The StandDown Texas Project

Additional Coverage of Woodward v. Alabama

Today's New York Times publishes the editorial, "Death Meted Out by Politicians in Robes."

In nearly all of the 32 states that permit capital punishment, a jury makes the final decision on whether a defendant will live or die. Not so in Alabama, where elected judges may override a jury verdict of life in prison and unilaterally impose a death sentence.

Since 1982, Alabama judges have overridden 95 such verdicts, sentencing defendants to death even though the jury voted for life — many times by a vote of 12 to 0.

This bizarre arrangement is the result of a state law requiring that capital punishment be imposed when a crime’s aggravating factors, like an especially heinous murder or one committed for hire, outweigh the mitigating factors, like a defendant’s age or mental capacity. But regardless of how a jury weighs those factors, its verdict is advisory only. A judge may then weigh them differently and override the verdict without explanation. In more than 90 percent of overrides, judges chose death after a jury chose life.

On Monday, the Supreme Court declined to hear a challenge to this law, which appears to violate a 2002 ruling that capital defendants “are entitled to a jury determination of any fact” necessary to sentence them to death.

Justice Sonia Sotomayor wrote a 12-page opinion, joined partly by Justice Stephen Breyer, dissenting from the court’s decision not to hear the current case, Woodward v. Alabama. While the court previously upheld the Alabama law in 1995, she noted, the state is now alone in overriding jury verdicts of life. Because it undermines “the sanctity of the jury’s role in our system of criminal justice,” Justice Sotomayor wrote, the Alabama law is “constitutionally suspect.”

The Times' news coverage is, "Alabama Judges Retain the Right to Override Juries in Capital Sentencing," by Adam Liptak.

The Supreme Court on Monday turned down a challenge to an unusual Alabama capital-sentencing practice that has sent 95 defendants to death row despite jury determinations calling for life sentences.

Justice Sonia Sotomayor, joined for the most part by Justice Stephen G. Breyer, issued a 17-page dissent of the court’s refusal to hear the case. Alabama now stands alone, she said, in routinely allowing judges to override determinations from capital juries calling for leniency.

The case, Woodward v. Alabama, No. 13-5380, concerned Mario D. Woodward, who was convicted of killing Keith Houts, a police officer. By an 8-to-4 vote, the jury recommended a life sentence without the possibility of parole. The trial judge rejected the recommendation and condemned Mr. Woodward to death.

Alabama law allows judges to override jury recommendations in either direction: from life to death or from death to life. But Alabama judges have overridden recommendations of life 95 times and of death just nine times.

Florida and Delaware also allow overrides, but they are subject to strict standards. No one has been sentenced to death in Florida as a result of a judicial override since 1999, and no one is on death row in Delaware as a consequence of an override.

Tom Goldstein posts, "What you can learn from opinions regarding the denial of certiorari," at SCOTUSblog.

Today’s order list from the Court included three opinions respecting the denial of certiorari – i.e., denials of review in which the Justices felt strongly enough about the issue that they went to the effort of writing separately.  Almost always, when a Justice votes to review a case but there are not enough votes to grant certiorari (four are required), the dissent is not publicly noted.  So the parties and lawyers – and litigants in later similar cases – have almost no way of knowing whether the issue generated any interest at the Court.

Two of the opinions today were traditional dissents from the denial of certiorari.  In a habeas corpus case, Rapelje v. McClennan, Justice Alito wrote an opinion (joined by Justice Scalia) arguing that the Court should review the decision by a court of appeals on how to review a summary order of a state court.  In a death penalty case, Woodward v. Alabama, Justice Sotomayor wrote an opinion (joined by Justice Breyer) arguing that the Court should review Alabama’s practice of permitting judges to override juries’ death penalty recommendations.  The two cases illustrate that frequently Justices Scalia and Alito will view the federal habeas laws as imposing the most significant constraints on overturning convictions, while Justices Breyer and Sotomayor will have the most interest in considering issues related to the administration of the death penalty.

"Sotomayor questions Alabama death-penalty process," by Robert Barnes for the Washington Post.

Sotomayor noted that the court approved Alabama’s death-penalty procedure 18 years ago. “In my view, the time has come for us to reconsider that decision,” she wrote.

In a statistic-filled opinion, Sotomayor said that since 2000, 26 of the 27 cases in which judges imposed death sentences over the recommendations of juries came from Alabama. The other was from Delaware, but the state’s supreme court overruled and converted the sentence to life in prison without parole.

What makes Alabama different? Sotomayor asked.

“There is no evidence that criminal activity is more heinous in Alabama than in other states, or that Alabama juries are particularly lenient in weighing aggravating and mitigating circumstances,” the justice wrote.

“The only answer that is supported by empirical evidence is one that, in my view, casts a cloud of illegitimacy over the criminal justice system: Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures.”

In recent years, some states, including Maryland, have abandoned the death penalty. Of the 32 that allow the sentence, 31 allow for some sort of jury participation. And in 27 of those, Sotomayor wrote, if the jury decides on a life sentence for the crime, a judge cannot disturb the judgment.

In Alabama, as in most states, the jury considers aggravating and mitigating circumstances, and if the latter outweigh the former, the jury is required to recommend life imprisonment. A life-without-parole verdict requires a majority of the 12 jurors; a death sentence requires 10 votes.

But the judge need only consider the recommendation and is free to hear other evidence and make a different decision.

"Supreme Court declines to hear Alabama death penalty case," by Lawrence Hurley for Reuters, via GlobalPost.

She attached to her opinion a list of 95 defendants who have been sentenced to death after a jury voted for life imprisonment. Forty-three remain on death row, she said.

In analyzing the trend, she noted that trial judges in Alabama are elected and may have "succumbed to electoral pressures."

One judge who has overridden the jury on six separate occasions ran election advertisements proclaiming his support for capital punishment, Sotomayor added.

"2 U.S. Supreme Court justices criticize Alabama law that allows judges to override jury decision, impose death penalty," by Erin Edgemon at the Birmingham News.

According to court records, the judge in Woodward’s case was Truman Hobbs.

“The judge was statutorily entitled to do this under Alabama law, which provides that a jury’s decision as to whether a defendant should be executed is merely an ‘advisory verdict’ that the trial judge may override if she disagrees with the jury’s conclusion,” the dissent stated.

Of the 31 states that allow capital punishment, only Alabama, Delaware and Florida allow a judge to override a jury's sentencing decision. Delaware did it one time, and Florida did it last in 1999.

“There is no evidence that criminal activity is more heinous in Alabama than in other states, or that Alabama juries are particularly lenient in weighing aggravating and mitigating circumstances,” the justices wrote, adding they believe the judges “succumbed to electoral pressures” in making their decision.

"Are some Ala. judges swayed by electoral pressures in capital cases? Apparently so, Sotomayor says," is by Debra Cassens Weiss for ABA Journal.

Justice Stephen G. Breyer joined the first two sections of Sotomayor’s dissent, including the section questioning the impact of elections on judicial decisions. He did not join the section of her opinion on developments in Sixth Amendment precedent.

Justice Sotomayor's dissent in Woodward v. Alabama is available in Adobe .pdf format.

Earlier coverage of the Alabama sentencing issue begins at the link.

In 2011, Alabama's Equal Justice Initiative issued the report , The Death Penalty in Alabama: Judge Override.

Andrew Cohen on the Woodward Dissent

"The Supreme Court Loves Juries, Except When It Doesn't," is Andrew Cohen's just-posted essay at the Atlantic.

The United States Supreme Court declined Monday to hear the case of a man who was spared the death penalty by an Alabama jury only to be subsequently sentenced to death anyway by the trial judge in the case—an official who was elected to his post by the citizens of his state. The result in Woodward v. Alabama is that the state may continue to be one of only three in the nation that permits "judicial overrides" of jury decisions in capital cases.

Only two justices—Sonia Sotomayor and Stephen Breyer—dissented from the denial of certiorari, and only Justice Sotomayor was willing to lay bare the extent of the hypocrisy that accompanies the Court's resolution of this case. As she wrote, there were at least two excellent reasons why the Court should have accepted this case for review and then ended Alabama's dubious mix of law and politics in death penalty cases. That there were not five votes for either reason (0r both) reminds us how hostile this court is to reform of even the worst excesses of capital punishment in America.

And:

I do not see how Justice Scalia squares his eloquence in Ring with his silence in Woodward. And I do not know how to explain or justify the meek acceptance of this dubious result by the other members of the Court. Judicial elections in Alabama create all sorts of perversions of justice—I spoke about some of them just last week with Sue Bell Cobb, the retired Chief Justice of the Supreme Court of Alabama—but nowhere are those perversions more pronounced than when a state judge begging for votes condemns a man to death whom a jury had voted to spare.

Earlier coverage of Justice Sotomayor's dissent in the Alabama case is at the link.

There is much more from Andrew Cohen at the Atlantic.

Diann Rust-Tierney on the Latest Gallup Poll Results

"Public's Changing Attitudes on Capital Punishment," is Diann Rust-Tierney's latest at Huffington Post.  She's the Executive Director of the National Coalition to Abolish the Death Penalty.  Here's the beginning:

When capital punishment was halted in the United Sates by the Supreme Court in 1972, Justice Thurgood Marshall cautioned against relying too heavily on public opinion polls that measure the attitudes of a specific punishment based on "its mere mention." Justice Marshall believed correctly that most Americans knew too little about the death penalty and its workings for such an exercise to be an accurate reflection of the public's morality and sense of justice.

In the years that followed, support for the death penalty skyrocketed, peaking in 1994 with 80 percent of the population supporting its use, according to Gallup. Now a poll confirms, what many close to this issue already believed, that support for the death penalty is on the decline -- at 60 percent -- the lowest level of support for the practice in 41 years, according to Gallup's analysis. Moreover, in polls that present more information about the death penalty to respondents, including alternatives to capital punishment, majority support for the practice vanishes.

Justice Marshall's premise that an informed citizen will come out in favor of justice is correct. In the decades that followed capital punishment's eventual reinstatement in the U.S., details about the problems that plague it have persisted. Most prominent among the concerns is the risk of executing the innocent. Over a period of years, regular news reports about wrongful capital and non-capital convictions have shaken public confidence in the criminal justice system.

Earlier coverage of the October Gallup Poll begins at the link.  You can also find more from Diann Rust-Tierney on HuffPost.

Related posts are in the public opinion polling category index.

David Protess at HuffPost

"Hidden Agenda Fuels Challenge to Pivotal Death Penalty Case," is David Protess' latest entry at Huffington Post.  He's the President of the Chicago Innocence Project.

Anthony Porter, the exonerated death row inmate whose jubilant release from prison was the catalyst for abolishing the death penalty in Illinois, is back in the news after living in relative obscurity for years. A lot has happened since reporters covered Porter's first steps to freedom, but brace yourself for who's behind his sudden return to the front page.

Hint: it has less to do with the evidence than it does a reality TV show producer and a lawyer with ties to City Hall.

Our story traces to Sept. 1998, when Porter came within 50 hours of execution before getting a stay. Months later, he was freed when the case against him crumbled. Witnesses recanted and an eyewitness swore she saw her estranged husband, Alstory Simon, commit the double murder that had landed Porter on death row. Simon soon confessed on videotape to a private investigator working with a team I led at Northwestern University.

Besides the overwhelming proof of Simon's guilt -- the videotaped confession, his guilty plea to a judge, a tearful courtroom apology for the slayings, damning admissions to a Milwaukee TV reporter -- it was Simon's failure to appeal that forever closed his case.

And yet, as has been widely reported, lawyers James Sotos and Terry Ekl rant that Simon is actually innocent and Porter guilty. The lawyers convinced State's Attorney Anita Alvarez to take a third look at the case, arguably making the matter newsworthy.

On Friday, I challenged the lawyers' claims and chastised the Chicago Tribune for an editorial that gave them credence. I also pointed out the dubious pedigrees of Sotos and Ekl, showing them to be shills for law enforcement whose likely purpose was to undermine the innocence movement by gutting its symbol.

Still, I wondered whether there was more to this story, curious about why the allegations erupted now when they were originally raised seven years ago -- only to be shot down by every judge. Sure enough, a little digging shows that Porter has been dragged back into the spotlight for a more sinister reason. The motive is money.

More from David Protess on HuffPost, at the link.

More on Arizona Prosecutors

Arizona Daily Star columnist Tim Steller writes, "Nogales prosecutors call out federal agent."

You can imagine how this story might have ended.

The defendant, Eduardo Bojorquez, would have been convicted, by a jury or through a guilty plea, and sentenced to prison. Nobody would have been the wiser about how the conviction was won.

And:

A couple of young prosecutors, relatively recent graduates of the University of Arizona’s James E. Rogers College of Law, saw something wrong: a federal agent who they thought had lied about the case. Rather than working things out behind the scenes, they blew the whistle.

Assistant Santa Cruz County Attorney Vanessa Cartwright, who grew up in Tucson and graduated from the law school in 2007, alerted her boss, Liliana Ortega, the chief deputy overseeing criminal cases, a 1998 UA law grad. They are two of just nine attorneys in the office, in a town that is practically fed-ville — home to hundreds and hundreds of federal agents.

On Sept. 16, Ortega wrote a jarring letter to the man in charge of the Homeland Security Investigations office in Nogales:

“One issue is the case agent’s late disclosure of a surveillance video showing Mr. Bojorquez involved in the drug smuggling offense. Although this video existed since 2009, the agent did not make it available for viewing until August of 2013, a few weeks before trial. This late disclosure, if not intentional, was at minimum grossly negligent on Agent (Eduardo) Cota’s part.”

“More disturbing was the content of the video. The video directly contradicted statements that Agent Cota made to the prosecutor, to defense counsel and in the agent’s own reports. The agent also omitted vital information from the reports and from his discussions with the prosecutor that would have impacted the filing of charges against Mr. Bojorquez.”

"AZ: Santa Cruz Prosecutors Show Us How It’s Done," is the Open File blog post.

A heartening story out of Arizona has emerged in the midst of Michael Kiefer’s four-part series for The Arizona Republic on prosecutors who commit misconduct and suffer few, if any, consequences. Tim Stellar, opinion columnist for The Arizona Daily Star, recently tipped his hat to two county prosecutors who not only forsook a conviction in order to play by the rules, but held their colleagues to account in the process.

Concluding his excellent series on prosecutorial misconduct which profiled numerous prominent Arizona prosecutors who have not only failed to abide by their ethical duties, but have seemingly been rewarded for them with notoriety and promotions in many instances, Kiefer discussed what, if any, avenues there are to punish unethical prosecutors.

The Arizona Republic series on prosecutorial misconduct begins at the link.

Another Reflection on Don Cabana

"A Tribute to a Prison Warden's Influence on Capital Punishment Abolition," is Diann Rust-Tierney's Huffington Post remembrance.  She's Executive Director of the National Coalition to Abolish the Death Penalty.

Donald Cabana, a former Mississippi prison warden who presided over executions, was not the usual ally for me and the National Coalition to Abolish the Death Penalty. But Donald Cabana loathed the death penalty. As I mark his passing and celebrate his life, he died this month at 67, I think about the vantage point from which he formed his opinions about capital punishment.

Cabana worked in prisons and corrections for more than 25 years in Massachusetts, Florida, Missouri and Mississippi. He was a seasoned traveler in places that many have opinions about but relatively few have firsthand knowledge of or experience with. He punished, counseled and cared for the people and the families that most people forget or wish never existed. He also supervised, cared for and counseled the people who must work in the most hopeless and saddest of places, our nation's prisons and death chambers.

And that was the first point that he often made so eloquently. As a longtime corrections official, he was a man committed to holding people accountable for their actions, but he recognized the human folly of believing that we could ever pay back the harm caused by executing a murderer.

Earlier coverage of Don Cabana's legacy begins at the link.

How the Death Penalty is Linked to Resources

That's the title of Jon Gould's must-read post at the Life of the Law blog.  Gould is at American University.

The Death Penalty Information Center recently released a report showing that a majority of executions in the United States since 1976 have been carried out by just 2 percent of the nation’s 3100+ counties. Among the ten most punitive counties, seven are in Texas.

Missing in DPIC’s report is an explanation for why such a small number of counties imposes such a large percentage of the nation’s death sentences. Perhaps more heinous crimes occur there. Maybe residents are more retributive; they elect prosecutors who seek the death penalty more often and fill juries that are more willing to choose the a death sentence over life in prison.  After all, we live in a federal, not national, legal system.  Different communities are allowed to express their will through varying sentences, and the U.S. Supreme Court has ruled that the death penalty does not offend the Constitution or Bill of Rights so long as it is limited to adults and is not applied discriminately on the basis of race.

But what if the federal death penalty shows geographic disparities, and what if those differences are linked to the resources made available to capital defendants? In 2010, the Administrative Office of the U.S. Courts released a report I co-authored showing significant geographic variation in the resources provided to defendants in federal capital cases. “Resources” here mean lawyer time, investigators, and other experts, including psychologists and mitigation specialists.  Although capital defendants received a median $465,000 for their defense at trial, the amounts varied by location.  In federal court in Connecticut, for example, the average defendant received $1.2 million (yes, that’s a lot of money, but capital cases are expensive—in fact, the prosecution costs more), whereas the federal court in Georgia provided only $132,000 in defense resources.  More troubling, those levels were linked to case outcomes. Defendants within the lowest third of case costs had twice the risk of a death sentence than others receiving greater defense support.

And:

If the Constitution is to mean anything, a federal defendant should have the same chance at a quality defense in one federal court as he does in another. Furthermore, the resources he receives at trial should not predict his sentence. The late David Baldus opened our eyes to disparate treatment in state capital sentences. Justice Powell said one of his greatest regrets was failing to recognize this pattern as a constitutional violation. Are today’s federal judges missing a constitutional problem right in their own house?

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.

Monday at the Supreme Court

The Supreme Court opens its 2013-14 Term on the first Monday in October.  This Monday, however, the justices will conference pending cases.

"Capital Cases in the Long Conference," is Kent Scheidegger's post at the Crime and Consequences blog.

Monday is the U.S. Supreme Court's annual "long conference" in which they consider certiorari petitions (i.e., requests to take up cases decided in lower courts) that have built up over the summer.  The very valuable Cert Pool has the full list, 2127 cases as of this writing.

There are 68 capital cases on the list.  I extracted them into an Excel spreadsheet.  The cases include:

Scheidegger then highlights a handful of the cases.

Related posts are in the Supreme Court category index.

For anyone new to Court watching, Tom Goldstein's SCOTUSblog is the essential site.

The Shakespearean Death of Billy Slagle

That's the title of Andrew Cohen's latest post at the Atlantic.  It's subtitled, "An inmate committed suicide three days before his scheduled execution — and 36 hours after prosecutors discovered shocking new information that might have saved him."

Here's the beginning:

Before he took his own tortured life last month, Billy Slagle had answered to just about everyone he could think of for the crime he had committed a quarter of a century ago. He had explained as best he could the circumstances of it. He had repeatedly apologized and taken responsibility for it. And he had begged forgiveness for it. Now that he is gone, the question at the heart of his tragic life and death is whether the people responsible for his fate, in positions of power and authority, will ever have the courage and integrity to accept their own measure of responsibility for what happened to him and why.

Slagle hanged himself with a belt in his prison cell early on Sunday morning, August 4th, three days before he was scheduled to be executed for the 1987 home-invasion murder of a young woman named Mari Anne Pope. Slagle's death came just weeks after Ohio parole board officials narrowly rejected his final request for clemency — over the earnest objections of Cuyahoga County prosecutors, who argued for leniency and a life sentence. It came weeks after Gov. John Kasich rejected the profound and numerous mitigating factors of Slagle's case.

Even more dramatically, Slagle's suicide also occurred approximately 36 hours after prosecutors in his case discovered shocking new information that might have precluded his execution. On the Friday before Slagle died, one of the prosecutors involved in his long-ago murder trial disclosed to current prosecutors that a plea deal had been discussed among lawyers before Slagle's trial — but that Slagle had never been told of a possible deal. Such a revelation, coming from a former prosecutor, almost certainly would have stayed Slagle's execution and likely would have pushed Ohio into granting him clemency.

Earlier coverage of Billy Slagle's case begins at the link.

More Commentary on 'I Am Troy Davis'

"Two years after Troy Davis' execution, our fight to end the death penalty lives," is by Jen Marlowe and Kimberly Davis in the Guardian.

On 21 September 2011, the state of Georgia killed Troy Anthony Davis as the world looked on, aghast that Georgia was proceeding with the execution, overlooking a mountain of evidence that pointed towards Troy's innocence.

While much of the world has moved on, we are still in the fight to end capital punishment. Those of us who loved Troy see this two-year anniversary as more than an opportunity to mourn the death of a good man. We see this day as a chance to reflect on what Troy posthumously achieved and the charge we must all take up in his name to end the immoral practice of the death penalty.

Though he never wanted to be a martyr, Troy wanted to make certain that his execution would fuel a movement to end capital punishment in this country and around the world. Among Troy's final words, he asked his family and friends "to continue to fight this fight" to abolish a system that is wrongfully and unjustly applied.

Since 1973, 142 people have been released from death row throughout the country due to evidence of their wrongful conviction. In this same period, more than 1,000 people have been executed, according to data collected by Amnesty International. It is a near-certainty that there were innocent human beings among them.

In our new book I Am Troy Davis, we highlight the risk of executing an innocent person and underscore the hidden price that so many people pay with each and every execution. Told from the perspective of Troy and his family, we reveal the impact that capital punishment has, not just on the condemned prisoner, but on his family, his friends, and even the guards and prison officials whose job it is to take part in these state-sanctioned (and highly-scripted) killings. We expose Troy's dignity and humanity, juxtaposed against the inhumanity of the death penalty.

"Remembering Troy Davis and Ending the Death Penalty," is by Benjamin Todd Jealous at HuffPost.

Two years ago, the state of Georgia ignored the facts, doubts and pleas of hundreds of thousands of people and killed Troy Anthony Davis. Today, on the anniversary of his execution, we rededicate ourselves to ending the immoral, biased and ineffective practice of capital punishment.

For 15 years, we fought alongside Troy to clear his name for the killing of Savannah Police Officer Mark Allen MacPhail. Troy remained adamant about his innocence to his last breath. As explained in the new book I Am Troy Davis, by author Jen Marlowe and Troy's sister, Martina Davis-Correia, the case against Troy lacked conclusive evidence after many of the key witnesses recanted testimony from the time of the original trial.

In the last weeks of Troy's life, the Georgia State Board of Pardons and Paroles received 663,000 petitions from people imploring the group to reconsider the execution given the sheer amount of doubt surrounding the case. World figures, including Pope Benedict XVI and former U.S. President Jimmy Carter, human rights groups and commentators urged the execution to be halted -- all to no avail.

In the hours before his death, the NAACP held a rally and lobbied the Department of Justice to intervene on the grounds of a civil rights violation. The glimpses of sadness and quiet resolve I saw on the faces of Troy's family when his death became imminent will stay with me forever. The last time I saw Troy, he told me "This movement started before me, and it needs to continue, no matter what, until we destroy the machinery of death."

More on the book, I Am Troy Davis, from Haymarket Books.  Earlier coverage of Troy Davis and the second anniversary of his execution begins at the link.

David Protess on the Latest Hank Skinner DNA Testing

"Texas Inmate Defies Death As Evidence of Innocence Mounts," is by David Protess at Huffington Post.  He's President of the Chicago Innocence Project.

Hank Skinner is in the final round of a fight against two heavyweights. One is the Texas lawmen who want him executed. The other is an often-fatal ailment that saps his strength and leaves him in constant pain. The odds makers give him little chance. Death, after all, is undefeated.

But Skinner, 51, is not about to throw in the towel. He is sustained by the love of his wife, Sandrine, and his daughter, Natalie. And, he is buoyed by the latest findings in his case, which support his steadfast contention for two decades -- that he is an innocent man.

It all began with a bloodbath on New Year's Eve in 1993. That is when Skinner's live-in girlfriend, Twila Busby, and her two adult sons were stabbed to death in their Panhandle home.

Earlier coverage of Hank Skinner's case begins at the link.

Diann Rust-Tierney HuffPost Commentary on the Hasan Verdict

"Death Sentence in Case of Fort Hood Shooter Out of Step," is Diann Rust-Tierney's essay at Huffington Post.  She is the Executive Director of the National Coalition to Abolish the Death Penalty.

This was the worst shooting on a military base in U.S. history. Some might argue that given the facts, a death sentence was a forgone conclusion ---but they likely would have been wrong: certainly in a civilian context and perhaps even in a military setting as well.

The reality is that the death penalty has become an increasingly isolated practice. After carefully studying the practice, six states in the last six years have repealed their death penalty statutes.

Jurors are returning death sentences in fewer cases and in cases that years ago seemingly would have been slam dunks. Consequently prosecutors are more selective in the cases in which the punishment is sought.

From the perspective of someone who opposes all executions, this is a good thing. However, we all should be troubled by a system of justice that is increasingly arbitrary and unpredictable in meeting out the most fearsome of punishments.

The military on this point is no exception. It is true that military prosecutors seek the death penalty at higher rates than civilian prosecutors. But just as is the case in civilian courts, the rate at which death sentences are sought has declined. Similarly the actual rates of death sentencing is higher than in civilian courts but even still we are talking about only a handful of cases that result in death sentences.

Earlier coverage of the Nidal Hasan case begins at the link.

Additional coverage includes, "Military archbishop opposes death penalty for Fort Hood shooter," by the Catholic News Service, via  National Catholic Reporter.

rchbishop Timothy Broglio of the Archdiocese for the Military Services said he opposes capital punishment for Army Maj. Nidal Hasan, who was sentenced to death Aug. 28 following his conviction of the shootings in the 2009 massacre at Fort Hood, Texas.

"The church teaches that unjustified killing is wrong in all circumstances. That includes the death penalty," Broglio said in an Aug. 29 statement.

"Maj. Hasan and his victims are all entitled to justice," the archbishop added. "Maj. Hasan, at least, now has recourse to a scrupulous appeals process. Would that his victims have received as much fairness."

USA Today publishes commentary by James Alan Fox, "Don't give Hasan the martyrdom he wants."  Fox teaches at Northeastern University and is a regualr USA Today contributor.

The 13 members of the jury of military officers took less than two hours -- lightning speed by courtroom standards -- to reach a unanimous verdict that Maj. Nidal Hasan should be executed for his 2009 rampage at the Fort Hood Army Base in Texas that left 13 dead and 31 more wounded.

My sense, beyond a reasonable doubt, is that no one was at all surprised by the outcome, including the defendant himself. After all, Hasan, who stubbornly yet purposely elected to represent himself during the trial, wanted nothing in the way of a defense to the capital murder charges to be employed on his behalf. And certainly, the military panel deciding on the proper punishment would have few qualms about killing an enemy, be it a terrorist or a traitor.

Notwithstanding the horrible suffering that Hasan caused his former Army comrades and their families, we should not reward him by granting a death wish. In e-mails to al-Qaeda leaders, Hasan had explicitly indicated an interest and desire to sacrifice his life to Islam. We should deny him his opportunity for martyrdom, not to mention any move that would put him out of his miserable existence confined to a wheelchair and to a prison cell.

NAMI Files Amicus Brief in John Ferguson Case

"Mental Health Experts Call on U.S. Supreme Court to Halt Florida Execution of John Ferguson on August 5," is the news release issued by NAMI, via PR Newswire.  Here's the full text:

The National Alliance on Mental Illness (NAMI) filed an amicus brief today, along with three Florida mental health organizations, asking the U.S. Supreme Court to halt the execution of John Ferguson, a man with a long history of severe mental illness, who is on Florida's death row and scheduled for execution on Monday, Aug. 5.

The amicus brief can be viewed at www.nami.org/ferguson.

The amicus brief explains that Ferguson's execution would violate the Eighth Amendment to the U.S. Constitution because the Florida Supreme Court failed to apply the Supreme Court case, Panetti v. Quarterman (2007), that requires an individual to have a rational understanding of why he is being put to death and the effect of the death penalty.

"The death penalty is not constitutionally allowable as a punishment for John Ferguson because his delusions prevent him from understanding the nature of what is happening to him," said Ron Honberg, J.D., NAMI's national director of policy and legal affairs.

"The constitutional principle does not excuse his crimes, but it does point to life without parole as the appropriate sentence."

Ferguson has a documented 40-year history of profound mental illness, including multiple diagnoses by state doctors in state institutions. He suffers from psychotic hallucinations, including the belief that he is the "Prince of God," that he cannot be killed, and his body will not remain in a grave.  He believes he will rise up after his execution and fight alongside Jesus to save America from a communist plot.   

Along with NAMI, state organizations filing the amicus brief with are NAMI Florida, the Florida Psychiatric Society and the Florida Psychological Association. The amici members have participated in competency hearings and have a strong interest in having the courts apply the correct legal standards for mental competence. 

The Florida Supreme Court applied an outdated, unconstitutional standard and held that it was sufficient to show that Ferguson had a mere factual awareness of his execution. But the U.S. Supreme Court in Panetti rejected that standard six years ago. U.S. Supreme Court precedent currently requires a showing that individuals have a rational understanding of why they are being put to death and the effect of their execution.  Thus, the Florida ruling – which one federal appeals court called "patently incorrect" – is incompatible with the Eighth Amendment. 

About NAMI

NAMI is the nation's largest grassroots mental health organization dedicated to building better lives for the millions of Americans affected by mental illness. NAMI advocates for access to services, treatment, supports and research and is steadfast in its commitment to raising awareness and building a community of hope.  

"Executing People With Serious Mental Illness Offends Our Constitution and Our Humanity," is Ronald S. Honberg's essay at Huffington Post.  He's the National Director for Policy and Legal Affairs for NAMI.

Mr. Ferguson was first diagnosed with mental illness nearly 50 years ago. He has spent the last 35 of those years on death row in Florida, following convictions for multiple murders. Mr. Ferguson has been in prison since his convictions, and if his death sentence is commuted, he will remain there for the rest of his life to keep the public safe.

But executing him, as the State plans on Monday, August 5, would violate the U.S. Constitution. In Ford v. Wainwright (1986) and Panetti v. Quarterman (2007), the U.S. Supreme Court held that it is cruel and unusual punishment to execute a person who is insane and lacks a rational understanding of why he is being put to death and the effect of the death penalty.

In fact, states have been prohibited from executing people who are insane since the founding of our nation. It was a principle the colonists carried over from centuries of English common law. In 1680, the English jurist Sir Edward Coke explained: "By intendment of Law the execution of the offender is for example... but so it is not when a mad man is executed, but should be a miserable spectacle, both against Law, and of extream inhumanity and cruelty, and can be no example to others."

Some 300 years later, the U.S. Supreme Court observed: "Whether its aim be to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the restriction [against executing the insane] finds enforcement in the Eighth Amendment."

The ACLU Blog of Rights posts, "Florida Will Kill Severely Mentally Ill Man Unless Supreme Court Intervenes," by Anna Arceneaux.

Unless the United States Supreme Court intervenes in the next few days, Florida will execute John Ferguson on August 5, despite a well-documented history of his psychosis spanning over 40 years.

Diagnosed with paranoid schizophrenia, Ferguson believes that he is the "Prince of God" and that after his execution he will be reincarnated in his same body, help Jesus fight the Antichrist, save America from a communist plot, and rule the earth. He thinks his conviction is the result of a communist conspiracy. He is certain that the state seeks to execute him not for his crimes but to prevent him from ascending to sit at God's right hand.

After a traumatic brain injury at age 21, Ferguson spent a decade in and out of mental hospitals. Doctors recommended that he receive long-term hospitalization and treatment. They warned that he should remain hospitalized because he was dangerously mentally ill. Nevertheless, he was ultimately discharged. Within two years, Ferguson was facing trial for multiple murders.

"US groups bid to halt execution of mentally ill man," is the AFP report, via Business Standard.

Medical experts filed a motion to the US Supreme Court today calling for the execution of a mentally ill mass-killer in Florida to be halted.

The National Alliance on Mental Illness (NAMI) said in a statement it had requested that the execution of John Ferguson, sentenced to death for the murders of eight people in the 1970s, be stopped because it violated the constitution.

Ferguson, a paranoid schizophrenic who refers to himself as the "Prince of God", is set to be executed on August 5 at 2200 GMT at Raiford prison.

NAMI has joined with three other organizations -- NAMI Florida, the Florida Psychiatric Society and the Florida Psychological Association -- to call for Ferguson's death sentence to be stayed.

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

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.

The Zimmerman Verdict

Much has been spoken and written about the verdict in George Zimmerman's trial and the death of Trayvon Martin.  Because it does not fall within the issues of the indigent criminal justice system or capital punishment, I have generally not linked to very much coverge.  An exception was President Obama's comments last Friday.

"A Verdict, Shame and a Gun," is Jeanne Bishop's essay at Huffington Post.  You've seen some of her work noted here in the past.  She is a public defender and human rights activist.  She is also a victim's advocate, having lost a sister to murder years ago.  She brings extraordinary perspective to all that she does.  Here's the beginning:

I am a public defender, so I looked at the George Zimmerman trial mostly through the eyes of a criminal defense attorney. It was all about the evidence, proof beyond a reasonable doubt. At the end of the trial, I thought the jurors should acquit. I wasn't surprised when they did.

An acquittal is not a vindication of all the defendant did; it does not erase the tragedy of the harm that occurred. To my lawyer's mind, it simply meant that the State had failed to meet its heavy burden of proof. I understood the outrage that greeted the verdict, but I didn't feel it myself.

That changed when I heard this: George Zimmerman wants his gun back. The 9mm pistol he was carrying the night he killed Trayvon Martin, the gun that took a young man's life. Zimmerman wants that very same gun back. He wants it back even though he is free to buy another weapon, a new and different one. That is as much an indictment of his character as anything his trial brought out.

Earlier news of Jeanne Bishop and her advocacy is at the link.  You can also find out more about Bishop and her writings at Huffington Post.

Anthony Graves on Solitary Confinement

"When I was on Death Row, I Saw a Bunch of Dead Men Walking. Solitary Confinement Killed Everything Inside Them," is by Anthony Graves at Huffington Post.  Here's the beginning of this must-read:

When I was on death row, I saw guys come to prison sane and leave this world insane, talking nonsense on the execution gurney.

I am death row exoneree #138.

There are 12 more people like me from Texas. Twelve people who spent years of their lives locked alone in concrete cages waiting to die before they were set free, exonerated for their innocence.

Eleven people have committed suicide on Texas' death row. All because of the conditions.

When I was sentenced to death, I did not know that this sentence would also mean that I would have 12 years without any human contact, i.e. my mother, my son, my friends. All those people were stripped from my life because of this injustice. I did not know it would mean 12 years of having my meals slid through a small slot in a steel door like an animal. I did not know it would mean 12 years alone in a cage the size of a parking spot, sleeping on concrete steel bunk and alone for 22 to 24 hours a day. All for a crime I did not commit. The injustice.

For me and the 400 other prisoners on Texas' death row while I was there, a death sentence meant a double punishment. We spent years locked alone in a tiny, concrete cage in solitary confinement, with guys going insane, dropping their appeals, doing everything they could to check out of this place before we were ever strapped to an execution gurney. All because of the conditions.

You can watch video of Anthony Graves talk about solitary conditions at the ACLU Prison Conditions website.

The ACLU white paper is, A Death Before Dying: Solitary Confinement on Death Row.

Earlier coverage of the report, released today, begins at the link.  More news coverage, tomorrow.

How the Sequester Is Holding Up Our Legal System

That's the title of Andrew Cohen's recent post at the Atlantic on the automatic, (not really) across the board federal budget cuts.  It's subtitled, "Budget cuts caused by the sequester are already hindering the timely administration of justice -- and federal judges say a constitutional crisis may be on the horizon."

Here's the beginning:

It has been 134 days now -- roughly one-third of a year -- since the federal budget "sequester" formally took hold. And while members of Congress rushed a few months ago to ease the sequester's impact upon air traffic control -- that is, rushed to make sure their planes would take off on time as they got out of Washington for their long weekends -- there has been no such rush to protect the nation's legal system from the grim impact of the budget cuts. Our federal trials can be delayed at great cost to litigants, our nation's third branch may slide into third-world practices, but God forbid our planes should be late.

It would be one thing if the federal judiciary's budget were bloated. But clearly it is not. "For every one thousand dollars ($1000) of federal spending, the Judicial Branch uses one dollar and eighty-nine cents ($1.89)," U.S. District Judge Fred Biery wrote last week in an open letter to members of the Texas delegation to Congress. "Of that amount," the judge added, "the Western District of Texas uses three pennies." The sequester, in West Texas and everywhere else in the United States, is about the willingness of Congress and the White House to hinder justice by squeezing pennies out of the nation's already-underfunded courts.

Few outside of legal circles want to talk about the impact of the cuts upon the administration of justice. It rarely makes news -- and certainly not television news since there are few images to broadcast. But the sequester's impact upon the federal courts is bad, and getting worse, and will reach constitutional crisis next year around this time if the budget cuts reach into the next fiscal year. In the past few days, I've rounded up a sampling of views from some federal trial judges on what this means for federal litigants today and what it portends for future litigants if Congress continues to fail or refuse to adequately fund the federal court system. Read this cogent "fact sheet" from the Federal Defenders Office if you want details.

Related posts are in the cost, federal legislation, and politics category indexes.

Warren Hill in Georgia

"The Warren Hill Execution: A Late Challenge Over Lethal-Injection Drug," is the title of Andrew Cohen's latest post at the Atlantic.  Here's the beginning:

For years now there have been serious constitutional questions about Georgia's plan to execute Warren Lee Hill, a man whom all government doctors now agree is "mentally retarded."* As a matter of fact and law, such an execution is supposed by be barred by the Supreme Court's precedent in Atkins v. Virginia, a 2002 case in which the justices, by a vote of 6-3, declared that the Eighth Amendment's prohibition against "cruel and unusual" punishment precludes the execution of people whose cognitive impairment renders them unsuitable for the criminal justice system's ultimate punishment.

But as Hill's execution grows near -- barring relief from the United States Supreme Court he is scheduled to be put to death tonight at 7 p.m. EDT-- his lawyers have posed a separate, new constitutional question. In an series of emergency papers filed in state court late Friday, Hill's attorneys allege that a brand new Georgia statute, candidly called the Lethal Injection Secrecy Act, violates Hill's constitutional rights under both federal and state law because it purposely shields from judicial review the manner by which the drugs to be used in his execution were manufactured and obtained.

The argument made by Hill's lawyers Friday is as simple as the story of Georgia's quest for lethal injection drugs is complicated. For reasons that are now fairly well-known, the state has had trouble finding the drug -- Pentobarbital -- that is required to complete the execution. This is so because the U.S. manufacturer of the drug ceased to produce it in 2011 after European manufacturers embargoed its importation here (because of their objections to its use in American executions). As "official" supplies of the drug have dwindled, state officials have resorted to dramatic means -- including possibly unlawful means --  to obtain it. The Guardian's Ed Pilkington has done a great job of covering this aspect of the story.

"Save mentally retarded inmate from execution," is the USA Today OpEd by Lindsay C. Harrison, a partner at Jenner & Block.

In Hill's case, this means that even though the state's experts have stated categorically and under oath that their prior testimony was wrong, the courts feel powerless to correct the injustice resulting from that testimony. As Judge Rosemary Barkett put it, this leads to the "perverse consequence" that "a federal court must acquiesce to, even condone, a state's insistence on carrying out the unconstitutional execution of a mentally retarded person."

Because of the act, Hill has only one option left to vindicate his constitutional rights – an "original" habeas petition filed in the Supreme Court. While most cases reach the Supreme Court on appeal after having been heard in the lower courts, an "original" petition is filed for the first time in the Supreme Court. Such petitions date back to the early 19th century, yet are rarely granted anymore. That should change, at least in cases such as Hill's.

Per court rules, an original petition should be granted where "exceptional circumstances warrant the exercise of the court's discretionary powers" and "adequate relief cannot be obtained in any other form or from any other court." Given unanimous opinion that he is mentally retarded and thus ineligible for execution, Hill's case presents such "exceptional circumstances."

With just hours before he is set to be put to death, only the Supreme Court can act to stop it. If it does not, Georgia will execute a man whose execution the Constitution forbids.

Lincoln Caplan writes, "The Withered Writ," for the American Prospect.

Since AEDPA became law, most of the federal courts that have interpreted the statute have said it obliged them to defer to state court rulings. The statute has largely kept federal courts from reaching the merits in countless cases where lawyers made compelling arguments that the prisoner deserved to win under the Constitution; the statute has largely eliminated the federal writ of habeas corpus for state prisoners. In too many AEDPA cases, federal courts have allowed inmates on death row to be executed in models of unfairness.

There now exists an illogical chasm between law and justice—between, on the one hand, the statute’s reflexive antagonism to challenges to the death penalty and, on the other hand, much of the country’s reckoning with the failure of states to administer capital punishment constitutionally.

AEDPA and the Supreme Court all but hide this chasm—and the injustice it regularly leads to—behind byzantine rules and rulings, making it exceedingly hard for our legal system to keep the Constitution’s promise that habeas will be available to prevent the most serious deprivations of liberty. Rather than a grand means to break an evil spell, AEDPA is the opposite.

Counterpunch posts, "Protecting Those Who Can't Protect Themselves," by Dr. Cesar Chelala.

The planned execution on July 15, 2013, of Georgia prisoner Warren Hill –who has been diagnosed as ‘mentally disabled’- is a gross violation of U.S. federal laws and specifically of the 8th amendment that reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.’ The U.S. Supreme Court has ruled that criminal sentences that are inhuman, outrageous, or shocking to the social conscience are cruel and unusual.

"Georgia inmate is scheduled to be executed," is the AP report, via the Macon Telegraph.

A prisoner who has twice come within hours of death on Georgia's death row is once again facing execution.

Warren Lee Hill, who was sentenced to death for the 1990 beating death of fellow inmate Joseph Handspike, is scheduled to be executed at the state prison in Jackson at 7 p.m. Monday.

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

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

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

Commentary on Texas' 500th Execution

Kingston, New York's Daily Freeman publishes the editorial,"Capital punishment and our culture of violence."  Here's the beginning:

For the 500th time since reinstituting the death penalty in 1982, Texas executed an inmate last week.

Her name was Kimberly McCarthy, 52, who murdered her 71-year-old neighbor during a 1997 robbery.

Two other killings are said to have been linked to McCarthy, who became the third female in three years to be executed in this country.

According to The Associated Press, there have been more than 1,300 executions in the U.S. since the Supreme Court allowed capital punishment to resume in 1976. About 40 percent of the executions have been in Texas. Thirty-two states have approved capital punishment.

It’s barbaric and tragically symbolic of our violent nation.

The eye-for-an-eye mentality that dates back to the beginning of civilization may be understandable on a personal level.

But the death penalty hasn’t proven to be a deterrent. And there is always the possibility of wrongful convictions in our imperfect justice system.

Pat Monks posts, "Is Texas executing justice?" at the Daily Caller, a conservative blog.  He's a Harris County Republican Precinct Chair, a member of the board of directors of the Texas Coalition to Abolish the Death Penalty, and a founding member of the national group Conservatives Concerned about the Death Penalty.

Last Wednesday, Texas executed Kimberly McCarthy, the 500th inmate to be executed by the state since it reinstated the death penalty in 1976. But I’m not celebrating. Like many conservatives, I oppose the death penalty and I shudder when I think back to the September 2011 GOP presidential debate where the crowd applauded Governor Rick Perry’s record on the death penalty. As a lifelong Texan and conservative Republican, I think this latest execution represents a sad and solemn milestone.

My great state of Texas, whose traditions and values I hold dear, has the death penalty all wrong. But the state’s large number of executions — since the Supreme Court allowed capital punishment to resume 37 years ago, Texas has accounted for 40 percent of all executions in the United States — is only part of the story.

And:

Liberty-loving conservatives are waking up to the risk of executing innocent people, as well as the outrageous expense of capital trials and their endless appeals. Many of us now realize the death penalty does nothing to make us safer and does not deter killers. Despite all its executions, Texas had the 23rd highest murder rate in the nation in 2011.

Today, America is shifting away from the death penalty. Six states have repealed capital punishment in the past six years and the pace of executions is slowing everywhere as fewer inmates are sentenced to death. In Texas, the imposition of the death penalty peaked in 1999, when four-dozen people were put on death row; only nine people were put on death row last year.

Earlier coverage of Texas' 500th post-Furman execution begins at the link.

Said in Huntsville

"From America’s Busiest Death Chamber, a Catalog of Last Rants, Pleas and Apologies," is the title of Manny Fernandez' New York Times report.

Karl Eugene Chamberlain went to his neighbor’s apartment that night in Dallas under the pretense of borrowing sugar. He returned later, forced her into a bedroom, bound her hands and feet, raped her and then used a rifle to shoot and kill her. His victim, Felecia Prechtl, 29, was a single mother with a 5-year-old son.

Eleven years after he was convicted of capital murder, Mr. Chamberlain, 37, was strapped to a gurney in Texas’ execution chamber at the Walls Unit prison here and was asked by a warden if he had any last words. “Thank you for being here today to honor Felecia Prechtl, whom I didn’t even know,” he told her son, parents and brother on June 11, 2008. “I am so terribly sorry. I wish I could die more than once to tell you how sorry I am.”

His words did not die with him. Texas wrote them down, kept them and posted them on the Internet.

The state with the busiest death chamber in America publishes the final statements of the inmates it has executed on a prison agency Web site, a kind of public catalog of the rantings, apologies, prayers, claims of innocence and confessions of hundreds of men and women in the minutes before their deaths.

And:

Among the death-penalty states, Texas and California are the only ones that make the last words of offenders available on their Web sites. But only Texas has compiled and listed each statement in what amounts to an online archive. The collection of 500 statements, which includes inmates’ verbal as well as written remarks, has been the subject of analysis, criticism and debate by lawyers, criminal justice researchers and activists who oppose the death penalty.

It has spawned at least one blog, Lost Words in the Chamber, which has regularly posted the last statements since 2011. Officials with the prison agency, the Texas Department of Criminal Justice, said there were three million page views of inmates’ final words last year.

“It’s kind of mesmerizing to read through these,” said Robert Perkinson, the author of “Texas Tough: The Rise of America’s Prison Empire” and a professor at the University of Hawaii at Manoa. “Most people about to be executed haven’t had a lot of success in school or life. They’re not always so skilled at articulating themselves. There are plenty of clichés, sometimes peculiar ones, like the Cowboys reference. But I think many of these individuals are also striving to say something poignant, worthy of the existential occasion.”

The last statements are not uttered in a vacuum — they are heard by lawyers, reporters and prison officials, as well as the inmates’ families and victims’ relatives. But the power of their words to change the system or even heal the hearts of those they have hurt is uncertain.

Related posts include, "Last Words," and "A Compilation of Final Words."  Coverage of Texas' 500th post-Furman execution begins at the link.

Texas Reaches Death Penalty Milestone

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

On Wednesday, Texas is scheduled to execute its 500^th death-row inmate since the Supreme Court restored capital punishment in 1976. The state has executed nearly five times as many people as Virginia, the second state on the list.

Texas’s death penalty system is notorious for its high tolerance of ineffective counsel for defendants, overly zealous prosecutors, and racial discrimination in jury selection. The case of Kimberly McCarthy, the woman scheduled for execution, seems tainted by all three.

Ms. McCarthy is an African-American who was sentenced to death in 2002 for murdering a white woman. That’s not surprising: In Texas as well as other states, a black person who murders a white person is more likely to receive the death penalty than when the victim is black.

The 12-person jury that convicted and sentenced Ms. McCarthy included only one person who wasn’t white, after prosecutors used their peremptory, or automatic, challenges to strike three other non-whites. That was in apparent violation of a Supreme Court ruling against purposeful exclusion of minorities from a jury when a minority is the defendant.

The defense counsel did not challenge these apparently unconstitutional race-based strikes or request the kind of hearing for doing so that the Supreme Court allows. The lawyer did not raise the issue on appeal. A different counsel did not raise the issue in the defendant’s later challenge through a writ of habeas corpus.

Because of these failures, no court has ever reviewed the merits of Ms. McCarthy’s claims about racial discrimination.

"Request to stop Texas woman's execution denied," is the AP report, via KDFW-TV.

Texas' highest criminal court has denied a request to block a Dallas County woman's execution this week.

Kimberly McCarthy's execution would be the 500th in Texas since the state resumed carrying out the death penalty in 1982. She contends black jurors were improperly excluded from her trial by Dallas County prosecutors and this wasn't challenged by her lawyers.

But the Texas Court of Criminal Appeals in Austin denied McCarthy's request on Monday. The court said it didn't consider the merits of McCarthy's appeal because she should have raised her claims previously.

Maurie Levin, McCarthy's attorney, says she is "reviewing the order and considering our options."

Earlier coverage of Kimberly McCarthy's case, and the Texas execution milestone, begins at the link.

Ultimate Mistake

 That's the title of the Gainesville Sun editorial criticizing Gov. Rick Scott's signing of the Timely Justice Act.

The Timely Justice Act does contain provisions to help ensure death-sentenced inmates get proper legal representation. It re-establishes the northern office of an entity that represents those inmates in post-conviction proceedings. It had been abolished in a privatization project under Bush.

But more must be done to fix a flawed death-penalty process in the state. One big problem is that Florida is one of just two states that don't require a unanimous jury for a death sentence.

Other reforms could prevent people from being imprisoned for crimes they didn't commit. Texas, even with its reputation as a pro-death penalty state, has implemented measures to prevent the false witness identifications that are a leading cause of wrongful convictions.

It's up to Scott now to use the clemency process to prevent the state from executing an innocent person. He would do more to promote the cause of justice if he also embraced reforms to help ensure those cases never get that far.

"Death Trap," is Emily Bazelon's post at Slate.

In theory, the Timely Justice Act tries to improve the quality of representation for death penalty defendants by providing more funding for it. But if you read the bill, you find that only about $400,000 has been allocated to reopen one office for defense lawyers in the northern part of the state. And this office won’t handle trials or even the first appeal. They come in only at the last stage.

If you really wanted to fix Florida’s death penalty system, you wouldn’t speed it up in a fit of frustration. You’d do the opposite. “Really what we need to do is pause,” says Stephen K. Harper, a longtime death penalty defense lawyer and the supervising attorney in the death penalty clinic at Florida International University’s law school. “Let’s step back, let’s consider the death penalty, from beginning through the end, and only then would we be able to come up with decent recommendations as to how to change it.” 

That’s just not what’s happening. Now that Scott has signed the Timely Justice Act, the governor’s own legal advisor says, there are 13 inmates on death row whose final state of review “will be done within the next year.’’

Earlier coverage of the Florida legislation begins at the link.

North Carolina Governor Signs RJA Repeal into Law

"McCrory signs repeal of Racial Justice Act," is the AP report via the Raleigh News & Observer.  It contains additional information from News & Observer staff writer David Bracken and Charlotte Observer staff writer Rick Rothacker.

Gov. Pat McCrory’s signature Wednesday repealed a landmark law that had allowed convicted murderers to have their sentences reduced to life in prison if they could prove racial bias influenced the outcome of their cases.

McCrory signed a repeal of the 2009 Racial Justice Act, which both proponents and critics say will restart the death penalty in a state that hasn’t executed an inmate since 2006.

McCrory’s final signature followed months of debate between Democrats and Republicans on the law’s intent and the way it has played out. Republicans say it was so poorly crafted that it has allowed nearly all of the state’s 156 death-row inmates to launch appeals under the law regardless of their race. They say the law impedes the will of unanimous jury decisions.

McCrory raised similar complaints in a statement.

“The policy implementation of the law was seriously flawed. Nearly every person on death row, regardless of race, has appealed their death sentence under the Racial Justice Act,” he said. “The state’s district attorneys are nearly unanimous in their bipartisan conclusion that the Racial Justice Act created a judicial loophole to avoid the death penalty and not a path to justice.”

But Democrats argue there’s plenty of evidence that those juries were racially biased.

They cite a Michigan State University study of North Carolina that found evidence of prosecutors striking black people from capital cases at more than twice the rate of others over two decades.

They also point to the 2012 decisions of a Cumberland County judge to reduce the sentences of four convicted murderers on racial grounds.

ReutersLegal posts, "North Carolina governor signs law aimed at restarting executions," by Colleen Jenkins.

North Carolina's governor, hoping to resume executions in his state, on Wednesday signed the repeal of a law that has allowed death row inmates to seek a reduced sentence if they could prove racial bias affected their punishment.

The Racial Justice Act, the only law of its kind in the United States, had led to four inmates getting their sentences changed to life in prison without parole after taking effect in 2009.

Supporters said the historic measure addressed the state's long record of racial injustice in its capital punishment system, while critics said it caused unnecessary costs and delays after nearly all death-row inmates, including whites, sought relief under the act.

Governor Pat McCrory, a Republican, said repealing the law would remove the "procedural roadblocks" that had kept North Carolina from executing anyone since 2006 despite there being 152 people on death row.

And:

The repeal applies retroactively to cases with pending Racial Justice Act claims, a factor certain to result in additional legal wrangling, one death penalty expert said.

"To me, it's a violation of due process," said Mark Rabil, director of Wake Forest University law school's Innocence and Justice Clinic in Winston-Salem. "I don't really know what the legislature thinks they've done with our money other than buy a lot more litigation."

Plain Talk Politics features a Guest Opinion column by Steve Monks of Conservatives Concerned about the Death Penalty.

As legislators in Raleigh once again fiddle with our state’s death penalty, some of us who are conservative republicans are at the point where we’ve had enough. The most recent attempts to modify North Carolina’s death penalty, yet again, are the latest indications that the system will never work properly. Conservatives across the nation are waking up to this the fact. I know about it firsthand because my brother, who lives in Houston, Texas, is a founding member of a group called Conservatives Concerned About the Death Penalty.

My brother’s group is part of a growing number of people on “the right” who are openly questioning whether the death penalty serves any good purpose for our society. Conservatives are asking these questions precisely because we are conservative republicans.

Earlier coverage from North Carolina begins at the link.

Commentary on Judge Jones' Ethics Complaint

"Judge Edith Jones reportedly sees the death penalty as some kind of mercy," is New Orleans Times-Picayune columnist Jarvis DeBerry's take.

The death penalty. You've heard it called many things: Vengeance, barbarism, deterrence, justice. But even if you're a faithful, church-going Christian, you may never have heard the death penalty described as Edith Jones, a judge at the federal appeals court in New Orleans, is said to have described it in February. The death penalty, she reportedly said, is an accelerant toward salvation.

And:

Jones has long had a reputation for being rather stonyhearted toward death row inmates. In October 2000, she and another judge upheld the death penalty for Calvin Burdine, a Texas man whose lawyer had slept through much of Burdine's trial. But if she sees the death penalty as a blessing, maybe we should think of her as Burdine's spiritual advocate. She wouldn't have gotten an NAACP award for that ruling though, Burdine being white.

It's not that Jones refuted the testimony of the jurors and the clerk of court who agreed that Burdine's lawyer slept "a bunch" and for "long periods of time." But Burdine, according to a decision that got Jones' approval, had failed to show that his lawyer had napped during "a critical stage" of his trial.

If your life is on the line, you're probably inclined to think that every minute and every second of your trial is a critical stage. Appropriately, a majority of the 5th Circuit disagreed that the napping was no big deal and ordered a new trial for the defendant. Burdine struck a deal with prosecutors after that. In 2003 he pleaded guilty and got three life sentences. His lawyers said then that their client was happy that he was no longer facing execution.

Talking Points Memo posts, "Dem Rep Calls For Investigation Into Judge Accused Of Racial Bias," by Catherine Thompson.

Rep. Cedric Richmond (D-LA) called for an investigation into allegations that a federal judge made racially biased remarks in a speech at the University of Pennsylvania Law School on Wednesday, according to the New Orleans Times-Picayune.

And:

"The alleged statements, if true, demonstrate personal racial and religious bias as well as questionable legal analysis," Richmond wrote in the letter, as quoted by the Times-Picayune. "These biases are incredibly inappropriate for a sitting jurist at any level, let alone a former chief judge on one of the highest level Article III Courts of Appeal."

Additional blog commentary includes:

'Allegedly Racist Judge Has a History of Saying Awful Stuff," by Jesse Lava at Huffington Post.  He's the Campaign Director at Brave New Foundation.

National Review Bench Memos blog posts, "A Disturbing Story About Judge Edith Jones," by  Gerard V. Bradley.

Earlier coverage of the controversy begins at the link.

Andrew Cohen on the Big Question in Colorado

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

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

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

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

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

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

Thoughts on the the Texas Legislature

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

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

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

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

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

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

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

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

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

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

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

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

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

Former Prosecutor Backs Dunlap Commutation

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

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

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

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

And:

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

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

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

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

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

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

Florida News & Commentary

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

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

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

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

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

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

And:

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

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

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

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

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

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

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

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

And:

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

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

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

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

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

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

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

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

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

And:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Earlier coverage of the Florida legislation begins at the link.

DSM-5 News & Commentary Roundup

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This is because psychiatrists tend to treat according to symptoms.

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

 

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

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

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

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

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

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

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

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

And:

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

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

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

More Calls for Florida Veto

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

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

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

And:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Earlier coverage from Florida begins at the link.

The Dust-Up in the Senate Criminal Justice Committee

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

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

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

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

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

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

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

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

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

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

 

More Commentary From David Love

"Putting the Brakes on Philly's Death Penalty," is David Love's latest essay at Huffington Post.  Here's an extended excerpt from the beginning of this must-read:

Witness to Innocence is a national organization originally founded as a project of Sister Helen Prejean of the book Dead Man Walking. Our mission is to empower exonerated death row survivors and their loved ones to become leaders in the death penalty abolition movement. We provide a support network for our members, each of whom spent an average of 10 years on death row for a crime they did not commit.

WTI members speak to audiences throughout the country about their experiences on death row, testify before state legislatures, work with state abolition groups and change hearts and minds in the process. WTI has been involved in successful death penalty repeal efforts in six states over six years.

In Maryland, my advocacy director Kirk Bloodsworth and I stood with Gov. Martin O'Malley as he signed the state's death penalty repeal bill into law. We stood with abolitionists and Democratic and Republican lawmakers in Annapolis who realize the death penalty doesn't work. The government should not be in the business of killing people, and we oppose executions under any circumstances. Capital punishment is expensive, and discriminates against the poor and people of color. And most of all, innocent people are put to death.

So, why are we here? WTI decided to convene the Philadelphia Moratorium Campaign, a diverse coalition of religious leaders, human rights and civil liberties organizations, prisoners' rights groups, legal defense organizations, community groups and others.

We are calling on Philadelphia District Attorney Seth Williams to place a moratorium on death penalty prosecutions in this city. In addition, we are planning a public outreach campaign, in which death row exonerees will go out to the communities in this city, talk to the people and to lawmakers and educate them about the problems with the death penalty.

Once again, why are we here today? We are here because Pennsylvania is a leader in the death penalty. About 200 people are on death row, fourth behind California, Florida and Texas.

Earlier commentary from David Love begins at the link.

Jeanne Woodford on California Legislation

"Breaking Bad: Death Penalty Desperation," is Jeanne Woodford's latest at Huffington Post.  She's executive director of Death Penalty Focus, and a former warden at San Quentin State Prison.

What do the gas chamber, state secrets and illegally manufactured drugs all have in common?

They are all in Senator Joel Anderson's preposterous new bill, SB 779, sponsored by the California District Attorneys' Association.

The measure is likely to fail but it's the clearest evidence yet that California's death penalty is broken beyond repair -- and that the only sane choice is to replace it with life in prison without possibility of parole.

SB 779 is 35 pages long and proposes changes to 27 different code sections. It's a massive, delusional overhaul of nearly every aspect of California's wrecked and expensive death penalty system--from small things like how a transcript is reviewed, to big things like whether the Supreme Court can review a case at all.

But the most deranged proposal made by the California District Attorneys' Association in SB 779 is that we bring back gas chamber executions to California.

Earlier coverage of the California legislation begins at the link.

Arizona AG Seeks Expedited Review Under AEDPA

The Arizona Republic reports, "Horne may sue over habeas corpus," by Lindsey Collom.

Arizona Attorney General Tom Horne is threatening to sue the Obama administration over delays in habeas corpus proceedings that he says routinely and unnecessarily prolong the death penalty from being carried out in the state.

Horne contends that Arizona qualifies for expedited federal habeas corpus, a writ ordering a person in custody to be brought before a court, because its system for appointing defense counsel meets criteria set in federal law. But some legal experts say Horne’s timing is off and his argument ill-founded because the Department of Justice has yet to create a mechanism to determine a state’s eligibility.

In a letter issued Thursday, Horne gave U.S. Attorney General Eric Holder a 90-day deadline to respond to his request that Arizona be certified to take advantage of expedited federal review of capital cases as guaranteed in the Antiterrorism and Effective Death Penalty Act of 1996.

The act was designed in part to streamline federal appeals for convicted criminals sentenced to death. The expedited review is eligible to states that provide qualified, well-compensated attorneys to death-row inmates moving through the appeals process.

And:

Dale A. Baich, an assistant federal public defender who represents death-row prisoners in federal habeas corpus proceedings, said the cases deserve careful attention from the courts. “These cases are very complex and very serious, and the federal courts need to give each case the consideration that’s due,” Baich said.

"Horne plans to sue Federal Government if they don't expedite capital cases," is by Andrew Michalscheck of AZ Family.

Arizona Attorney General Tom Horne announced Thursday that he plans to sue the Federal Government if they don’t expedite their handling of capital cases.

Horne said he will file a lawsuit if the government doesn’t approve within 90 days Arizona’s application to qualify for expedited review of capital cases.

Horne notes that it’s important to not force the families of victims to suffer while they wait for justice to be done.

“The studies show that families suffer from something like Post Traumatic Stress Syndrome, and can heal faster if they see justice done within a reasonable period of time,” said Horne. “If they are victimized a second time by endless delays in the Federal Courts, that adds to their pain.”

Horne points out that in the last seven capital cases Federal Habeas Corpus has delayed justice being done by 10 to 13 years.

Horne's letter to U.S. Attorney General Eric Holder is available in Adobe .pdf format.

"Arizona AG Takes A Momentous Step Toward An Effective Death Penalty," is Kent Scheidegger's post at the Crime and Consequences blog.

In 2006, Congress amended the law.  It took the decision on qualification away from the courts subject to the time limits -- which have a conflict of interest -- and gave it to the Attorney General with de novo review by Court of Appeals for the D.C. Circuit, the one federal circuit that does not do state-prisoner habeas cases.  In addition, Congress expressly provided that the requirements in the statute are the only requirements for qualification.  Neither the AG nor the court can make up additional requirements.  Finally, in a seemingly innocuous provision, Congress directed the AG to "promulgate regulations to implement the certification procedure ...."  Congress did not authorize regulations to impose additional requirements for certification, obviously, having expressly forbidden any additions.

The Justice Department under President Bush, preoccupied with terrorism-related issues, put the regulations on the back burner, and did not promulgate them until that Administration was on its way out the door.  President Obama's Justice Department rescinded them and has dithered ever since.  The dithering is not over the rules of procedure the statute actually authorizes DoJ to make but rather over the rules of substance that Congress has forbidden DoJ to make.

Related posts are in the AEDPA index.

No Progress on Florida Death Penalty Jury Legislation

"Florida bill would require unanimous vote for death penalty," is by Kathryn Varn for the Florida Alligator.

Bills that would require a unanimous vote to sentence someone to death haven’t budged in the state House of Representatives and Senate.

Current law stipulates that juries only need a majority vote to sentence a person to death. Florida is the only state with that minimum of a requirement, which has Florida Sen. Darren Soto (D-Kissimmee) concerned. Soto co-introduced SB 148 in December. It was referred to committees but never made it to a vote in any of them.

“Just keep in mind, the folks who are getting a death penalty are getting life in prison,” he said. “Whether they should be executed or not is another question.”

Soto said Florida has seen many people exonerated by DNA evidence, which suggests there needs to be more safeguards in the system.

Katheryn Zambrana, a UF criminology professor, sees more safeguards as a positive thing, which the proposed legislation provides for in more than one way.

Zambrana explained the jury must first unanimously agree the defendant is guilty. In order to sentence the defendant to death with the current law, a jury determines if the aggravating circumstances, such as if a murder was premeditated, outweigh the mitigating circumstances, like if a defendant had a history of child abuse or mental illness.

With the proposed legislation, a jury would have to unanimously prove each aggravating circumstance beyond a reasonable doubt and all agree to issue the death penalty.

“The process is longer, but I think it’s better,” Zambrana said. “It’ll reduce the likelihood of wrongful conviction and will ensure that jurors are sure in their conviction.”

And:

In Tallahassee, HB 961 sponsor Rep. Mark Pafford (D-West Palm Beach) said he’s disappointed the bill hasn’t moved.

Earlier coverage of Florida death penalty legislation begins at the link.

For more on Florida capital punishment issues, there isthe multimedia blog, Punishable by Death.

Criminal Discovery Legislation Clears Texas Senate

The Austin American-Statesman has published the editorial, "Texas Senate’s attempts to limit wrongful convictions commendable."

Its passage wasn’t as sure as it should have been, given that it was as much a no-brainer as any piece of legislation could be, but this week the Senate finally and unanimously passed the Michael Morton Act.

Morton was on hand for the occasion Thursday. He stood, as the American-Statesman’s Chuck Lindell reported, in a Capitol corridor while holding the gavel Lt. Gov. David Dewhurst had used minutes earlier to announce approval of the legislation named in his honor. The vote, coming 18 months after Morton’s release from prison, was 31-0.

It’s hard to imagine opposition to a bill designed to prevent wrongful convictions by requiring prosecutors to share crucial information with defense attorneys, but the Michael Morton Act appeared doomed Wednesday until a delicate compromise, prodded along by Dewhurst, appeased concerns by district attorneys that the bill threatened the safety of witnesses and victims in some cases. So lawmakers added a few restrictions to shield some identities.

Point taken on protecting the potentially vulnerable. Now the House should follow the Senate’s lead and pass the Michael Morton Act.

Let's begin news coverage of the vote with the Statesman report, "Senate passes Michael Morton Act," by Chuck Lindell.

Wednesday’s intense negotiations — including not-so-gentle prodding by Dewhurst, who gathered all the parties into a room in the afternoon and told them not to emerge without an agreement — produced a breakthrough on victim and witness information that saved the legislation.

“It feels very, very good of course, but I know we’re not through. We have the other side to go through, the House,” Morton said.

State Rep. Senfronia Thompson, a highly respected 20-term Democrat from Houston, will shepherd the bill through the House.

Morton will be there, too, hoping that the agreement forged by prosecutors, defense lawyers and a half-dozen senators will find relatively easy acceptance.

The Texas Tribune posted, "Senate Unanimously Approves Michael Morton Act," by Brandi Grissom.

A year and a half after he took off his prison whites for the last time, exoneree Michael Morton stood in the Senate beside his wife, Cynthia, on Thursday as lawmakers in that chamber unanimously approved a bill named in his honor that aims to prevent others from being wrongfully convicted. 

"Had this been in place when I was arrested, I probably wouldn't have gone to prison," Morton said shortly before senators passed Senate Bill 1611, by Sens. Rodney Ellis, D-Houston, and Robert Duncan, R-Lubbock. It would require prosecutors to turn over evidence to defense lawyers in criminal cases.

"Michael's tragic case brought to the forefront something we already knew in Texas," Ellis said. "Our criminal discovery process in Texas needs serious reform."

And:

Today — as in 1987 when Morton was tried — prosecutors aren't required by state law to provide evidence to defense lawyers unless ordered to by the court. Though many Texas prosecutors have some form of open file policy, those procedures vary from county to county and sometimes even within a district attorney's office. In a February report based on a survey of more than 40 prosecutors' offices, Texas Appleseed and Texas Defender Service, both justice advocacy organizations, found that "lack of uniformity in discovery policies in Texas makes access to justice dependent, in part, on where a defendant is charged."

Since his release from prison, Morton has been on a mission to see the implementation of laws that help prevent wrongful convictions like his and that hold prosecutors accountable when their decisions result in innocent people losing years of liberty. The Senate has already approved SB 825, by Sen. John Whitmire, D-Houston, which would extend the statute of limitations for offenses involving evidence suppression by district attorneys. Under current law, the four-year statute of limitations begins ticking on such offenses when they occur. Whitmire's proposal would begin the clock on the statute of limitations at the time a wrongfully convicted defendant is released from prison. That measure is awaiting a hearing Monday in the House Committee on Judiciary and Civil Jurisprudence.

"Senate OKs bill to share DA case files with defense," was the AP filing written by Will Weissert, via the Fort Worth Star-Telegram.

The Senate unanimously approved the Michael Morton Act, named in honor of a Texan who spent nearly 25 years in prison for a murder he did not commit and designed to prevent future wrongful convictions.

After their vote Thursday, senators stood and applauded and Lt. Gov. David Dewhurst banged a specially engraved wooden gavel that was later awarded to a beaming Morton, who watched the proceedings from just off the floor -- a long way from the prison cell he was sitting in two years ago.

The measure now heads to the House for consideration.

Dallas Morning News editorial board member Rodger Jones posted, "Michael Morton Act passes Senate unanimously," on the Views blog.

Ellis, a Houston Democrat, co-author with Sen. Robert Duncan, Republican of Lubbock, credited Morton for using his “life’s tragedy” to lobby strongly for the bill, SB 1611.

The legislation updates, broadens and clarifies the access defense attorneys have to case files compiled by prosecutors. Morton spent nearly 25 years in prison for the murder of his wife, but has maintained in court that the DA kept vital information from him. Morton was freed after DNA tests cleared him in 2011, despite years of efforts by the DA’s office to keep evidence away from him for testing.

Ellis told the Senate that he thought months of work on the bill was lost a few times, especially in the last week, after Sen. Joan Huffman, R-Houston, began lobbying for changes after the bill already emerged from committee. One key to breaking the impasse, I’m told, was Dallas Sen. Royce West, a former prosecutor, who got involved in a come-to-Jesus meeting among negotiators on Monday.

"Ken Anderson court of inquiry resumes April 19," is from the American-Statesman.

A moment of truth for district court judge Ken Anderson is expected to arrive April 19, when the court of inquiry investigating his alleged wrongdoing reconvenes.

At 1 p.m. at the county’s Justice Center in Georgetown, Judge Louis Sturns is to hear closing arguments from attorneys, as he considers whether Anderson – in his prior role as district attorney – withheld evidence during Michael Morton’s 1987 murder trial. The judge has three issues to consider: whether Anderson tampered with physical evidence, if he tampered with a government record and/or he committed contempt of court.

If Sturns rules Anderson did any of these, it’s possible Anderson could face misdemeanor or felony criminal charges, but Sturns would also have to rule statutes of limitations have not passed.

The court of inquiry – which was first in session Feb. 4-8 – is not an actual trial.

“This is like a public grand jury proceeding and the judge is like the sole person on the grand jury,” one lawyer familiar with the case said this week. “He [Sturns] can say, ‘This should go forward [for prosecution].’ The standard for that is, ‘Is there probable cause?’”

Throughout five days of February testimony, special prosecutor Rusty Hardin produced witnesses who testified as to what they did and did not know before and during Morton’s February 1987 trial.

Earlier coverage of the Texas criminal discovery legislation begins at the link; also available, more information from this Texas legislative session, coverage of Michael Morton's exoneration, and the Anderson Court of Inquiry.

RJA Developments From North Carolina

The Wilmington Star News publishes the editorial, "Thoughts on a week of legislative mayhem in Raleigh."  One section, "Turning back the clock," deals with the Racial Justice Act.

Despite ample and convincing evidence that race often is a factor when juries hand down death sentences, the state Senate voted last week to repeal the Racial Justice Act. North Carolina was a leader when it passed; now it is swimming against a slow but growing tide of states that question how fairly and how accurately the death penalty is applied. Three North Carolina inmates were able to convince a judge under the Racial Justice Act that prosecutorial exclusion of qualified blacks and other race-based factors likely made the difference between life and death sentences. And the list of convicted inmates whose names have since been cleared is getting longer, suggesting that our system is more imperfect than we care to admit.

Yet senators, led by Wilmington's own Thom Goolsby, chose to reinstate the potential for bias.

"Senate Bill 306 Sponsor Says R.J.A. Is Wrongly Removing People From Death Row," is by Ran Northam at Chapelboro.

Capital punishment is on its way back to North Carolina and one proponent says it’s been avoided for years for the wrong reason.
 
“We do have the death penalty here in North Carolina,” says the Republican Senator from District 9, Thom Goolsby, the primary sponsor of Senate Bill 306, entitled Capital Punishment/Amendments. “We have 150-plus people on death row, and no one has been executed since 2006 due to a defacto moratorium for a number of reasons, primarily something called the Racial Justice Act, which is not about race and it’s not about justice. It’s an attempt to do an end-run around the death penalty and end it.”

The ACLU Blog of Rights posts, "Justice Under Attack: The North Carolina Legislature Takes Aim at the Racial Justice Act," by Cassandra Stubbs.  There is video at the link.

In 2009, North Carolina made history by becoming the first state to pass a law that addressed the systemic problems of racial discrimination in jury selection in capital cases. In the three years since the Racial Justice Act (RJA) was enacted, this law has uncovered systemic discrimination. In four cases, North Carolina death row inmates presented sweeping evidence that racial discrimination in jury selection tainted their trials, and had their death sentences converted to life without parole under the law.

Earlier coverage from North Carolina begins at the link.

The Voices of the Exonerated

David Love posts, "Building the Grassroots Foundation to Abolish the Death Penalty," at Huffington Post.  He's the Executive Director of Witness to Innocence.

I'm the Executive Director of Witness to Innocence. WTI was founded 10 years ago, originally as a project of Sister Helen Prejean of the book and the film Dead Man Walking. The mission of WTI is to empower exonerated death row survivors and their loved ones to become effective leaders in the movement to abolish the death penalty. WTI is the only nonprofit of exonerated death row survivors and their families. Our members spent an average of 10 years on death row for crimes other people committed. Since 1973, 142 death row prisoners in the U.S. have been released due to innocence.

Witness to Innocence has two purposes: First, we serve as a support network for former death row prisoners, and seek justice for the wrongfully convicted, including state and federal compensation. Second, our members work with state abolition groups across the country, testify before legislatures, and speak to audiences across the nation about their experiences and the compelling issue of innocence and the death penalty. WTI and its members were involved in repeal efforts in New Jersey, New Mexico, New York, Illinois, Connecticut and most recently Maryland. And we're involved in Delaware, Colorado, Montana, Kansas, Arkansas, Alabama and other death belt states.

Related posts are in the abolition, exoneration, and innocence category indexes.

Maryland Repeal Reverberations

"The right path on death penalty," is the title of the editorial published in today's Virginian-Pilot.

Maryland lawmakers voted this month to repeal the state's death penalty. If Gov. Martin O'Malley signs the bill, as promised, Maryland will be the sixth state to abolish the death penalty in six years - and will join 17 other states in doing away with a punishment fraught with errors and racial disparity.

Maryland's history of crime and punishment is worth noting. By 1999, O'Malley said, "Baltimore had become the most violent and drug-addicted city in America." The death penalty was being used then, but it had done nothing to stop decades of rising violence. In fact, the death penalty was imposed so haphazardly that between 1995 and 2007, Maryland's reversal rate for death sentences was 80 percent.

What has brought down violent crime? "Effective policing, expanded drug treatment, smarter strategies, new technologies to solve crime and target repeat violent offenders," O'Malley wrote in a column for Politico.

And:

Executions serve society's basest instincts: fear, revenge, retribution. They don't make us safer. They cost three times as much as a life sentence.

Maryland has pointed the way to a more just system. Virginia would be wise to follow.

The MSNBC program NOW with Alex Wagner posts, "Support for death penalty on the decline," by Matthew Alexander.

Maryland’s Democratic Governor Martin O’Malley will soon sign legislation passed by the state’s Senate and House of Delegates that will make it the 18th state to abolish the death penalty.

On Monday’s NOW with Alex Wagner, the panel discussed the current debate surrounding capital punishment, which has largely focused on issues of cost.

A 2008 study by The urban Institute found that in Maryland, cases where the death penalty was pursued by prosecutors ended up costing taxpayers three times as much as cases seeking life without the possibility of parole.

The number of Americans supporting the death penalty, while still a majority, has also been in decline. According to Gallup, 63% of American support the death penalty, while 32% are opposed. However, support for capital punishment has declined markedly from a high of 80% in 1994.

The waning support has played itself out on the state level as five states–Connecticut, Illinois, New Jersey, New Mexico and New York–have all abolished capital punishment in the last six years.

David Protess posts, "Executing the Death Penalty," at Huffington Post.  He's President of the Chicago Innocence Project, and a regular poster at HuffPo.

In the spring of 1999, a French journalist was in Chicago to write about the latest death row exoneration and, as our lunch concluded, made a stunningly bold prediction. "Your country will abolish capital punishment in the next 25 years," she declared.

Laughing, I reminded her that public support for the death penalty was at an all-time high, capital punishment was the law in 38 states and most of them were routinely performing executions.

She waved her hand dismissively, pointing out that her country had been beheading prisoners since the French Revolution until, for economic and moral reasons, the death penalty gradually fell into disuse in the 1970s and was finally abolished. Same thing had happened throughout Europe. "Your country may have a cowboy mentality," she concluded, " but even cowboys don't like being on the wrong side of history."

I thought of our conversation on Friday when I learned that Maryland will become the first state south of the Mason-Dixon line to ban capital punishment.

"Ending executions in Maryland," is the Baltimore Sun editorial published on Tuesday.

Having won approval in both chambers of Maryland's General Assembly, a landmark bill to abolish the state's death penalty awaits only Gov. Martin O'Malley's signature before becoming law. It is a tremendous political and moral victory for Mr. O'Malley, a long-time opponent of capital punishment who campaigned for a repeal during his first term only to come up short.

That leaves only one major item of unfinished business on his agenda regarding the issue: Commuting the sentences of the five men currently on Maryland's death row to life imprisonment without the possibility of parole. The governor must use the historic opportunity presented by the abolition of capital punishment in Maryland to unequivocally put an end to the last vestiges of this barbaric practice in the state's prisons.

The bill abolishing Maryland's death penalty that the governor is expected to sign does not apply retroactively to defendants who were sentenced to be executed while the old statute was still in effect. Thus although Mr. O'Malley has presided over a long-term de facto moratorium on capital punishment — there have been no executions in the state since 2005 — the five men on its death row remain condemned to die, and there is no assurance that a future Maryland governor wouldn't allow their sentences to be carried out. That would make a mockery of the religious, moral and practical arguments against the death penalty that finally led to its abolition.

SeaCoast Online posts the AP report, "N.H. death penalty opponents laud Maryland repeal."

New Hampshire death penalty opponents are lauding the Maryland legislature's vote to repeal the death penalty and vow an intense campaign to abolish capital punishment here during the 2014 session.

Maryland's House of Delegates passed the repeal legislation Friday and its Senate voted in favor of repeal last week. Maryland Gov. Martin O'Malley has pledged to sign it into law.

New Hampshire Democratic Rep. Renny Cushing of Hampton — whose father was murdered — said he and Manchester Republican Rep. Steve Vaillancourt will sponsor legislation to abolish the death penalty next session.

Earlier coverage of Maryland's repeal of capital punishment begins with coverage of Gov. O'Malley's Politico OpEd.

Developments in North Carolina

At the Charlotte Observer O-pinion site, editorial board member Fannie Flono writes, "Time to rev up N.C.'s executions? No."

It's time to juice up the needle. No more slacking off on sending the N.C. death-row inmates to the death chamber for their lethal injection.

That's the thinking behind a new bill introduced Wednesday by New Hanover Republican senator Thom Goolsby. Goolsby's Senate Bill 306 would repeal the 2009 N.C. Racial Justice Act, a law state Republicans already gutted last year. The changes drastically reduced the ability of judges to use general statistics and data to decide whether a death row inmate was given the death penalty because of his or her race. Goolsby gave his support for that revamped bill lawmakers approved, saying then that he didn't "trust statisticians or people who come in after the fact to find some way to get coldblooded killers off of death row."

But that wasn't good enough and now he's calling for the law's total revocation. His bill also calls for doctors, nurses and pharmacists to participate in executions without fear of punishment from state licensing boards, something the courts have already declared permissible. And it also requires a somewhat ghoulish death watch by lawmakers with mandated updates to the General Assembly on the status of post-conviction death penalty cases, and on the training of executioners.

And:

Instead of trying to restart the state killing industry, North Carolina should join those states abandoning it. It's too often unfairly administered even when race is not a factor.

"Bill seeks to streamline NC execution process," is the AP report filed by Michael Biesecker.  It's via the San Francisco Chronicle.

Legislation introduced Wednesday aims at streamlining the execution process in North Carolina.

The measure by Sen. Thom Goolsby, R-New Hanover, seeks to make several changes to laws governing the administration and appeal of capital punishment. It also includes doing away with the state's Racial Justice Act.

The 2009 law allows those sent to death row to seek having their sentences commuted to life in prison without the possibility of parole if they can convince a judge racial prejudice played a role in their conviction.

Flanked by prosecutors from across the state, Goolsby decried that none of the 152 inmates on North Carolina's death row have been executed since 2006 due to various state and federal legal appeals.

WRAL-TV reports, "Bill seeks to put death penalty back on track."  It's by Mark Binker.

Sen. Thom Goolsby, R-New Hanover, has filed a bill he said will end North Carolina's de facto moratorium on the death penalty. Among other measures, it would wipe away the last vestiges of the Racial Justice Act, a measure that allows death row inmates to challenge their sentences based on statistical evidence.

And:

The measure also:

• Codifies court rulings that allow doctors, nurses and other health professionals to participate in executions without sanction from the North Carolina Medical Board or other licensing bodies.
• Outlines the time line the attorney general and Division of Adult Correction has to follow once an inmate has exhausted his or her appeals.
• Provides ongoing training to execution teams.
• Requires regular reports on the status of death row cases to the General Assembly.

It's unclear how much more quickly executions would happen if Goolsby's bill passes.

"Families of Fayetteville-area murder victims support bill to repeal Racial Justice Act," is the Fayetteville Observer report by Paul Woolverton.

The families of two Fayetteville-area murder victims stood in support of legislation filed Wednesday to repeal North Carolina's Racial Justice Act and end the state's unofficial moratorium on executions.

The Racial Justice Act of 2009 and 2012 provides condemned inmates an opportunity to escape death row if they have evidence that racism was a factor in their prosecutions and convictions. It was a response to concerns of institutional racism in the criminal justice system.

Independently from the Racial Justice Act, all executions in the state were halted in January 2007 by court challenges questioning the legality and constitutionality of North Carolina's execution practices.

"The beginning of the end of that moratorium starts today," said state Sen. Thom Goolsby, a Wilmington Republican and criminal defense lawyer, during a news conference to announce his legislation.

And:

The state is still in litigation over the constitutionality of its execution procedures, whether they violate the Eighth Amendment's prohibition on cruel and unusual punishment, said David Weiss, a lawyer with the Center for Death Penalty Litigation. Goolsby's bill would have not have an effect on that case, Weiss said, and until it's resolved, executions will remain on hold in North Carolina.

He thinks it will take at least a year.

The matter is pending before the N.C. Court of Appeals, and from there, it's expected to be heard by the N.C. Supreme Court, Weiss said.

"GOP bill would repeal Racial Justice Act once and for all," is from Raleigh's News & Observer.

SB306, filed by Sen. Thom Goolsby, a Wilmington Republican, would repeal the RJA in its entirety. Goolsby announced the bill at a news conference attended by district attorneys from around the state, and relatives of murder victims.

The bill would apparently not bring an end to the claims that have already been filed under the Racial Justice Act, however.

Goolsby said the bill would "restart the death penalty in North Carolina to ensure justice for the more than 100 families whose loved ones were taken brutally from them."

Tye Hunter, director of the Center for Death Penalty Litigation, in an interview noted that Republican legislators last session insisted they weren’t repealing the Racial Justice Act. “Now the mask is off,” Hunter said.

NC Policy Watch posts, "A return to executions?"  It's by Sarah Ovaska.

North Carolina hasn’t had an execution since 2006, and state Sen. Thom Goolsby wants to change that.

Goolsby, a Wilmington Republican, filed a bill today that seeks to repeal what’s left of the Racial Justice Act and restart executions in North Carolina.

North Carolina’s death row has 152 people on it, and the numbers of people sentenced to death has lessened in recent years. No one was sentenced to death by a North Carolina jury last year, though three people were in 2011. The longest resident of death row, Wayne Laws, has been awaiting execution since 1985.

Earlier coverage from North Carolina begins at the link. You can also jump directly to earlier news of the state's Racial Justice Act.

As always with news from North Carolina, thanks to Gerda Stein for distributing.

Sunday - The Diversions

I hear from readers who appreciate the left-column webrolls.  Some even make it to the last group, Diversions.

I'm adding a new site today; Travels with Sam.  My long-time friend, Austin attorney-mediator Sam Graham is a Fulbright Scholar this year, teaching at the Academy of Law, Odessa in the Ukraine.  He's been teaching there and in Russia for several years, and the stories he brings back are fascinating.  I'm looking forward to hearing them in real-time on his brand new blog.

Remembering a Death Row Exonoree

That's the title of David Protess' latest essay at Huffington Post.  He's the president of the Chicago Innocence Project.

"Dennis Williams, a former death-row inmate whose exoneration became a rallying cry for opponents of the death penalty in Illinois, died on Thursday at his home. He was 46. An autopsy has not yet been performed..." -- The New York Times: March 25, 2003

To outsiders a decade ago this month, Dennis Williams had it all. He was vibrant and gregarious, with a sharp wit and infectious laugh. Women were drawn to him, and his latest "fiancee," Alicia, was as bright as she was beautiful.

Related posts are in the exoneration, innocence, and wrongful incarceration indexes.

Continuing Coverage of Andre Thomas & 'Trouble in Mind'

Today's Texas Tribune posts, "Andre Thomas: Struggling to Maintain Sanity In Prison," by Brandi Grissom.  It's part five of the six-part series, "Trouble in Mind."  There are infographics at the link.

Thomas is among thousands of mentally ill inmates in the state’s sprawling prison system, which is struggling to keep pace with the increasing need for mental health care. After years of state budget cuts that resulted in trimming staff and reducing programs, leaders at the University of Texas Medical Branch, which provides much of that care, say they need more state funding to provide adequate treatment. And some lawmakers want the prison system to adopt policies that may help alleviate some inmates’ mental health problems by reducing the use of solitary confinement, where more than 8,000 inmates now find themselves, according to prison officials.

After being convicted of murder in 2005, Thomas, then 22, was sent to TDCJ’s death row at the Polunsky Unit in Livingston. On the health status form that medical staff from the Grayson County Jail sent along with Thomas when he was transferred, they wrote that he was a “paranoid schizophrenic,” that he had “enucleated” his own eye, and that he was wearing mittens to prevent him from ripping out the other eye. (Click here to view an interactive timeline of the case.)

Like the rest of the condemned, Thomas spent 23 hours a day confined alone in a 6-foot-by-10-foot cell. There, his mental illness worsened, his lawyers say.

Part four of Grissom's series ran as, "Advocates Seek Mental Health Changes, Including Power to Detain," in the Sunday Texas edition of the New York Times, and as, "Andre Thomas: Gaps in a 30-Year-Old Mental Health Code," at the Tribune.

At least twice in the three weeks before the crime, Mr. Thomas had sought mental health treatment, babbling illogically and threatening to commit suicide. On two occasions, staff members at the medical facilities were so worried that his psychosis made him a threat to himself or others that they sought emergency detention warrants for him.

Despite talk of suicide and bizarre biblical delusions, he was not detained for treatment. Mr. Thomas later told the police that he was convinced that Ms. Boren was the wicked Jezebel from the Bible, that his own son was the Antichrist and that Leyha was involved in an evil conspiracy with them.

He was on a mission from God, he said, to free their hearts of demons.

Hospitals do not have legal authority to detain people who voluntarily enter their facilities in search of mental health care but then decide to leave. It is one of many holes in the state’s nearly 30-year-old mental health code that advocates, police officers and judges say lawmakers need to fix. In a report last year, Texas Appleseed, a nonprofit advocacy organization, called on lawmakers to replace the existing code with one that reflects contemporary mental health needs.

“It was last fully revised in 1985, and clearly the mental health system has changed drastically since then,” said Susan Stone, a lawyer and psychiatrist who led the two-year Texas Appleseed project to study and recommend reforms to the code. Lawmakers have said that although the code may need to be revamped, it will not happen in this year’s legislative session. Such an undertaking requires legislative studies that have not been conducted. But advocates are urging legislators to make a few critical changes that they say could prevent tragedies, including giving hospitals the right to detain someone who is having a mental health crisis.

From the time Mr. Thomas was 10, he had told friends he heard demons in his head instructing him to do bad things. The cacophony drove him to attempt suicide repeatedly as an adolescent, according to court records. He drank and abused drugs to try to quiet the noise.

By the time he was 16, he was a father with a long history of arrests. At 18, he was married to his son’s mother. A few months after their wedding, the two separated. Mr. Thomas struggled to hold a job, and the older he got, friends and family members say, the more pronounced his mental illness became.

By March 5, 2004, it was too much. A friend took Mr. Thomas to a local mental health clinic, where he told staff members that he wanted to die and that he could not stand the sound of his own voice. He said that if someone there did not shoot him, he would do it himself, court records show. Frantic and delusional, he said, “If I can’t talk to someone now, I will throw myself in front of a bus.”

Clinicians told Mr. Thomas to go to the emergency room, and at their request a judge issued an emergency detention order. But Mr. Thomas did not make it to the emergency room that day, and no one sought him out.

This collaboration between the Tribune and Texas Monthly runs in a different form in the March edition of TM, "Trouble in MInd: How should criminals who are mentally ill be punished?"

Earlier coverage of Andre Thomas begins at the link.

At Huffington Post, Chicago attorney Andrea Lyon posts, "Blind Justice.

This matters because the United States Supreme Court in a case called Ford v. Wainwright that the Eighth Amendment's ban on cruel and unusual punishment prohibited the execution of the insane. "We may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life," wrote Justice Thurgood Marshall in his majority opinion. Nonetheless, the court left it up to the states to determine who was too mentally ill to be put to death. And as we know, the devil is in the details.

Mr. Thomas's case shouldn't even be considered a close one legally -- he simply is too mentally ill to execute. In fact, Mr. Thomas has been found by the department of corrections too mentally ill to be on death row -- so he is housed in a mental health facility where medication appears to be of some help. He is too ill for death row, but not to be killed by the State of Texas? If this case does not fall into the category of someone who should not be executed under our law, it is hard to imagine who would fit in that category. The state of Texas should abandon its pursuit of death in this case, and continue to confine Mr. Thomas in a locked mental health facility.

This case illustrates is something even more troubling; our failure to have any real strategy for dealing with mental illness. Tragically, just weeks before the murders for which he was sentenced to death, mental health professionals issued detention orders, fearing what Andre Thomas would do to himself, or others. Twice the police failed to carry out those orders including one that had been issued just days before these voices commanded him to commit these acts.

I wish I could tell you that this is the only time something like this has happened, but it isn't.

Warren Hill's Mental Retardation

AP reports, "Doctors say Ga. death row inmate mentally disabled," by Kate Brumback.  It's via the San Francisco Chronicle.

Lawyers for a Georgia man set to be executed next week released sworn statements Thursday from three doctors who originally testified for the state but who now say they've changed their opinions and believe he is mentally disabled.

All three doctors write in affidavits that they changed their diagnoses after reviewing evidence, testimony and documents in the case of Warren Lee Hill. Lawyers for Hill, who is set to be executed Tuesday, have long argued he shouldn't be executed because he is mentally disabled. State law and a previous U.S. Supreme Court decision prohibit states from executing people who are mentally disabled.

"Having reviewed my earlier evaluation results and the far more extensive materials from the record of this case, I believe that my judgment that Mr. Hill did not meet the criteria for mild mental retardation was in error," wrote Dr. Thomas Sachy wrote in an affidavit.

Hill's defense plans to submit the doctors' statements to the state Board of Pardons and Paroles when it requests a new clemency hearing, as well as to a state court that has previously declined to overturn his death sentence, said lawyer Brian Kammer.

The state has consistently argued that Hill's defense has failed to prove beyond a reasonable doubt that he is mentally disabled. Hill's lawyers have said that burden of proof is virtually impossible to meet. Georgia's strictest-in-the-nation standard for proving mental disability has repeatedly been upheld by state and federal courts.

"State experts change opinions in condemned killer’s case," is the Atlanta Journal-Constitution report by Bill Rankin.

Days before condemned killer Warren Lee Hill’s is scheduled to die, the same state experts who testified Hill was eligible for execution now say they were wrong, according to affidavits released Thursday.

Hill is to die by lethal injection on Tuesday at 7 p.m. His lawyers have already asked the U.S. Supreme Court to halt the execution. On Thursday, they said they will soon ask a state court judge to consider the doctors’ new statements and will use them when asking the State Board of Pardons and Paroles to give Hill a new clemency hearing.

During a key hearing 13 years ago, state attorneys called on two psychiatrists and a psychologist to refute Hill’s claims that he is mentally disabled and thus ineligible for execution. All three doctors now say they were mistaken when they testified Hill was not mentally disabled.

“Having reviewed my earlier evaluation results and the far more extensive materials from the record of this case, I believe that my judgment that Mr. Hill did not meet the criteria for mild mental retardation was in error,” said one of the experts, Thomas Sachy, a forensic psychiatrist.

In their affidavits, the doctors described their evaluations of Hill in late 2000 as rush jobs. They also said they did not have all the information they needed to make a proper diagnosis.

The scientific understanding of mental retardation has grown over the past dozen years, the doctors said, giving them better insight into evaluating a person such as Hill, whom they initially believed was faking.

And:

The case has attracted national attention. Two state court judges have found that Hill was mentally retarded, but they said Hill only proved that he was more likely than not mentally retarded.

That’s not strong enough proof in Georgia, which is the only state in the country that requires capital defendants to prove mental retardation beyond a reasonable doubt. Such a finding for Hill means he would be sentenced to life in prison.

At the ACLU Blog of Rights, Brian Stull posts, "How Do I Explain to my Six Year-Old Son What Kind of a Society Plans to Execute an Intellectually Disabled Man?"

So what gives? If the court, the victims' family, and Hill's childhood teachers all say that Hill is intellectually disabled, then how can he be executed? The answer is a technicality, a glitch, a quirk in Georgia law. Georgia stands alone among death-penalty states in requiring proof beyond a reasonable doubt of intellectual disability before barring execution. The Georgia judge found beyond a reasonable doubt that Hill had an IQ of 70 or below, but only by a "preponderance of the evidence" that he suffers adaptive limitations and that he began suffering his disability before the age of 18. A "preponderance of the evidence" is lawyer-speak for more likely than not. In other words, Georgia says to Hill, we're pretty sure you're intellectually disabled, but we find you don't meet our very high standard of proof.

Society shows its best self when it takes care of its disabled, makes available needed services, allows for equal education and other opportunities. And of course we don't require the disabled to prove their disability beyond a reasonable doubt -- the highest standard of proof known to law (designed, as we have previously explained, for a completely different purpose). We provide these services and opportunities without anything like this kind of scrutiny because it's the right thing to do. It's also the right thing to do to stop this execution from proceeding on a technicality. Hill's pending petition to the U.S. Supreme Court asks the Court to stop the execution, and in turn to save us from our worst selves. Let's hope they do.

Earlier coverage of Warren Hill's case begins at the link.  In the next post, a news release issued by Hill's advocates.

Jeffrey Toobin on California's Death Penalty

"Christopher Dorner and the California Death Penalty," is Jeffrey Toobin's post at the New Yorker News Desk blog.

If Dorner didn’t die (and is later caught), we can be sure that one or more district attorneys will seek to have him executed. And thus the nation would be forced to confront one of the biggest fiascoes in the American legal system—the death penalty in California.

It’s possible for reasonable people to hold differing opinions on the death penalty. (Over the years, I’ve had several different ones myself.) But what’s going on in California represents the worst of all worlds—a massively expensive Potemkin operation in which hundreds of people are sentenced to death and no one is ever executed.

And:

There are several reasons that the system in California has ground to a halt. The 1978 voter initiative that restored the death penalty sent all appeals directly to the California Supreme Court, bypassing the intermediate appeals courts. This has created a huge backlog at the state’s highest court. Moreover, challenges to the method of execution have led to a de facto moratorium on executions since 2006. That impasse continues.

The root of the problem, in California and elsewhere, is that, as the Supreme Court has often said, death is different. The finality of capital punishment requires special safeguards against errors in the judicial process. But if a state takes those safeguards seriously, as California does, the process can become never-ending. Death-row exonerations, through DNA evidence and other means, have provoked even greater scrutiny of the cases of those who remain. And the state’s oxymoronical quest to kill people in a humane fashion turns out to be difficult indeed. All of this leads to delay.

Earlier coverage from California begins at the link.

Execution Date Set for Warren Hill in Georgia

Last week the Atlanta Journal-Constitution reported, "Execution warrants signed for two killers."  It was written by Bill Rankin.

Executions were set Tuesday for two condemned Georgia inmates — Warren Hill, who killed a fellow prisoner, and Andrew Cook, who fatally shot two Mercer University students.

Hill’s execution is scheduled to be carried out Feb. 19 at 7 p.m. and Cook’s is set for Feb. 21 at 7 p.m., the Department of Corrections said. Both executions will be conducted at the Georgia Diagnostic and Classification Prison in Jackson.

The last Georgia inmate to be executed was Troy Anthony Davis, who was put to death Sept. 21, 2011, for the killing of a Savannah police officer.

Hill’s execution had been scheduled last July. But with two hours to spare, the Georgia Supreme Court issued a stay to determine whether Corrections should have followed the state Administrative Procedure Act, which allows for public comment, when it replaced its three-drug execution cocktail with one drug, pentobarbital.

On Monday, the court found that Corrections followed proper procedure when making the switch. In that ruling, the justices lifted its stay of Hill’s execution.

Eric Jacobson, the executive director of the Georgia Council on Developmental Disabilities, writes, "The Supreme Court Must Stop the Execution of Warren Hill," for Huffington Post.

On February 19, 2013, Georgia plans to execute Warren Hill, a man with an intellectual disability. Mr. Hill has exhausted his appeals. The Georgia State Board of Pardons and Paroles denied clemency and has declined to give Mr. Hill another audience.

The United States Supreme Court should intervene in this case to ensure that the protection they have granted for the "mentally retarded" against the death penalty is realized. If the court does not act, a man with an undisputed intellectual disability will be unconstitutionally put to death next week.

As the Executive Director of Georgia's Council on Developmental Disabilities, I have strongly advocated for state and federal legislation that protects our nation's most vulnerable citizens. Our organization, and those like us across the country have supported many laws, including those that protect people with intellectual disabilities from execution. This supports the position of the United States Supreme Court in its landmark 2002 Atkins v Virginia ruling, noting that people with intellectual disabilities are less culpable for their actions and are at greater risk for wrongful execution.

And:

The protections that exist under the law for people with intellectual disability are vitally important to our democracy. People with intellectual disability deserve to live as full citizens of this country and state, protected by laws designed to recognize our diversity and uphold our basic rights, despite our differences. We, in Georgia will continue to fight to bring our state into alignment with other states by working with policy makers to change the "beyond a reasonable doubt" standard. In the meantime, the United States Supreme Court must stop the execution of Warren Hill.

"Georgia’s Plan to Execute Retarded Man Raises Moral Questions," is by Imani Jackson at Politics 365.

The state of Georgia has rescheduled the execution of a mentally handicapped inmate for February 19. Warren Lee Hill Jr. was scheduled for execution last summer; however, the Georgia Department of Corrections changed the lethal injection process and delayed his execution.

The same day that the lethal injection protocol was examined, a petition for considering Hill’s mental retardation,  was denied, despite his IQ of 70.

Hill’s attorney, Brian Kammer, told Politic365 that he wants the courts, the department of corrections and the clemency board “to err on the side of humaneness and mercy” in cases similar to Hill’s.

Think Progress posts, "Georgia Will Execute An Intellectually Disabled Man Next Week Unless The Supreme Court Intervenes," by Nicole Flatow.

While a series of procedural rulings have delayed execution for Warren Lee Hill, he faces imminent capital punishment by the state of Georgia a week from tomorrow, in spite of a U.S. Supreme Court decision that says executing the severely mentally disabled is unconstitutional. Hill, who was deemed “mentally retarded” at trial (an unfortunate legal term), has exhausted his appeals, and only U.S. Supreme Court action can stop his execution this time.

Among those who have advocated for Hill’s clemency are several jurors from Hill’s trial, disability groups, and President Jimmy Carter. Even the victim’s family has submitted an affidavit stating that they prefer clemency.

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

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

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

Court of Inquiry in Second Day

The Austin American-Statesman reports, "Lawyers spar over documents in Anderson inquiry," by Chuck Lindell.

Riveting testimony by Michael Morton, and sharply worded battles over evidence, punctuated Monday’s opening of a court of inquiry that is examining whether former prosecutor Ken Anderson improperly hid evidence that could have helped Morton defend himself against a murder charge in 1987.

One of the most intense exchanges was sparked when Rusty Hardin, acting in a role similar to prosecutor, moved late Monday to introduce three documents that were newly discovered in files kept by Anderson when he was Williamson County’s district attorney.

Hardin said the documents, when combined with other records that he had presented earlier, showed a “pattern and practice” of withholding favorable information from defense lawyers, contradicting Anderson’s claims that he always disclosed such evidence as required by law.

“The file is replete with stuff they should have let the defense attorneys have,” Hardin said. “This is three more things in the DA’s files that should have been tendered to the defense. The fox doesn’t get to guard the henhouse.”

"Inquiry Day Two Begins With Judge Questioning," is the Texas Tribune coverage by Brandi Grissom.

On the first day of Williamson County state district Judge Ken Anderson's court of inquiry Monday, Michael Morton spent more than five hours on the witness stand, getting emotional at times as he hashed over the mistakes that led to his wrongful murder conviction and almost 25 years in prison.

“Going through all of that again was difficult, but necessary," Morton said before leaving the court. "I’m glad the process has finally started.”

Anderson, the former prosecutor who secured Morton’s conviction, is the subject of a rare court of inquiry that could lead to criminal charges. Morton and his lawyers allege that Anderson withheld critical information during the 1987 trial that sent him to prison for life for his wife’s murder. Anderson and his lawyers say that the prosecutor committed no wrongdoing in the case, that the judge in the case was ordered to only disclose a limited amount of information and that the statute of limitations on any alleged violations has expired.

Some of the most emotional testimony came early in the day when Hardin asked Morton about the nearly 25 years he spent in prison.

Earlier coverage of the Court of Inquiry begins at the link.

Court of Inquiry Convenes

Brandi Grissom is liveblogging the Court of Inquiry examining Judge Ken Anderson's actions when he was the Williamson County District Attorney and his prosecution of Michael Morton.  She also has an introduction to the liveblog at the Texas Tribune.

A rare court of inquiry begins today in Williamson County and will examine the role of former prosecutor Ken Anderson in the wrongful murder conviction of Michael Morton. Anderson, now a state district judge, faces potential criminal charges for contempt of court and tampering with official documents. Lawyers for Morton, who was released from prison in 2011 after spending nearly 25 years incarcerated for his wife's murder, argue that during the 1987 trial Anderson deliberately withheld evidence in violation of a judge's order.

Rusty Hardin, a former Harris County prosecutor turned high-profile defense lawyer, will act as special prosecutor in the case. He will present evidence to Judge Louis Sturns, who will oversee the unusual court process and eventually decide whether Anderson should face charges. Lawyers for Anderson will also present evidence, which they argue in legal documents will prove that their client did not violate the judge's order. They also contend that the statute of limitations has expired on any alleged violations. 

Anderson has apologized for the criminal justice system's errors in the Morton case, but has maintained that he committed no wrongdoing.

"Morton’s Murder Conviction Comes to Define Anderson," is Grissom's preview published in the Texas Tribune and the Texas edition of the New York Times.

Growing up in the 1960s, Ken Anderson admired the great trial lawyers in movies: Gregory Peck in “To Kill a Mockingbird” and Spencer Tracy in “Inherit the Wind.” The good guys who broke down lying thugs on the stand.

“In reality, I don’t see much brilliance in the courtroom,” Mr. Anderson wrote in his 1997 book, “Crime in Texas: Your Complete Guide to the Criminal Justice System.” “Trials are won and the truth is exposed because of detailed, painstaking preparation done before the first witness is sworn in.”

In 1985, at age 33, Mr. Anderson became the Williamson County district attorney. He held that job until Gov. Rick Perry appointed him a district judge in 2001. Mr. Anderson prosecuted hundreds of criminals, earning a reputation for persuading juries to assess harsh penalties.

One of those cases has come to define Mr. Anderson over the last year and a half as the antithesis of the truth seekers he admired. He will sit at the defense table Monday, facing a rare court of inquiry that will determine whether Mr. Anderson, now 60, should face criminal charges for his role in the wrongful murder conviction of Michael Morton. Mr. Morton, a grocery store manager, served nearly a quarter-century in prison for murdering his wife. DNA testing led to Mr. Morton’s exoneration in 2011.

Mr. Morton’s lawyers say that Mr. Anderson withheld evidence that not only pointed to their client’s innocence but allowed a murderer to remain free.

Today's Los Angeles Times reports, "Texas judge faces 'court of inquiry' into wrongful conviction." It's by Molly Hennessy-Fiske.

A Texas judge who prosecuted a man wrongfully convicted of murder and freed after serving 25 years in prison faces an unprecedented court hearing Monday on whether he should be prosecuted for mishandling the case.

Williamson County District Judge Ken Anderson faces a “court of inquiry” to address allegations that he lied and concealed evidence — in violation of the law and a judge’s order — that could have cleared Michael Morton, who was convicted in the 1986 beating death of his wife, Christine, at their Williamson County home.

Morton was exonerated and released almost a year and a half ago, after DNA tests confirmed his innocence and another man, Mark Alan Norwood, was charged in connection with the killing.

Morton is testifying Monday, his attorney told The Times.

Anderson has denied wrongdoing. His attorney, Eric Nichols, a former prosecutor with the Texas Attorney General's Office, declined to comment to The Times ahead of the hearing.

A “court of inquiry,” part of Texas law since 1965, has usually been used to examine allegations against elected officials, never to address suspected misconduct by a prosecutor. Some hope this week’s hearings lead to a greater examination of alleged prosecutorial misconduct that has led to wrongful convictions not just in Texas, but nationwide.

“There is no doubt that the eyes of Texas are going to be on this proceeding,” said Kathryn Kase, executive directror of Texas Defender Service, a nonprofit that trains and assists lawyers who represent death row inmates. “Bad forensic science is not the only reason people get wrongfully imprisoned, and we have to be dedicated to trying to stop that.”

The Austin American-Statesman is also posting live updates, "Anderson court of inquiry set to begin," by Chuck Lindell, who has been covering the Morton case since 2008.

Michael Morton, who will testify today, is in the audience with his fiancee, Cynthia Chessman. They’ve been together for a year and will be married next month. Morton is sitting with most of his lawyers, including John Raley, Gerry Goldstein and Barry Scheck, the co-founder of the Innocence Project.

The family of Debra Masters Baker is in attendance as well. Baker was beaten to death while lying in bed in her Austin home in 1988, two years after Christine Morton was killed in a similar manner in the Williamson County home she shared with Michael Morton and their 3-year-old son Eric.

State Sen. Rodney Ellis, D-Houston, is here as well, but the anticipated crowds have not arrived, though the relatively small courtroom in Georgetown is slowly filling up.

Lindell's preview of the Court of Inquiry is, "Morton prosecutor faces court of inquiry this week."

Exactly 16 months after Michael Morton was freed from prison, an unprecedented hearing will begin Monday in Georgetown to determine if his prosecutor, former Williamson County District Attorney Ken Anderson, should himself be prosecuted and possibly jailed.

Anderson faces a court of inquiry, a rare and uniquely Texas procedure that will examine allegations that he lied and conspired to conceal evidence — in violation of the law and a judge’s order — that could have spared Morton from serving 25 years in prison in the beating death of his wife.

In the time since DNA tests confirmed his innocence, Morton — who is expected to testify Monday — has worked to rebuild his life, particularly his relationship with son Eric, who was 3 when he was arrested, and a granddaughter born shortly after his release.

Anderson’s fortunes, meanwhile, have fallen.

Earlier coverage of the Anderson Court of Inquiry and Michael Morton's exoneration begins at the link.

George Ryan Released From FCI

Today's Chicago Tribune reports, "Ryan returns home to finish sentence under house arrest."  It's by Jason Meisner, Annie Sweeney, and Angie Leventis Lourgos.

Former Illinois Gov. George Ryan was let out of a federal prison in Indiana in the dead of night early Wednesday and checked briefly into a Chicago halfway house before he was released — in a surprise decision — to his home to finish out his 61/2-year sentence on home confinement.

The quick turn of events allowed Ryan, who turns 79 next month, to elude a horde of media gathered at the prison in Terre Haute, Ind., and then slip from the halfway house on the Near West Side undetected several hours later.

By 10:30 a.m., Ryan had an emotional reunion with 17 of his children and grandchildren at his longtime Kankakee home, according to his attorney, former Gov. Jim Thompson. Later in the day, Ryan's daughter, Jeanette, smiled as she left through a rear entrance. "We are very happy he's home," she said.

Home confinement for Ryan means he won't have to face weeks or months at the Salvation Army halfway house where many of the state's other disgraced politicians have had to take up residence.

And:

Ryan is home for the first time since wife Lura Lynn died, and his oldest grandson will be staying with him, Thompson said.

"I imagine it's very hard," Thompson said. "Just as I imagine it's been very hard ever since she died and it's been very hard ever since he left her (for prison). At least he's got closure now with his family."

"Ex-Ill. Gov. Ryan released from halfway house," is the AP filing by Michael Tarm, via the Frankfort State-Journal.

Former Illinois Gov. George Ryan was back at his longtime home on Wednesday following his pre-dawn release from a federal prison after serving more than five years for corruption.

He first reported to a halfway house in Chicago but in a development that took observers by surprise was allowed to go to his spacious home in Kankakee, where he'll be under home confinement for at least several weeks, his attorney Jim Thompson said.

Speaking from Ryan's living room, Thompson said Ryan was beaming and surrounded by his smiling grandchildren

"If you could see his and his grandkids' smiling faces," Thompson, himself a former governor, said by phone from Ryan's home. "He is surrounded by happy faces."

Thompson said officials decided Ryan didn't require the services halfway houses provide, which include ensuring ex-cons can use a checkbook.

Ryan will still be subject to strict rules, including prohibitions against speaking to the media or leaving the house. Thompson added that Ryan was granted retirement status by authorities, so he won't be required to find a job.

Ryan was sentenced to 6 ½ years on Nov. 7, 2007, and his term officially ends July 4 after compiling 305 days credit for good conduct, said Bureau of Prisons spokesman Chris Burke.

Looking relaxed and thinner than before prison, Ryan walked past throngs of reporters into a Chicago halfway house earlier in the morning.

Ryan, 78, left the federal prison in Terre Haute, Ind., at around 1 a.m. on Wednesday -- five months before his prison term officially ended, having qualified for early release to the Salvation Army-run Freedom Center.

The Chicago Sun-Times publishes the editorial, "Ryan's redemption."

Former Gov. George Ryan probably isn’t making any big plans just yet.

Hugging his grandchildren, sitting with his children and enjoying the quiet of his own home after more than five years in prison are, we’re quite sure, more than enough for now.

But when it’s time, Ryan likely will get re-involved with death penalty issues, his lawyer, former Gov. Jim Thompson, said Wednesday after Ryan’s release to home confinement.

That sounds just right to us.

For all of Ryan’s misdeeds, Illinois’ former governor did right when it came to the death penalty.

And he did right, we think, for the right reasons.

"George Ryan's restitution," is the Chicago Tribune editorial.

In 2006, federal jurors convicted George Ryan on 18 felony corruption counts: racketeering, mail fraud, tax fraud, filing false tax returns, lying to FBI agents. Nine people, six of them children named Willis, lie dead because of the crime spree on Ryan's watch: When he was secretary of state, as many as 2,000 truckers bribed his employees to get driver's licenses. Some of that blood money flowed to his political fund — and some of those truckers caused crashes that killed those nine and injured dozens more. As U.S. Attorney Patrick Fitzgerald had said when the ex-governor was indicted: "Ryan is charged with betraying the citizens of Illinois for over a decade on state business, both large and small. ... Defendant Ryan sold his office."

And:

George Ryan, ex-con, is free to vanish. But he's also free to make at least partial restitution to his victims. There is much he can say to the people of Illinois. Much he can teach to politicians of today, and tomorrow. Much he can do to renounce — to help reform — the Illinois culture of political sleaze.

If Ryan in the past didn't want to speak remorse for his crimes lest he undermine appeals of his verdict or sentence, that excuse is moot. If pride kept him from admitting guilt, he's now liberated to speak from the heart. If the native Iowan is embarrassed that four of his adopted state's last nine governors went to prison, he can demand better of the political class in whose grievous sins he wallowed.

"Welcome Home, Governor Ryan," is David Protess' essay at Huffington Post.  He's President of the Chicago Innocence Project.  Here's the beginning:

On a frigid February evening in 1999, I called home to check my messages. "Gov. Ryan just called you," my teenage son Ben claimed. I laughed at the seemingly obvious prank. "No, Dad, it really was the governor. I recognized his voice. He wants you to call him at home."

What could this be about, I wondered? Perhaps the Anthony Porter case? Porter was a condemned inmate who had come within 50 hours of execution, only to be freed earlier that week when my journalism students and a private investigator uncovered proof of his innocence.

As it turned out, the Illinois Republican governor and his wife, Lura Lynn, had watched Porter's dramatic release on WGN-TV. The governor was stunned. "How does an innocent man sit on death row for 15 years...?" he asked his wife in disbelief.

When I returned Ryan's call, he had a more practical question: "What can I do to help that poor guy?"

I explained that a gubernatorial pardon would guarantee Porter restitution for his 17 years of wrongful incarceration. The governor promised to promptly take care of it.

The business part of our conversation concluded, the governor stayed on the line, musing about the case. He was horrified that Porter had almost been executed on his watch. "I would have been responsible for the death of an innocent man," Ryan whispered.

Earlier news of former Governor Ryan begins at the links.

Justice Thomas Speaks

Though it's not clear exactly what he said, it's gotten a great deal of attention from Court watchers because of its rarity.

"Justice Clarence Thomas Breaks His Silence," is Adam Liptak's report in today's New York Times.

One of the abiding mysteries at the Supreme Court is why Justice Clarence Thomas has failed to say a word in almost seven years of arguments. On Monday, when he finally broke his silence, the mystery was replaced by a riddle: Just what did Justice Thomas say?

The justices were considering the qualifications of a death penalty defense lawyer in Louisiana, and Justice Antonin Scalia noted that she had graduated from Yale Law School, which is Justice Thomas’s alma mater.

Justice Thomas leaned into his microphone, and in the midst of a great deal of cross talk among the justices, cracked a joke. Or so it seemed to people in the courtroom.

The court transcript confirms that Justice Thomas spoke, for the first time since Feb. 22, 2006. It attributes these words to him, after a follow-up comment from Justice Scalia concerning a male graduate of Harvard Law School:

“Well — he did not — .”

Although the transcription is incomplete, some people in the courtroom understood him to say, in a joshing tone, that a law degree from Yale could actually be proof of incompetence or ineffectiveness. Others thought that he might have been referring to Harvard. What follows in the transcript supports the view that Justice Thomas made an actual point.

ReutersLegal posts, "Clarence Thomas breaks nearly 7-year court silence."  It's by Jonathan Stempel.

For the first time in nearly seven years, Justice Clarence Thomas on Monday spoke to a lawyer presenting a case during oral arguments before the U.S. Supreme Court.

While his utterance was not in the form of a question and consisted of a mere four words, it breaks a silence dating to Feb. 22, 2006, during an argument over the admission of forensic evidence in a South Carolina death penalty case.

Thomas's silence stands out because the other eight justices are active questioners during the hourlong oral arguments. The end of that silence caused a stir among reporters, who sit together in the courtroom.

And:

The case that broke the silence was Boyer v. Louisiana. Jonathan Boyer sought to overturn his murder conviction on the ground that Louisiana took seven years to try him while he sat in jail, violating his constitutional right to a speedy trial.

One issue was whether Boyer's court-appointed lawyers early in the proceedings were qualified to represent him.

"For first time in nearly seven years, Justice Clarence Thomas talks during court arguments," by Carlo Dellaverson at NBC News.

Justice Clarence Thomas broke nearly seven years of silence during oral arguments on the Supreme Court on Monday.

The last time the famously reserved Thomas spoke up, George W. Bush was president, the iPhone was nothing but an internet rumor, and the U.S. economy seemingly had nowhere to go but up. But just before noon on Monday, Thomas uttered what appeared to be a lawyer joke.

During arguments in the Sixth Amendment case Boyer v. Louisiana, the justices were discussing the qualifications of the plaintiff’s counsel when Justice Antonin Scalia asked the assistant district attorney of Louisiana whether another lawyer was a Yale Law School graduate. He then spoke of a different lawyer in the case who graduated from Harvard Law.

The always entertaining Above the Law posts, "Quote of the Day: Justice Thomas Speaks!"  It's by David Lat.

Despite being gregarious off the bench, Justice Clarence Thomas is famously silent while on the bench. Justice Thomas has not spoken during a Supreme Court oral argument since February 22, 2006. The seven-year anniversary of CT’s silence was just a few short weeks away.

But today Justice Thomas broke his silence, in the case of Boyer v. Louisiana (“[w]hether a state’s failure to fund counsel for an indigent defendant for five years as a direct result of the prosecution’s choice to seek the death penalty should be weighed against the state for speedy trial purposes”). Although the full substance of his remarks didn’t quite make the transcript, perhaps because it was difficult to hear him, apparently he poked fun at his alma mater, Yale Law School.

There’s a detailed blow-by-blow over at Josh Blackman’s site, where he rounds up real-time tweets and reviews the transcript. Here’s how SCOTUSblog characterized Justice Thomas’s comment:

"Speak, Clarence, Speak!" is Andrew Cohen's post at Atlantic.

As to the substance of Boyer v. Louisiana, the New York Times published the editorial, "Unspeedy Trial in Louisiana," yesterday.

It has been nearly 50 years since the Supreme Court held that the Constitution guarantees every indigent criminal defendant a right to counsel.

On Monday, the court will hear arguments in a Louisiana case whose outcome could determine whether that right remains robust or a state can dilute it by refusing to pay for a lawyer in a timely fashion.

In Boyer v. Louisiana, the defendant, Jonathan Boyer, spent more than seven years in the Calcasieu Parish jail, waiting to be tried for armed robbery and murder. He arrived there in 2002 and was held without bond because he was indicted on charges for which he could be sentenced to death. He stayed in that jail until 2009, when he was moved to the Louisiana State Penitentiary after being convicted of second-degree murder and armed robbery and given a life sentence.

During Mr. Boyer’s first five years in jail, the case against him languished because of a “funding crisis,” when the state provided no money to pay his lawyer or cover defense expenses. The parish had plenty of money to pay for a lawyer. But the Louisiana Supreme Court ruled that the parish could not be ordered to pay because that was the state’s duty.

And:

“The only possible remedy” for this kind of violation, the Supreme Court has said in earlier cases, is to set aside the conviction against the defendant and dismiss the case. Ruling otherwise would mean gutting the court’s landmark decision in Gideon v. Wainwright and rendering the right to counsel all but meaningless.