The StandDown Texas Project

Florida Supreme Court Orders Attorney to Remain on Case

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

The Tallahassee Democrat reports, "State Supreme Court orders death-row lawyer to stay on case," by Dara Kam.

A sharply divided Florida Supreme Court on Thursday ordered a Death Row inmate’s lawyer to remain on the case even though convicted murderer James Robertson wants to be executed.

Robertson’s public defender, Steven Bolotin, asked to be removed from the case earlier this year, arguing that Florida Bar rules require him to represent his client’s wishes. Robertson, who has spent more than three decades in prison, was sentenced to death in 2012 for killing his cellmate four years earlier.

“If the attorney is required to seek reversal of his client’s death sentence when the client adamantly desires affirmance of the death sentence it is a legal fiction, at best, to say that the attorney is acting ‘on (the client’s) behalf’ ... or providing advocacy of the client’s interests,” Bolotin wrote in a January motion.

But, in a 4-3 ruling echoing previous decisions, the Supreme Court majority ordered Bolotin to continue to represent Robertson in the direct-appeal process required by Florida law in capital cases.

"Client’s wish for death penalty doesn’t justify defense lawyer’s withdrawal, Fla. supreme court says," is the ABA Journal post by Debra Cassens Weiss.

Robertson can seek leave to file a supplemental brief explaining his own positions and interests, the court said.

In a concurrence, Justice Barbara Parienti argued that ABA standards consider a lawyer’s acquiescence in a client’s desire to be executed to be ineffective assistance. “In other words,” she wrote, “not only does the client have no right to commit state-assisted suicide, but it is actually ineffective—and therefore unethical—conduct for an attorney to accede to this request.” Her opinion was joined by two other justices.

The dissenters argued that the majority infringes on Robertson’s right to decide whether to appeal his death sentence and his right to a lawyer who will abide by his decision regarding the objectives of representation.

Earlier, unrelated, coverage from Florida begins at the link.

Florida Editorial Criticizes Timely Justice Act

The Sunday Tampa Tribune published the editorial, "Death penalty law legal but falls short."

The average time for Florida’s death row inmates to await execution is 13 years, below the national average. Rather than focus simply on ways to legislate a shorter wait time, the state also should address the startling number of faulty convictions.

An American Bar Association review from 2006 called upon the state to create independent commissions to examine the causes of wrongful convictions, to better compensate attorneys for the accused and to bring Florida in line with other states by requiring that jury recommendations for death be unanimous, rather than a simple majority. The review found glaring racial, socioeconomic and geographical disparities in death sentences.

So far, the state hasn’t moved to address the more pressing issues surrounding its flawed death penalty process. This neglect can contribute to the legal delays in executions.

The Supreme Court got it right. The Timely Justice Act is constitutional, and largely inconsequential. State lawmakers have more work to do to strengthen the death penalty and justice in Florida.

Earlier coverage from Florida begins at the link.  You can also jump to news of the Timely Justice Act.

More Hall v. Florida Previews

"Upholding the Law and the Constitution," is by Diann Rust-Tierney at the ACS blog.  She's the Executive Director of the National Coalition to Abolish the Death Penalty.

 On March 3, 2014, the Supreme Court will hear arguments in the case of Hall v. Florida.

The question presented is narrow: Whether Florida’s statutory scheme for identifying defendants with “mental retardation," as interpreted by the Florida Supreme Court, violates the Eighth Amendment prohibition against executing people with intellectual disabilities as articulated in Atkins?

As a note of reference “intellectual disabilities,” adopted since the Court ruled in Atkins, is the preferred clinical term over “mental retardation.”

At stake is whether Florida is obliged to honor the limits imposed by the eighth amendment and refrain from executing a man who falls within the class of people for whom the death penalty is cruel and unusual punishment.  This inquiry goes to the heart of the deal struck in Gregg v. Georgia, 428 U.S. 153 (1976). In Gregg the Supreme Court held that the death penalty could be administered in a manner consistent with the Constitution.  The Court’s ruling was premised on the reasonable expectation that states will work within the framework created by the Court as the final arbiter of constitutional standards for the practice. This premise cannot hold, however, if states continuously seek to circumvent these standards by erecting barriers to the recognition of constitutional rights.

ABA Journal posts, "The death penalty and the mentally disabled," by Erwin Chemerinsky.  He's the founding Dean of the University of California, Irvine School of Law.

Freddie Lee Hall was tried and convicted for a murder that occurred in 1978. At a hearing on whether to impose the death penalty, Hall's lawyers presented evidence that he is mentally retarded. His teachers had identified his mental disabilities and labeled him "mentally retarded." Doctors who examined him concluded that Hall was "extremely impaired psychiatrically, neurologically and intellectually," that he showed signs of "serious brain impairment," and that he "is probably incapable of even the most ... basic living skills which incorporate math and reading." On intelligence tests, his IQ measured at 60, 76, 79, and 80, all in the range of being mentally retarded. Nonetheless, the Florida trial court sentenced him to death.

In 2001, Florida enacted a statute that prohibits the execution of persons with mental retardation. The law defines mental retardation as "significantly sub-average general intellectual functioning" as measured by a "performance that is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules." In 2007, the Florida Supreme Court interpreted this law to mean that only those with an I.Q. score of 70 or below qualify as mentally retarded. Cherry v. State.

 Earlier coverage of Hall v. Florida begins at the link.

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability. 

Because it has a specific meaning with respect to capital cases, I continue to use the older term on the website.  More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.

Mark Schlakman on the Florida Death Penalty

"Fairness in death penalty goes beyond method," is the title of Mark Schlakman's latest OpEd in the Tallahassee Democrat.  He's with the FSU Center for the Advancement of Human Rights, and was a member of the ABA’s Florida Death Penalty Assessment Team.

This Tuesday, the Florida Supreme Court will hear oral argument in the legal challenge to Gaetz’s legislation. In the months ahead, the court also will consider a petition filed by its Capital Postconviction Proceedings Subcommittee in December to amend certain capital postconviction rules.

Ironically, controversy involving the Timely Justice Act and emphasis upon “efficiency” has seemingly diverted attention from numerous credible studies, like the American Bar Association’s Florida Death Penalty Assessment Team Report (2006), which indicate that Florida’s death penalty process is fraught with problems. You can review that study or its executive summary.

A comprehensive review of Florida’s entire death penalty process by state officials as contemplated by the Florida Bar Board of Governors arguably is long overdue.

Earlier coverage from Florida begins at the link.  You can also jump to coverage of Florida's Timely Justice Act.

News From the American Bar Association

"Ronald Tabak to Receive 2014 Father Drinan Award," is the announcement from the ABA Section of Individual Rights and Responsibilities.

The ABA Section of Individual Rights and Responsibilities (IRR) is proud to announce that Ronald Tabak will receive the 2014 Robert F. Drinan Award for Distinguished Service to the Section.

The award, named in honor of the late Father Robert F. Drinan, a former member of Congress who chaired the Section from 1990 to 1991, recognizes service to the Section that advances its mission of providing leadership to the legal profession in protecting and advancing human rights, civil liberties, and social justice.

The Drinan Award will be presented to Mr. Tabak during a reception on Friday, February 7th at the 2014 ABA Midyear Meeting in Chicago.

And:

Mr. Tabak is a longtime proponent of examining and addressing issues of fairness in capital punishment cases.  He has been a leader in the ABA’s efforts to recruit and train lawyers for indigent death row inmates; spearheaded the successful effort to have the ABA call for a moratorium on executions until various due process concerns are resolved; he currently chairs the Section’s Death Penalty Committee; and serves as a Special Advisor to the Death Penalty Due Process Review Project Steering Committee.

The reception is free but please R.S.V.P. by sending an email to [email protected], if you want to attend the Chicago event.

Related posts are in the ABA category index.

Nashville PD's Have Full Caseload

The Tennessean reports, "Public defender's office says it can't take on new death penalty case," by Brian Haas.

Nashville’s public defenders say they can’t take on any more death penalty cases right now.

Resources and manpower are simply too limited to take on the case of Lorenzo Jenkins, 40, a man accused of murdering three people over drugs in October. That’s according to Assistant Public Defender Mike Engle, who told Criminal Court Judge Randall Wyatt Jr. Monday that the state should instead hire Jenkins a private attorney to handle his defense.

Prosecutors are seeking the death penalty for the deaths of Patrick Sullivan, 56, his wife, Deborah Sullivan, 48, and their daughter, Wendy Sullivan, 28, who were all found stabbed Oct. 22, 2012.

“Because of the state’s filing of a death motion in this case, our office quite frankly lacks the resources to defend a death penalty case,” Engle told Wyatt in court Monday morning.

Engle said the American Bar Association estimates a typical death penalty case requires upward of 2,000 hours of preparation. He explained that the office only has a few attorneys qualified to defend capital cases, two of whom are already on one case, and one of whom is retiring soon. The others, he said, have supervisory duties over other public defenders, making it impossible for them to take on a case of the magnitude of the one against Jenkins.

Related posts are in the indigent defense category index.  Earlier, unrelated coverage from Tennessee begins at the link.

Kansas Attorney Facing Discipline Over Capital Representation

Today's Topeka Capital-Journal reports, "Hawver tells disciplinary panel he didn't have death penalty training."  It's written by Steve Fry.

Lawyer Dennis Hawver hopes his proposal that he never defend another homicide case again will end an ethics complaint tied to his handling of a death penalty case that sent a client to death row.

A prosecutor in the office of the disciplinary administrator, which polices lawyer conduct, is suggesting disbarment or indefinite suspension of Hawver.

Eight years after Hawver represented Phillip D. Cheatham Jr. in a Shawnee County capital murder case, Hawver faced the panel that will determine whether Hawver violated any ethics rules governing lawyers.

If he did, the panel will recommend what sanctions he would receive. Hawver represented himself Tuesday.

And:

Hawver admitted he knew little about defending a client charged with capital murder:

■ He never took continuing legal education courses in how to defend someone facing a death penalty case. A lawyer is required to take CLEs.

■ "I freely admit that I did not meet the American Bar Association standards (dealing with death penalty cases) because I wasn't even aware of ABA standards when I tried this case."

Earlier this week, the Capital-Journal provided a preview, "Former Cheatham attorney: Defendant is 'master' of his case, not the attorney," also written by Fry.

In answer to allegations by the Kansas Board for Discipline of Attorneys, lawyer Dennis Hawver has defended his legal work when he represented capital murder defendant Phillip D. Cheatham Jr.

On Tuesday, Hawver, an Ozawkie lawyer, will appear before a three-member disciplinary panel, which will decide whether Hawver violated any ethics rules governing lawyers and, if so, what sanction they would recommend he receive.

And:

On Jan. 25, the Kansas Supreme Court overturned Cheatham’s conviction and his death penalty sentence. In a unanimous decision, the Supreme Court cited ineffective assistance of counsel, saying Hawver provided incompetent representation of Cheatham.

The Supreme Court said Hawver’s shortcomings included his unfamiliarity with American Bar Association guidelines for handling death penalty cases; declining to accept funds from state Board of Indigents’ Defense Services to hire investigators; spending 200 hours in defense of Cheatham, an “appallingly low (amount of time) for a death penalty case;” failing to make himself available as an alibi witness for his client; and informing jurors of his client’s 1994 manslaughter conviction.

Earlier coverage of Phillip Cheatham's case begins at the link.  Related posts are in the ineffective assistance of counsel category index.

Earlier coverage from Kansas, unrelated to the Cheatham case, at the links.

State-Specific Coverage of the ABA Symposium

Morris News Service writer Walter C. Jones filed three state-specific news reports on the Carter Center symposium.

The Florida Times-Union posted, "Steps suggested to protect innocent in capital cases."

Georgia prosecutors, police and defense attorneys need more rigorous procedures in order to safeguard the innocent in death penalty cases, according to a review by the American Bar Association featured Tuesday during a daylong conference.

The study was part of a series of examinations the association’s civil-rights section made of the 12 states that conduct 65 percent of the nation’s executions. Many of the authors have acknowledged personal opposition to capital punishment.

“The ABA takes no stance on the death penalty outright. But we insist that if jurisdictions use the death penalty, they implement it fairly, accurately and with due process,” said James Silkenat, ABA president at the start of the conference at the Carter Center. He notes that the number of U.S. executions has declined from 85 in 2000 to less than half that this year and that polls show Americans’ support for capital punishment — 60 percent — is at its lowest point since 1972.

“The truth is that, as shown over and over again in our state assessment reports, the death penalty is still applied unpredictably,” Silkenat said. “And, more often than not, capital cases are unduly influenced by factors that have nothing to do with the defendant or the crime.”

And:

“Georgia has long been ground zero in the legal debate over capital punishment,” he said. “Thus it is fitting that we are here today to begin a new discussion about the fairness of the death penalty in America.”

Georgia is the state that generated the U.S. Supreme Court decision that halted executions in the country in 1972 over racial disparity and the state that prompted the court to approve their resumption in 1976 after legal reforms.

"Bar Association study: Florida needs greater safeguards in death-penalty cases," is also in the Times-Union.

The study notes that Florida has released one person as innocent from Death Row for every three it has executed since 1973, the highest number of exonerations in the nation.

The specific advice for Florida calls for changing limits on how defense attorneys are compensated and boosting their qualifications for taking on a capital case. And it also objects to allowing juries that aren’t unanimous to deliver a death sentence or for judges to override the jury’s recommendations and order an execution. Plus, the Board of Executive Clemency should be more transparent, such as issuing a written statement every time it denies clemency.

The likelihood of these recommendations taking effect depends on the ability of activists to spur politicians to act, according to Stephen Bright, president of the Southern Center for Human Rights.

Most of the conference participants favor repeal of the death penalty, and they left with more ammunition to do so.

The Amarillo Globe-News reports, "Review: Texas needs better policies to protect innocents."

The chairwoman of the ABA team that examined the Texas system, University of Texas professor Jennifer Laurin, is optimistic the Texas Legislature will take the advice to heart.

“I feel confident that a number of the recommendations — some of which have been considered by the legislature before — will be considered again,” she said.

“With not only the research behind the report, but also longer time and experience with some of the financial as well as justice-related pitfalls of our criminal justice system, there’ll be more momentum for it.”

The specific advice for Texas includes requiring written procedures for police in dealing with eyewitness identifications, videotaping of all interrogations while in custody, amending the law to allow greater post-trial testing of DNA evidence and higher funding for state crime labs.

The authors also called for abandoning of the “future dangerousness” question that jurors use in deciding a death sentence since Texas is the only state that requires it.

Texas exoneree Anthony Graves also spoke at the symposium.

Earlier coverage of the ABA Carter Center symposium begins in the preceding post. You can also jump to coverage of the ABA Texas Assessment.

News Coverage of the ABA Symposium at the Carter Center

The National Journal posts, "Jimmy Carter's Crusade Against the Death Penalty Is Lonely, But Is He Winning?" by Dustin Volz.

Former President Carter called for a national moratorium on capital punishment in the United States on Tuesday, declaring in a speech, "We should abolish the death penalty here and throughout the world."

Carter proceeded to meticulously enumerate the oft-cited ethical, financial, and legal reasons for his opposition, which are nothing new for the octogenarian; he expressed doubt about the death penalty as far back as his presidential campaigns.

"Perhaps the strongest argument against the death penalty is its extreme bias against the poor, minorities, and those with mental disabilities," Carter said at a national symposium hosted by the American Bar Association at the Carter Center in Atlanta. "It's hard to imagine a rich white man or woman going to the death chamber after being defended by expensive lawyers."

Carter's remarks come at a time when support for the death penalty among Americans has fallen to 60 percent, the lowest reading since 1972 and down from a mid-1990s high of 80 percent. States with capital punishment are also facing unprecedented challenges in their efforts to secure the drugs necessary to perform executions by way of lethal injection.

"Carter calls for abolition of death penalty," by Bill Rankin in the Atlanta Journal-Constitution.

In 1973, Carter, then governor of Georgia, signed the state’s capital punishment statute into law after it had been struck down a year before by the U.S. Supreme Court in the case, Furman v. Georgia. The new law was upheld by the high court in 1976 in the case, Gregg v. Georgia.

Carter condemned Georgia’s burden of proof for inmates who say they should be ineligible for execution on grounds they are mentally disabled. Georgia is the only state in the country that requires inmates to prove their mental retardation beyond a reasonable doubt.

In recent years, Carter has called for the state to commute the death sentence imposed against Warren Hill, who sits on death row for killing a fellow prison inmate. Hill was only able to prove his mental disability by a preponderance of the evidence — or more likely than not — and courts and that state parole board have rejected his claims.

Georgia’s burden of proof “makes is almost legally impossible” for inmates to prove they are mentally disabled, Carter said. “That would be hard for me to do if the jury was bipartisan in nature.”

 AP coverage is, "Carter calls for abolition of death penalty," by Kate Brumback.  It's via the Dalton Daily Citizen.

Former President Jimmy Carter said Tuesday there are overwhelming ethical, financial and religious reasons to abolish the death penalty all over the world.

Carter spoke at a daylong symposium on capital punishment at the Carter Center in Atlanta, but it wasn’t the first time the 89-year-old former president and former governor of Georgia has advocated ending capital punishment.

Statistics have shown that the possibility of the death penalty does not reduce violent crime that and crime doesn’t increase when executions are stopped, he said. He also said there are unfair racial, economic and geographic disparities in the application of the death penalty.

And:

Carter noted that a majority of the executions since the death penalty was reinstated in the U.S. in 1976 have been carried out in Southern states, which are traditionally more conservative. But Carter said he doesn’t believe that opposing the death penalty has to be politically poisonous.

Sitting on a panel with Carter at the American Bar Association’s National Symposium on the Modern Death Penalty in America, Southern Center for Human Rights president Stephen Bright prodded Carter about the political viability of such a position in Georgia.

“Let’s say you were advising someone running for governor today, just hypothetically let’s say a member of your family was running for governor and asked you what position to take on the death penalty,” Bright said, drawing laughs from the crowd. Carter’s grandson, Georgia state Sen. Jason Carter, announced last week that he’s running for governor.

Carter laughed and then grew more serious in his response: “If I ever have someone like that in my family, I will give them a copy of the speech I just made and ask them to do what they believe in their heart is right because I don’t believe that the death penalty abolition would be an overwhelmingly a negative factor in Georgia politics.”

The key, Carter said, is stressing hefty alternative sentences, such as life in prison.

"Analysis: Wrongful convictions sharpen focus on death penalty," is by Maggie Clark of Stateline, via USA Today.

To ensure that more innocent people don't end up on death row, the American Bar Association has conducted assessments of the death penalty system in 12 states and issued recommendations ranging from stronger rules on police interrogations to protections for the mentally ill facing execution.

In its most recent report, researchers found that Virginia's death penalty lacked adequate protections to prevent an innocent person from being executed. The report recommended allowing more evidence to be released to the defense team, which former Virginia Republican Attorney General Mark Earley said was the only way to make sure the process is fair.

"By the time a case gets to the appellate review, a lot of the decisions about a defendant's guilt are already locked in. By that time, the deck is stacked against the defendant," Earley said during the panel discussion.

And:

"I think the days of the death penalty in Virginia are numbered," Earley said, citing growing conservative discontent with the punishment. Earley supported the death penalty as a Republican state senator, but said he changed his mind after witnessing executions as the state attorney general.

In the last six years, six states have ended the death penalty bringing the total to 18. Earlier this year, North Carolina and Florida passed laws designed to shorten the length of time between conviction and execution.

Creative Loafing Atlanta posts, "Jimmy Carter wants to ban executions throughout the United States," by Max Blau.

The 89-year-old former commander-in-chief and Georgia governor spoke this morning at the National Symposium on the Modern Death Penalty in America, a daylong event at the Carter Center that featured numerous speakers and panels about capital punishment.

"We should abolish the death penalty here and throughout the world," Carter said at the event.

The American Bar Association, which hosted the symposium with the Carter Center, wants guarantees that the death penalty is used in a fair and effective manner. According to WABE, Carter pointed out that Southern states' higher execution rates have largely failed to curb homicides. He also called Georgia's burden of proof for mental disability, which has played a crucial role in death-row inmate Warren Lee Hill's controversial case, problematic.

I'll have some state-specific coverage of the ABA symposium in the next post.

Earlier coverage of President Carter's thoughts on capital punishment and a preview of the ABA program begins at the link.

You can get more information on the state assessments at the ABA's Death Penalty Due Process Project website.

Related posts are in the ABA category index.

Tuesday

I'll be attending the ABA National Symposium on the Modern Death Penalty in America, being held today at the the Carter Center in Atlanta.

Posting will resume as WiFi allows.

Former President Jimmy Carter Renews Dialogue on Capital Punishment

The Guardian posts, "Jimmy Carter calls for fresh moratorium on death penalty," by Ed Pilkington.

Former US president Jimmy Carter has called for a new nationwide moratorium on the death penalty, arguing that it is applied so unfairly across the 32 states that still have the death sentence that it amounts to a form of cruel and unusual punishment prohibited under the US constitution.

In an interview with the Guardian, Carter calls on the US supreme court to reintroduce the ban on capital punishment that it imposed between 1972 and 1976. The death penalty today, he said, was every bit as arbitrary as it was when the nine justices suspended it on grounds of inconsistency in the case of Furman v Georgia 41 years ago.

“It’s time for the supreme court to look at the totality of the death penalty once again,” Carter said. “My preference would be for the court to rule that it is cruel and unusual punishment, which would make it prohibitive under the US constitution.”

Carter’s appeal for a new moratorium falls at a time of mounting unease about the huge disparities in the use of capital punishment in America.

Pilkington will be one of the moderators at tomorrow's ABA National Symposium on the Modern Death Penalty in America, being held tomorrow at the the Carter Center in Atlanta.

Earlier news of the symposium begins at the link.

Arizona Republic Series on Prosecutorial Misconduct Concludes

Today's The Arizona Republic concludes it series on prosecutorial misconduct, "the Gray Area of Courtroom Conduct," with the fourth of four news articles, "Can the system curb prosecutorial abuses?"  As with all the previous reports, it's written by Michael Kiefer.

Here's the beginning of this must-read:

For three days, The Arizona Republic has examined prosecutor conduct and misconduct, citing cases in which prosecutors stepped over the line without suffering consequences to themselves or the convictions they win.

The question remains: What can be done about it?

Options already are in place.

When a prosecutor steps over the line, it’s up to the defense attorney to call it to the court’s attention, and it’s up to the judge to decide whether an offense has been committed and whether it affects the defendant’s right to a fair trial.

Yet, neither likes to do so.

Prosecutors are arguably the most powerful people in the courtroom: They file the charges and offer the plea agreements. They determine whether to seek the death penalty, and, given mandatory sentencing, predetermine the consequence of a guilty verdict.

Defense attorneys worry that if they cross a prosecutor, future clients could be treated more harshly the next time they face that prosecutor in court. Judges worry about prosecutors who use court rules to bypass those judges who rein them in. Both know that prosecutors are rarely sanctioned by the court or investigated by the State Bar of Arizona for ethical misconduct.

So overly aggressive prosecutors continue to have their way in the courtroom – as long as they win cases, experts say.

“It comes from this ‘end-justifies-the-means mentality,’’’ said Jon Sands, the federal public defender for Arizona. “We’ll do anything we can to bring someone to justice.”

Earlier coverage of the Arizona Republic series on prosecutorial misconduct begins at the link.

News & Events From the ABA

The American Bar Association presents a National Symposium on the Modern Death Penalty in America.  It will be held Tuesday, November 12, 2013 at the Carter Center in Atlanta, Georgia.

This symposium will be the culminating event of the American Bar Association’s eight-year endeavor to examine the fairness and accuracy of various death penalty jurisdictions in the United States.  The ABA-sponsored analysis of state death penalty laws and processes, known as the “State Assessments,” have produced comprehensive examinations of capital punishment in Alabama, Arizona, Florida, Georgia, Indiana, Kentucky, Missouri, Ohio, Pennsylvania, Virginia, Tennessee, and Texas.   These states represent 65% of the executions that have taken place in the U.S. in the modern death penalty era.  The assessments have had a considerable impact on policy in those states as well as nationwide, and have played an important role in the continuing debate over capital punishment in the United States.

Former U.S. President Jimmy Carter will open our symposium, which will be followed by a series of special issue panels discussing the ABA’s findings in various jurisdictions, recommendations for reform, and implications for the future of the death penalty in America.  The symposium’s featured speakers and panelists include ABA President Jim Silkenat, President of the Southern Center for Human Rights Stephen B. Bright, the Honorable Boyce Martin, recently retired from the 6th Circuit Court of Appeals, former Texas Governor Mark White, former Ohio Attorney General Jim Petro and former Virginia Attorney General Mark Earley, journalists Ed Pilkington of the UK’s Guardian newspaper and Brandi Grissom of the Texas Tribune (and many more) will serve as panelists throughout the day as we discuss contemporary problems concerning the use of the death penalty in America, as well as possible solutions to this complex and multi-faceted area of law and policy.

The registration deadline is Friday, November 1, 2013.

The Symposium is sponsored by the ABA Section of Individual Rights and Responsibilities, ABA Criminal Justice Section, Andrews Kurth, and Sutherland.

Also, the IRR Section has announced that Ron Tabak will be the 2014 recipient of the Section's Father Robert Drinan Award for Distinguished Service in recognition of his outstanding service and commitment.  In the words of the Chair, “Your work for over a quarter of a century in death penalty and civil rights litigation and on behalf of death row inmates and due process in death penalty jurisprudence, has enriched this Section with your experience, and honored our profession by your example.”

The award will be presented the evening of Friday, February 7, 2014 in Chicago as part of the ABA’s 2014 Mid-Year Meeting.

Related posts are in the ABA category index.

Fail-Safes for Virginia’s Death Penalty

That's the title of an OpEd by Mark L. Earley Sr. and Anthony F. Troy, published in the Washington Post earlier this month.  Earley, a Republican, and Troy, a Democrat, both served as Attorney General of Virginia.  Here's the beginning:

As former attorneys general of Virginia, we come from different political parties but are firmly united on an issue important to all Virginians: If the commonwealth is going to have the death penalty, it needs to get it right. It must ensure that its procedures — from arrest to execution — are fair, and it must minimize the risk of executing an innocent person.

We now have extensive evidence documenting the need for modest but vitally important changes to Virginia’s death penalty process. A team of Virginia legal experts, assembled by the American Bar Association, recently released a 400-page report detailing the challenges faced by the commonwealth in ensuring fairness and accuracy in death penalty cases. The team, which includes three former or current prosecutors, a former circuit court judge and two capital defense lawyers — identified a number of ways in which Virginia’s death penalty is out of step with modern forensic and social sciences and areas where the commonwealth’s practices are out of step with those of other states.

Unlike many reviews of capital punishment in the United States, this group’s charge was not to determine whether the commonwealth should have a death penalty. Instead, its operating position was that as long as Virginia has a death penalty, it must be reserved for a narrow category of the worst offenders and offenses, ensure heightened due process and minimize the risk of executing the innocent. We could not agree more.

The report sets out a sober, detailed explanation of the system’s shortcomings. Virginia has one of the most restrictive laws governing discovery of evidence in criminal trials — including death penalty cases. Discovery rules governing automobile accident cases in the commonwealth offer far more information than those for a defendant facing capital punishment. Such a system not only fails the fairness test but also makes extensive post-trial litigation, reversals and retrials much more likely. Indeed, two people convicted of capital murder more than a decade ago in Virginia — Michael Hash and Justin Wolfe — recently had their convictions reversed by federal courts because of withheld evidence.

Earlier coverage of the ABA Virginia Assessment begins at the link.  You can also get more information on the ABA's Death Penalty Due Process Project and view other state assessments.

Continued Editorial Highlighting of the DPIC Report

Today's Dallas Morning News publishes the editorial, "With death penalty, geography is destiny."

Potter County, population about 122,000, has a lot of people by Texas Panhandle standards, but around Dallas it would be just another suburb.

That doesn’t stop it from being a national death penalty powerhouse.

Responsible for 11 executions since capital punishment resumed in 1976, Potter County ranks 10th of all 3,143 U.S. counties in death sentences carried out, according to a new report from the Death Penalty Information Center. The report illustrates the nation’s grossly uneven use of the death penalty, with 2 percent of the counties responsible for most executions, far out of proportion to their population.

This dreadful phenomenon persists despite the brief national moratorium after a 1972 Supreme Court ruling that declared the death penalty unconstitutional. Among other things, justices cited application that appeared arbitrary and capricious.

Statistics argue that capital punishment is no less arbitrary today and is partly a function of geography and purely local standards of justice. Consider that Potter County put more people in the death chamber than Cuyahoga County, Ohio, with 10 times the population, or even Miami-Dade County, Fla., which has 20 times the population.

Disparities persist also within Texas, as cited in a recent American Bar Association-sponsored analysis. It said more than half the 1,060 Texas death sentences since 1976 were clustered in four counties — Harris, Dallas, Bexar and Tarrant — and that nearly half of Texas’ 254 counties sent no one to death row.

"Report: Some FL Counties Top List for Death Penalty Use," is by Stephanie Carroll Carson for the Orlando Advocate.

Not all counties are created equal when it comes to issuing death penalty sentences in Florida, or the rest of the country. According to a new report by the Death Penalty Information Center,Florida leads the nation for the number of death sentences handed down in the last two years, and has the second-largest death row population in the country. Duval, Clay and Nassau Counties top the list, and all are in the 4th Judicial District.

Political scientist Frank Baumgartner, a professor at the University of North Carolina, explained why there seems to be a concentration in certain areas.

"The small number of jurisdictions apply the death penalty for some reason, and I think the reason is the development of a local prosecutorial culture," he said.

Since 1976, the report says just four states - Florida, Texas, Virginia, and Oklahoma - have been responsible for almost 60 percent of the country's executions. And nationwide, just 2 percent of counties account for a majority of death row inmates.

Baumgartner said that once a death sentence is handed down in a county, prosecutors there are more likely to pursue the punishment in other cases.

Earlier coverage of the DPIC report begins at the link.

The DPIC report is, "THE 2% DEATH PENALTY: How a Minority of Counties Produce Most Death Cases at Enormous Costs to All."  You can find the full report, executive summary, and news release at the links.

Related posts are in the geographic disparity and report category indexes.

Daily Texas Editorial on ABA Assessment

"If Texas executes at all, it must do so fairly," is the editorial in today's Daily Texan, at the University of Texas at Austin.

In a speech before Parliament in 1868, the English political philosopher John Stuart Mill — an ardent supporter of capital punishment — pointed out the sole argument against it that gave him pause: “that if by an error of justice an innocent person is put to death, the mistake can never be corrected... The argument is invincible where the mode of criminal procedure is dangerous to the innocent, or where the Courts of Justice are not trusted.”

Nowhere in the United States is Mill’s warning of greater import than here in Texas, the state that consistently executes more prisoners than any other.

On Wednesday, Sept. 18, the American Bar Association released the results of a two-year study of the death penalty in Texas, which stated that Texas’ death penalty system “fell far short” of the necessary standards of proof for conviction and sentencing.

The ABA Texas Death Penalty Assessment is at the link; also available, more on the American Bar Association Death Penalty Due Process Project and other state death penalty assessments.

Earlier coverage of the ABA Texas report begins at the link.

Austin American-Statesman Editorial Lauds ABA Report

Today's Austin American-Statesman publishes the editorial, "Recommended death penalty reforms deserve consideration."

The American Bar Association released a report this week assessing Texas’ death penalty laws, procedures and practices. The state has improved the way it pursues the death penalty, the report says, but the administration of capital punishment in Texas hardly can be called accurate and fair.

Far from pointing out the obvious, however, the report recommends ways Texas lawmakers can reform the state’s death penalty system. Legislators would do well to consider the recommendations.

Members of the team that assessed the death penalty in Texas presented the report Wednesday. They were joined by Anthony Graves, who was wrongly convicted in 1992 of participating in the murder of six family members in Somerville. His conviction was overturned in 2006, and he was declared innocent in 2010.

“We have a failed system from top to bottom. I am encouraging all branches of our government to read this, examine this and implement this,” Graves said of the report. “Had this study been done 20 years ago, I probably wouldn’t” have been convicted.

And:

The state should clarify its criteria for evaluating and determining the intellectual disabilities of defendants, something it has failed to do even though the U.S. Supreme Court declared the execution of defendants with intellectual disabilities unconstitutional in 2002.

And the state should abandon its use of “future dangerousness.” Texas juries weighing whether to sentence someone to death must first decide whether the person poses a future danger to society. This is a nearly impossible task, and experience has shown it is one subject to manipulation by bad science and racial bias.

“Jurors are left to comprehend ‘probability,’ ‘criminal acts of violence,’ and ‘society’ so broadly that a death sentence would be deemed warranted in virtually every capital murder case,” the report says.

The primary purpose of the association’s recommended reforms is to eliminate wrongful convictions in death penalty cases. Wrongful convictions not only send an innocent person to death row, but as the report points

Th Houston Press posts "American Bar Association to Texas: Your Administration of the Death Penalty is Woefully Inept," by Calvin TerBeek.

 The report opens with this salvo:

"In many areas, Texas appears out of step with better practices implemented in other capital jurisdictions, fails to rely upon scientifically reliable methods and processes in the administration of the death penalty, and provides the public with inadequate information to understand and evaluate capital punishment in the state. For example, since 1992, Texas has paid over $60 million to those it has wrongfully imprisoned--money that could have been applied more effectively to find the "right guy" the first time around. In addition, the state and federal courts must spend significant time and resources correcting errors in capital cases--errors that could have been prevented--to the detriment of the vast majority of Texans who rely on the justice system every day. Indeed,preventing error is often far less expensive than correcting error."

It gets worse: from 1989 to 2012, 47 (!) Texas death row inmates have been exonerated via DNA testing or the discovery of new evidence. But yet, almost unbelievably, Texas does not require "indefinite preservation" of DNA/biological evidence for violent felony crimes. (Dallas County's District Attorney has been the exception to this rule and has been remarkably open to getting it right).

What is more, Texas is behind the times on eyewitness identifications, a problem I highlighted in an article for the Law & Psychology Review back in 2007 (which has been cited by Connecticut Supreme Court). Texas courts routinely allow in unreliable eyewitness identifications which have repeatedly been shown to problematic. No matter, Texas prosecutors just want their conviction. But, according to the report, Texas leads the nation in wrongful convictions and exonerations in criminal cases generally.

Earlier coverage of the ABA Texas report begins at the link.  

The ABA Texas Death Penalty Assessment is at the link; also available, more on the American Bar Association Death Penalty Due Process Project and other state death penalty assessments.

Additional News Coverage of the Texas Assessment

The ABA Texas Death Penalty Assessment is at the link.

The updated AP report is, "Report heaps new criticism on state death penalty," by Paul J. Weber.  It's via the Longview News-Journal.

A man who spent 18 years on death row in Texas before being exonerated by DNA evidence joined former Gov. Mark White on Wednesday in presenting a report that calls for lawmakers to pursue reforms in the nation’s most active death penalty state.

The new report from the American Bar Association urges the state to strengthen standards for eyewitness identification and require video recordings of suspect interrogations. The 500-page report also recommends reducing barriers to post-conviction DNA testing.

White, who served as governor from 1983 to 1987, oversaw 19 executions during his term. He helped unveil the report along with Anthony Graves, who was wrongfully convicted in the slayings of six family members.

“It reminds us that ultimately the death penalty becomes a very, very personal situation,” White said.

Texas executed its 500th inmate this summer. It has accounted for nearly 40 percent of the more than 1,300 executions carried out since 1977, when a Utah inmate became the first U.S. prisoner executed following the Supreme Court’s clarification of death penalty laws. Virginia is a distant second, nearly 400 executions behind.

And:

The report does praise the state for making some “significant improvements” in capital punishment cases in recent years. The most well-known is the Michael Morton Act, named in honor of a Texas man who spent 25 years in prison for a crime he did not commit. The law signed by Gov. Rick Perry mandates that prosecutors statewide share case files that can help the defense.

But the report asks that the state do even more for inmates post-conviction. Among the recommendations are requiring the state Board of Pardons and Paroles to conduct public hearings in any case in which clemency is sought.

"Study cites flaws in Texas death penalty system," is by Chuck Lindell in the Austin American-Statesman.

An intensive two-year study of the death penalty in Texas, sponsored by the American Bar Association, found a system that is riddled with flaws and shortcomings, undermining confidence that innocent defendants will be spared lethal injection in the nation’s leading state for executions.

The almost 500-page report, distributed to state political leaders Wednesday, did not call for a moratorium on executions. Instead, it offered a long list of recommendations intended to improve fairness and accuracy in capital murder cases.

“What we found, time and time again, is Texas fell short,” said Paul Coggins, a former federal prosecutor from Dallas and a study team member. “We’re simply out of step with the better practices in other states.”

Texas is the 12th state to be examined by the bar association’s death penalty review project since 2006.

And:

Before a death sentence can be given, Texas jurors must determine that the convicted murderer poses a future danger to society — a process that opens the courtroom to junk science, speculation and racial bias, the report said.

“That’s totally reading tea leaves,” Coggins said. “It has no scientific basis, yet it’s powerful, powerful testimony.”

Texas should join most states in abandoning the question of future danger, or at the very least clarify the term for jurors who continue to struggle with its meaning, the report recommended.

The Dallas Morning News posts, "Report urges reform of Texas’ death penalty system," by Brittney Martin.

“What we found time and time again is that Texas fell short,” said team member and former U.S. Attorney Paul Coggins. “We’re simply out of step with the better practices in other states.”

Their 500-page report, released today, examines every step of the process from evidence gathering and testing to final clemency hearings. The team recommended changes at almost every level. Recommendations include ensuring all procedures are science-based, educating juries, recording interrogations, and increasing training for trial judges and attorneys.

Anthony Graves became the 12th death row inmate to be exonerated in Texas after 18 years in prison.

“We have a failed system from top to bottom,” Graves said. “I am your living flaw.”

"Report: Texas death penalty system needs overhaul," is YNN Austin coverage by LeAnn Wallace.  That is Time Warner Cable's 24-hour local news channel.  There is video at the link.

Formerly on death row, Anthony Graves calls himself living proof that the system is flawed.

"I had two execution dates,” Graves said. “I was almost murdered by the state of Texas. Had this been in place, you probably wouldn't even know my name today."

Graves spent 18 years in prison, 12 of which were spent on death row. He was exonerated after a fifth circuit court said the prosecutor intentionally withheld evidence that could have helped his case.

Since then, Graves has been working to prevent future cases like his.

"If you are serious about justice in our state, then you will read this and you will implement this and you will stand up for justice for us as a society," he said.

Texas public radio stations also covered the news conference.  All have audio at their respective links.  "Report: Texas Executions Conducted Under Broken System," is by Carrie Powell for Austin's KUT-FM.

“The report finds that Texas’s system not only falls short of [American Bar Association] benchmarks, but reflects outlier practices, rejection of best available science, and a significant absence of transparency to foster public confidence in the system’s fairness,” says Jennifer Laurin, committee chairwoman and law professor at UT-Austin.Specific problematic practices identified by the committee include:

• Confessions filmed without context or credibility
• Prosecutors not disclosing evidence that proves innocence
• Unerfunded and ill-equipped crime laboratories
• Refusal to allow new DNA testing of convicts following sentencing

The committee claims that these poor practices cause unnecessary harm to both the wrongfully accused and the general public. According to Paul Coggins, former U.S. Attorney for the Northern District of Texas, the state has paid out $60 million to wrongfully convicted individuals since 1992.

Dallas' KERA-FM posts, "Death Penalty System In Texas Needs Reform, Lawyer Group Says," by Eric Aasen.

The report is part of a six-year effort by the American Bar Association to examine how sates that offer the death penalty “ensure fairness and minimize the risk of executing the innocent.”

The association says it has conducted assessments of the death penalty systems in Alabama, Arizona, Florida, Georgia, Indiana, Kentucky, Missouri, Ohio, Pennsylvania, Tennessee and Virginia.

"Study Finds Shortcomings In Texas Death Penalty System," by Pat Hernandez for KUHF-FM, Houston.

The Texas Capital Punishment Assessment team was made up of former judges, prosecutors, elected officials and legal scholars, like Professor Jennifer Laurin at the University of Texas School of Law. She chaired the team that prepared the report:
 
"The structural features of our system insulate and exacerbate predictable missteps at early stages."   

Since 1989, there have been 132 Texas executions overturned, including those of 12 people who were on death row, like Anthony Graves. He was exonerated and released in 2010 after spending 14 years on death row, for a crime he did not commit.

"There are many people in prison for many different reasons. Some because they're innocent and just couldn't afford a competent attorney to represent their rights during trial." 

Former Texas Gov. Mark White, was another member of the assessment team. 19 executions occurred during his term as governor. He said the goal of the report was not to call into question the use of the death penalty in Texas, but to ensure that it is implemented fairly.

Earlier coverage of the ABA Texas report begins with the preceding post.

The ABA Death Penalty Due Process Project has more information and links to other state assessments.

The Dallas Morning News on the ABA Texas Assessment

"Higher standards for the ultimate punishment," is the must-read editorial in today's Dallas Morning News.  Here's the beginning:

An American Bar Association panel’s groundbreaking assessment of Texas’ death penalty is a road map toward a fairer and saner system of imposing the ultimate penalty, one rid of peculiarities that leave the state open to error and ridicule.

Even those state lawmakers who are always on guard against hidden agendas to abolish the death penalty should welcome this report, unveiled Wednesday at a Capitol news conference.

The ABA’s death penalty assessment panel for Texas, a bipartisan group of Texans, is agnostic on capital punishment. Its job was measuring Texas against national standards of fairness and accuracy. Despite recent successes in shoring up weaknesses, Texas, unfortunately, still comes up short on several counts.

If there’s one thing we’ve heard from even the most conservative lawmakers in Austin, it’s their impatience with defenders of the status quo, where things are tilted grossly toward the state and against individual rights and common sense.

The ABA Texas Death Penalty Assessment is at the link; also available, earlier coverage.  Next, additional news coverage.

More on the American Bar Association Death Penalty Due Process Project and other state assessments is at the link.

Conservative Reaction to the Texas Report

"Conservatives Concerned About the Death Penalty Reaction to Assessment of Capital Punishment in Texas," is the organization's news release.  Here's the full text:

A new assessment of the Texas capital punishment system released today by the American Bar Association found significant flaws in the way that Texas metes out the death penalty.

The in-depth two year study was conducted by an independent team of former judges, a former prosecutor, a former governor, and others. The study revealed an error-prone system marked by an array of failures that end up costing taxpayers far more money, while putting innocent people at risk of execution.

“The key findings of the report are an affront to core conservative beliefs such as individual liberty, limited government, and fiscal restraint,” said Marc Hyden, a national coordinator for Conservatives Concerned About the Death Penalty. “Problems with laboratories and the inconsistent reliability of forensic evidence must be addressed before a state exercises the power to take a life.”

Two conservative members of the assessment team held leadership positions in the administration of Texas criminal justice policies. The Honorable Deborah Hankinson served as a justice on the Texas Supreme Court and Charles Terrell served as past Chairman of the Texas Department of Corrections, the Texas Department of Criminal Justice, and the Texas Criminal Justice Task Force.

Texas ranks third in the nation with a dozen people being sentenced to death and later freed after evidence was discovered that they were wrongly convicted. The state has paid out more than $60-million since 1992 in compensation to people who were wrongly convicted.

“With this latest study there can no longer be any doubt that the death penalty system in Texas – as it is elsewhere – is not only costly and wasteful, but it’s also unfair, and inaccurate,” Hyden said. “As conservatives, we cannot ignore the reality of the situation, this is another failed government program that should be scrapped.

About Us

Conservatives Concerned About the Death Penalty is a nationwide group of conservatives questioning whether capital punishment is consistent with conservative principles and values due to the system’s inefficiency, inequity, and inaccuracy. Conservatives Concerned About the Death Penalty is a project of Equal Justice USA, a national, non-partisan, grassroots organization working to build a criminal justice system that works. For everyone. To learn more go to www.conservativesconcerned.org.

Earlier coverage of the ABA Texas Assessment begins with the preceding post.  Also available, earlier news of Conservatives Concerned.

Scenes From the ABA Texas Assessment News Conference

Here are photos from the Speaker's Committee Room news conference in the Texas State Capitol.

University of Texas Law Professor Jennifer Laurin speaks at the news conference. She Chaired the Texas Assessment team.

Others at the news conference: Thurgood Marshall School of Law Professor Ana M. Otero, Anthony Graves, Mark White, Paul Coggins.

Former Texas Governor Mark White was a member of the Texas Assessment team. Texas' first post-Furman execution occurred when he was the state's Attorney General. In his four years as governor, 19 executions were conducted.

At the right is former U.S. Attorney Paul Coggins.

Texas death row exoneree Anthony Graves was a member of the Texas Assessment team. He called on all branches of Texas government to read the report.

Earlier coverage of the ABA Texas report begins at the link.

ABA News Release on the Texas Assessment

The ABA's Texas Assessment on the Death Penalty is now available on the ABA website.

"Texas Assessment Team Releases Report on State's Death Penalty System, Cites Urgent Need for Reform," is the ABA news release, via PR Newswire.  Here's the full text of the release:

The Texas Capital Punishment Assessment Team, organized by the American Bar Association (ABA), today issued a comprehensive report with recommendations to help ensure fairness and accuracy in the state's death penalty system.

"Evaluating Fairness and Accuracy in State Death Penalty Systems: The Texas Capital Punishment Assessment Report" is the culmination of a two-year review of Texas capital punishment laws, procedures and practices by an assessment team of former judges, prosecutors, elected officials, practitioners and legal scholars.

"A just system of capital punishment in our legal system requires procedures that ensure that only those deserving of the ultimate punishment are sentenced to death, and that the public have confidence in the adequacy of the criminal justice system to that task," said Jennifer Laurin, Professor at the University of Texas at Austin School of Law, and chairwoman of the Assessment Team. "Texans cannot accept less than the strongest system of checks and balances to ensure that our capital punishment system is fair and minimizes the risk of wrongful convictions and unjust executions."

Former Gov. Mark White, who oversaw 19 executions during his term, said, "I know that no decision is as weighty or significant as whether or not to allow an execution to go forward" and that he is "pleased that this report brings into clear focus the current state of the death penalty system in Texas and recommends prompt action to protect the innocent and provide a fair and accurate system for every person who is sentenced to death."

Paul Coggins, former U.S. Attorney for the Northern District of Texas, noted that mistakes in the administration of the death penalty lead to serious public safety concerns with the innocent being convicted, possibly facing execution, while a guilty perpetrator remains free to commit additional crimes. Such a flawed process exacts an intangible toll on victims' families.

"State and federal courts spend significant time and resources correcting errors in capital cases – errors that could have been prevented – to the detriment of the vast majority of Texans who rely on the justice system every day. We can do better," Coggins said.

Recent reforms like the Michael Morton Act, improved handling of eyewitness identifications, and creation of new institutions like the Criminal Justice Integrity Unit, the Regional Public Defender for Capital Cases and the Office of Capital Writs have all strengthened capital punishment procedures in Texas.

Despite recent progress, assessment team members have identified a number of areas in which the state's death penalty system fall far short.

Notably, the Lone Star State appears out of step with better practices implemented in other capital jurisdictions, failing to rely upon scientifically reliable evidence and processes in the administration of the death penalty, and providing the public with inadequate information to understand and evaluate capital punishment in the state.

The nearly 500 page report states that the system could be helped with a myriad of reforms to correct short-comings in death penalty administration, including defense services, procedural restrictions and limitations on state post-conviction and federal habeas corpus proceedings, jury instructions, an independent judiciary, racial and ethnic minority representation, and mental retardation and mental illness.

Of the 500-page Report, team member and former Chairman of the Texas Department of Criminal Justice Charlie Terrell noted, "This document catalogues numerous reasons why I asked to have my name taken off the death row unit in Huntsville."

Potential changes recommended in the report to help make the administration of capital punishment in Texas more fair and accurate include:

• Spend scarce state funds on bringing perpetrators to justice, not convicting the innocent. An error-prone capital punishment system is expensive. Since 1992, Texas had paid over $60 million to people who were wrongly convicted and imprisoned.  This money would have been better spent bringing actual perpetrators to justice, including by adequately funding forensic science and the provision of defense services.
• Ensure Texas' procedures are science-based. In too many areas – from expert evidence to determining a defendant's eligibility for the death penalty –Texas's procedures are out of line with the best known scientific methods and procedures. This must be fixed in order to ensure the very credibility of our system.
• Empower juries in capital cases. Jurors deserve full and accurate information about their responsibilities and about their sentencing options in capital cases. A number of improvements and clarifications of the instructions given to jurors would both improve the accuracy of their decision-making and better inform them of their roles and responsibilities in deciding whether to sentence a defendant to death. A jury should never sentence someone to death because they are confused about the law in the case. 
• Provide fair deadlines and procedures for death row inmates with serious appellate or constitutional issues. The people already on Texas's death row have not received the benefits of recent reforms to the Texas capital punishment system.   This uneven treatment is not tolerable in our system of justice. Because of deadlines and other hurdles that are out of step with procedure in other capital punishment states, current death row inmates may be executed without a court ever reviewing cases with serious procedural and constitutional problems. The post-conviction process in Texas needs to be brought into line with other capital punishment states by making filing deadlines more consistent, making the process more thorough and transparent with in-person review hearings and published opinions upholding or overturning convictions, and a proportionality review to ensure that the death penalty is being applied consistently across Texas.
• Make clemency a meaningful process. Texas should have confidence that the final safeguard to prevent wrongful execution is a meaningful one. Its current clemency process does not serve this function. Texas's clemency process may not only result in minimal review, but it also may contribute to the extraordinarily high denial rate of clemency petitions in Texas: Texas has executed 503 inmates in the modern death penalty era and has commuted the sentence of only two inmates facing imminent execution. By comparison, the state with the second highest number of executions after Texas – Virginia – has executed 110 inmates while commuting the sentence of eight inmates. 

The report is part of a six-year effort by the ABA to examine the extent to which death penalty states ensure fairness and minimize the risk of executing the innocent.  The report takes no position on the death penalty per se, the Texas assessment team focused exclusively on reviewing current laws and practices in the state's death penalty system. 

To date, the ABA has conducted assessments of the death penalty systems in Alabama, Arizona, Florida, Georgia, Indiana, Kentucky, Missouri, Ohio, Pennsylvania, Tennessee and Virginia.

In addition to Laurin, White, and Coggins, other members of the Texas Capital Punishment Assessment Team include W. Royal Furgeson, retired U.S. District Court judge for the Northern District of Texas; former Texas Supreme Court Justice Deborah Hankinson; Ronald Breaux of Haynes and Boone, LLP, in Dallas; Professor Ana Otero of the Thurgood Marshall School of Law at Texas Southern University, and Charles Terrell, Sr., founder of Safer Dallas.

Earlier coverage of the ABA Texas report begins at the link.

ABA Due Process Project to Release Texas Assessment This Morning

The American Bar Association Death Penalty Due Process Project will release its Texas Assessment on the Death Penalty at a Capitol news conference in approximately 30 minutes, at 10:30 a.m. (CDT).

You can watch the news conference in the Speaker's Committee Room in streaming video using Real Player.

The report will be available on the ABA website later this morning.

Initial coverage includes this AP report, "Report heaps new criticism on Texas death penalty," via KHOU-TV.

Former Gov. Mark White is helping release a new report from the American Bar Association that levies new criticism of the death penalty in Texas.

The report Wednesday will propose reforms in the nation's most active death penalty state. Eleven inmates have already been executed this year in Texas, and at least seven more are scheduled to die in the coming months.

Anthony Graves spent 18 years on death row before being cleared by DNA evidence. He is expected to join White and former federal prosecutors at the Texas Capitol, where Graves testified to lawmakers earlier this year.

The Texas Tribune posts, "Bar Association: Texas Death Penalty System Falls Short," by Brandi Grissom.

Texas has improved its criminal justice system following dozens of exonerations in recent years, but a new study the American Bar Association will release Wednesday finds that the death penalty system here still falls far short when it comes to fairness and eliminating the risk of executing the innocent.

“In many areas, Texas appears out of step with better practices implemented in other capital jurisdictions, fails to rely upon scientifically reliable methods and processes in the administration of the death penalty and provides the public with inadequate information to understand and evaluate capital punishment in the state,” the report says.

The report, which outlines a host of recommendations to improve the criminal justice system, is part of the bar association’s national project examining the implementation of the death penalty in states. While it praises Texas for recent improvements intended to increase fairness, the report says much work remains. The organization says its recommendations would restore public confidence in the system and help to ensure that Texans aren't wrongfully convicted and sentenced to death. Those include requiring the indefinite preservation of biological evidence in violent crimes, abandoning the evaluation of "future dangerousness," banning the execution of those with mental retardation and mental illness and establishing an innocence commission to examine the lessons of wrongful convictions.

“Texas has made some good policy decisions over the last couple of years,” said Royal Ferguson, the founding dean of the University of North Texas at Dallas College of Law and a former U.S. district judge who served on the association’s Texas Capital Punishment Assessment Team. “There are a lot more that need to be made.”

I'll update with additional coverage as it becomes available.

Earlier coverage of ABA state death penalty assessments begins at the link.

The Verdict on Capital Punishment System

That's the title of an editorial in today's Roanoke Times.  It's subtitled, "Virginia should take up the bar association’s reforms to ensure a fair and accurate death penalty system."

The American Bar Association spent two years studying Virginia’s death penalty and came up with a dozen recommendations that would lift the state’s thumb off the scale of justice.

The group does not address whether states should have a death penalty. Rather, the ABA acknowledges that prudence requires capital punishment to be administered justly. And all should favor ensuring that those the commonwealth executes truly merit the irrevocable penalty.

That cannot be said today. The Virginia Death Penalty Assessment Team weighed Virginia’s ways against the bar association’s protocols and found it deficient. Most of the recommended reforms would not cost the state much in the way of funding, but would require procedural changes.

And:

Virginia has, in recent years, gotten a few things right with capital cases: accreditation of crime laboratories and medical examiner offices and certification of their employees, and establishing regional capital defender offices that offer more experienced and qualified trial attorneys.

But Virginia still has at least a dozen reforms remaining before resting its case that it runs a fair and accurate death penalty system. Until then, reasonable doubt remains.

Earlier coverage of the Virginia report begins at the link.

The ABA Virginia Assessment on the Death Penalty is available at the link.  You can also get more information on the ABA's Death Penalty Due Process Project and view other state assessments.

Continuing Editorial Support for ABA Virginia Assessment

Today's Charlottesville Daily Progress publishes the editorial, "A matter of life, death sentences."

Once the death penalty has been implemented, it is tragically too late to discover a flaw in the verdict.

That’s why Virginia must make sure that evidence-gathering and prosecution are impeccably accurate and fair — in all cases, of course, but especially in death penalty cases.

As we’ve already pointed out, many Virginia law enforcement agencies have failed to voluntarily adopt best practices when conducting lineups and gathering eyewitness evidence (“Improving eyewitness evidence,” The Daily Progress, Aug. 29). As a result, evidence collection could be flawed and verdicts could be wrong.

Now comes a report citing eyewitness evidence and other potential problems in death penalty cases, where accuracy, prudence and fair practices are especially vital.

The American Bar Association’s Death Penalty Assessment Project lists improved eyewitness evidence protocols as a top priority. The assessment team was made up of prominent and respected experts knowledgeable about Virginia law.

The ABA Virginia Assessment on the Death Penalty is available at the link.  You can also get more information on the ABA's Death Penalty Due Process Project and view other state assessments.

Earlier coverage of the Virginia report begins at the link.

Additional Coverage of ABA Virginia Assessment; Editorials Support Reforms

The American Bar Association Death Penalty Due Process Project has released its Virginia Assessment on the Death Penalty.  It's available at the link.

Today's Virginian Pilot publishes the editorial, "A fair, transparent path to justice."

For nearly two years, experts on Virginia's criminal justice system have reviewed policies and procedures used in capital murder cases. The goal: Not to eliminate the death penalty but to ensure that the process, from identifying suspects to execution, is fair.

On Thursday, the Virginia Death Penalty Assessment Team reiterated the need to adopt standards in the way police identify and interview witnesses and suspects. It said the facts uncovered by prosecutors must be available to the defense to bring to light any evidence that would clear suspects. It suggested that the state should be required to preserve biological evidence for the long term, and that DNA testing should be an option for defendants who didn't have access to it at trial.

The team recommended that the state set an execution date only after all state and federal appeals are exhausted, and that inmates be allowed a full year to file a habeas petition for relief.

These aren't the suggestions of a group of activist death penalty opponents; these are common-sense recommendations that would go a long way toward ensuring that the path to justice is transparent, that investigations are thorough and fair and that inmates have the option of forensic testing and time to appeal. These recommendations ultimately are likely to save the state money at trial and in appeals.

The study was part of an American Bar Association initiative assessing death penalty procedures in various states. The commonwealth's team, led by University of Richmond law professor and former federal prosecutor John Douglass, included criminal defense lawyers, a commonwealth's attorney, judge, state senator and a former attorney general and legislator.

The Staunton News Leader editorial is, "Virginia must end the death penalty."

Yesterday the American Bar Association released an assessment of Virginia’s death penalty. A bipartisan team of prosecutors, defense attorneys, a retired judge, a law school dean and former Attorney General Mark Earley studied the Commonwealth’s use of the death penalty and unanimously decided that “as long as Virginia imposes the death penalty, it must be reserved for a narrow category of the worst offenders and offenses, ensure heightened due process and minimize the risk of executing the innocent.”

The team made several recommendations about improving pretrial and post-trial procedures on capital and felony cases.

Our recommendation is that Commonwealth end the death penalty altogether.

Since the death penalty regained national use in the 1970s, Virginia has executed 109 people, second only to Texas. Not because it reduces crime. It doesn’t. Not because it saves money. It doesn’t, even without the lengthy appeals process.

Not because the public wants it. It doesn’t necessarily. Given the choice between life without parole and the death penalty, more than half of surveyed citizens choose imprisonment over the execution.

Even conservatives are quietly coming on board with abolishing the death penalty.

They find it goes against their pro-life and small-government beliefs. They understand that the justice system is by its nature flawed. And a flawed system will make mistakes. Virginia almost executed an innocent Earl Washington Jr. in 1985. Some would say the system worked as Washington wasn’t put to death. Meanwhile, faulty state law kept Washington, a mildly mentally retarded farm worker, in prison until 2001 for a crime he did not commit.

There is also expanded news coverage of the report.  "ABA report cites flaws in Va. death penalty," is Larry O'Dell's updated AP filing, via the San Francisco Chronicle.

Virginia is more restrictive than other states in allowing capital murder defendants access to evidence against them, the report says. It recommends that the Virginia Supreme Court modify discovery rules, including by requiring prosecutors to disclose the identity and any prior statements of witnesses who will testify.

One of the biggest concerns, the report says, is a state appeals process that "emphasizes finality of convictions and death sentences over fairness." It recommends giving Virginia inmates more time to file state petitions and providing funding for defense attorneys to hire investigators and other experts. It also suggests starting the post-conviction review in the trial court rather than the Virginia Supreme Court, which has granted evidentiary hearings in only five cases since 1995.

Among the other recommendations:

— Require long-term preservation of DNA evidence and allow the defendant more opportunity for testing samples if there is evidence previous testing was unreliable.

— Create a position for an appellate specialist within the public capital defender's office.

— Revise jury instructions to make it clear that jurors never have to return a death verdict and to clarify common misconceptions about mitigating evidence.

— Update the state's definition of mental disabilities, allow a pretrial determination of whether a defendant is mentally disabled and ineligible for the death penalty, and prohibit the execution of a defendant who was suffering from a severe mental illness at the time of the offense.

Among the recent changes lauded by the panel are the accreditation of the state's crime labs and medical examiner offices and establishment of regional capital defender offices.

"Recommendations offered for Va. death penalty process," is Frank Green's Richmond Times-Dispatch article.

A review of Virginia’s death penalty aimed at improving fairness and accuracy calls for safeguards in the use of suspect lineups and more access by defense lawyers to information to help them prepare cases.

The recommendations are among more than a dozen in the two-year effort sponsored by the American Bar Association’s Death Penalty Assessment Project that since 2003 has studied and reported on the death penalty in 10 other states.

“If you’re going to have a death penalty, I think everyone would agree we have to get it right,” Mark L. Earley, a former Virginia attorney general and member of the Virginia Death Penalty Assessment Team, said Thursday.

“This wasn’t a project about whether Virginia should have the death penalty or should not have the death penalty. It wasn’t a project about whether we should have a moratorium on the death penalty,” Earley said.

“It was really a project that (considers) this: If a state is going to have the death penalty, how can we be sure it has integrity and that it is accurate and fair in all respects,” he added.

A top-priority change urged by the study is to require law enforcement agencies to adopt the Virginia Department of Criminal Justice Services’ model eyewitness identification policy for suspect photo and live lineups.

Initial coverage of the Virginia report begins at the link.  In addition to the Virginia Assessment, you can access other state assessment reports at the Death Penalty Due Process Project website.

Related posts are in the ABA and report category indexes.

ABA Virginia Assessment Released

The American Bar Association Death Penalty Due Process Project has released its Virginia Assessment on the Death Penalty.

The assessment is conducted by a state-based team responsible for collecting and analyzing various laws, rules, procedures, standards, and guidelines relating to the administration of capital punishment in Virginia. It is the Virginia Assessment Team’s responsibility to determine whether the state is in compliance with the ABA Protocols and make any other additional recommendations it feels are needed to improve the fairness and accuracy of Virginia’s death penalty system.

"Report cites flaws in Virginia death penalty," is the AP report filed by Larry O'Dell, via the Roanoke Times.

A panel of legal experts says Virginia lawmakers should make several changes to ensure fairness and accuracy in the state's death penalty system.

The Virginia Death Penalty Assessment Team announced results of its two-year study Thursday in Richmond. The study is part of an American Bar Association initiative to examine procedures in a dozen states that have capital punishment.

The panel says one of the biggest problems in Virginia is an overly restrictive state appeals process. It recommends giving inmates more time to appeal and providing funding for their lawyers to hire experts.

The Richmond Times-Dispatch reports, "Study urges fairness reforms in death penalty cases," by Frank Green.

A two-year study of Virginia’s death penalty to improve fairness and accuracy calls for safeguards in the use of suspect lineups and more access by defense lawyers to information to help them prepare cases.

The recommendations are among more than a dozen in the study sponsored by the American Bar Association and released this morning.

A top change urged by the Virginia Death Penalty Assessment Team is to require law enforcement agencies to adopt the Virginia Department of Criminal Justice Services’ model eyewitness identification policy for suspect photo and live lineups.

Misidentification played a role in the wrongful convictions of 18 Virginians later proven innocent in non-death penalty cases. Although the model policy was released in 2011, a recent survey by the University of Virginia Law School found few police departments had adopted it.

According to the Virginia department of Corrections, Virginia has executed 110 killers – 31 by electrocution and 79 by lethal injection since the U.S. Supreme Court allowed capital punishment to resume in 1976.

The toll is second nationally only to Texas, which has executed 503. But in Virginia three out of four persons sentenced to death since 1976 have been executed -- a higher rate than even in Texas, which has carried out roughly half its death sentences.

And:

The assessment team was chaired by John Douglass, a former federal prosecutor and dean of the University of Richmond Law School where he still teaches.

The panel also included Richmond Commonwealth's Attorney Michael Herring, who won a death sentence against Ricky Gray; Mark L. Earley, a former Virginia attorney general whose office defended many death sentences on appeal; and Craig Cooley, a Richmond lawyer who has represented clients in 70 capital murder trials including Lee Boyd Malvo, one of the two Maryland to Virginia snipers.

The report is the result of the ABA’s Death penalty Assessment project which since 2003 has studied and reported on the death penalty in 10 other states.

Earlier coverage of ABA state assesments begins at the link.  The Death Penalty Due Process Project was formerly called the Moratorium Implementation Project.

Related posts are in the ABA category index.

From Kentucky

The Louisville Courier-Journal posts "Repeal is only fix for Kentucky death penalty system," an Op/Ed by Amber Duke and Kate Miller. Duke is the communications manager at the ACLU of Kentucky; Miller is the program director.

Imagine spending 5,110 nights behind prison walls, with the threat of execution hanging over your head, for a crime you had nothing to do with.

Randy Steidl doesn’t have to imagine it. He spent 14 years on Death Row in Illinois for a crime he did not commit. He was released from prison in May 2004, and ever since, he has been traveling the country to share his message: “You can release a man from prison, but you can’t release him from the grave.”

And:

A two-year review by a team of Kentucky legal experts found that “serious problems persist” in our state’s death penalty procedures.

Of the 78 people sentenced to death in Kentucky since the death penalty was reinstated in 1976, 50 have had their death sentence overturned on appeal by Kentucky or federal courts. That is an error rate of more than 60 percent.

The review by the Kentucky Assessment Team on the Death Penalty produced a number of other troubling findings:

• There are inadequate standards for retaining evidence that could exonerate innocent people and aid apprehension of the guilty.

• There are no uniform standards to guard against false eyewitness identifications and false confessions.

• Public defenders in the commonwealth have caseloads that far exceed national averages, and salaries that are 31 percent below those of similarly experienced attorneys in surrounding states.

• Other problem areas the review uncovered included juror confusion over sentencing guidelines, inadequate protections for the mentally disabled, racial and socioeconomic biases that influence all aspects of death penalty cases, and a lack of record keeping, “making it impossible to guarantee that the system is operating fairly and effectively.”

The review confirmed what the ACLU of Kentucky and our coalition partners with the Kentucky Coalition to Abolish the Death Penalty have been saying for years: Kentucky’s death penalty system is irretrievably broken.

The only way to permanently fix this risky, arbitrary, unfair, ineffective and costly distraction from justice is to repeal the death penalty in the commonwealth.

Earlier coverage from Kentucky begins at the link; also available, more on the ABA Kentucky Assessment. with the preceding posts.

ABA Files Amicus in John Ferguson Case

The American Bar Association has issued the news release, "ABA asks Supreme Court to clarify competency standard in case of Florida death row inmate."  Here's the full text:

In a case involving a death row prisoner in Florida who has long suffered from severe mental illness, the American Bar Association is asking the U.S. Supreme Court to clarify the Eighth Amendment standard to be applied when determining competency to be executed.

The ABA’s amicus brief in Ferguson v. Secretary, Florida Department of Corrections, filed in support of the prisoner’s request that the court grant certiorari in his case, observes that several courts, including the Florida Supreme Court in this case, have variously misapplied the U.S. Supreme Court’s precedent in Panetti v. Quarterman. In that 2007 decision, the court held that for a prisoner to be competent for execution, he must have a rational understanding of the meaning and purpose of his execution, the ABA notes.

“Holding a person accountable is intended to be an affirmation of personal responsibility. Executing someone who lacks a meaningful understanding of the nature of this awesome punishment and its retributive purpose offends the concept of personal responsibility rather than affirming it,” the brief states, quoting from the amicus brief the ABA previously filed in Panetti.

Thus, the ABA argued in its Panetti brief, when “a death row inmate attributes his pending execution to reasons that only someone suffering from a significant mental disability could espouse — such as a delusion that he is to be executed because of his faith in God — he cannot be said to have the capacity to accept responsibility for his crimes.”

State and federal courts have been unable to apply Panetti in a uniform manner, the ABA’s Ferguson brief argues, stating, “The Court should grant the petition and now clarify the standard courts should apply in determining whether a capital prisoner is competent to be executed.”

The ABA’s Ferguson amicus brief is available online here.

"Schizophrenic US murder convict appeals execution," is the AFP post, via Business Recorder.

The lawyer of a mentally ill man who killed eight people and proclaimed himself "the prince of God" has petitioned the US Supreme Court for a halt to his execution.

John Ferguson, 65, who has a documented history of paranoid schizophrenia, is scheduled to be executed on a Monday August 5 execution at Florida State Prison in Raiford.

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

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

Cert Petition Filed for John Ferguson

Advocates for John Ferguson, the severely mentally ill Florida death row inmate, have filed a cert petition with the U.S. Supreme Court.  Here is the full text of a news release:

U.S. Supreme Court Asked to Stop Execution of Schizophrenic Florida Man
Execution set for Monday, August 5
John Ferguson has 40-year history of severe mental illness diagnosed by State doctors

(Washington, D.C.) Attorneys for John Ferguson, a paranoid schizophrenic who believes he is the “Prince of God” who will come back to life after his execution and has a 40-year history of profound mental illness, have filed a petition for certiorari to the U.S. Supreme Court. Mr. Ferguson’s petition urges the Court to halt his execution in Florida on Monday, August 5 and hear his case because the Eighth Amendment bars executing the insane and the State used an outdated, unconstitutional standard to evaluate Mr. Ferguson’s competency for execution.

The petition can be accessed here.  The American Bar Association and national and state advocates for the mentally ill are expected to file amicus briefs.

“John Ferguson is a sick, elderly man. Executing Mr. Ferguson would be an unconscionable violation of the Eighth Amendment and our shared values respecting human life. The U.S. Supreme Court has consistently held that the Constitution prohibits the cruel and unusual punishment of executing people like Mr. Ferguson who have no rational understanding of why they are being put to death or the effect of their execution,” said Christopher Handman, attorney for Mr. Ferguson.

Mr. Ferguson’s certiorari petition asks the Court to review his case because (1) the federal Court of Appeals rubberstamped a decision by the Florida Supreme Court finding Mr. Ferguson competent, even though one of the federal appellate judges recognized that the State court had applied a “patently incorrect” legal standard for assessing competency; and (2) the Court’s intervention is necessary to resolve confusion among the lower courts about the correct legal standard for evaluating mental competency to be executed. Despite Court precedent, rooted in hundreds of years of English common law prohibiting the execution of the insane, individuals with severe mental illness continue to be executed in the United States.

Mr. Ferguson’s petition states that the Florida Supreme Court failed to determine his competency to be executed in line with U.S. Supreme Court precedent in Panetti v. Quarterman (2007). The Florida Supreme Court failed to follow Panetti and instead returned to an outdated standard for adjudging a defendant’s competency to be executed, a standard that the Supreme Court explicitly rejected in Panetti. Florida courts found Mr. Ferguson competent because he had a rudimentary factual awareness of his planned execution. In Panetti, however, the U.S. Supreme Court held that a mere factual understanding was not sufficient. To be deemed competent, the individual must have a rational understanding of the reason for his execution and the effect of his execution.

Mr. Ferguson has neither a rational understanding of the reason for his execution or the effect of his execution. Mr. Ferguson believes that he is the “Prince of God” and that after his execution, he will return in his same body, fight against anti-Christs with Jesus, save America from a communist plot, and rule the earth. He believes he has “inner ears” through which he hears God’s instructions. He thinks his conviction is the result of a Communist conspiracy. Like the prisoner in Panetti, Mr. Ferguson’s “Prince of God” delusions and belief in his own superpowers deny him any “rational understanding” of the reason for his execution or the effect of the execution.

Even the Florida courts found that Mr. Ferguson has a documented history of paranoid schizophrenia; that he is not malingering or “faking” his mental illness; and that he has a fixed grandiose delusion that he is the “Prince of God.” Under binding Supreme Court precedent, these findings of fact should bar Florida from executing Mr. Ferguson. But the Florida courts and the Eleventh Circuit have simply refused to follow clearly established precedent.

After suffering a traumatic brain injury at age 21, Mr. Ferguson spent a decade in and out of mental hospitals. Though the State’s own psychiatrists recommended that Mr. Ferguson remain hospitalized because he was dangerously mentally ill, he was discharged. Less than two years later, he stood trial for multiple murders. The juries that recommended death sentences never heard any evidence of Mr. Ferguson’s mental illness, despite that he has been diagnosed with psychosis and schizophrenia more than 40 times spanning 40 years of his life. 

Governor Scott initially signed a warrant for Mr. Ferguson’s execution in September 2012. That execution was stayed after the Eleventh Circuit issued an eleventh-hour stay to consider Mr. Ferguson’s competency. The Eleventh Circuit ultimately ruled on May 21, 2013 that the execution could proceed.

###

The American Bar Association most recent Project Press posts, "Eleventh Circuit Rejects Appeal for John Ferguson," by Susanna Bagdasarova.  Here's the beginning of this detailed report:

In May 2013, the U.S. Court of Appeals for the Eleventh Circuit rejected an appeal by John Errol Ferguson, a Florida prisoner who has been on death row for more than three decades. Mr. Ferguson, a prisoner with a 40-year history of mental illness and a diagnosis of paranoid schizophrenia, was scheduled to be executed in October of 2012. His execution was halted at the last minute when the Eleventh Circuit granted a stay to allow time for Mr. Ferguson, represented by a team of volunteer attorneys from Hogan Lovells, to pursue an appeal.

Hogan Lovells argued that executing Mr. Ferguson would be unconstitutional under the U.S. Supreme Court’s decision in Panetti v. Quarterman, which established that no person should be executed if he lacks a “rational understanding” of the reasons for and consequences of his punishment. On appeal, the Eleventh Circuit considered whether the Florida Supreme Court correctly applied U.S. Supreme Court precedent when it evaluated Mr. Ferguson’s claims under the older and more permissive Ford standard of competence, which requires only that the prisoner have a “factual awareness” of his execution and the reason for it.

"Florida Governor Rick Scott’s Solution for Schizophrenics? Execute Them," is the title of Ted Corless' News Munchies post.

My voice used to bounce off the hallowed halls of a century’s old high school where one of the key issues our prized debate team examined was the death penalty.  If you study any of my previous blog posts or listen to News Munchies podcasts on capital punishment, my objective was to distill that issue to its most fundamental premise by identifying the various battle points.  I sought to examine the legal, practical, and ethical boundaries for the state-sponsored killing of American citizens and I came up with the following: the death penalty serves one purpose, e.g., to remove “pests” in the same way exterminators kill ants, roaches, and other nuisances we find on our linoleum floors.

Looking at capital punishment through that lens, I cannot support the execution of a schizophrenic whose diagnosis predated his crimes.  The Florida Supreme Court found, “Mr. [John Errol] Ferguson undoubtedly suffers from mental illness which is documented from the time prior to the murders committed…”  In 1977, John Errol Ferguson was convicted of killing eight people in South Florida in two separate incidents.  The 11th U.S. Circuit Court of Appeals ruled in May that although Ferguson suffers from mental illness, he has a rational understanding of what he did.  Really?  Ferguson identifies himself as the “Prince of God” and states that after his death he will ascend to God’s right hand and defend the United States against a communist plot.  One commentator noted that this belief has an eerily close proximity to mainstream Christian beliefs.

Earlier coverage of John Ferguson's case begins with news of the setting of a new execution date.

ABA President Calls for Stay for Warren Hill

"Grant stay of execution for Warren Hill," is the statement of American Bar Association President Laurel Bellows.  Here is her complete statement:

Serious questions of fact and law are issues in all death penalty cases, and they are often in dispute. But not in the case of Warren Hill, a Georgia prisoner scheduled to be executed on July 15. The facts are clear: All the mental health experts who have examined Hill agree that he is “mentally retarded.” The law is also clear: The United States Supreme Court held in 2002 that it is unconstitutional to execute persons with mental retardation.

Georgia requires a uniquely high standard of proof to demonstrate this condition. The Supreme Court should decide whether the imposition of this stringent and extreme burden unconstitutionally risks the execution of persons with mental retardation like Hill. But unless Hill’s execution is stayed, he will be executed before the court can make its decision.

For these reasons, and because the American Bar Association has long opposed the execution of persons with mental retardation, the ABA strongly urges that Hill’s execution be stayed until his pending Supreme Court petition can be considered and decided on the merits. A stay of execution is not only appropriate in these compelling circumstances — it is what justice demands in order to prevent an unconscionable result.

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

Florida Roundup

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

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

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

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

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

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

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

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

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

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

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

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

And:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Earlier coverage from Florida begins at the link.

Florida Bill Heads to Governor

"Stop death penalty bill, Gov. Scott," is the editorial in today's Miami Herald.

In its rush to secure “justice,” the Florida Legislature has fast-tracked death-penalty legislation at the peril of the innocent.

House Bill 7083, the “Timely Justice Act,” is an attempt to stop frivolous appeals, something everyone can agree on. Sponsored by Rep. Matt Gaetz, R-Shalimar, and Sen. Joe Negron, R-Palm City, the legislation requires the governor to sign a death warrant within 30 days after a state Supreme Court review, with the execution taking place within 180 days after that. It does away with certain types of defenses in death penalty cases.

Whoa.

The Florida Supreme Court already has appointed a committee to go over existing judicial rules and see how cases can move more quickly. That study will be released in September.

So why is the Legislature jumping ahead — the House passed the bill last week and the Senate gave its nod on Monday — without all the facts?

And:

Already, 24 wrongfully convicted Death Row inmates have been cleared since the death penalty was reinstated in 1973 — the most of any of the 32states that impose the death penalty. Another 75 prisoners have been executed in Florida. As Mark Elliott, director of Floridians for Alternatives to the Death Penalty, points out, “That’s one exoneration for every three executions.”

That should give every Floridian pause.

Frank Lee Smith died of cancer on Death Row after 14 years in prison. Sadly, after his death, DNA testing proved he was innocent and also identified the real killer. What kind of justice did Mr. Smith get?

There are heinous crimes that require the death penalty, but the evidence must be air tight. It’s not in many cases. The American Bar Association released an exhaustive report in 2006 pointing out the problems, including racial disparities in meting out justice. For eight years little has been done and now Tallahassee lawmakers are going full speed ahead in the dark.

"Senate Passes Bill Speeding Up Capital Punishment," is the AP report by Bruce Schreiner, via the Lakeland Ledger.

Urged to fix a "mockery" to justice, the Florida Senate passed legislation Monday to accelerate the state's capital punishment process that was criticized for allowing some condemned inmates to languish for decades on death row.

The Senate passed the bill 28-10, sending the measure to Gov. Rick Scott for his consideration. The House passed the Timely Justice Act of 2013 (HB 7083) by an 84-34 vote last week.

The bill creates tighter time frames for appeals and postconviction motions and imposes reporting requirements on case progress.

It also re-establishes a separate agency for North Florida to provide appellate-level legal representation to inmates sentenced to death and requires them to "pursue all possible remedies in state court."

And:

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

The bill's critics worried that speeding up the process could condemn some innocent people to the ultimate punishment.

"Once the execution is over, there's no going back," said Democratic Sen. Maria Sachs.

"Bill reducing delays in implementation of death penalty approved," is the News Service of Florida report by Jim Saunders.  It's via the Miami Herald.

State lawmakers Monday gave final approval to a proposal aimed at reducing delays in carrying out the death penalty, with supporters saying they want justice for victims’ families — but critics warning about executing innocent people.

Sen. Joe Negron, a Stuart Republican who sponsored the measure, said some inmates have been on Death Row for more than 30 years.

"That isn’t justice,’’ Negron said. "That’s a mockery of the court system."

But other lawmakers pointed to scientific advances, such as DNA evidence, that have helped clear some inmates who have been imprisoned for long periods.

"I just think this swiftness does not necessarily equate to fairness,’’ said Sen. Arthenia Joyner, D-Tampa.

Senators voted 28-10 on Monday to approve the bill (HB 7083), which passed the House last week. It now goes to Gov. Rick Scott.

The bill focuses, at least in part, on ending delays in what is known as the "post-conviction" legal process, which starts after the Florida Supreme Court upholds death sentences in initial appeals. The post-conviction process can involve appeals about issues such as whether defendants have received ineffective legal representation.

Among other things, the bill seeks to ensure that attorneys have "actual" conflicts of interest before being replaced in death-penalty cases. Replacing attorneys can cause delays.

Also, the bill would take steps to prevent attorneys from representing Death Row inmates if the attorneys have had problems in earlier capital cases. The bill would bar lawyers from working on death-penalty cases for five years if courts have found that they provided deficient representation twice.

Earlier coverage of the Florida legislation begins at the link.

Florida Legislation at Odds with Editorial Calls for Reform

The South Florida Sun Sentinel publishes the editorial, "Fix on death row appeals falls short."  Here's an extended excerpt:

State Rep. Matt Gaetz, R-Fort Walton Beach, wants voters to change the Florida Constitution to reduce the time death-row inmates have to appeal their convictions. A second bill would strip the courts of their authority over post-conviction appeals and give that responsibility to state legislators.

Gaetz says he wants to end the "gamesmanship" that has contributed to long appeals, which average 13 years. His approach may give comfort to those who believe everyone on death row is guilty as charged, but this ignores the history in Florida and the nation, where more than 138 people have been released from death row because they were found to be innocent.

History tells us the death penalty is applied unfairly, unjustly and arbitrarily. When the American Bar Association studied Florida's death-penalty system in 2006, it found too many outcomes were determined by a defendant's wealth. It said our system is plagued by racial disparities, problems with the qualifications of defense attorneys and confusion among juries. As one example, Florida remains one of only two states where you can be sentenced to death by a majority vote — rather than a unanimous vote — of the jury. Surely, the imposition of the death sentence should require a unanimous jury.

Unfortunately, since the ABA released its report seven years ago, little has changed.

In 2000, under then-Gov. Jeb Bush, the Legislature similarly tried to set strict time limits on death-penalty appeals, but the Florida Supreme Court said the law was unconstitutional because it infringed on its rule-making powers in death-penalty cases.

Stoking another separation-of-powers controversy this year won't solve the many problems.

The best solution, really, would be to end the death penalty and let the monsters on death row die in prison without the chance of parole. That way, families would still get closure, society would be rid of them and we wouldn't waste significant time on a system that costs a lot of money and provides no deterrent value.

"Fix capital punishment flaw," is the Tampa Bay Times editorial.

Florida's capital punishment system has a flaw that leads jurors to deliberate less thoroughly than in other states when deciding whether to recommend the death penalty. Florida and Alabama are the only two of 32 death penalty states not to require a unanimous jury vote as part of the sentencing process. Today a vote is expected in the Senate's Criminal Justice Committee on a bill sponsored by Sen. Thad Altman, a Melbourne Republican, to require juror unanimity for execution recommendations and bring Florida into line with other states. Despite the death penalty's cost and potential for innocent people being executed, the Florida Legislature isn't likely to abolish it — unlike Maryland lawmakers, who moved to do so last week. But a bill that pushes jurors to do their job more carefully and thoughtfully would make the system less error-prone and should be universally supported.

Altman is right to say a unanimous jury recommendation "will enable us to have a more effective and accurate system." Florida ranks first in the nation in the number of inmates who have had death sentences reversed, according to the Death Penalty Information Center. Experts who have seen the way Florida's capital punishment system operates, including former Florida Supreme Court Justices Raoul Cantero and Harry Lee Anstead, think juror unanimity is needed. Anstead testified before the Senate Criminal Justice Committee on Altman's bill, saying it would ensure that the death penalty is reserved for "the worst of the worst" and help immunize death sentences from appeals and constitutional challenges.

"Law doesn't require unanimous jury for death sentence," is the Tampa Bay Times news report written by Alexandra Zayas cited in the paper's editorial.  Here's the beginning of this must-read:

The jurors had started to talk it out.

Some thought Patrick Evans should die for what he did to his estranged wife and the man he found in her bedroom — shot him in the neck, then, as she cried for help, pulled the trigger again.

But in a Pinellas County jury room on Nov. 10, 2011, some could not agree that the murders deserved the death penalty. One woman cried, remembers juror Quentin Davis. He asked the rest to find out why, and remembers one man saying he didn't care, that it wouldn't change his mind.

Some didn't want to share their thoughts, says juror Phyllis McMahon. "They either weren't talking about it, or would hint maybe life in prison was okay, or they weren't saying at all. You could tell by body language, by silence, by facial expression."

So the jurors came up with a solution:

They would put their written votes in a cup.

Out they came: 9-3 for death in the wife's murder, 8-4 for the same in the death of the man.

There was no need for further debate.

They had what they needed.

In Florida, defendants must be found guilty by a unanimous vote, whether they steal a car or kill. But when it comes to recommending the ultimate punishment, a simple majority, 7-5, suffices.

This is the only state in America that allows such split juries to recommend death. And it matters. In 2012, almost two-thirds of the defendants sent to Florida's death row were ushered there even after some of the jurors believed they should be spared.

A Republican state senator is trying to pass legislation that would bring Florida in line with the rest of the nation, in which most states require a unanimous vote. Juror Davis hopes he succeeds.

Earlier coverage from Florida begins at the link.

More on Gideon

"The Right to Counsel: Badly Battered at 50," is Lincoln Caplan's New York Times Sunday Observer editorial column.  Here's an extended excerpt from the beginning of this must-read:

A half-century ago, the Supreme Court ruled that anyone too poor to hire a lawyer must be provided one free in any criminal case involving a felony charge. The holding in Gideon v. Wainwright enlarged the Constitution’s safeguards of liberty and equality, finding the right to counsel “fundamental.” The goal was “fair trials before impartial tribunals in which every defendant stands equal before the law.”

This principle has been expanded to cover other circumstances as well: misdemeanor cases where the defendant could be jailed, a defendant’s first appeal from a conviction and proceedings against a juvenile for delinquency.

While the constitutional commitment is generally met in federal courts, it is a different story in state courts, which handle about 95 percent of America’s criminal cases. This matters because, by well-informed estimates, at least 80 percent of state criminal defendants cannot afford to pay for lawyers and have to depend on court-appointed counsel.

Even the best-run state programs lack enough money to provide competent lawyers for all indigent defendants who need them. Florida set up public defender offices when Gideon was decided, and the Miami office was a standout. But as demand has outpaced financing, caseloads for Miami defenders have grown to 500 felonies a year, though the American Bar Association guidelines say caseloads should not exceed 150 felonies.

Only 24 states have statewide public defender systems. Others flout their constitutional obligations by pushing the problem onto cash-strapped counties or local judicial districts.

Related posts are in the indigent defense index.

More Press on Warren Hill as Deadline Nears

"Last Chance for Warren Lee Hill," is Lincoln Caplan's post at the New York Times Taking Note blog.

Last Friday, the lawyers asked the Georgia clemency board to review his case and presented the new evidence to a state trial judge in Georgia, in a plea for a stay of execution. On Monday, when the state trial judge dismissed the plea, the lawyers immediately appealed to the Georgia Supreme Court.

The state trial judge dismissed Mr. Hill’s plea because “the ‘new evidence’ does not establish a miscarriage of justice.” That’s exactly incorrect.

Mr. Hill’s fate is in the hands of the Georgia clemency board, the Georgia Supreme Court and the U.S. Supreme Court. They should remember that, in any other state, he would not be facing execution and that this is their last chance to prevent a grievous wrong.

The Georgia Supreme Court has rejected a stay this afternoon.  Hill's attorney, Brian Kammer issued the following statement:

“We are profoundly disappointed that Georgia’s Supreme Court has refused to stop tonight’s execution of Warren Hill, a person with mental retardation, which we believe is at odds with the Unites States Supreme Court’s protection of the mentally retarded. More than a decade ago, the U.S. Supreme Court ruled that persons with mental retardation must not be executed. As new affidavits in our recent petition show, Mr. Hill’s diagnosis of mental retardation is now unanimous among all the doctors who have examined him.

“The state of Georgia remains an extreme outlier in requiring that defendants prove they have mental retardation ‘beyond a reasonable doubt.’ This is the strictest standard in any jurisdiction in this nation. Even Warren Hill, a man with an I.Q of 70, who is diagnosed as mentally retarded by every doctor who has examined him, finds it impossible to meet this standard of proof. The U.S. Supreme Court must intervene in this case and prevent a mentally retarded man from being put to death tonight.”

Brian Kammer, attorney for Warren Hill

Laurel Bellows, the President of the American Bar Association, has issued a statement, "ABA President Calls for Stay of Execution for Warren Hill."

The Carter Center has also issued a statement from former President Jimmy Carter and his wife calling for a commutation of the death senctence due to Hill's mental retardation.

All eyes are now on the Georgia Board of Pardons and the Supreme Court.

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

Another Florida Editorial Calls for Reform

Today's Gainesville Sun publishes the editorial, "Broken system."

So why take 26 years to carry out the sentence in a clear-cut case? It's simple: There are plenty of other examples of wrongful convictions that result in death sentences. And when the state executes the wrong person, there's no making up for the mistake.

That's why there is reason to be wary of state Rep. Matt Gaetz's call to speed up executions. Gaetz, a Fort Walton Beach Republican who chairs the House Criminal Justice subcommittee, has said that long delays in carrying out executions show that Florida has a broken death-penalty system.

He's right about the system being broken — but not only in the way that he suggests. Last year, Florida ranked No. 1 in death sentences imposed. The state also has the dubious distinction of exonerating more death-sentenced inmates that any other state since 1973, according to the Death Penalty Information Center.

Some of those exonerations come too late. Frank Lee Smith died of cancer after spending 14 years on Florida's death row for rape and murder. Eleven months after his death, he was exonerated based on DNA testing.

And:

Florida's death-penalty problems go beyond high-profile exonerations. In 2006, the American Bar Association issued a report on Florida's death penalty that found racial disparities in death sentences, juror confusion about the requirements for those sentences and problems with the pay and qualifications of defense attorneys in capital cases.

The report called for capital jurors to be unanimous in recommending death sentences, something that the Florida Supreme Court has also recommended. Florida is currently the only state with the death penalty that doesn't require a unanimous verdict in capital cases.

Earlier coverage from Florida begins at the link.

Florida Editorials Call for Capital Review, Changes

"Review of Florida’s death penalty system sorely needed," is the editorial published in today's Miami Herald.

Florida’s death penalty system is terribly flawed. Lawmakers have known that since at least 2006, when the American Bar Association released an exhaustive report calling the system “fraught with problems,” including racial disparities.

But almost no fixes were made. Meanwhile, evidence of a system gone awry has piled up.

Last year, Florida sentenced 22 people to death, more than any of the other 32 states that impose the penalty. It’s the second year in a row the state has reached that stark benchmark. Yet Florida also leads the nation in the number of Death Row exonerations, with 24 since 1973, according to the Death Penalty Information Center.     

Before you try to reconcile those two numbers, add this: a triple murderer from Miami-Dade County is still on Death Row 39 years after his original crimes. Though a federal judge threw out two of his death sentences late last year, Thomas Knight remains on Death Row for a third. Two other Death Row residents have been there even longer.

Added together, it paints an appalling picture of Florida. Record numbers of death sentences. Record numbers of exonerations. Killers who live for almost four decades on Death Row. Surely this is not what anyone wants — on either side of this painful and divisive issue.

Now, a glimmer of hope: Last week, the Florida Bar adopted a position supporting a comprehensive review of Florida’s entire death penalty process by all branches of government. That’s leadership in the right direction. Is anyone in Tallahassee listening?

The Orlando Sentinel publishes, "What we think: Time to repair busted death-penalty system."

State Rep. Matt Gaetz recently argued Florida's death-penalty system is broken. His solution: Limit what The called "legal gamesmanship" and waves of "endless, insincere appeals."

Doing so would slash the nearly 14 years victims' families wait on average for the condemned to get the needle.

When you're right, you're right. And the Fort Walton Beach Republican is correct: Florida's system is out of order.

How to shave time off death-row residency is a worthy discussion. But Gaetz's interest in hastening death — something the House Criminal Justice Subcommittee will likely broach during a workshop Thursday — is reckless until the state first tackles glaring flaws that mock justice.

State officials should instead follow the counsel of the American Bar Association's Board of Governors, whose 2006 ABA study of Florida's laws (largely ignored) recommended a broad review of the state's death-penalty process.

"Capital review," is the Panama City News Herald editorial.

Florida’s system of capital punishment is “broken” according to Rep. Matt Gaetz, R-Fort Walton Beach. By that he means the state is not executing prisoners on death row fast enough. Gaetz, the chairman of the House Criminal Justice Subcommittee will be holding a hearing Thursday on streamlining the post-conviction appeals process to speed up execution.

Meanwhile, Rep. Michelle Rehwinkel Vasilinda, D-Tallahassee, has filed a bill that would abolish the death penalty in Florida. That’s about as likely to pass as the Louisiana Superdome winning an award from the Institute of Electrical and Electronics Engineers.

Before the Legislature tinkers with the death penalty, it should know exactly what it’s dealing with. Florida would be wise to embrace the recommendation made more than five years ago by the American Bar Association to conduct a complete review of all three branches of government and how they administer capital punishment.

Earlier coverage from Florida begins at the link.

Gideon Webcast - Starting Soon

American Bar Association Section of Litigation is about to present a live streaming webcast, "The 50th Anniversary of Gideon v. Wainwright."  Here's the info:

A program commemorating the 50th anniversary of the landmark decision, Gideon v. Wainwright will be live streamed on January 18, 2013. This decision recognized a constitutional right to the appointment of counsel for indigent criminal defendants charged with felonies. Mr. Gideon was in prison when he submitted his handwritten petition to the U.S. Supreme Court requesting counsel.

Speakers include:
--  Professor Bruce Jacob, Dean Emeritus and Professor of Law at Stetson University College of Law
--  Anthony Graves, Motivational Speaker and Legal Consultant
--  Carlos J. Martinez, Miami-Dade Public Defender
Moderating will be JoAnne A. Epps, Dean of Temple Beasley School of Law.

Experience this event on your mobile device by downloading the UStream App. Follow the directions below to download the app to your iPad, iPhone, Kindle Fire and other Android devices. Upon downloading the app, simply search the name of the event.

Don’t just watch. Participate! During this event, online participants are encouraged to submit any questions they may have. Some questions will be addressed during the event while others will be provided to the panelist during a 10-15 minute Q&A period at the end of the event. We will attempt to address as many questions as possible during the allotted time period.

Profile of An Abolitionist

The current edition of the Louisville Eccentric Observer is themed the 2012 People Issue.  One of those profiled is, "The Rev. Patrick Delahanty: The Abolitionist."  It's written by Joe Sonka.  Here'a the beginning:

If you’ve ever walked through the bustling halls of the capitol annex in Frankfort during a session of Kentucky’s General Assembly over the past three decades, there’s a good chance you’ve run into the Rev. Pat Delahanty.

One of the founders of the Kentucky Coalition to Abolish the Death Penalty 24 years ago, Delahanty is a tireless advocate for reforming the state’s capital punishment system. He balances his time building a grassroots network across the commonwealth and giving state legislators information about how our justice system isn’t working.

Last year, his work was bolstered by an American Bar Association report that found such deep flaws in Kentucky’s system that they recommended suspending the death penalty here.

“Even if you support the death penalty, you probably don’t support the one we have,” Delahanty says. “So knowing what we have now gives us more information to go out and show people what they’re supporting.”

The Catholic priest, who lives in Old Louisville, is already gearing up for next year’s General Assembly, and from his recent discussions with legislators, he senses momentum is on their side.

“I think Kentucky could be the first state in the South (to abolish the death penalty),” he says. “It won’t be 2013 — the short session is not enough time, and we’re not at that point yet — but we’re getting close to it. 2014 is possible, 2015 is more likely.”

Earlier coverage from Kentucky begins at the link.

State Roundup

"Abandon executions: Death penalty unfair, illogical and costly," is the Lexington Herald-Leader OpEd written by Brian Cooney, an emeritus professor of philosophy at Centre College.

Last December, the ABA released the results of a two-year study by its Kentucky Assessment Team on the Death Penalty. The team included eight distinguished Kentucky jurists, two of whom were retired state supreme court judges. They unanimously recommended halting executions until "serious problems" were addressed. Among their disturbing findings.

And:

On Oct. 17, the Kentucky Commission on Human Rights, citing the findings of the ABA committee, sent to each member of the General Assembly and to the governor a resolution calling for outright abolition. It was this resolution that prompted the New York Times editorial also calling for abolition.

Why abolition rather than a moratorium to give us time to eliminate the abuses? Even reform of the death penalty system cannot rule out executions of innocent people. The injustice of a wrongful conviction can never be rectified if the convicted person is killed.

We have to ask ourselves what good we accomplish by executing murderers rather than imprisoning them for life without parole (a sentence available in Kentucky). There is no evidence to suggest that the death penalty has a greater deterrent effect than a life sentence.

"State moves away from death penalty," is the North Carolina editorial published by the Jacksonville Daily News.

In 2012, juries in North Carolina refused to sentence a single defendant to death, according to a report that recently appeared in the Raleigh News & Observer.

The report indicated that not only has no one been sentenced to death in the state during the year, but that no cases that could result in a death penalty are pending trial. That’s the first time the public has set something of a voluntary moratorium on the harshest of sentences in decades.

And:

While killing the perpetrator resolves the immediate problem, it leaves a moral blight on the culture that orders and condones such a killing. It is much more honorable to remove from society forever such a person, but not compound his or her crime by emulating it.

Seattle's KIRO-FM reports, "Relatives of murder victims oppose death penalty."  It's by Tim Haeck.

Relatives of murder victims in Washington hope their voices carry some extra weight in the debate over the death penalty.

Retiring State Senator Debbie Regala, D-Tacoma, was among a group of death penalty critics speaking out in Olympia Thursday. The six-term state lawmaker has a personal story to share.

"In 1980, my brother-in-law was murdered and his body was dumped in a park in Seattle," Regala told KIRO Radio. His killer was never prosecuted.

Still, she favors abolishing the death penalty. "We spend six to ten times as much money pursuing a death penalty as we would if we went for life without the possibility of parole," claimed Regala.

"When we look at the high cost, the staggering amount of money that gets spent on this, that money could be so much better used in giving police officers better tools to prevent crime, tools for helping solve some of these cold cases."

Earlier coverage from Kentucky, North Carolina, and Washington begins at the link.

ABA President Calls for Stay, Competency Evaluation in Ferguson Case

Laurel Bellows, President of the American Bar Association, has issued a statement today on the Florida case of John Frebguson.  Here's the full text:

The American Bar Association is alarmed that Florida is poised to execute John Ferguson, a man diagnosed as severely mentally ill for more than 40 years, before the constitutionality of his execution is fully evaluated.  Although a district court evidentiary hearing regarding Ferguson’s competency is scheduled for Friday, that could be too late: His execution could occur as soon as today.

A federal trial judge had stayed Ferguson’s execution and ordered the hearing to afford “full, reflective consideration” of Ferguson’s constitutional claims; however, that stay has now been lifted by the court of appeals.  In the interest of justice, it is imperative that Ferguson’s execution be again stayed until there is an opportunity for the federal courts to fully review his insanity claims on the merits and thus ensure that his execution will be constitutional.  To do otherwise would be to risk a terrible miscarriage of justice — one that can never be undone.

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

ABA President Speaks Out on the John Ferguson Case in Florida

"ABA denounces court's decision on execution," is by Laurel Bellows, the President of the American Bar Association, in today's Tallahassee Democrat.

Our great American system of justice is demeaned when we execute the profoundly mentally ill. Nonetheless, a Florida trial court has ruled that the scheduled Thursday execution of John Ferguson should proceed, despite its conclusion that Ferguson’s mental illness is so profound that he hears and sees things that aren’t real and suffers from serious delusions.

This condition has persisted for more than three decades and has included years of involuntary confinement in mental hospitals and treatment with antipsychotic medications.

The American Bar Association has long been concerned about the special vulnerability of the mentally ill in our criminal justice system. These concerns follow hundreds of years of common law tradition that has consistently held that offenders with severe mental illness must be treated differently from other offenders.

"Serial killer’s execution won’t happen until after stay expires," is David Ovalle's Miami Herald report.

John Errol Ferguson, on Death Row for eight murders in Miami-Dade in the 1970s, won’t be executed Thursday.

The Florida Department of Corrections initially said last week that Ferguson, 64, would be killed by lethal injection Thursday at 6 p.m., after a two-day delay mandated by the state’s high court pending last-minute appeals.

But on Monday, the corrections department clarified that an execution date won’t be set until after the Florida Supreme Court’s stay on the execution expires Thursday afternoon.

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

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

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

Almanac - August 21

From the Associated Press, Today in History:

In 1878, the American Bar Association was founded in Saratoga, N.Y.

A View From the Trenches of Death Penalty Appeals

That's the title of Amanda Bronstad's report in the National Law Journal.

In May, Victor Stephens, who is black, pleaded guilty to charges stemming from the shooting of a white store owner. The plea, which came after he had been granted a new trial, brought a life sentence but removed him permanently from death row in Alabama, where he was first sentenced in 1987.

Stephens' attorney, J.S. "Chris" Christie Jr., is a partner at Bradley Arant Boult Cummings in Birmingham, Ala., and co-chairman of the firm's pro bono committee. According to Christie, Stephens was the third inmate the firm has gotten off death row since it began handling capital cases in 1988. Christie talked to The National Law Journal about Bradley Arant's death penalty work, for which the firm will receive an exceptional service award from the American Bar Association's death penalty project next month.

And:

NLJ: The firm has represented 19 people on death row in Alabama so far. How does that compare to the total number of people on death row in the state?

C.C.: Alabama has about 200 people on death row. The number changes. For example, Victor Stephens was taken off in May 2012, but two people were added. The exact number was 201, so about 11 percent of the people on death row.

NLJ: Of those 19 cases, one person was executed and two died in prison. Stephens is one of three people the firm has successfully gotten removed from death row. Talk about that case.

C.C.: This is something I worked on from 1993 to 2012. Victor Stephens in 1986 was part of robbing a convenience store. The store owner shot him and, while the store owner was reloading his gun, Victor Stephens shot the store owner with a .25-caliber pistol that he had. Victor Stephens confessed to shooting the store owner with a .25 pistol after being shot with a shot gun.

At his trial in 1987, he was convicted of capital murder. That night, they held a sentencing hearing. The jury recommended life without parole. The judge held the final sentencing until after he'd been nominated to the Court of Criminal Appeals and before the general election that fall, and sentenced Victor Stephens to death, overriding the jury's finding that he should be sentenced to life without parole. That went up through the normal appellate process and post conviction proceedings started — and that's when I got involved, in 1993.

NLJ: What was the legal argument that got him off death row?

C.C.: The argument on which he actually was awarded a new trial was on the jury selection. The prosecution used 21 of its 22 regular strikes, and its first 21 strikes were to remove blacks from the jury. His counsel made a timely objection, and the state offered what appeared to be race-neutral reasons for strikes of 21 blacks.

 Related posts are in the ABA and pro bono category indexes.

Missouri Prosecutors Stay Quiet on Death Penalty Study

That's the title of an AP report written by Alan Scher Zagier rgarding the ABA Missouri Death Penalty Assessment.  It's via the St. Louis Post-Dispatch; it's also available via the Columbia Missourian.  Here's an extended excerpt:

When the American Bar Association sought to review Missouri's death penalty laws as part of a nationwide study of capital punishment, it turned to a collection of the state's most esteemed lawyers, judges and law professors for help.

The two-year ABA study, released earlier this year, relied on detailed responses from law enforcement agencies, medical examiners, crime labs and others involved in handing down the state's ultimate legal sanction. But one group was largely and notably absent from the discussion: the prosecutors who decide whether to seek the death penalty in the first place.

Several members of the panel that worked on the study said the prosecutors' lack of cooperation hindered efforts to fully evaluate the death penalty system in a state that executed 68 people since the U.S. Supreme Court reinstated capital punishment in 1976, trailing only Texas, Virginia, Oklahoma and Florida.

ABA surveys sent to prosecutors in Kansas City, Springfield, Columbia, Cape Girardeau and St. Charles went unanswered, while the state Attorney General's Office provided limited information. Daniel White, prosecutor in Clay County in suburban Kansas City, was the only survey recipient to write back with his own thoughts but declined to participate, saying he did not want to "embolden enemies of justice."

White, who has sought the death penalty just twice in nearly 20 years, said sharing his insights would "generate a public document subsequently available to others who may not have justice as their primary mission."

"I can't quantify the soul searching, legal research, fact finding and energy expended in first, arriving at the decision to see the death penalty and second, actually going forward," White wrote. "It's not an easy decision; nor should it be."

The ABA sought details on the training and qualifications of assistant prosecutors who handle capital cases, including their caseloads. The association also asked about office budgets and salaries, number of previous and active death penalty cases, procedures for sharing discovery evidence with defense lawyers, interactions with families of victims and policies on plea bargains.

The study panel had members from Missouri, including U.S. District Court judges Nanette Laughrey and Stephen Limbaugh Jr. and Harold Lowenstein, a former state representative who spent 28 years as a judge for the Missouri Court of Appeals and is now in private practice in Kansas City. The panel also included two MU law professors and another from St. Louis University.

A 436-page report that came from the study includes recommendations that mostly would require legislative action. They include improved procedures for preserving biological evidence and a call for limits on the 17 aggravating circumstances under which prosecutors can seek death against murder suspects.

The Missouri Death Penalty Assessment Report is available at the ABA website.

Earlier coverage of the ABA's Missouri Assessment begins at the link; also available, coverage of Missouri's decision to switch lethal injection drugs.

Ohio Governor Grants Reprieve for Mental Evaluation Hearing

The AP reports, "Gov. Kasich grants two-week reprieve to death-row inmate."  It's by Andrew Welsh-Huggins, via the News-Messenger.

Republican Gov. John Kasich on Tuesday issued a rare last-minute reprieve for a condemned killer, sparing Abdul Awkal for two weeks to allow a judge to hold a hearing on his mental competency.

Kasich ordered the delay to allow a Cuyahoga County judge to conduct a hearing on whether Awkal is too mentally ill to be put to death. Judge Stuart Friedman ruled Monday there was evidence to believe Awkal was not competent to be executed, but his ruling was not enough to stop the execution.

Kasich's decision came shortly after the Ohio Supreme Court had refused to delay the execution to allow the hearing. Governors in Ohio have the ultimate say on executions.

Former death row inmate John Spirko received reprieves from two governors before he was spared, but such interventions by governors have been infrequent since Ohio resumed executions in 1999.

"Kasich grants 2-week reprieve to courthouse killer facing execution," by Alan Johnson  and  Rebecca McKinsey for the Columbus Dispatch.

A Cleveland man who gunned down his estranged wife and brother-in-law in a courthouse basement got a two-week reprieve from execution from Gov. John Kasich yesterday.

Abdul Hamin Awkal, 53, was to be lethally injected at 10 a.m. today at the Southern Ohio Correctional Facility near Lucasville.

However, late yesterday afternoon, Kasich unexpectedly used his executive clemency power to postpone Awkal’s execution. He said in a statement that the time will allow Cuyahoga County Common Pleas Judge Stuart Friedman to hold a hearing to determine whether Awkal is mentally competent to be executed.

The reprieve was requested by Awkal’s attorneys, not by a court or judge. It was an “internal decision” made solely by Kasich’s office, a spokeswoman said.

Just last week, Kasich denied clemency for Awkal without comment.

And:

Several doctors recently deemed Awkal fit for execution. However, attorneys at the Justice and Policy Center who represent Awkal located Pablo Stewart, a California-based psychiatrist, who said Awkal was unfit for execution. In addition, Phillip Resnick, one of three psychiatrists who originally found Awkal competent, said he was now uncertain.

Today's Cleveland Plain Dealer also carries an OpEd, "Exercise caution before executing the severely mentally ill."  It's by William T. Robinson III, President of the American Bar Association.

Abdul Awkal's case raises many serious questions. First, his lawyers contend that he is severely mentally ill and does not have a rational understanding of the reason he will be executed. Indeed, the evidence indicates that Mr. Awkal's mental illness began well before the crime for which he was sentenced to death. He was only able to stand trial after receiving powerful antipsychotic drugs, and experts agree that his mental health condition deteriorated after his conviction. Mr. Awkal's lawyers indicate that he has been unable to communicate meaningfully with them or assist them with his appeals. According to medical experts, Mr. Awkal now suffers from visual and auditory hallucinations, meaning that he hears voices and sees things that are not real. He believes he is being executed because the CIA wants him dead, not because of his crime.

The U.S. Supreme Court has held that it is unconstitutional to execute a person such as Mr. Awkal whose mental impairment prevents him from having the necessary understanding of the nature and purpose of the death penalty and the reason it is imposed in his case. That is also the policy of the American Bar Association. Our position is grounded in centuries of historical precedent, dating back to the year 1680, when the legal jurists of the day expressed concern over the "miserable spectacle" of executing someone who is mentally incompetent. Like those jurists, we believe the goals of capital punishment are not served by executing an offender who lacks a meaningful understanding that the state is taking his life in order to hold him accountable for taking the life of one or more persons.

Earlier coverage of Abdul Awkal's case begins at the link.  Related posts are in the clemency, competency, and mental illness indexes.

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

Kentucky to Change Lethal Injection Protocol

"Kentucky to change execution method from 3 drugs," is the AP report by Brett Barrouquere, via the Louisville Courier-Journal.  It's also available via the Lexington Herald-Leader.

Kentucky officials signaled Thursday they will change how prisoners are executed, opening the door to using a single drug instead of the current three-drug method that has been challenged by inmates who call it cruel and unusual punishment.

The Kentucky Justice Cabinet filed notice in Franklin Circuit Court that it would propose new regulations by July 24. The single-page motion does not say what changes will be made. The new method could be in place by late summer, allowing Kentucky to begin executions later this year.

Justice Cabinet spokeswoman Jennifer Brislin declined comment.

Franklin Circuit Judge Phillip Shepherd in April gave Kentucky 90 days to make changes or face a trial to defend the three-drug method.

Shepherd said if Kentucky adopts a new regulation allowing for a one-drug execution — similar to what is done in Ohio, Arizona and other states — any claims of cruel and unusual punishment by the inmates “will be rendered moot.”

The battle over Kentucky’s lethal injection method has been going on for more than a year and a half. The judge’s ruling and Kentucky’s decision comes just months after the American Bar Association issued a report calling for a moratorium on executions in Kentucky, in part because of the number of cases overturned since the reinstatement of the death penalty in 1976.

At least seven states use a single drug to carry out executions. Three states — Idaho, Washington and South Dakota — give an option to use more than one drug.

In the last week, Missouri became the first state to switch to propofal, the same anesthetic that caused the overdose death of pop star Michael Jackson.

Kentucky’s current method calls for a single drug or combination of drugs. The state last used sodium thiopental, pancurionium bromide and potassium chloride, a combination similar to the one used by Georgia and some other states.

And:

To change the regulations, Kentucky officials must submit to the state a new execution method, which is made public. If a legislative subcommittee does not meet or does not find the regulation deficient within 30 days of publication, the regulation takes effect.

Earlier coverage of Kentucky lethal injection issues begins at the link.  Judge Shepherd's order to consider a single drug execution and an order on aspects of the state's Administrative Procedures Act are available in Adobe .pdf format.

Related posts are in the lethal injection category index.

Coverage of the ABA's Kentucky Death Penalty Assessment report is also available.

End Kentucky's Death Penalty

That's the title of an editorial in today's Lexington Herald-Leader.  It was originally published in the Owensboro Messenger-Inquirer.

Just when we thought we heard it all, a Franklin circuit judge decided last week that Kentucky's three-drug concoction to execute its prisoners may no longer be necessary. In his decision, Judge Phillip Shepherd said there is a single drug available that other states have successfully used for lethal injections.

Is this what it has come to? Arguing over how many drugs it takes to kill a person? To be fair, Shepherd was only doing his job after death-row inmates brought the case to court. He ruled the single-drug switch be made within 90 days, or the case will go to trial.

Instead of debating the number of drugs used in a lethal injection, why not concentrate on moving away from executions altogether?

In 2009, the state was spending $8 million more a year on its 34 death-row inmates than those with life sentences, according to the Department of Public Advocacy. That's not counting medical costs that go along with housing prisoners for 15 to 20 years. Adding more weight is the recent two-year study from the American Bar Association that found "substantial" flaws in how death penalty cases are tried and appealed in this state.

And:

Why can't it be about a life sentence? Justice will be still be served, and we could then be assured that a wrongly convicted person wouldn't be sent to their death simply because the state insists on picking its own poison — and in Kentucky's case, we mean that literally.

Earlier coverage of Kentucky lethal injection issues and the ABA assessment begins at the links.

The Responsibilities of Prosecutors

The American Bar Association has posted an excellent discussion, "Prosecutorial Accountability in the Post-Connick v. Thompson Era: Reforms and Solutions," on its website.  The panel discussion was held at the ABA Midyear Meeting in New Orleans, this February.  Here's a brief description:

Prosecutors play a crucial role in the administration of justice, and rules concerning the performance of their important responsibilities should promote their respect for and compliance with the law. But twice in the past two years the alleged misconduct of the Orleans Parish District Attorney’s Office has been the subject of a case before the United States Supreme Court. This program brought together prosecutors, ethics experts, a former death row prisoner, and academics to discuss these important cases, whether and how prosecutors should be held accountable for misconduct, and possible solutions and reforms which will help limit future misconduct.

Prosecutorial Accountability Project from Bruce France on Vimeo.

 

It was co-sponsored by several ABA groups; Death Penalty Representation Project, Criminal Justice Section, Section for Individual Rights and Responsibilities, Section of Litigation, and Death Penalty Moratorium Implementation Project.

Earlier coverage of Connick v. Thompson begins at the link.  Related posts are in the ABA and prosecutorial misconduct indexes.

Thanks to Tristin Aaron for forwarding.