko for the San Franciso Chronicle.

Liu, 40, a Berkeley professor since 2003, is a former Rhodes Scholar and U.S. Supreme Court clerk and a widely published writer on legal issues. The American Bar Association gave his federal court nomination its highest rating, and he was endorsed by some conservatives, including Kenneth Starr, the former impeachment prosecutor of President Bill Clinton, and former Bush administration lawyer John Yoo, a Berkeley faculty colleague.
Blocked nomination

Obama first nominated Liu to the appeals court in February 2010, but Senate Republicans blocked a floor vote. Obama submitted his name a second time and his nomination was blocked again. On May 19, a third attempt to win nomination failed when his supporters fell eight votes short of the 60 needed to break a filibuster. Liu then asked Obama to withdraw his nomination.

"Jerry Brown picks Goodwin Liu for California Supreme Court," by David Siders for the Sacramento Bee.

The appointment was cheered by legal scholars but criticized by conservatives irked by Liu's advocacy of such causes as affirmative action and gay marriage.

Liu, 40, would replace retired Justice Carlos Moreno, the court's only Latino and only Democrat.

"Professor Liu is an extraordinary man and a distinguished legal scholar and teacher," Brown said in a statement. "He is a nationally-recognized expert on constitutional law and has experience in private practice, government service and in the academic community. I know that he will be an outstanding addition to our state supreme court."

Liu, the son of Taiwanese immigrants, was born in Georgia and moved to Sacramento when he was 7. He graduated in 1987 from Rio Americano High School, where he was co-valedictorian. He would become the court's fourth Asian American justice.

Liu's colleagues described him as even-tempered and intellectual, and Moreno called Liu a "brilliant scholar."

Earlier coverage of Liu's nomination to the 9th Circuit begins at the link.

Updates on Delaware & Florida Lethal Injection Challenges

From Delaware, the AP report is, "Lawyers for condemned Delaware inmate try to halt execution scheduled for early Friday."  It's written by Jessica Gresko, and is via the Republic.

A man convicted of killing a woman with an ax was scheduled to die by lethal injection in Delaware later this week, but lawyers for the man were expected in court Wednesday trying to halt the execution.

Robert Jackson III is set to die early Friday in what would be Delaware's first execution since 2005, but Jackson's lawyers had a number of legal challenges still up in the air. Two hearings scheduled for Wednesday could result in a stay of execution for Jackson, who was convicted of killing woman during a botched burglary in 1992.

In the first hearing planned for Wednesday, a federal judge in Wilmington was to hear arguments over whether Jackson should he be allowed to re-open a lawsuit challenging the state's execution practices, which were recently changed to allow for the use of a new drug. At an afternoon hearing some 50 miles away in Dover, lawyers were to argue before the Delaware Supreme Court that Jackson's execution should be stayed while the U.S. Supreme Court decides whether to take his case.

And:

In the Wednesday morning hearing, Jackson's lawyers were expected to be before U.S. District Judge Sue Robinson to argue Jackson should be allowed to challenge Delaware's execution procedures, which were changed in May because of a nationwide shortage of the first of three drugs the state used to carry out executions. The only U.S. manufacturer of the drug, sodium thiopental, discontinued production in 2009, and its last batch of the drug expired earlier this year.

New guidelines allow Delaware corrections officials to use another sedative called pentobarbital as the first drug administered during an execution. If Jackson's execution goes forward, he would be the first person to be executed in the state with the drug. Eight other states have already carried out executions using pentobarbital and a number of other states have also announced they will switch, according to the Washington-based Death Penalty Information Center.

Jackson's lawyers argue in papers filed with the court, however, that using pentobarbital creates an unconstitutional risk of pain and suffering during an execution. They say pentobarbital has not yet been thoroughly vetted as an alternative to sodium thiopental and cite two recent executions, one in Alabama and one in Georgia, where they say prisoners showed signs of pain including jerking and opening their eyes after pentobarbital was administered. As a result, Jackson's lawyers are asking that he be allowed to re-open an earlier, unsuccessful lawsuit over Delaware's execution procedures to challenge the use of pentobarbital.

At Philadelphia public radio station WHYY-FM, John Mussoni reports, "Three appeals heading to court Wednesday in Delaware execution case."

The three appeals put together to stop the execution of Bobby Jackson will be heard in two courts on Wednesday.

The first appeal will be in Federal District Court in Wilmington.  Judge Sue Lewis Robinson will hear an appeal that Pentobarbital is not as good as Sodium thiopental for an execution. That was the previous drug used to anesthetize prisoners in the execution.  Sodium thiopental is in short supply as the American manufacturer, Hospira, stopped making it earlier this year.

That case happens in the morning.  In the afternoon, the second and third appeals will be heard before the Delaware Supreme Court in Dover. In those cases, the Atlantic Center for Capital Representation plan an appeal based on actions taken in Judge Vincent Bifferato's court room during the time of the trial 20 years ago.

Marc Bookman, Executive Director, says there is evidence available now that was withheld during the Jackson trial.  He charges Jackson's first attorney Joe Hurley with telling Judge Bifferato that "Jackson was guilty and ought to die".  Bookman calls Hurley "unprofessional and unbecoming of the Delaware bar."

In Florida, "US justice asked to lift Fla. stay of execution," is the AP post via the Westport News.

Florida Attorney General Pam Bondi has asked U.S. Supreme Court Justice Clarence Thomas to lift a stay of execution ordered by the state's highest court.

Bondi filed the request after the Florida Supreme Court on Monday ordered a month-long stay for Manuel Valle.

And:

The state justices, in a 4-3 ruling, ordered the stay so a trial judge can hold a fact-finding hearing on whether Valle would feel pain from a new drug Florida plans to use for lethal injection.

Bondi's filing says that issue already has been decided in cases from other states.

Earlier coverage from Delaware and Florida begins at the links.

Andrew Cohen on Witnessing Executions

The legal analyst posts, "Why Lawyers and Judges Should Watch Executions," at the Atlantic.   He is writing about Georgia's recent videotaped execution.  Here is an extended excerpt from this must-read analysis:

No one involved in the latest drama, mind you, wants to see taped executions come to the primetime television lineup. Instead, the criminal defense attorneys who convinced Fulton County Superior Court Judge Bensonetta Tipton Lane to authorize the taping of the DeYoung's execution argued that the current legal and political debate over injection protocols and drug mixes would be aided by giving judges access to tapes of the executions. The jurists would benefit from seeing direct evidence of precisely how state executions are unfolding now that Georgia is using pentobarbital instead of thiopental in its lethal injection cocktail.

This, in turn, would better enable the courts to accurately determine whether such injections violate the "cruel and unusual punishment" clause of the Eighth Amendment. The debate on this topic has gained ferocity recently because Georgia, like other states that still perform executions, have had to scramble this year to concoct a new deadly "cocktail' after the Italian maker of one of its ingredients, thiopental, decided that it no longer wanted to be a part of what United States Supreme Court Justice Harry Blackmun once famously called America's "machinery of death."

So why, specifically, did Walker's attorneys want the tape?  "We've had three botched lethal injections in Georgia prior to Mr. DeYoung, and we thought it was time to get some hard evidence," defense attorney Brian Kammer told The New York Times. Walker's attorneys told the court:

Following three consecutive irregular Georgia executions, DEA seizure of Georgia's thiopental supply for its violation of federal drug importation laws, exposure of illegal narcotics activity by the medical personnel overseeing state lethal injections, Georgia's precipitous switch from thiopental to pentobarbital -- an anesthetic whose manufacturer warns is untested and unsafe for use in judicial elections, and the subsequent botched execution of Roy Blankenship, who  lurched and grimaced in obvious pain for several minutes while dying, Mr. Walker, who stands to be executed in the same manner, moved to preserve evidence of Georgia's next intended execution.

Judge Lane, smartly, framed her ruling in practical terms. She wrote:

The briefing on this motion reflects that eye witnesses to an execution may often have varying recollections regarding the details of what happened. In some of the other cases cited by the respondent the State has attacked the conclusions suggested by witnesses on the basis that the witness has not witnessed an execution performed by the State of Georgia and/or is unfamiliar with the protocols used here. These arguments tend to underscore the potential relevance of the evidence the petition seeks to gather.

If prison officials have nothing to hide, in other words, they should at least be willing to gather and hand over such videos for subsequent use by the courts; a simple matter of giving judges the "best evidence" available. Echoing Judge Lane, Richard Dieter of the Death Penalty Information Center told me Monday that the use of videotaped executions within the criminal justice system makes sense for several reasons: 

Basically, the country is in a period of experimentation (with involuntary human subjects) as it tries to find a suitable means of execution. Although I believe the problems with the death penalty far exceed this narrower question, it is one over which there has been a veil of secrecy. Prisons and state governments have been reluctant to explain why they are choosing certain new drugs, whether they have explored all alternatives, and whether they have consulted about the side effects of new drugs being used. Having an objective view of what actually happens in the execution chamber could provide some degree of transparency in evaluating the various procedures.

And:

Update: I received an interesting note Tuesday afternoon from Megan McCracken, an expert in lethal injection law at the University of California/Berkeley School of Law. She wrote:

"The videotaping of Mr. DeYoung's execution is a step in the right direction in terms of shedding light on what happens during an execution. However, videotaping only captures what witnesses see and cannot transmit the information we actually need. When something goes wrong in a lethal injection execution, witnesses, lawyers for condemned prisoners, and the public are prevented from knowing what happened because of the paralytic that is administered to the prisoner and the secrecy surrounding the entire process. A video will not tell us what actually happened in the room where the drugs are administered, and until DOCs reveal what happened behind the scenes, it is likely we will never know what happened to Mr. Blankenship or any of the other men and women who have been executed by an unnecessarily dangerous process."

Earlier coverage of Georgia's videotaped execution and the lethal injection challenge behind it begins at the link.  Related posts are in the lethal injection index.

An Update From Rhode Island

Today's Providence Journal reports, "Lawyers in D.C. debating death penalty in R.I. murder case."  It's written by W. Zachary Malinowski.

Federal prosecutors and defense lawyers met before the Capital Case Unit of the Justice Department in Washington, D.C., on Monday in the case of Jason Wayne Pleau, who was indicted by a federal grand jury in the robbery and fatal shooting of a Woonsocket gas station manager.

It is the role of the Capital Case Unit, comprising senior Justice Department lawyers, to consider whether federal prosecutors will seek the death penalty or life in prison for Pleau.

Representing the office of Peter F. Neronha, the U.S. Attorney for Rhode Island, were Adi Goldstein, deputy chief of the criminal division, and William J. Ferland, an assistant federal prosecutor. Pleau’s lawyers also attended the hearing. They are David P. Hoose and Robert B. Mann.

Mann said the meeting lasted about an hour. He declined to provide any specifics because it was closed to the public.

And:

On Thursday, federal prosecutors and lawyers from Governor Chafee’s office will square off before the 1st Circuit Court of Appeals in Boston. Last month, Chafee refused a request by Neronha’s office to transfer Pleau from the Adult Correctional Institutions to federal custody, citing the state’s longstanding opposition to the death penalty.

“In light of this long-standing policy, I cannot in good conscience voluntarily expose a Rhode Island citizen to a potential death-penalty prosecution. I am confident that Attorney General [Peter F.] Kilmartin and Rhode Island’s criminal-justice system are capable of ensuring that justice is served in this matter,” Chafee said in a letter to Neronha.

Also:

On June 23, Chafee announced that he would not surrender Pleau, now being held at the Adult Correctional Institutions as a parole violator, because it could expose Pleau to the death penalty. He says the state justice system is “capable of ensuring that justice is served in this matter.”

On June 30, acting on a petition by the U.S. Attorney’s office, U.S. District Court Judge William E. Smith ordered the governor to turn over Pleau to federal authorities, ruling that under the Constitution’s so-called Supremacy Clause, federal law trumps state law.

The governor said he would comply with the order.

Mann and Hoose then asked the Appeals Court to stay Smith’s order, arguing the case raised questions about a conflict between the powers of the governor in the transfer of defendants and those of federal authorities.

On July 7, a three-judge panel of the Appeals Court stayed the surrender order until it can hear arguments July 28.

Earlier coverage of the case begins at the link.  Related posts are in the federal death penalty index.

Florida Supreme Court Orders Hearing on Pentobarbital Use

The Florida Supreme Court has stayed the execution of Manuel Valle and ordered an evidentiary hearing on the use of pentobarbital.  The ruling in Valle v. Florida is available in Adobe .pdf format.

"Florida Supreme Court stays Valle's execution," is the AP filing written by Bill Kaczor.  It's via the Miami Herald.

A sharply divided Florida Supreme Court stayed the execution of convicted killer Manuel Valle on Monday so a judge can hear evidence and rule on whether he may feel pain from the use of a new lethal injection drug.

The justices, in a 4-3 decision, delayed Valle's execution for a month, from Aug. 2 until Sept. 1, absent further order of the high court.

And:

Valle's appeal will return to Circuit Judge Jacqueline Hogan Scola in Miami to hear evidence on the new drug and make a ruling. She had previously declined to hold such a hearing. The Supreme Court gave her until 2 p.m. Aug. 5 to issue a decision. Lawyers then will have through Aug. 19 to file written arguments and responses. The justices will hold oral arguments Aug. 24 "if necessary."

"Florida Supreme Court stays execution; drugmaker says anesthetic unsafe," by Dara Kam in the Palm Beach Post.

Department of Corrections officials in June replaced the anesthetic sodium thiopental, the first of the three drugs used in lethal injections, with pentobarbital sodium. Sodium thiopental's manufacturer stopped making the drug early this year, leaving corrections officials in death penalty states like Florida scrambling to find a substitute.

But Lundbeck Inc., the Danish manufacturer of pentobarbital, recently announced that the drug is untested and unsafe for use in lethal injections. Lundbeck stopped selling the drug to distributors who intended to resell it for use in executions.

Pentobarbital has never been FDA-approved as an anesthetic and Valle's lawyers raised questions about how much of the drug needs to be given to prevent the pain caused by the injection of potassium chloride. The drug has been used in at least 15 executions in other states.

"The Court has determined that Valle's claim as to the use of pentobarbital as an anesthetic in the amount prescribed by Florida's protocol warrants an evidentiary hearing," the majority said in the order.

Last month, the execution of Roy Willard Blankenship in Georgia, using the same drug, went awry. Blankenship jerked his head several times, mumbled inaudibly and appeared to gasp for breath for several minutes after he was pumped with pentobarbital. Medical experts are split about what whether Blankenship's movements were a sign that his execution was bungled.

But in the minority dissent, Justice Charles Canady wrote that Valle failed to demonstrate that the new drug will meet the U.S. Supreme Court's threshold of "cruel and unusual punishment."

And:

A spokesman for Gov. Scott said that the governor doesn't have any involvement in the case at this stage, and didn't have a comment on the Department of Corrections' policy for executions. The spokesman, Lane Wright, said that if the stay is lifted, the execution will proceed, either on Aug. 2 or "within the appropriate timetable."

Wright didn't address what the governor would do if the court finds the protocol illegal.

Patricia Mazzei posts, "Fla. Supreme Court stays cop-killer execution," at the Miami Herald.

On June 8, the Florida Department of Corrections approved the use of pentobarbital as a substitute for sodium thiopental, the barbiturate the state had previously been using. Earlier this year, the Illinois pharmaceutical company that sold the state sodium thiopental discontinued its production of the drug.

Valle, who would be the first inmate executed under the new drug protocol, raised questions about whether the use of pentobarbital in the amount prescribed by the state could cause him to suffer pain.

Reuters carries, "Florida execution stayed to allow hearing on drug concerns," written by Colleen Jenkins.

Valle challenged whether the new sedative, often used to euthanize animals, would effectively induce unconsciousness.

The court determined that Valle "has raised a factual dispute, not conclusively refuted, as to whether the use of pentobarbital in Florida's lethal injection protocol will subject him to a 'substantial risk of serious harm.'"

Challenges to pentobarbital elsewhere have generally failed to prevent executions from being carried out. An execution in Georgia last week was filmed under court order after lawyers for a death row inmate raised concerns about the drug.

Related posts are in the lethal injection index.

Another Call for Change in Alabama

Today's Mobile Press-Register carries the editorial, "Judges shouldn't turn life terms into death sentences."

ALABAMA IS one of 34 states that enforces the death penalty, a stance that is supported by a majority of the state’s voters.

When it comes to imposing such a sentence, however, the decision should be shared by a group — the jury — and not rest on the shoulders of an individual judge.

Yet Alabama, despite a contrary ruling by the state Supreme Court, continues to be the only state in the nation that freely allows trial and appellate judges to overrule jury sentences for life without parole, and instead give convicts the death penalty. Florida and Delaware also allow "judicial overrides," but with strict limitations.

A recent report by the Equal Justice Initiative in Montgomery now says that in Alabama, one in five of the 199 people on death row were sent there because a judge overruled a jury.

It’s time for Alabama to limit judicial overrides, which are unfair to juries, defendants and judges alike. This could be a job for the appellate courts or for the Legislature.

And:

Consider the 1990s case of Monroeville resident Walter McMillian, who was convicted of capital murder. The jury recommended life without parole, but the judge upped the sentence to execution.

Before it could be carried out, however, new evidence showed that Mr. McMillian wasn’t guilty after all. Had he been put to death, the judge would have been solely responsible for the death of an innocent man.

The McMillian case brings up a different question: Is it really fair to Alabama’s judges, who are elected, to have to endure the political pressure to be "tough on crime"? Indeed, many judicial candidates currently run for office on just such a platform.

We would say no.

The bottom line is that a jury — and not a judge, no matter how wise or experienced — should be deciding whether a prisoner gets life without parole or the death penalty in capital murder cases. Alabama’s system, which doesn’t recognize this fact, needs to be fixed.

The EJI report, The Death Penalty in Alabama: Judge Override, is available in Adobe .pdf format. 

Earlier coverage of the EJI report on judicial override begins at the link

The Georgia Execution

"Video of a Lethal Injection Reopens Questions on the Privacy of Executions," by Erica Goode appeared in the Sunday edition of the New York Times.

For decades in the United States, what goes on inside the execution chamber has been largely shrouded from public view, glimpsed only through the accounts of journalists and other witnesses.

But the video recording of Mr. DeYoung’s death, the first since 1992, has once again raised the possibility that executions might be made available for all to see. In the process, it has reignited a widespread debate about how bright a light to shine on one of the most secretive corners of the criminal justice system.

Legal experts say the decision by Judge Bensonetta Tipton Lane of Fulton County Superior Court to allow the taping in Mr. DeYoung’s case opens the way for defense lawyers across the country to push for the video documentation of other executions. And it is inevitable, many experts believe, that some of those recordings will make their way onto television or even YouTube, with or without the blessings of a court.

Brian Kammer, a defense lawyer who argued for allowing Mr. DeYoung’s execution to be recorded, said that documenting the death was essential because of the controversy over the drugs used in lethal injections.

“We’ve had three botched lethal injections in Georgia prior to Mr. DeYoung, and we thought it was time to get some hard evidence,” Mr. Kammer said.

And:

After Mr. DeYoung’s execution, the video was sealed and sent to a judge’s chambers for safekeeping, and Mr. Kammer, for one, said he hoped it stayed hidden. “It’s a horrible thing that Andrew DeYoung had to go through, and it’s not for the public to see that,” he said.

But Douglas Berman, a professor of law at Ohio State University who commented on the issue on his blog, Sentencing and Law Policy, said, “I think it would be foolish for anybody who is authorizing or supervising the videotaping of executions to assume that it will always remain sealed and unseen.” Mr. Berman added, “Somewhere, somehow, at some point, this will become publicly accessible.”

Whether that development would be beneficial or harmful has for years been a subject of much contention. Deborah W. Denno, a professor at Fordham Law School who is an expert on the death penalty, says videotaping executions is important because it provides objective evidence that is not dependent on eyewitness accounts. The decision to allow the recording of Mr. DeYoung’s death was a sign of the courts’ growing awareness of the need for transparency, Ms. Denno said.

“Presumably,” she said, court officials “are going to act responsibly, and the tape will never see the light of day.” But if such videos become public, she said, it might not be such a bad thing. She noted that television cameras are allowed in courtrooms and that the public can take tours of prisons.

“Most of what we do in the criminal justice system in terms of punishment is something that is allegedly open to the public,” Ms. Denno said, “and this is the ultimate form of our process.”

Mr. Berman was also in favor of opening executions to public scrutiny.

Earlier coverage of the videotaped Georgia execution begins at the link.

New Challenge to Arizona Lethal Injection Procedure

"Arizona execution process faces legal challenge," is the AP report written by Amanda Lee Myers.  It's via the Arizona Daily Star.

In Arizona's death chamber in the minutes just before an execution, inmates lay strapped to a table with a white sheet pulled up to their necks.

Witnesses who are there partially to ensure that the inmates don't experience unnecessary pain don't see anything leading up to that point - it's just a person on a table about to be put to death with an injection they can't see.

The veiled process and other procedures followed by the Arizona Department of Corrections are being challenged in federal court.

U.S. District Judge Neil Wake scheduled a trial in the matter for Oct. 11 and can rule that the department is violating inmates' constitutional rights in the way it conducts executions, or find that the department has acted properly.

"All you see is a head sticking out from a sheet, and a guy sort of looks around, maybe makes a last statement and then closes his eyes," said Dale Baich, a federal public defender who has represented the most recent inmates executed in Arizona. "We want more transparency in the process, and that's what we hope comes of this litigation."

Baich argues that the Corrections Department is violating inmates' constitutional rights and deviating from execution protocol in five ways. Among them: using a new execution drug, using the groin area as the injection site and failing to leave injections uncovered.

He compared Arizona's process with some other states' procedures, during which witnesses see every step, including injections, he said.

Assistant Attorney General Kent Cattani, who will argue against Baich at trial, said the corrections officials themselves dictate protocol and can change it anytime they see fit.

"An inmate can challenge a change, but they have to show there's a high likelihood of significant pain or suffering because of the change," he said.

And:

The 9th U.S. Circuit Court of Appeals in San Francisco turned down a motion to delay last Tuesday's execution of Thomas Paul West over the legal challenge to the department's procedures, ruling that he'd failed to prove there was a substantial risk that he would experience severe pain during the execution.

But at a hearing the day before the execution, Judge Kim Wardlaw said the Corrections Department needs to follow protocol.

Earlier coverage of Arizona lethal injection issues begins at the link.  Related posts are in the lethal injection index.