The StandDown Texas Project

Lundbeck Pushes Ban as Virginia Executes

Last night, Virginia carried out its first execution of 2011, and its first to use a three-drug coktail that included the Lundbeck-manufactured drug, pentobarbital.

International Business Times reports, "Lethal Injections: Lundbeck Urges State of Virgina to Stop Using their Drugs."

The state of Virginia authorities obtained the drug pentobarbital before Lundbeck could impose restrictions over the distribution of the drug. It is an attempt to make sure the drug is not used to perform executions in prisons.

"We're in the business to improve people's lives, so the use of pentobarbital to end people's lives contradicts everything that we're in business to do," Matt Flesch, Lundbeck spokesman, told BBC in an interview.

In the U.S. 34 out of 50 states allow capital punishment. It becomes difficult for prison authorities to find the right drugs for their lethal injection all the time, and hence they go for substitute drugs.

Many pharmaceutical companies are trying their best to make sure that their products are not used as a component of lethal injections.

The BBC News report is, "Virginia executes Jerry Jackson amid death-drug row."

So far in 2011, US states have executed 23 prisoners using that drug, prompting strong condemnation from Lundbeck.

While the drug, sold under the brand name Nembutal, comprises less than 1% of the company's sales, Lundbeck said it declined to stop production because doctors it had surveyed said they would have trouble treating severe epilepsy without it.

But the company last month announced restrictions on the drug's distribution in an effort to keep it from being shipped to prisons in US states that practise capital punishment.

Under that programme, Lundbeck will review orders for pentobarbital and deny them to prisons in capital punishment states.

Purchasers will have to sign a form affirming the drug is for their own use and will not be used for capital punishment and that they will not re-distribute the drug without the company's approval.

"While the company has never sold the product directly to prisons and therefore can't make guarantees, we are confident that our new distribution program will play a substantial role in restricting prisons' access to Nembutal for misuse as part of lethal injection," chief executive Ulf Wiinberg said.

The company has also sent letters to 16 states that have used or have said they would use pentobarbital in lethal injection expressing their opposition and concern, Mr Flesch said.

"Don't Use Our Drug Pentobarbital To Execute People, Lundbeck Tells State Of Virginia," by Christian Nordqvist is at Medical News Today.

The AP report is, "Rapist and killer of Williamsburg widow put to death," by Dena Potter.  It's via the Virginian-Pilot.

Jerry Terrell Jackson, 30, was pronounced dead at 9:14 p.m. Thursday at Greensville Correctional Center. He was sentenced to death for the 2001 rape and murder of seamstress Ruth Phillips in her Williamsburg apartment.

Asked whether he had any final words, Jackson shook his head and said "no" under his breath. As he waited for the drugs to be administered, he tapped his foot as he lay strapped to a stainless steel gurney. The execution team took about 15 minutes to insert two intravenous lines, one into each arm. Within four minutes of the lines being inserted, he was pronounced dead.

And:

Jackson nearly got a reprieve last year when U.S. District Judge Leonie Brinkema allowed a two-day evidentiary hearing in which Jackson's brother and sister testified about the abuse he suffered at the hands of his father and stepfather while growing up.

Brinkema ordered that Jackson at the time should receive a new sentencing hearing, saying the testimony "painted a graphic picture of an unwarranted, continuous, sadistic course of conduct that terrorized and dehumanized Jackson throughout his childhood." But earlier this year, a federal appeals court overturned that ruling on a technicality.

It was the 32nd execution in the nation this year; the 1,66th post-Furman execution since 1977.

New Mexico Supreme Court to Examine Case in Light of Repeal

"Court examines death penalty repeal," is the title of Barry Massey's AP report, via the Alamogordo Daily News.

The state Supreme Court will consider whether New Mexico's death penalty repeal should rule out a death sentence for an Albuquerque man convicted last year of killing a sheriff's deputy in 2006.

The court on Thursday scheduled a hearing for Sept. 1 on legal questions about the upcoming sentencing of Michael Astorga for the shooting death of Bernalillo County Deputy James McGrane Jr. during a traffic stop near Albuquerque.

The death penalty repeal took effect on July 1, 2009, and applied to crimes committed after that date. McGrane was killed in 2006. Astorga was convicted in the slaying nearly a year after the repeal took effect and his sentencing trial, which currently still includes the possibility of capital punishment, is to begin Sept. 12.

Astorga's lawyer, Gary Mitchell, of Ruidoso, contends the Legislature improperly tailored the repeal legislation so that his client could continue to face the possibility of being put to death.

The justices directed lawyers to submit arguments about the effect on Astorga's case of a state statute that says after a criminal penalty is reduced by a change in law, the amended penalty is to be applied to those not previously sentenced.

The hearing before the Supreme Court came at Mitchell's request, but he didn't raise questions about the statute that governs the interpretation of laws after they've been amended. That issue was brought up by the justices in their order.

West Memphis Three Freed

The updated AP report is, "Judge frees 3 men convicted in Arkansas scouts’ deaths after 18 years in prison."

Three men convicted of killing three 8-year-old Cub Scouts and dumping their bodies in an Arkansas ditch were freed from nearly two decades in prison Friday, after they agreed to plead guilty to secure the release of one of them from death row.

Under the plea bargain, Damien Echols, Jason Baldwin and Jessie Misskelley were being freed immediately. The boys’ families were notified about the pact ahead of time but were not asked to approve it.

The defendants, known by their supporters as the West Memphis 3, agreed to a legal maneuver that lets them maintain their innocence while acknowledging prosecutors have enough evidence against them.

“I am innocent of these charges but I am entering an Alford guilty plea,” Echols told the judge. Baldwin and Miskelley also reasserted their innocence.

“Although I am innocent, this plea is in my best interest,” Misskelley said.

The three were credited with time served, and Echols is being freed from Arkansas’ death row. They were placed on 10 years’ probation and if they re-offend they could be sent back to prison for 21 years, Prosecutor Scott Ellington said.

“I believe that it would be practically impossible after 18 years to put on a proper trial in this case,” Ellington said.

“I believe this case is closed and there are no other individuals involved,” he said.

Baldwin and Echols each pleaded guilty to three counts of first-degree murder. Misskelley pleaded guilty to one count of first-degree murder and two counts of second-degree murder. The Alford plea allows the men to maintain their claims of innocence.

After the hearings, Baldwin told reporters that he had been reluctant to plead guilty to crimes he maintains he didn’t commit, but that they agreed to the deal because they had to get Echols off death row.

“That’s not justice, however you look at it,” he said.

Echols thanked Baldwin and called his release “overwhelming.”

"West Memphis Three set free after pleading guilty to 1993 murders," is the Memphis Commercial Appeal post written by Clay Bailey and Marc Perrusquia.

The pleas were based on a seldom-used North Carolina case allowing the defendants to plead guilty while maintaining their innocence. All three expressed their innocence in the case.

Judge Laser said he had never heard of the law being used in his 14 years on the judicial bench.

“I realize this is confusing,” the judge said, later adding: “The court does believe in this particular case that it is in the best interest of everyone.”

He described the case as “a tragedy on all sides.”

Earlier coverage of the case begins at the link

Judge Rejects DNA Testing in David Wood Case

Today's El Paso Times reports, "Judge rules against serial killer David Leonard Wood's DNA petition."  It's by Diana Washington Valdez.

A visiting judge for the 171st Judicial District Court has ruled against convicted serial killer David Leonard Wood's petition involving DNA test results.

Wood, who received a stay of execution two years ago, had expanded his death penalty appeal to include a petition for a new finding of his 1992 conviction.

He requested, and was granted, new DNA tests of items from 1987 victims of the notorious desert deaths in Northeast El Paso.

"The court finds that the results of the DNA analysis do not establish that, had the results been available during the trial of offense, it is reasonably probable that (Wood) would not have been convicted," according to Judge Bert Richardson's ruling dated Aug. 17.

According to court records, prosecutors did not rely on DNA evidence to try Wood.

And:

A separate hearing has not been set to determine whether Wood meets the legal threshold of mental retardation.

Earlier coverage of this month's hearing in El Paso begins at the link.

Breaking News in West Memphis Three Case

"'West Memphis Three' could go free after hearing today," is the AP post, via the Washington Post.

Three men convicted of killing three 8-year-old Cub Scouts in Arkansas were set for a hearing Friday that could end with their release from custody after nearly two decades in prison.

The father of one of the victims and a person familiar with the case told The Associated Press that Damien Echols, Jason Baldwin and Jessie Misskelley would be offered a chance to change their pleas in the 1993 killings at West Memphis. Echols was sentenced to die for the brutal killings and Baldwin and Misskelley were sentenced to life terms. Misskelley initially confessed, but defense attorneys claim police took advantage of his low IQ.

A person who spoke on condition of anonymity because of a gag order in the case told the AP the tentative deal includes a legal maneuver that would let the men maintain their innocence while acknowledging prosecutors likely have enough evidence to convict them.

“It’s a highly technical way to put an end to judicial proceedings in the case,” the person told the AP.

The defendants, whose case and cause were taken up by celebrities following a pair of documentaries, are known collectively as the “West Memphis 3.” They were convicted in 1994 of killing Steve Branch, Christopher Byers and Michael Moore and leaving their naked bodies in a West Memphis ditch.

The Arkansas Supreme Court last year ordered new hearings for the three after defense attorneys said new DNA evidence could exonerate them. A courtroom date had been set for December, but Craighead County Circuit Judge David Laser scheduled a hearing for Friday without releasing details.

Byers’ adoptive father, John Mark Byers, said he believes Echols, Baldwin and Misskelley are innocent. He said Thursday that prosecutors told him that they planned to reach a no-contest plea.

“There’s certainly no justice for the three men that’s been in prison or my son and his two friends,” Byers said. “To me, this is just a cop-out from the state for not wanting to admit that they made a mistake.”

Prosecuting Attorney Scott Ellington declined to comment, as did defense attorneys and a spokesman for the state’s attorney general. They all cited a gag order issued by the judge overseeing the case.

The Memphis Commercial Appeal reports, "Crowd begins to gather in Jonesboro awaiting hearing on West Memphis 3."  It's written by Clay Bailey.

With the fate of the West Memphis Three before a judge today, spectators began gathering outside the Craighead County Courthouse this morning expecting a historic announcement in the case.

Citizens, supporters of the defendants and media members waited to see what a judge will determine regarding the three men convicted of the 1993 murders of three boys, and whether they would be released today.

On the third floor outside the courtroom about 60 people were lined up two hours before the public session, hoping for a seat in the courtroom where the proceedings will take place.

In a surprise announcement Thursday, Craighead County Circuit Court Judge David Laser called all of the parties to the County Courthouse for a 10 a.m. hearing in chambers today. A public hearing will be held after the chambers conference.

By many accounts, including statements by relatives of some of the three young victims, the court appearance could result in the release of the Damien Echols, Jessie Misskelley and Jason Baldwin – dubbed the West Memphis Three -- jailed since their 1994 convictions in the deaths of the three young boys.

And:

For years, the trio has proclaimed their innocence, saying the lynchpin in the prosecution’s case – a confession from Misskelley, who reportedly is mentally deficient – was coerced by West Memphis police after hours of interrogation. Misskelley later recanted the story.

Since the conviction, a number of other questions about the case have arisen, and the three were scheduled – by order of the Arkansas state Supreme Court – to have a new hearing in December based on DNA evidence.

But the situation accelerated Thursday when Judge Laser surprisingly announced there would be a hastily called court appearance for Echols, Baldwin and Misskelley today.

The sudden change in timetable started speculation about what will happen next with the West Memphis Three.

That could be answered this morning in the Craighead County Courtroom. It appears today that for the first time in 18 years, the West Memphis Three are on the verge of freedom. Supporters of Echols, Baldwin and Misskelley said on Internet sites that all three were moved from prison Thursday and brought their personal belongings with them, a move the supporters classified as unusual.

The Commercial Appeal has an archive of West Memphis Three coverage.

Earlier coverage of the West Memphis Three case at StandDown begins at the link.  The news links above are updating automatically.  I'll update later today as developments warrent.

Lethal Injection Roundup - Montana, Oregon, Virginia

Today's via Billings Gazette carries the AP report, "ACLU says Montana execution revisions still problematic."

The American Civil Liberties Union of Montana said Wednesday that the state's revised method of carrying out executions doesn't remedy concerns over its constitutionality.

The Montana Department of Corrections issued a new execution protocol earlier this week that, among other changes, replaced one of the drugs used in lethal injections after the previously used drug was taken off the market.

The ACLU earlier sued the state over the old procedure in the case of Ronald Allen Smith, a Canadian on death row for the 1982 killings of two Montana men. The lawsuit contends that death by lethal injection is unconstitutionally cruel and unusual punishment, arguing that the prisoner feels pain during the process.

The group said the new procedure remains insufficient in several areas and fails to ensure that the execution of prisoners is not cruel and unusual punishment.

"The state's new protocol touches on many things, including how the prisoner is to be transported, where the witnesses will sit and how the prisoner will get his or her last meal, but it never once even mentions that the inmate has a right to not suffer cruelly during the execution," said Ron Waterman, a lawyer working with the ACLU on the case.

The ACLU pointed out that executioners don't have to be trained physicians or nurses, and it said mishaps administering the fast-acting barbiturate can leave a prisoner fully conscious for the pain that follows.

ACLU said it will continue the legal challenge, which was put on hold because of the state's plan to build a new execution chamber.

"Oregon corrections department says trial run of execution goes smoothly," is the title of Helen Jung's Oregonian report.

A trial run of an execution at the Oregon State Penitentiary on Tuesday went smoothly and allowed staff to practice in the event that death-row inmate Gary Haugen is scheduled to be put to death, according to the state corrections department.

Corrections spokeswoman Jeanine Hohn declined to identify issues or problems that arose in the practice execution, saying that overall the exercise "was really successful."

Among other things, staffers brought in witnesses, managed security on the perimeter of the penitentiary and ran through the procedures for lethal injection. Oregon's last execution was in 1997.

The Washington Post reports, "Virginia’s death row prepares for first lethal injection using new drug mix."  It's by June Q. Wu.

A 30-year-old Williamsburg man sentenced to death for the 2001 rape and murder of an elderly woman could become the first Virginia inmate executed using a new combination of drugs.

Jerry Terrell Jackson is scheduled to die by lethal injection Thursday night at the Greensville Correctional Center in Jarratt. Gov. Robert F. McDonnell (R) denied his request for clemency last week. Now only the U.S. Supreme Court can intervene.

If the execution goes forward, it would be the first time the state has used pentobarbital, a powerful barbiturate, as part of its lethal mix of drugs. Virginia, and many other states, previously had used sodium thiopental as the first drug in a three-drug procedure until the drug’s only American manufacturer stopped producing it this year.

The switch led to controversy this summer when an official with Lundbeck, the Danish company that makes pentobarbital, said the drug’s role in executions was a “distressing misuse.” The company announced that it would block shipments to U.S. prisons that intended to use the drug for executions.

The Virginia Department of Corrections is “fully prepared” to carry out Jackson’s scheduled execution, according to spokesman Larry Traylor. He said the agency received five shipments of pentobarbital from a health-care services company in North Carolina this year before Lundbeck imposed the restrictions in late June.

Traylor said the DOC is developing “contingency plans” for future executions in light of the restrictions but would not elaborate.

Earlier coverage from Montana, Oregon, and Virginia begins at the links.

Jordan Smith on the Case of Larry Swearingen

The award-winning Austin Chronicle journalist writes, "The Science of Injustice," for the issue out today.  It's a comprehensive review of the controversial case. Here's an excerpt from this must-read:

Although they had not yet found her body, police investigating her disappearance were fairly certain that Trotter was dead, and they believed they knew who was responsible: Larry Swearingen, a 27-year-old local electrician, married with two young children and a history of getting himself in trouble with the law. Swearingen had been seen talking with Trotter at the college the day she disappeared. The state maintains he was the last to see her alive.

Three days after Trotter disappeared, police arrested Swearingen on outstanding warrants. He's been behind bars ever since. After Trot­ter's body was found, he was charged with capital murder. The state charged that Swear­in­gen kidnapped her from the college, raped her, and tied a single panty hose leg around her neck, strangling her before dumping her body in the national forest. There was no direct evidence – no DNA, for example – linking Swear­ingen to the crime, and there was no certain evidence that Trotter had been the victim of sexual assault.

But there was a good deal of circumstantial evidence linking Swearingen to the disappearance and death. He had been seen with her at the school the day she disappeared, several hairs matching Trotter were found in Swear­ingen's pickup truck (although he did not dispute that they were friends), and, most damning, during their third search of Swear­in­gen's home, police said they were given a leg of panty hose that Swearingen's landlord had found while cleaning up Swearingen's rented trailer. A Department of Public Safety analyst later said it was a positive match to the leg found tied around Trotter's neck.

Swearingen maintains his innocence, but he was tried and convicted in the summer of 2000; after less than two hours of jury deliberation, he was sentenced to death. Since 2007, he's been scheduled for execution three times but has avoided lethal injection thanks to court-imposed stays – including one late last month granted by the state's highest criminal court, the Austin-based Court of Criminal Appeals, which sent the case back to district court for further review. At issue is the forensic science of death and decomposition. More than a decade after Trotter's death, a growing number of scientists – including pathologists, forensic anthropologists, and entomologists – agree that Swearingen could not have been responsible for Trotter's death.

Specifically at issue is histological evidence (analysis of cell tissue) that nearly a half-dozen doctors have reviewed and that they say shows conclusively that Trotter had not been dead for 25 days at the time she was found in January 1999. Samples of cardiac, lung, and vascular tissues harvested from Trotter at autopsy, saved in a paraffin block and finally recovered from the Harris County Medical Examiner's Office by Swearingen's attorney in 2009, show tissue that is hardly decomposed at all and is most consistent with a person who has been dead less than a week.

If Trotter was dead less than a week when her body was discovered, Swearingen was in jail when she died and could not have killed her.

"[I]t is categorically impossible, beyond all reasonable doubt, that Ms. Trotter was killed and her body left at that location by ... Swear­ingen, who had been incarcerated ... 23 days before the body was found," Dr. Lloyd White, deputy medical examiner in Tarrant County, wrote in a June 2011 report detailing his most recent examination of the tissue samples.

Yet despite what appears to be clear and convincing medical evidence that Swearingen could not have killed Trotter, neither prosecutors nor the courts have been persuaded that he could be innocent. Swear­ingen's defense has been trying for four years to demonstrate to the courts – the trial court and the CCA as well as federal courts – the import of the new scientific findings. While the CCA has remanded the case to the trial court twice for further hearings, they've ultimately sided with prosecutors, ruling that the forensic evidence isn't convincing enough to outweigh what CCA Judge Cathy Cochran wrote in January 2009 is a "mountain" of circumstantial evidence pointing to Swearingen's guilt.

The case renews questions about the intersection of and tension between science and law – how courts and law enforcement professionals view and understand science, and how decisions are made about what kind of science is "good enough" to be deemed more telling or important than other compelling but decidedly nonscientific evidence. "When you have objective forensic evidence and testimonial evidence – which is subjective – [that testimonial evidence] must be questioned and take a backseat to the objective science," says Dr. Stephen Pustilnik, the chief medical examiner for Galveston County, who after reviewing the Trotter tissue samples also concluded that Trotter was killed within days of being found in the forest, not in early December, and therefore not by Swearingen. "It's not the convenient scenario, not the easy scenario" for the state, he says. "Just because [Swearingen] is the easy and convenient person, all of a sudden, if the science says he didn't do it, doesn't mean that you can ignore the science."

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

More on the Williamson County Case

Chuck Lindell has expanded his initial Austin American-Statesman report, "DNA casts doubt on Williamson County murder case."

New DNA results, combined with evidence that was allegedly withheld by Williamson County prosecutors for more than two decades, indicates that an Austin-area man has spent 24 years in jail for a murder he did not commit, the Innocence Project claimed in a court filing Wednesday.

Michael Morton, 57, was convicted of brutally beating his wife, Christine Morton, to death and was sentenced to life in prison in 1987.

But a recent court-ordered DNA test, conducted over the objections of Williamson County District Attorney John Bradley, points instead to an unnamed California felon as the killer, according to court briefs filed by the Innocence Project of New York.

Morton soon will ask the courts to vacate his conviction and order his release from prison, the briefs said.

But first, Morton's lawyers urged a Williamson County district judge to remove Bradley from the case, saying he cannot be trusted to oversee a reinvestigation of the killing because he has shown "unprofessional" animosity toward Morton and his lawyers.

The motion alleges that Bradley worked to keep a key piece of evidence hidden from Morton's lawyers: a transcript of a police interview that shows the Mortons' 3-year-old son witnessed his mother's murder and said the attacker was not his father.

"Justice demands a rigorous and unbiased investigation into the true circumstances of Christine Morton's death, and an explanation as to how her grieving husband was wrongfully charged and convicted of the crime," the motion said.

The motion, signed by Innocence Project co-founder Barry Scheck — who has clashed with Bradley in the past — asked the court to appoint a special prosecutor to reinvestigate the case in light of the new DNA evidence.

Bradley, who was not district attorney during Morton's trial, said he could not comment on the specifics of the Morton case because it is the subject of pending litigation.

And:

Jurors were unswayed by Morton's defense, but in the years since 1987, advances in forensic science would erode key aspects of the prosecution's case, the Innocence Project argued.

During Morton's trial, a forensic analyst testified that a semen stain on the Mortons' bed contained no vaginal cells, bolstering the notion that Morton masturbated over his wife's corpse. In fact, vaginal cells were present, according to tests conducted 13 years after the trial.

But the Innocence Project said a more important finding came from a series of DNA tests recently conducted on a piece of evidence that didn't play much of a role at Morton's trial: a blood-stained bandanna found about 100 yards behind the Morton house.

A police officer noted the stained bandanna in a report but left it lying at the curb in front of a construction site. Christine Morton's brother collected it later and turned it in.

A Texas Department of Public Safety analysis confirmed that the stains were human blood, but further identification was not possible with forensic tests available at the time.

In 2005, the Innocence Project requested additional testing on the bandanna and a number of other items collected from the crime scene. Bradley opposed the new tests.

District Judge Billy Ray Stubblefield allowed further analysis of evidence collected from Christine Morton's body but denied tests on the bandanna and on biological material collected from an unsolved murder six years earlier a half-mile from the Morton house. The Innocence Project, contending that Mildred McKinney was killed in a similar way, had hoped the tests would point to a common killer.

Morton, however, won a partial victory at the 3rd Court of Appeals, which ordered tests on the bandanna but not on the McKinney evidence.

Brandi Grissom writes, "DNA Implicates Another Man in 25-Year-Old Murder Case," for the Texas Tribune.

Michael Morton was sentenced to life in prison in 1987 after prosecutors told jurors that he had bludgeoned to death his wife, Christine Morton, when she refused to have sex with him after they came home from celebrating his birthday. There were no witnesses, and Michael Morton had no history of violent crime.

But Morton has always maintained his innocence, suggesting that an intruder must have killed his wife, who was found dead in their bed, after he left the house for work that morning. For more than six years, Morton and his lawyers tried to obtain DNA and other evidence from Bradley's office to conduct testing that might indicate whether another person had committed the crime.

The Texas Third Court of Appeals granted the testing last year, and in June, lawyers received the results of DNA analysis on a bandana found at a construction site about 100 yards away from the Morton's home. The analysis showed that the victim's hair and blood were mingled with that of a male who was not Morton. When the other man's DNA was searched in a national DNA database of convicted offenders, it returned a match for a man who had been arrested in California. 

Other evidence the Innocence Project obtained through a public information request showed that Christine Morton's mother told police that the couple's 3-year-old son told her he had seen someone he described as a "monster" with red gloves kill his mother — someone who wasn't his father. In addition, documents the lawyers received — over objections Bradley made to the Texas Attorney General's Office — from the original Williamson County investigation indicate that neighbors reported seeing a mysterious green van in the neighborhood and a man who got out and walked into a wooded area nearby. A note to an investigator indicated that someone in San Antonio had fraudulently used Christine Morton's credit card.

Morton's lawyers today asked a judge to appoint another prosecutor to investigate the suspect identified by the new DNA analysis.

In addition to their arguments that Bradley intentionally withheld exculpatory evidence, lawyers for the Innocence Project wrote that his repeated derogatory remarks about the organization prove that he cannot investigate the new evidence in an unbiased manner. During his term as chairman of the Forensic Science Commission, Bradley generated a firestorm of controversy over his handling of the investigation of arson science used to convict Cameron Todd Willingham, a case led by the Innocence Project. Hostilities between Bradley and the Innocence Project mounted, and in news reports, the district attorney called the group's legal efforts to posthumously exonerate Willingham, among other things, "a circus sideshow."

"That Mr. Bradley has made no secret of his disdain for Mr. Morton's counsel would arguably be enough to question whether he can fairly be tasked with leading the sensitive reinvestigation into Christine Morton's death," lawyers wrote in their motion to recuse.

"Unfortunately, we now know that the district attorney’s office knew all along that there was a good chance that the testing might point to another perpetrator in the case,” said John Raley, a Houston lawyer who has been pro bono co-counsel for Morton since 2003.  “We’re hopeful the court will appoint a new prosecutor to investigate the matter because there is now a mountain of evidence pointing to Michael’s innocence, and the entire Morton family deserves to know the truth about what happened 25 years ago.”

Earlier coverage of the Michael Morton case is at the link.

DNA Points to Williamson County Wrongful Conviction

Chuck Lindell has posted, "DNA test shows innocent man jailed in 1986 murder, court filing says," at the Austin American-Statesman.  Here's an extended excerpt from the beginning:

New DNA results, combined with evidence that was improperly withheld by Williamson County prosecutors for more than two decades, indicates that an Austin-area man has spent 24 years in jail for a murder he did not commit, a court filing alleged Wednesday.

Michael Morton, now 57, was convicted in the brutal beating death of his wife, Christine Morton, and sentenced to life in prison in 1987.

But a recent court-ordered DNA test, conducted on a blood-stained bandanna over the objections of Williamson County District Attorney John Bradley, points instead to an unnamed California felon as the killer, according to court briefs filed by the Innocence Project of New York.

The court filing urged a Williamson County district judge to remove Bradley from the case, saying he cannot be trusted to oversee a reinvestigation of the killing because he has shown “unprofessional” animosity toward Michael Morton and his lawyers.

What’s more, the motion alleges, Bradley worked to keep a key piece of evidence hidden from Morton’s lawyers — a transcript of a police interview that shows the Mortons’ 3-year-old son witnessed his mother’s murder and said the attacker was not his father.

The transcript should have been provided to Morton’s defense lawyers before the trial but was not, according to the Innocence Project motion. Bradley, who was not district attorney during the trial, recently opposed releasing the transcript to the Innocence Project under the state’s open records laws, the motion said.

“Justice demands a rigorous and unbiased investigation into the true circumstances of Christine Morton’s death, and an explanation as to how her grieving husband was wrongfully charged and convicted of the crime,” the motion said.

The motion, signed by Innocence Project co-founder Barry Scheck and Houston lawyer John Wesley Raley, asks the court to appoint a special prosecutor to reinvestigate the case in light of the new evidence.

The Innocence Project has issued a news release, "New DNA Evidence Points to a Third-Party Intruder in Case of Texas Man Who Has Served 25 Years in Prison for Murdering his Wife.  Innocence Project Asks Court to Remove DA John Bradley and Appoint a New Prosecutor to Investigate."  It's reproduced in full, below.

New DNA testing of crime scene evidence provides powerful new proof that Williamson County resident Christine Morton was murdered by a third-party intruder, not her husband Michael.  Michael Morton, who has served 25 years in prison for the crime, has always maintained his innocence and spent the last six years fighting for DNA testing over the District Attorney’s objections.  The new tests have now identified a convicted offender in the national DNA databank as the man whose DNA is mixed with the blood and hair of the murder victim on a bloody bandana recovered near the crime scene.
 
In light of the new evidence, the Innocence Project filed legal documents today asking the trial judge to appoint a new prosecutor in the case because District Attorney John Bradley’s bias against Michael Morton and the Innocence Project and past history on the case prevents Bradley from conducting an impartial review of the new DNA evidence and pursuing the actual assailant.
 
“These DNA results prove that Michael Morton was telling the truth all along,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law.  “It’s clear from the new DNA testing and other suppressed, exculpatory documents that law enforcement never followed up on numerous leads pointing to a third-party intruder, which might have solved the crime.  But even more troubling, District Attorney Bradley knew about this evidence, yet kept these documents hidden in the State’s file while he fought tooth and nail to bar DNA testing.”
 
Michael Morton has always maintained his innocence of the murder of his wife Christine, who was found dead in their home by a neighbor the morning of August 13, 1986.  At trial, the prosecution argued that Michael beat his wife to death after she refused to have sex with him upon returning from his 32nd birthday celebration at a restaurant.  There were no witnesses or physical evidence linking Michael to the crime. The prosecution relied largely on the fact that Michael left a note to Christine on the bathroom vanity expressing his disappointment with the fact that she fell asleep on him. (The note closed with the words “I love you.”)  Michael’s co-workers testified that he arrived at work at about 6 a.m. that morning and didn’t notice anything unusual about his behavior. 
 
For more than six years, the Innocence Project has been seeking access to DNA testing on a stained bandana that was found on an abandoned construction site approximately 100 yards from the crime scene.  Over the repeated objections of Bradley, the Texas Court of Appeals finally granted testing on the bandana last year.  On June 20, 2011, the testing laboratory issued a report finding that the bandana contained the DNA of a man other than Michael, along with Christine’s blood and hair.  The male DNA was put though the national DNA database and has been linked to a convicted offender. 
 
“Michael had to spend the last six years fighting just to get access to DNA testing.  Unfortunately, we now know that the District Attorney’s office knew all along that there was a good chance that the testing might point to another perpetrator in the case,” said John Raley, a Houston lawyer who has been pro bono co-counsel for Mr. Morton since 2003.  “We’re hopeful the court will appoint a new prosecutor to investigate the matter because there is now a mountain of evidence pointing to Michael’s innocence, and the entire Morton family deserves to know the truth about what happened 25 years ago.” 
 
In response to a Public Information Act request, the Innocence Project obtained the transcripts of the state’s chief investigator’s interview with the Christine’s mother that was conducted less than two weeks after the murder.  In the transcript, she describes a conversation with the couple’s three-year-old son Eric, who told her in chilling detail that he witnessed an unknown man murder his mother.
 
The court papers note that this newly discovered evidence was turned over by the state Attorney General’s office in 2008 over the objection of Bradley, who personally reviewed the material and asked that it not be turned over because of the ongoing litigation over DNA testing. 
The motion also charges that there was other newly disclosed information also pointing to a third-party intruder, including the fact that a neighbor told police that they “had on several occasions observed a male park a green van on the street behind (the Morton’s) address, then the subject would get out and walk into the wooded area off the road.”  A handwritten telephone message to an investigator indicated that what appeared to be Christine’s missing Visa credit card was recovered from a store in San Antonio, but there was no indication that investigators ever pursued the individual who used the stolen card.
 
Given the fact that Bradley clearly knew that there was evidence of a third-party intruder, the motion argues that his repeated objections to testing of the bandana are further proof that he is incapable of objectively continuing in this case.  He opposed the testing even though there was another unsolved murder in the county that bore a highly similar modus operandi.  In an interview on WXAN-TV he derided Morton’s request to test the evidence in light of the unsolved case as “silly,” and he told Rick Casey of the Houston Chronicle that Morton was “grasping at straws” by refusing to give up his quest for DNA testing.
 
The legal papers also note Bradley’s animosity towards the Innocence Project while serving as the Commissioner for the state Forensic Science Commission, which was asked by the Innocence Project to investigate whether the state was negligent in its prosecution and execution of Cameron Todd Willingham.  The Commission ultimately found that the arson science used to convict Willingham of arson murder was outdated and without scientific basis.  During his tenure as Chairman, Bradley, who was appointed by Governor Perry,  repeatedly tried to derail the investigation and even referred to Willingham in the press as a “guilty monster” before the Commission had opportunity to hear from its own experts in the investigation.  Bradley, who was ultimately stripped of his chairmanship by the state Senate, was widely criticized by news outlets throughout the state because of concerns that he was incapable of being impartial. At numerous points during his tenure, he disparaged the work of the Innocence Project, specifically naming its Co-Director Scheck and state Senator Rodney Ellis, who also serves as the President of the Innocence Project Board of Directors.   
 
The DNA testing in the case was conducted by the Orchid Cellmark laboratory in Farmer’s Branch, Texas, using state-of-the-art technology unavailable at the time of Mr. Morton’s trial.

A copy of the motion that was filed today before District Court Judge Billy Ray Stubblefield is available in Adobe .pdf format.

An Update on Paul House

"Thriving at home after 13 years on death row with multiple sclerosis," is the title of a CNN report by Emanuella Grinberg.

Paul House left Tennessee's death row nearly four years ago a crippled man. Sure, he was free, but after 13 years of living with multiple sclerosis in prison, he was a gaunt shell of a man, unable to walk or barely talk, scared to go out in public for fear of being harassed.

Now, he’s a different person, says his mother, Joyce House. He has new teeth, and an affinity for Arby’s beef-and-cheddar sandwiches has helped him gain weight. Thanks to treatment and medication, he can communicate with others and play online poker. When it’s not too hot outside, he exercises on parallel bars in his mother's backyard so that one day, he can hopefully transition from a wheelchair to a walker.

Most importantly, he has overcome a fear of public scrutiny that had haunted him since his release in 2008, after a U.S. Supreme Court ruling that new DNA evidence could have led a jury to acquit him in the 1985 murder of Carolyn Muncey. House spent 22 years on death row before his release.

And:

His lawyer said he has filed a petition for executive clemency, which would provide for financial compensation. "He’ll never be able to walk, but he still strives to one day reach the walker,” Joyce House said.

"He says, 'whenever I get to where I can walk with the walker, we're going to see Mr. Kissinger,' the lawyer who set him free," she said.

Earlier coverage of Paul House begins at the link.

In Oregon

Today's Oregonian reports, "State does practice lethal injection to prepare for possible execution of death row inmate Gary Haugen."  It's written by Helen Jung.

State corrections officials today conducted a practice run of a lethal injection at the Oregon State Penitentiary to prepare for the possible execution of death row inmate Gary Haugen.

It occurred on the same day Haugen originally was scheduled to die, but the execution was canceled in June after the state Supreme Court told a judge to first order a mental competency evaluation for Haugen, who wants to waive his appeals.

A hearing is now scheduled Sept. 27, when the judge could reissue a death warrant with a new execution date.

The run-through helps train staff and ensure that they can carry out the execution professionally, said Jeanine Hohn, spokeswoman for the Department of Corrections. The staff also wants to be prepared for security needs both inside and outside the prison in Salem, where protesters may gather during a real execution, she said.

A staff member was to stand in for Haugen, she said.

Haugen said no one told him ahead of time about the practice run. No one contacted his attorneys or asked them to attend the drill so they could observe and identify problems or issues, he said in a telephone call tonight. A spiritual adviser had not come to his cell as is the procedure, he said.

Getting It Right

That's the title of a new widget from the Innocence Project and University of Virginia Law prof Brandon Garrett, author of the recently published, Convicting the Innocent: Where Criminal Prosecutions Go Wrong.

Here's what the IP has to say in announcing the widget:

The Innocence Project today launched a new multimedia resource on the central causes of wrongful convictions and proven reforms to prevent injustice. The new interactive widget, “Getting it Right,” is embeddable on any website and features videos, case studies and in-depth research on forensics, false confessions, eyewitness identification, informant testimony, defense representation and conduct by police and prosecutors.

The widget was produced in partnership with University of Virginia Law School Professor Brandon Garrett, whose 2011 book, “Convicting the Innocent,” has earned rave reviews and provides the most comprehensive analysis to date of the causes of wrongful convictions later overturned through DNA testing.

I'll add a link to the site in the left-column webroll, "Innocence Projects & Resources."

Earlier coverage of Brandon Garrett and his book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, begins at this link.

Missouri Lethal Injection Challenge Dismissed

"Federal judge rejects inmates' case against execution methods," is the title of the AP report.  It's available via the Southeast Missourian and the St. Louis Post-Dispatch.

A federal judge has rejected Missouri prison inmates' challenge of the state's execution procedure, saying she found no evidence the state's method of lethal injection caused unnecessary suffering or pain.

The inmates' lawsuit argued that Missouri does not get valid medical prescriptions for the drugs used to put prisoners to death. The lawsuit also cited the state's use of non-medical personnel to administer the chemicals intravenously.

U.S. District Judge Nanette Laughrey said the inmates' lawsuit failed to show that anyone has ever suffered because non-medical personnel play roles in delivering the toxic doses of chemicals.

And:

Missouri's three-drug execution process has been the subject of legal wrangling for several years. Executions were largely on hold in Missouri for five years as the courts debated the constitutionality of lethal injection. A ruling in 2010 opened the way for executions to resume, though the only one since then was in February when Martin Link was put to death for killing an 11-year-old St. Louis girl.

Missouri's protocol uses the drug sodium thiopental to render the inmate unconscious, pancuronium bromide to stop his breathing, and potassium chloride to stop his heart.

The suit notes that the Department of Corrections' execution team consists of four people _ an anesthesiologist and a nurse, along with two department employees who are not medically trained. The suit claims the workers without medical training actually administer the lethal drugs by attaching a syringe to a port along the IV line that flows into the prisoner, then pushing the content of the syringe into the IV line.

Earlier coverage of lethal injection issues in Missouri begins at the link.  Earlier this year, clemency was granted in a case where an execution was imminent, and the state carried out an execution.

The Quiet Revolution In The Death Penalty Debate

That's the title of Carrie Johnson's NPR report for All Things Considered.  You can listen to the audio; a transcript is also available.

There are 58 people on federal death row in Terre Haute, Ind. But for now none appears likely to face the ultimate punishment, at least not on President Obama's watch.

The Justice Department is reviewing its lethal injection protocols because of a shortage of a key drug. While that study is underway, authorities have backed away from setting execution dates.

Over the last few years, a quiet revolution has overtaken the death penalty debate. Like many trends, this one started in the states and moved to the federal level, says death penalty expert David Bruck.

"I think it's fair to say that the federal government seeks the death penalty less often now than it did five or 10 years ago, but that's simply part of a national trend," says Bruck, a law professor at Washington and Lee University.

Just consider, Bruck says, a state quite close to the seat of national government.

"Virginia — which is the state that's executed the second largest number of people since the death penalty came back in the 1970s — has only added one new defendant to death row in the last three and a half years," he says.

And:

The federal prison system told a judge last month they're still working through changes to the execution protocol because of that drug shortage and the changes aren't final. That court filing was first reported by Politico.

Until those changes are finalized, death row inmates like James Roane, convicted of taking part in gang murders in Richmond, Va. in the 1990s, won't get a new execution date.

Roane's lawyer, Paul Enzinna, is suing the prison system along with several other attorneys representing inmates on federal death row.

"The issue at the heart of our lawsuit is that the...question of the risk that the inmates being executed will suffer unnecessary pain," Enzinna says. "And that that is a violation of the Eighth Amendment," which prohibits cruel and unusual punishment.

That lawsuit is on hold while the court waits to hear about changes the federal prisons may make to the lethal injection protocol.

The last federal execution happened in President George W. Bush's first term, in 2003. Louis Jones Jr. was a military veteran convicted and sentenced to death for raping and killing a woman soldier.

But not everything related to the federal death penalty is stuck in neutral gear. Last month, after more than two years of study, the Justice Department quietly adjusted the directions it gives federal prosecutors who want to seek the death penalty.

The changes didn't get much attention, but they represent a turnaround in two main areas, Bruck says.

"This administration is much more willing to listen to what the local prosecutors who actually have to prosecute the cases in court are saying about when the death penalty should be sought," he says.

So federal officials in Washington are consulting more with prosecutors across the country. That follows a controversy from the Bush presidency when Attorney General John Ashcroft sometimes overruled the decisions of U.S. attorneys who chose not to seek the death penalty.

Related posts are in the federal death penalty and lethal injection indexes.

Consular Notification Failure an Issue in Nevada

UPI posts, "Serbia appeals U.S. death sentence."

The Serbian government has appealed to a U.S. court to spare the life of a Serbian citizen currently facing execution in Nevada, officials said.

The Serbian consulate said it was not informed about the arrest of Avram Nika as required by international law, and the Serbian government maintains such notification would have meant Nika could have received assistance that may have spared him the death penalty, Serbian news agency Tanjug reported Tuesday.

Such assistance should have been available to Nika because of his inability to speak English and his lack of familiarity with the U.S. legal system, Serbia's brief filed in a Reno court says.

"The failure to notify the consulate caused no mitigating evidence to be presented at his sentencing hearing, such as that he was a hard-working family man who came from poverty and was discriminated against because he is a member of a nomadic ethnic group known as Roma," the brief says.

"Serbia seeks to block execution of citizen in Nev.," is the AP report, via CBS News.

The Serbian government is asking a Nevada court to block the execution of one of its citizens, saying its consulate was not informed of his 1994 arrest as required by international law.

Serbia, in a friend-of-the-court brief filed last week in Washoe County District Court in Reno, maintains the notification would have provided Avram Nika with assistance that could have spared him the death penalty.

Nika, 41, is on death row at Ely State Prison for the 1994 killing of a good Samaritan who stopped to help him along Interstate 80 near Reno. He has yet to exhaust his state and federal appeals.

"(Nika was) particularly vulnerable to the denial of consular assistance due to his inability to speak English and his lack of familiarity with the U.S. legal system and culture," Serbia's brief says.

The failure to notify the consulate caused no mitigating evidence to be presented at his sentencing hearing — such as that he was a hard-working family man who came from poverty and was discriminated against because he was a member of a nomadic ethnic group known as Roma, also called Gypsies, according to the document.

District Attorney Dick Gammick says there was no consulate to contact because the former Yugoslavia where Nika was from was undergoing drastic change at the time. Serbia did not exist as a country then, he said, and other countries in the region came and went.

And:

It's not the first time a foreign government has appealed to U.S. courts on behalf of one of their citizens who wasn't given the benefit of their consulates.

Last month, Mexico's government unsuccessfully petitioned the U.S. Supreme Court to stay a Texas execution to allow Congress time to consider legislation that would require court reviews for condemned foreign nationals who aren't offered the help of their consulates. The high court rejected the request 5-4 and the Mexican citizen was executed.

Mexico protested and the United Nation's top human rights official said the U.S. broke international law when it executed Humberto Leal for a 1994 rape and murder.

The Nevada case marks the first time Serbia has tried to enforce its rights under the 1963 Vienna Convention on Consular Relations, according to the prisoner advocacy group Reprieve based in London.

Related posts are in the foreign citizen index.

An Update on the Nebraska Lethal Injection Challenge

Today's Lincoln Journal Star reports, "Death-row inmate's attorney asks to depose Bruning, others."  It's written by Lori Pilger.

The lawyer for death-row inmate Carey Dean Moore is asking to depose Nebraska Attorney General Jon Bruning and other state officials in an effort to get to the bottom of why they continued to push for his client's execution when they did not have a legal drug on hand to put him to death.

In a filing late Monday in Douglas County District Court, Jerry Soucie of the Nebraska Commission on Public Advocacy argued it was cruel and unusual punishment to allow Moore to think his execution was looming when, in fact, the state had no way to carry it out.

Moore had been scheduled to die June 14, but the Nebraska Supreme Court issued a stay while Soucie challenged the purchase from an Indian company of one of the drugs used in Nebraska's execution protocol. The U.S. Drug Enforcement Administration said after the purchase the drug could not be used because the state did not have a license to import it.

Sodium thiopental -- one of three drugs in Nebraska's lethal-injection protocol -- has been in short supply since last year, when the only U.S. manufacturer, Hospira Inc., said it was ending production because of death-penalty opposition overseas.

In July, Soucie asked Douglas County District Judge Thomas Otepka to vacate Moore's death sentence, arguing state officials had withheld information about problems with the lethal-injection drug they bought from India.

The judge gave him until Monday to amend the motion challenging the purchase of the drug.

Soucie is seeking a court order directing the state to disclose all emails, letters, notes and other correspondence between Department of Correctional Services employees and the attorney general's office about how it obtained sodium thiopental. He also seeks information about discussions and correspondence between state officials and federal agencies whether the state was complying with federal drug regulations.

Soucie asked to take depositions of those who he said had direct knowledge of the facts.

Among them: Bruning; Nebraska Solicitor General J. Kirk Brown; Nebraska Deputy Attorney General Dale Comer; DCS Director Robert Houston; DCS General Counsel George Green and DCS Pharmacist Steve Urosevich.

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

Montana Changes LI Protocol

KXLH-TV reports, "Montana State Prison modifies execution protocol."

The Montana State Prison in Deer Lodge announced on Monday that it has modified its protocol for conducting executions in order to address changes in the availability of certain drugs and as a part of routine assessment of the procedures that are conducted whenever an execution date is set.

The modifications include a provision allowing for the use of a substitute drug as the fast-acting barbiturate that causes unconsciousness and ensures the inmate will not experience pain during the process of injecting the other drugs as part of the lethal injection process.

This provision is necessary due to the inability to obtain sodium thiopental, which was the initial drug that Montana and other states had used in executions until the manufacturer ceased production recently.

The new protocol permits use of a substitute drug - pentobarbital - which has survived court challenges and been used successfully in other states.

Other changes include additional safeguards to ensure that the drug is properly administered and, therefore, that the condemned is completely unconscious.

Mike Mahoney, who signed the document on his last day as the Montana State Prison warden on August 12, emphasized that the adjustments to the 149-page document are neither novel nor experimental, as they have proven effective when used in other states with extensive experience in carrying out executions. He also noted that the review resulting in the changes was prompted by a district judge setting an execution date last fall for convicted double-murderer Ronald Smith.

The article notes that the Smith execution date was later withdrawn.  Also:

The changes include refining definitions of such items as the operations security chief, news media staging area and setup officer. The changes also require a "qualified official" appointed by the warden to sign the death warrant following an execution and clarify the timeline for inventorying items needed to conduct an execution.

Other changes in the protocol:
* Clarify timing of event starting with receipt of a death warrant through post-execution procedures
* Add security measures such as a prohibition on cell phones in the execution chamber and establishment of security zones
* Create new provisions for storage and handling of drugs used in an execution
* Clarify qualification for the person setting up intravenous lines for administering lethal injection
* Specify the training required for the executioner and allows the executioner to be a contract employee
* Reduce the number of media witnesses from four to three, to comply with state law

"State of Montana will change lethal drug to execute Ronald Smith," is the AP report, via the Missoulian.

Montana officials are changing their method of carrying out executions after one of the drugs previously used was taken off the market.

The move by the Montana Department of Corrections follows similar action in other states that have substituted a drug called pentobarbital for sodium thiopental.

And:

Montana says it made the changes as part of the preparations to execute Canadian Ronald Allen Smith.

Related posts are in the lethal injection index.

Earlier coverage from Montana includes cost issues and a Ring challenge to the state's death penalty law.  In 2009 and 2011, the Montana State Senate voted to repeal capital punishment and replace it with a sentence of life in prison without parole.

Part of Arkansas Lethal Injection Law Ruled Unconstitutional

"Judge strikes down part of state execution law," is the post at the Arkansas News Bureau.

A circuit judge’s ruling today declaring part of Arkansas’ execution law unconstitutional left too much discretion to prison officials in putting condemned prisoners to death, a lawyer for death-row inmates challenging the law said.

In a ruling from the bench, Pulaski County Circuit Judge Tim Fox declared that a catchall phrase — “any other chemical or chemicals” — in a 2009 state law listing the kinds of drugs that can be used in lethal injections does not meet constitutional muster.

The ruling on the merits of the law also addressed outstanding court motions, effectively ending the circuit court phase of a lawsuit challenging the way the state executes death-row inmates. The case is expected to be appealed to the state Supreme Court.

“It was a positive development. We’re prepared to move forward in the process,” said Chief Deputy Attorney General Brad Phelps, who added the state would argue that the phrase is constitutional.

However, Jeff Rosenzweig, who represents four death-row inmates in the case, said he would appeal to the high court on the grounds that by not striking the entire law, Fox left the state prison director too much discretion to “use whatever substance he wants to execute people.”

Particularly troublesome to Rosenzweig was the judge’s decision to leave intact a portion of the law that says, “The chemical or chemicals injected may include one or more of the following substances.”

The language does not make use of the chemicals listed mandatory, he said.

“You’ve got to limit their lethal injection chemical alternatives to certain things that aren’t going to be unconstitutionally improper,” Rosenzweig said. “The Eighth Amendment provides you can’t create cruel and unusual punishment, lingering death, that sort of thing. If you can use whatever substance you want, you’re running that risk.”

The AP report is, "Circuit judge in Little Rock rules part of Arkansas execution law is unconstitutional," via the Republic.  It's written by Jeannie Nuss.

A lawsuit challenging the way Arkansas executes its condemned prisoners will likely head to the state Supreme Court after a judge ruled Monday that part of the state's execution law is unconstitutional.

Current Arkansas law lists the kinds of drugs that can be used in lethal injections, plus the catchall phrase, "any other chemical or chemicals." Pulaski County Judge Tim Fox ordered that line to be struck from the statute after attorneys for death row inmates argued that it's too broad.

Fox also crossed off several other pending motions, essentially putting an end to the case in his courtroom. Attorneys for both the state and death row inmates plan to appeal at least parts of the ruling. The case is expected to land before Arkansas' highest court, a move that doesn't come as a surprise to either party.

"We knew all along this case would reach the Supreme Court," said Chief Deputy Attorney General Brad Phelps. He added that the state will likely appeal the judge's decision to strike some of the current language in the law.

Arkansas doesn't have any pending executions, in part because this lawsuit hasn't been resolved. Gov. Mike Beebe set dates for several executions this summer, but the state Supreme Court stayed them.

While Monday's ruling moved the case toward the state's highest court, it didn't end the legal questions about the state's policy for executing death row inmates.

"It's not over," said Dina Tyler, a spokeswoman for the state's prisons. And until the Supreme Court weighs in, she doesn't expect the state to execute anyone.

And:

The judge also said the state has to follow the law when it obtains the drug sodium thiopental, a sedative used in the lethal injection process.

"The defendants are enjoined from using any sodium thiopental obtained in violation of state or federal law," Fox said.

Last month, the Arkansas Department of Correction surrendered its supply of the drug purchased from a British company amid questions over how the state obtained it.

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

More on the Hank Skinner Case

Brandi Grissom writes, "Texas Again Sets Skinner Execution Date," for the Texas Tribune, today.

For the fourth time, the state of Texas is scheduled to execute death row inmate Hank Skinner for the 1993 murders of his live-in girlfriend and her two sons, potentially quashing his ability to request DNA testing under a new state law.

Gray County District Attorney Lynn Switzer asked a state district judge last month to grant an order setting an execution for Nov. 9, even as Skinner awaits a federal court ruling on whether prosecutors must turn over DNA evidence for testing that he says will prove his innocence. Skinner’s lawyers call the move a pressure tactic that makes it tougher for the court to adequately weigh the matter.

“No one's interests will be served by rushing to a decision under the pressure of a looming execution,” Rob Owen, one of Skinner’s lawyers and director of the University of Texas School of Law's Capital Punishment Clinic, said in a statement.

The execution date also means that Skinner’s lawyers must hurry to try to take advantage of a new state law that allows increased access to post-conviction DNA testing. In 2001, legislators passed a law allowing those who had already been convicted to ask for DNA testing. The original legislation allowed testing only in cases in which DNA tests were not conducted during the original trial because the technology was unavailable or for some other reason that was not the fault of the defendant. This year, lawmakers repealed those restrictions. Beginning Sept. 1, post-conviction testing will be available for DNA evidence not previously analyzed, and for DNA evidence that was tested but that can be re-examined with updated technology.

And:

“It would be logical and sensible for the state to hold off setting another execution date until Skinner’s legal claims can all be heard in a reasonable fashion,” said Doug Robinson, one of Skinner’s lawyers. “It makes everything just so much more difficult, certainly for Skinner’s lawyers, and I would imagine for the federal courts."

Meanwhile, Robinson said, it also means that Skinner’s lawyers must quickly decide whether to file another request in state court for DNA testing based on the new post-conviction DNA testing law that takes effect next month. If lawyers file the request on Sept. 1, the day the law takes effect, it will give the courts only two months to issue a ruling before the execution date, practically lightning speed in death row litigation terms. “The two previous motions we filed took two to three years for the state courts to rule on,” Robinson said.

Which makes it very likely, Robinson said, that Skinner and his lawyers will be asking the courts to grant another stay of execution.

Earlier coverage of Hank Skinner's quest for DNA testing begins at the link.  More on Skinner v. Switzer, via Oyez.

The Cost Factor in Washington State

Today's Seattle Times reports, "King County's death-penalty dilemma: Soaring cost worth it?"  It's written by Jennifer Sullivan.  Here's an extended excerpt from the beginning of the article:

The cost of prosecuting two men and a woman accused of two of the most heinous crimes in King County in recent years is $656,564 and counting.

The cost of defending them is even higher: $4.3 million, and also climbing.

Like other counties in the state, King County is struggling with the rising cost of criminal justice, which has forced Prosecutor Dan Satterberg to eliminate the jobs of 36 prosecutors since 2008. But while budget constraints have forced some counties to all but abandon death-penalty cases, King County currently has two active capital cases.

A third, last year's prosecution of Conner Schierman for killing a Kirkland family of four in 2006, has thus far cost the county $2.4 million.

The county's current death-penalty cases include the prosecution of Christopher Monfort, who is accused of ambushing two Seattle police officers, killing one, on Halloween night 2009. Two other defendants, Michele Anderson and Joseph McEnroe, could also face execution if convicted of the slayings of six members of Anderson's family on Christmas Eve 2007.

While trials for the three defendants are months off, defense lawyers are racking up costs for expert witnesses, investigators, forensic analysis and other elements crucial for death-penalty trials. In the meantime, prosecutors, police officers and crime-lab analysts are also tallying up costs while prepping for the trials.

Portland-based defense attorney Jeff Ellis, who handles death-penalty cases across the country, said the high costs of prosecuting death-penalty cases — which can also include years of appeals — has resulted in a drop in death-penalty cases. King County, with two cases, is an anomaly, he said.

"There is a downturn in the number of death-penalty sentences being sought and imposed because of the costs associated with them," Ellis said. "What's happening now [in King County] is a reverse of what's happening nationwide."

Related posts are in the cost index.  Earlier coverage from Washington begins at the link.

An Update of Exonerees' Fee Dispute

The Dallas Observer reports, "Kevin Glasheen Fought to See Innocent Prisoners Compensated, Then Fought To Take Millions For Himself."  It's written by Brantley Hargrove, and it's a lengthy examination of the issues in this case.

Steven Phillips was about to boil over. This, the attorneys in the room must have known, wasn't good for anyone.

At 51, Phillips had a delicate drawl, but the rest of him was all rangy wildcat sinew. He was a bit of a genetic oddity. He didn't lift weights, yet his neck was thick, tapered upward from a large pair of muscles that sat like small hillocks on his shoulders. He was a native Texan, born in Abilene, but he'd grown up in the Arkansas Ozarks and had, until just recently, handled himself just fine for 25 years in a couple of Texas prisons, including the Coffield Unit, populated by violent felons.

Now, here he was, in January 2010, in a Dallas skyscraper getting prodded about his marginal history as a sex addict and a peeping Tom. Phillips wasn't denying any of that. He knew he'd come a long way since his parole got revoked in '97, when he scaled a woman's balcony and peered through her window. But those turbulent nights lay in the distant past. He worked at keeping it that way every single day, adhering to a rigid 12-step program. "Every man is responsible for working out his own salvation," Phillips liked to say.

As far as he was concerned, this lawyer was just flinging mud. He thought he was there to get grilled about a lawsuit he'd filed against a guy named Jeff Blackburn, a famed Amarillo defense attorney known for his work with the Innocence Project of Texas, and against Kevin Glasheen, a top-gun personal-injury lawyer from Lubbock, who was in the room at this very moment, monitoring the deposition. What did any of this have to do with his case?

Phillips' suit was over the $1 million and change he'd been charged by Glasheen. Their partnership, he says, began as a plan to file a lawsuit against the city of Dallas, whose police force decades before had made the arrest that sent Phillips away. The lawsuit never got filed, but in the spring of 2009, not long after Phillips hired Glasheen, Texas lawmakers passed a bill more than tripling the amount of money the state pays the wrongfully convicted. The law had been championed by Glasheen and Blackburn. According to Glasheen, that championing was part of their work as Phillips' lawyers. But after the law passed, Phillips fired Glasheen and filed the compensation papers with the state himself. Now he wanted a judge to void that contract and block Glasheen from collecting 25 percent on the $4 million coming Phillips' way.

And:

The Innocence Project of Texas defends Blackburn's right to make a living. But others inside the organization see it differently. John Stickels, a UT-Arlington professor who served on the organization's board, left the organization over the fee arrangements. Michelle Moore, a Dallas public defender who works innocent-prisoner cases, split with the Innocence Project of Texas for similar reasons.

Phillips' lawsuit is scheduled for a jury trial in November, but it's not just exonerees who are pursuing legal action against Glasheen. In January, the State Bar of Texas, the member organization for the state's attorneys, sued Glasheen in a Lubbock court, citing professional misconduct. They accused him of drawing up a contract that claimed an interest in an "administrative action" — filing a one-page compensation form — and for lobbying for a contingency fee. They also dinged him for taking cut of an annuity that hadn't been paid.

Earlier coverage of the fee dispute case begins at the link.  Related posts are in the wrongful incarceration index

Questions of Race in a Fort Worth Capital Case

"Tarrant County DA's decision in Kevan Dunlop murder case raises questions," is the title of Pamela Dunlop Gates' OpEd in the Fort Worth Star-Telegram.

A woman answers at her door to two men who barge in, steal her belongings and then shoot her in the head, killing her.

A small group of young men are playing Madden football on a flat-screen TV four men burst through the front door to rob the guy whose apartment they're at. They shoot one of the young men multiple times, killing him.

While a terrible burden to place upon anyone, it is the prosecutor's job to decide whether to seek the death penalty. How does a prosecutor decide whether a victim's life is worth enough to seek the death penalty? And how can the family of one victim accept the prosecutor's decision that the loss of their loved one is not worth pursuing the death penalty?

By now, I would have received the first of what would have been countless "crisis" calls to come over the next three years from my Kevan lamenting how his life was over because...

The week of Aug. 8 would have been Kevan's first week as a "1L" - a first-year law student - at my and my son's alma mater, Texas Southern University's Thurgood Marshall School of Law. My nephew's first call would have followed his having received the infamous "look-to-your-right-and-look-to-your-left" spiel told to TMSL first-year law students. They are told that of the three of them, only one would make it to the second year; the other two would be sent packing at the end of their first year. This "head-fake" is one of many tactics used to transform TMSL law school students into lawyers.

And:

Coping with Kevan's death has been exacerbated knowing that his life might not be as valued by the Tarrant County criminal justice system. While District Attorney Joe Shannon commendably sought and obtained capital murder indictments for the four young black men identified as Kevan's killers, he exercised his prosecutorial discretion to not seek the death penalty in their cases.

I expect the District Attorney to deny that Kevan's race influenced that decision. Hard as I try, though, I can come up with no other reasonable explanation.

Kevan's killing was committed with grave risk to the life of others, and while in the course of another serious crime -- burglary/robbery. Those charged with Kevan's murder (and the attempted murder of two other young black men who were gravely injured) do not fall in the category of defendants of any race least likely to get the death penalty: those with no prior record and the death was accidental, according to "The Death Penalty in Black and White: Who Lives, Who Dies, Who Decides," by Richard C. Dieter, executive director of the Death Penalty Information Center.

The Star-Telegram reported that court records show Kevan's alleged killers all have criminal convictions in Tarrant County. Two were connected to a December 2010 shooting death of Victor Flores at an apartment complex on Fort Worth's west side a little more than two weeks before Kevan's death. The DA's office said there was not enough admissible evidence to take that case to trial.

Related posts are in the race index.