The StandDown Texas Project

Florida Supreme Court Orders New Trial for Michael Peter Fitzpatrick

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

The Tampa Bay Times reports, "New trial ordered for death row inmate from Pasco."

The Florida Supreme Court has ordered a new trial for a man sentenced to death for a 1996 fatal stabbing in Pasco County.

The court unanimously upheld a lower court's 2010 decision Thursday to grant a retrial to 51-year-old Michael Peter Fitzpatrick. Justices found that Fitzpatrick had ineffective help from his trial attorney, who should have consulted with experts on the DNA and other forensic evidence used against him.

Related posts are in the ineffective assistance of counsel category index.  Earlier coverage from Florida begins at the link.

Challenge to Timely Justice Act Filed in Florida Supreme Court

The petition, Abdool, et al v. Florida, is available in Adobe .pdf format.

"Fla. attorneys challenge changes to death penalty," is AP coverage, via the Tampa Bay Tribune.

A new Florida law that speeds up how quickly the state carries out the death penalty is being challenged in the state Supreme Court.

Attorneys Neal Dupree and Bill Jennings - who head the state agencies that represent death row inmates after they're convicted - are leading a lawsuit filed Wednesday afternoon against Attorney General Pam Bondi and the state of Florida. Plaintiffs in the lawsuit include more than 100 current death row inmates.

Signed by Gov. Rick Scott earlier this month, the "Timely Justice Act of 2013" creates tighter timeframes for appeals, post-conviction motions and imposes reporting requirements on case progress. It also re-establishes a separate agency for north Florida to provide appellate-level legal representation to inmates sentenced to death, and requires them to "pursue all possible remedies in state court."

Scott said in his signing statement that the state's current death row inmates who have exhausted their judicial appeals have been awaiting execution for an average of 22 years.

The lawsuit claims the new law unconstitutionally usurps the court's powers and violates convicts' constitutional rights to due process and equal protection. The challenge also asks for an injunction to keep the law from going into effect on Monday.

The Miami Herald posts, "Lawyer group challenge speedy executions," by Michael Van Sickler.

The lawsuit challenges the constitutionality of the accelerated pace, calling it the result of an “abrupt whirlwind of political maneuvering." Scheduled to go into effect on Monday, the law would violate the Separation of Powers by requiring “constitutional officers of the judicial and executive branches” to take immediate actions because of the legislative action, according to the suit. It also claimed the law suspends the writ of habeas corpus, violates due process by interfering with judicial resolution of constitutional claims, and will result in cruel and unusual punishments “contrary to evolving standards of decency.”

“The Act creates a rushed process for issuance of a likely flood of death warrants that will inundate the courts and abruptly cut off this Court’s exercise of judicial review in capital cases,” the suit stated. “If not addressed prior to its operation in practice, the process will have the unconstitutional and irreversible result of individuals being executed under a legislatively-determined judicial procedure in which violations of their constitutional rights go unresolved. Further, Florida history shows that diminished process can have tragic and irreversible consequences.”

The 86-page emergency petition was signed by five lawyers: Neal Dupree, John W. Jennings, Martin McClain, Linda McDermott, and Terri Backhus.

"Supreme Court Asked To Block Florida’s Death Row Fast Track Law," is by The News Service of Florida, via North Escambia.

Attorneys representing Death Row inmates want the Florida Supreme Court to block the controversial “Timely Justice Act” that is intended to reduce final delays in carrying out the death penalty.In a challenge filed Wednesday, the attorneys contend that sections of the law signed June 14 by Gov. Rick Scott are unconstitutional.

They allege, in part, that the law would violate the separation of powers by imposing obligations on lawyers that conflict with judicially-determined rules. They also say it would alter the court’s authority to govern capital post-conviction litigation and would violate due process and equal protection.

“It is clear that, when the Legislature restricts this court’s authority to reach final ruling on constitutional matters by creating a time-certain limit on capital litigation and rejects procedural vehicles recognized by this court as necessary components to ensuring the constitutionality of capital convictions and death sentences, it violates this court’s authority to be the ultimate interpreter of the Florida Constitution,” said the lawsuit.

Scott’s office has repeatedly contended that the law, which takes effect July 1, doesn’t “fast-track” the death penalty process and will not increase the risk of executing innocent people as some critics have argued. Instead, Scott’s office says the bill makes “technical amendments to current law and provides clarity and transparency to legal proceedings.”

Earlier coverage from Florida begins with an execution stayed by the U.S. appeals court and more on the Timely Justice Act.

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.

Texas Editorial Roundup

"Texas’ grim death penalty milestone," is the Dallas Morning News editorial.

Owing to its size and inclinations, Texas registers prodigious statistics, but none so bleak as what comes from the state’s pre-Civil War red-brick prison in Huntsville that houses the nation’s busiest execution chamber.

There, on Wednesday, Texas’ 500th execution since national reinstatement is set to be carried out. The life scheduled for termination belongs to Kimberly McCarthy, whose grisly murder of elderly neighbor Dorothy Booth of Lancaster brings the state to this grim milestone.

It’s one that no other state may ever touch. Virginia, second in terms of executions, is barely a fifth of the way there, and the pace of capital punishment has slowed nationwide, even in Texas.

Part of that has to do with a collective shudder at the realities of a fallible criminal-justice system. Part of it has to do with a growing list of states — now at 18 — that have abolished the death penalty. Part of it has to do with a willingness to pause and take an unflinching look at the system and why it singles out some killers to die and others to live.

The Fort Worth Star-Telegram editorial is, "It’s time to halt executions in Texas."

The figure 500 is sobering, particularly when it is applied to people and their deaths.

On Wednesday evening, barring intervention by a court or the governor, Texas will carry out its 500th death sentence since capital punishment was reinstated in 1974.

Between 1924 (when the state took charge of executions from its counties) and 1964, the start of a decade-long moratorium, the Lone Star State performed 361 killings by electrocution.

Texas has the bragging rights for its frequency of ultimate punishment, leading the nation even though other states have more inmates on Death Row.

These large numbers represent people, individuals with names who, although convicted of horrible crimes and deserving punishment, should not have their deaths determined by flawed human beings acting in the name of the state.

And:

Abolishing capital punishment would neither demean the memory of victims nor deny any of them justice. Instead, it would make our society as a whole more just, more morally consistent and certainly more humane.

Texas retired “Old Sparky,” its electric chair, in 1977.

It is time to permanently close our infamous death chamber.

Sunday’s Fort Worth Star-Telegram editorial was the first in which the paper has called for abolition of the death penalty.

In past years, the Star-Telegram has called for a moratorium on executions and a number of other criminal justice reforms, especially related to capital punishment.  It has also increasingly expressed serious concerns about a variety of Texas criminal justice practices.

It now joins the Austin American-Statesman, Dallas Morning News, and Houston Chronicle, which have previously endorsed abolition in editorials.

Bob Ray Sanders, an editorial board member, has long written of the evils and failings of capital punishment in his bylined column for the Star-Telegram.  Sanders, perhaps more than any other Texas columnist, has given us a human-scale view of the Texas criminal justice system at work.  It's just one reason why he is held in such high regard by his fellow journalists.

Earlier coverage from Texas begins at the link; more from AFP, in the next post.

Stateline on State Trends

"Some States Speed Up Death Penalty," is the Stateline report by Maggie Clark.  Here's the beginning:

Supporters and opponents of capital punishment agree: The current death penalty is expensive, inefficient, and arbitrary. Some state legislatures have reacted to those faults by abolishing the death penalty, while others are trying to speed it up.

Since 2007, six states have abolished capital punishment—most recently Maryland, which did so this year. But other states, troubled by some of the same problems, have moved in the opposite direction:

• Republican lawmakers in North Carolina, which hasn’t executed any convicts since 2006, repealed the state’s Racial Justice Act. That law created an additional appeal for death row inmates who believed their death sentences were the result of racial bias. GOP legislators also ended medical licensing board restrictions that kept doctors and nurses from administering execution drugs.
• Florida Republican Gov. Rick Scott recently signed a law that will speed up Florida’s execution process. The governor now must sign a death warrant within 30 days of the Supreme Court certifying that an inmate has exhausted all appeals. The execution date must be six months from the date of the warrant.
• California death penalty supporters are working on a citizens’ initiative for the 2014 ballot to restart the death penalty in that state. Last year’s attempt to end the death penalty on the ballot failed.
• And attorneys general in California and North Carolina are vigorously contesting lawsuits in state and federal court that claim their executions by lethal injection are “cruel and unusual,” and thus unconstitutional.

Earlier coverage from California, Florida, and North Carolina begins at the links.

Florida Roundup

Today's Tampa Bay Times publishes the editorial, "Recklessly speeding to execute."

Gov. Rick Scott and the Florida Legislature are speeding up executions in an era when other states are slowing them down or repealing the death penalty. The legislation that Scott signed into law Friday puts him on track to be the most active executioner in modern Florida history, in a state that has had more exonerations off death row than any other in the country. The only backstop now is if Scott uses his executive clemency powers to try to avoid future injustices.

The new law addresses a nonexistent problem. The death penalty has had support from governors across party lines. Both Democrats and Republicans have ordered executions, but they were able to do so on a timetable that reflected the unique circumstances of each case. The new law strips away a governor's discretion, requiring him to sign a death warrant within 30 days after the inmate has exhausted his appeals and the executive clemency process is complete. The only bright spot is that some flexibility is retained by the governor since only he can order a clemency review. Scott's general counsel, Pete Antonacci, urged the addition of the clemency provision, a step that adds a safeguard from reckless speed.

No one has a clear picture of whether there are innocent people among the 405 people on Florida's death row, but the state has exonerated 24 prisoners off death row in the last decade — more than any other state. Frank Lee Smith died of cancer on Florida's death row in 2000 after spending 14 years there. A posthumous DNA test found that he had been innocent of the crime and identified the real murderer.

"Timely Justice Act misunderstood by many," is Mark Schlakman's South Florida Sun-Sentinel OpEd.  He's with the Center for the Advancement of Human Rights at Florida State University.

First, I'm not a proponent of Gaetz's Timely Justice Act per se.

While concerns about undue delay in the appeals process shouldn't be ignored they'd be more appropriately addressed within the context of a comprehensive review of Florida's entire death penalty process by all branches of state government to minimize the risk the state might execute innocent people (or others who shouldn't be subject to the death penalty), precisely what The Florida Bar urged state officials to launch in a resolution it adopted in February.

Former Florida Supreme Court Justice Raoul Cantero, appointed by Gov. Jeb Bush, and I sought that position from Bar leadership for nearly two years.

Capitol News Service posts, "Timely or Shameful Justice?"  It's by Mike Vasilinda.

Governor Rick Scott is executing inmates at a higher rate than any Governor of Florida since the death penalty was resumed in 1979. After taking office two and a half years ago, 8 death sentences have been carried out. New legislation to speed up the process even more is drawing both cheers and jeers.

There is also Florida political polling news from a Quinnipiac University poll.

AP coverage is, "Scott's Approval Rating Up But He Still Trails Crist," by Brendan Farrington, via the Lakeland Ledger.

Florida Gov. Rick Scott’s approval rating is improving, a poll released Tuesday shows, though not to the point that it’s likely to deter any potential challengers in 2014.

The Quinnipiac University poll shows 43 percent of voters approve of the job Scott is doing, compared to 44 percent who disapprove. Meanwhile, 40 percent of voters have a favorable opinion of him compared to 42 percent who have an unfavorable view.

While those numbers aren’t sizzling, they are better than the 36 percent job approval and 33 percent favorable rating that voters gave Scott just three months ago.

The numbers suggest that Scott’s “It’s Working” message, which he’s using to tout Florida’s improving economy, is starting to work.

Still, the Republican governor will have to improve those numbers if he wants to win re-election.

"Gov. Rick Scott gains ground in new statewide poll, but still trails former Gov. Charlie Crist," is by Steve Bousquet for the Miami Herald.

The percentage of voters who have a favorable view of Scott is up to 40 percent, the highest since he took office nearly two-and-a-half years ago. But he has persistent problems with women, who favor Crist by 51 to 32 percent, and Hispanics favor Crist over Scott, 40-33 percent.

Crist’s 13 percent share of Republican crossover votes is slightly higher than Scott’s 8 percent share of Democrats.

Voters still say by a margin of 50 percent to 35 percent that Scott does not deserve to be re-elected, but that too is an improvement over the previous survey in March, when 55 percent said he didn’t deserve a second term and 32 percent said he did.

"It is an indication of how far down Gov. Rick Scott’s numbers have been that he can take some solace from a poll that finds him losing by 10 points to his predecessor in the governor’s office," said Quinnipiac’s Peter Brown. "In addition to cutting the deficit between himself and Crist, Scott sees his tepid job approval and favorability numbers and still-negative re-election numbers as notably improved. That doesn’t mean that happy days are here again for the governor, but if he is going to make a comeback, these are the kinds of steps that would be required."

Flagler Live posts, "Scott Makes Up Some Ground Against Crist and Improves Favorability to Still-Low 40%."

In a match-up against Crist–who has not announced his candidacy in the race–Scott trails, 47 to 37 percent, but that’s a significant improvement from March, when he faced a 16-point deficit in the Quinnipiac poll, and a 12-point deficit in a Public Policy Poll. Scott would also lose against Sen. Bill Nelson, if Nelson were to decide to run for governor. He would beat Scott 48 to 38 percent. Some Democrats are pushing Nelson, who’s had his run-ins with Scott, to run. He was elected to his third U.S. Senate term in November. Florida Democrats gathered for an annual gala last weekend boasted that whoever they would field against Scott would win.

Scott’s numbers have been climbing slowly but rather steadily since his lowest approval rating in May 2011, when it bottomed out at 29 percent, among the worst for any governor in the nation.

Earlier coverage from Florida begins at the link.

'Timely Justice Act' Still on Florida Governor's Desk

The South Florida Sun-Sentinel reports, "Timely Justice death penalty bill still awaits governor's decision," by Rafael Olmeda.

Gov. Rick Scott doesn't appear to be in any hurry to speed up the state's death penalty appeals process.

The Timely Justice Act passed both houses of the Florida Legislature in late April, but nearly a month later, Scott has still given no indication whether he has studied the bill or intends to sign it.

Forty percent of the 406 condemned prisoners awaiting execution in Florida have been there 20 years or more. The bill would require the governor to sign a death warrant within 30 days after all appeals are concluded and the governor has reviewed clemency.

And:

"We want to hear from Floridians about the merits of this legislation, which our General Counsel's office is currently reviewing," said governor's spokeswoman Jackie Schutz.

The governor has until mid-June to decide whether to sign or veto the bill.

Political analysts are hesitant to predict what Scott will do. A tough stance on the death penalty is a typical conservative position, they say. But a sitting governor might also be unwilling to sign a law that would remove some of his own power to use discretion while exercising a profound duty.

Preparing for what's likely to be a challenging re-election campaign next year, Scott has room for flexibility with the death penalty in a politically moderate state that went Democratic in the last two presidential elections but Republican in the last four gubernatorial contests.

"I'm not surprised that he hasn't jumped full force into the death penalty debate," said Susan McManus, a political science professor at the University of South Florida. "I don't think it's an issue he feels as passionately about as the economy. He didn't run on it. It wasn't his issue."

"Vengeance isn't justice," is the title of Howard Simon's Tampa Bay Times OpEd. He's executive director of the ACLU of Florida.

The concept of justice was tossed around like a Frisbee during this past session of the Florida Legislature. It's a cherished value. It deserves more respect.

Justice is contained in both hands of the blindfolded Roman goddess Justitia. The scales she holds symbolize distributive justice, the moral evaluation of how fairly the benefits and burdens of life are allocated. The sword carried in the goddess' other hand represents retributive justice, which requires that those so deserving receive punishment that "fits the crime" — meaning the severity of the punishment shall be proportional (not equivalent) to the crime.

"Justice" was thrown around in debates over the Timely Justice Act, which is an attempt by the Legislature to impermissibly dictate to the courts and the current and all future governors how judicial and executive powers shall be exercised with regard to the death penalty.

And:

Legislators can twist themselves into a pretzel attempting to justify anything. But they shouldn't be allowed to dress up extracting vengeance and pretend that they are seeking justice.

Earlier coverage from Florida begins at the link.

Florida is set to execute this week.  "Man set to be executed for Fla. girl's murder," is the AP report by Mike Schneider, via the San Francisco Chronicle.

A 56-year-old man convicted of raping and strangling a 10-year-old girl is set to be executed this week.

Elmer Carroll is scheduled to be put to death Wednesday at Florida State Prison in Starke.

Florida has carried out one execution this year. To date, there have been 12 executions in American death penalty states this year; a total of 1,332 post-Furman executions since 1977.

Florida Roundup

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

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

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

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

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

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

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

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

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

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

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

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

And:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Earlier coverage from Florida begins at the link.

Perry Signs Criminal Discovery into Law

The Texas Tribune posts, "Perry Signs Michael Morton Act," by Brandi Grissom.

With exoneree Michael Morton by his side, Gov. Rick Perry on Thursday signed a measure that aims to avoid wrongful convictions by preventing prosecutors from suppressing evidence.

"This is a major victory for integrity and fairness in our judicial system," Perry said of Senate Bill 1611, which was named for Morton, who spent 25 years in prison before being exonerated. It was the governor's first public signing ceremony of the session.

And:

Since his exoneration, Morton has lobbied lawmakers to pass legislation that would prevent others from suffering the same fate. Under SB 1611, prosecutors will be required to turn over evidence to defendants accused of crimes and to keep a record of the evidence they disclose. The landmark 1963 U.S. Supreme Court ruling in Brady v. Maryland already requires prosecutors to give defendants information that is “material either to guilt or to punishment.” The Morton Act requires disclosure of evidence regardless of its materiality to guilt or punishment. It is the first significant reform to Texas discovery laws since 1965.

Perry said it was fitting that his signing of the Michael Morton Act fell almost exactly 50 years after the Supreme Court issued the Brady ruling.

"Perry signs Morton Act into law," is by Chuck Lindell in the Austin American-Statesman.

State Sens. Rodney Ellis, D-Houston, and Robert Duncan, R-Lubbock, wrote the bill and worked through a series of compromises during several weeks of intense — and at times seemingly futile — negotiations.

Reps. Senfronia Thompson, D-Houston, and Tryon Lewis, R-Odessa, moved the bill rapidly through the House, ensuring that the delicate compromise forged in the Senate was not undone by late changes or amendments.

Perry used four pens to sign the bill into law, then presented them to Morton, Ellis, Duncan and Thompson. At the end of the ceremony, Thompson presented Morton with the gavel used to mark House passage of his namesake legislation.

And:

• Ensures that defendants can view, and electronically copy, all police offense reports and witness statements in prosecution files.

• Protects witnesses and victims by requiring defense lawyers to redact identifying information, such as addresses and phone numbers, from documents shared with defendants and potential witnesses.

• Allows defense lawyers to share prosecution information with the defendant, investigators, experts and consulting lawyers, but all others must be approved by the trial judge.

• Requires prosecutors to list the evidence provided to defense lawyers, creating a record for potential appeals or future legal disputes.

• Requires prosecutors to promptly disclose favorable evidence uncovered during and after trial.

The Dallas Morning News reports, "Gov. Perry signs Michael Morton Act into law," by Claire Cardona.

Gov. Rick Perry on Thursday signed the Michael Morton Act into law with Morton and the senators and representatives who made it possible at his side.

Morton didn’t speak to the press, just smiled while Perry put ink to paper and kissed the pen after Perry was finished.

Authored by Sen. Rodney Ellis, D-Houston, and Sen. Robert Duncan, R-Lubbock, the act creates a uniform open-file policy that requires prosecutors to hand over all exculpatory evidence such at witness testimony or offense reports.

"‘Michael Morton Act’ signed into law," is Houston Chronicle and San Antonio Express-News coverage by Eva Ruth Moravec.

Ellis said the case’s widespread media attention, and proximity to Austin, may have helped it get passed during this legislative session.

“The trial put the issue of discovery front and center for months,” he said. “It put such a bright spotlight on the need for discovery reform.”

Ken Anderson, then-Williamson County District Attorney, is accused of deliberately withholding evidence from the defense that indicated Morton’s innocence. As the bill passed the Texas House on May 14, Morton was present and was recognized by lawmakers.

The bill is one of several Ellis has authored or sponsored to aid exonerees. House Bill 166, which would create a commission to review future exonerations, has passed the Texas House, but is awaiting a vote in a senate committee. In Texas, 117 people have been exonerated of crimes they didn’t commit, causing the state to lead the nation in exonerations.

More on the innocence commission legislation in the next post.

"Gov. Perry Signs Senate Bill 1611, The Michael Morton Act," is the governor's news release with his signing statement.  Here's the full text:

Gov. Rick Perry today signed Senate Bill 1611, the Michael Morton Act, which will help prevent wrongful convictions in Texas. The governor was joined by Sens. Rodney Ellis and Robert Duncan, Reps. Senfronia Thompson and Tryon Lewis, and Michael Morton for the bill signing.

"Texas is a law-and-order state, and with that tradition comes a responsibility to make our judicial process as transparent and open as possible," Gov. Perry said. "Senate Bill 1611 helps serve that cause, making our system fairer and helping prevent wrongful convictions and penalties harsher than what is warranted by the facts."

The Michael Morton Act will allow Texas' criminal justice system to be more responsive to a case, even after it has been tried, by ensuring a more open discovery process. The bill's open file policy allows for broader discovery, and removes barriers for accessing any evidence, except for items that would affect the security of a victim or witness.

"Discovery reform is simply vital to the reliability and quality of our justice system," Sen. Ellis said. "The Michael Morton Act will help safeguard the innocent, convict only the guilty, and provide justice the people of Texas can have faith in."

"I have long been an advocate for an efficient, effective and uniform court system across Texas. This legislation is a giant step forward in reaching that goal," Sen. Duncan said. "I am proud that stakeholders from across the state were able to come together and set aside their differences to improve our criminal justice system."

"The Michael Morton Act is an incredibly important step in creating a more just Texas criminal justice system," Rep. Thompson said. "It will improve the reliability of criminal convictions and ensure that we have a quality justice system where all relevant evidence and facts are brought to light, and allow for more efficient resolutions to criminal proceedings."

Senate Bill 1611 becomes law on Jan. 1, 2014.

Earlier coverage of the Michael Morton Act 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.

Florida Update

"Grotesque Speed for Florida Capital Cases," is the title of an editorial published in today's New York Times.

The Timely Justice Act, a grotesquely named bill passed by the Florida Legislature, could get to Gov. Rick Scott as soon as this week for him to sign into law. The measure would require a governor to sign a death warrant within 30 days of a review of a capital conviction by the State Supreme Court, and the state would be required to execute the defendant within 180 days of the warrant.

Also this week, an inmate on Florida’s death row, Clemente Javier Aguirre-Jarquin, presented DNA evidence that could exonerate him. He was convicted in 2006 of murdering two women, based largely on circumstantial evidence. On Monday, he was in court seeking a new trial because the DNA evidence showed that blood at the crime scene — none of it his — was that of a victim’s daughter, who, his lawyers argue, likely committed the murders.

Mr. Aguirre-Jarquin’s case offers good reason for Governor Scott to veto the bill. The state’s indisputably defective death penalty system is made more horrifying by attempts to rush inmates to execution. There is a strong chance that Mr. Aguirre-Jarquin will become the 25th death-row inmate exonerated in Florida since it reinstated capital punishment in 1973. More death-row inmates have been exonerated in Florida than in any state.

"Now, it's Gov. Scott's turn to show leadership on the budget," is the South Florida Sun-Sentinel editorial.

South Florida survived the Florida Legislature. Up next is Gov. Rick Scott who can turn a bill into law and a lawmaker's budget request into reality — or not.

Over the next two weeks, the governor will either approve, or kill, a number of legislative initiatives. Some, like the restoration of more early voting days or raising teacher salaries, deserve quick approval. Other bills and budget projects may not do so well.

And:

Death Penalty Cases — Florida leads the nation in the number of death-row inmates later found innocent, and Broward County leads the state in the number exonerated based on DNA evidence. That our government could have killed even one innocent person is reason enough to veto HB 7803, which shortens the appeals process for death-row cases and speeds up executions. Speed is not the most important factor in carrying out the death penalty. Accuracy is.

The somewhat misleading AP headline, "Inmates urge Scott to veto Timely Justice Act," is by Kelli Kennedy, actually refers to exonerees.  It's via the Palm Beach Post.

Two exonerated former death row inmates are urging Gov. Rick Scott to veto legislation that would accelerate the state's capital punishment process. The system has been criticized for allowing some condemned inmates to languish for decades on death row.

Seth Penalver spent 13 years there and says he would have died an innocent man if the Timely Justice Act had been law.

Critics fear speeding up the process could condemn innocent people.

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

Earlier coverage from Florida begins at the link.

Texas Criminal Discovery One Vote From Governor's Desk

The Longview News-Journal posts AP coverage, "House OKs Morton criminal justice bill."

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

It would create a uniform “open file” policy in Texas, compelling prosecutors to share case files with defense attorneys that can help defendants’ cases.

Morton, 58, was sentenced to life in prison for the 1986 slaying of his wife Christine, but freed in October 2011, after DNA testing was done on a bloody bandanna originally found near the couple’s Austin home. Investigators said the DNA evidence led them to another man, Mark Alan Norwood, whose DNA was in a national database as a result of his long criminal history.

"House Tentatively Approves Morton Act, DA Sanctions," is by Brandi Grissom for the Texas Tribune.

On the 50th anniversary of the landmark U.S. Supreme Court ruling in Brady v. Maryland, in which the justices ruled that prosecutors are obligated to provide defendants with exculpatory evidence “material either to guilt or to punishment,” the Texas House tentatively approved two bills meant to prevent wrongful convictions.

State Rep. Senfronia Thompson, D-Houston, said the measures, which she sponsored in the House, were designed "to improve the reliability of criminal convictions."

Both measures come in response to the high-profile exoneration of Michael Morton and the ongoing investigation and trials of the former prosecutor who oversaw his wrongful conviction, state District Judge Ken Anderson of Williamson County. Morton was convicted in 1987 of murdering his wife in Austin. He was exonerated and released from prison in 2011 after DNA testing linked another man to the crime. Morton's lawyers say that Anderson violated Brady rules by withholding crucial evidence that could have pointed to the real killer and prevented the innocent Morton from spending 25 years in prison. Anderson has denied wrongdoing.

"This is a huge first step," Morton said in an interview outside the House gallery. "It will prevent all sorts of abuse."

Morton and his wife, Cynthia, looked on as legislators unanimously approved the measures with little discussion. Lawmakers gave him a standing ovation when Thompson introduced him to the chamber. Since his release, Morton has lobbied lawmakers to enact reforms that would prevent his tragedy from befalling others.

"House approves Michael Morton Act," is by Chuck Lindell for the Austin American-Statesman.

The Texas House tentatively approved the Michael Morton Act without opposition and without debate Monday, then followed with unanimous approval for a Morton-backed bill extending the statute of limitations on misconduct complaints against prosecutors.

With final House approval expected Tuesday, sending the bills to a receptive Gov. Rick Perry, Morton finds himself in the midst of an extraordinary string of victories — beginning with the biggest in October 2011, when he was freed after almost 25 years in prison and declared innocent of the 1986 murder of his first wife, Christine.

Morton next turned the tables on his prosecutor, former Williamson County District Attorney Ken Anderson, pushing an unprecedented investigation that led to Anderson’s arrest and brief detention last month after a special court found that he intentionally hid evidence to help ensure Morton’s conviction.

On Monday, seven weeks after watching a jury convict Mark Alan Norwood of his wife’s murder, Morton sat in the House gallery as the two reform bills received overwhelming support on the floor.

After the vote, Morton said he expects the bills to reduce the likelihood that other innocent people are wrongly convicted, particularly the Morton Act, which requires Texas prosecutors to adopt a uniform “open file” policy for sharing information with defendants before trial.

“Had it been in force when I was tried and arrested and all that, I wouldn’t have gone to prison, I wouldn’t have been convicted,” he said. “Open files are common in most counties, but having it legislatively required is a huge step to prevent all sorts of abuse. And I am very encouraged and very happy about it.”

Dallas Morning News coverage is, "Final approval near for bill inspired by Texas exoneree’s murder case," by Claire Cardona.

After the vote, Morton thanked his lobbyist, Thomas Ratliff, who took up the case pro bono.

“He has done this all out of the kindness of his heart, something he thought was very important and Thomas Ratliff should be patted on the back,” he said. “Like a lot of people in my life these days, they’re not accepting a dime. It restores some of my faith in people.”

The measure, which would take effect next year, faces a final procedural vote Monday and then heads to Gov. Rick Perry.

Morton was exonerated by DNA evidence in the 1986 murder of then-wife Christine Morton. Among evidence withheld during his trial was a record of Morton’s young son saying his father wasn’t the “monster” who murdered his mother.

Prosecutors never made the interview available to defense lawyers. Morton’s exoneration sparked investigation of the Williamson County prosecutor who led the case. Another man has since been convicted of killing Christine Morton.

“This is an incredible day for justice in Texas,” said Ellis. “We must weigh all relevant evidence and ensure we bring all the relevant facts to light to safeguard the innocent, convict only the guilty, and provide justice the people of Texas can have faith in.”

“I want to thank Mr. Morton for holding our feet to the fire and making this happen,” he said.

The House also passed a bill by Sen. John Whitmire, D-Houston, that would increase prosecutor accountability.

Whitmire’s bill would give exonerees four years after their release to file a complaint of prosecutorial misconduct. Current statute of limitations requires that a complaint be made within four years of when the misconduct occurs, which can make it hard for convicted inmates to access the resources to make their claim.

Earlier coverage of the criminal discovery legislation begins at the link.

From Florida

WCTV-TV posts, "Speeding Up Execution Bill Gets Calls for Veto," by Mike Vasilinda.

Florida has averaged three point two executions a year since the death penalty was reinstated in 1979. Three people have already died by lethal injection this year and two more executions are pending before the middle of June. Legislation on the Governor’s desk is designed to speed up executions even more, but it may have the opposite effect.

Executions are pending for two man between now and June 12. Their executions will bring the year’s total to five. Ranking 2013, number three in executions since Florida resumed using the death penalty in 1979.

But lawmakers want an even quicker pace. Legislation on the Governor’s desk seeks to speed up executions. It also reverses a decision made a decade ago that was intended to speed up the process; but didn’t. Former Supreme Court Justice Raul Cantero. says the new changes are still deficient.

“What I’m disappointed in is that the legislature also did not reform the death penalty process to provide for some kind of unanimity in the death penalty recommendation process as every other state has.”, says Raul Cantero, Former Supreme Court Justice.

The bill attempts to tell the Governor when he has to sign death warrants, but experts say that’s most likely a violation of separation of powers.

Mark Schlackman from the Center for the Advancement of Human Rights, says the Governor, could today, sign up to a hundred warrants. “Florida’s process of issuing death warrants is unconstitutionally vague.”, says Schlackman.

Earlier coverage of the Florida legislation begins at the link.  The post includes a link to the OpEd written by Cantero and Schlackman.

Florida Opinion Roundup

Today's Gainsville Sun and Lakeland Ledger in Florida publish the same editorial on the recent law passed by the Florida State Legislature.  In the Sun it's, "Fast but flawed."  In the Ledger it carries the heading, "Sooner Executions: Death Penalty Injustice."

For all its faults, the death penalty retains strong support among the public and politicians. The Florida Senate confirmed this reality this week when it easily approved a bill aimed at shortening the long road to execution, sending it to Gov. Rick Scott.

We can surely understand the Legislature's desire to make the process more time-efficient and reduce the seemingly endless delays that dog the system. But in their push to accelerate executions, lawmakers are bypassing larger flaws in the death penalty.

And:

The potential to execute the innocent casts a long moral shadow over the death penalty. But it is troubling for other reasons, too. Statistics indicate clear racial disparities in sentencing. Research indicates the death penalty has virtually no deterrent effect. It does not bring back the lives lost to crime.

Most pragmatically, death-penalty cases can cost 10 times more than life-term cases. The incremental expense of pursuing the death penalty runs into the billions of dollars nationally, some experts estimate. The public bears that cost.

It's past time for a change in priorities. Execution should be reserved for worst-of-the-worst cases where guilt is certain, the physical evidence ironclad and the killer irredeemable. Many cases simply do not meet those criteria.

The Legislature wants justice to be efficient and timely. But accuracy and fairness must come first.

"Florida speeds up the death penalty process," is by Chan Lowe in the South Florida Sun-Sentinel.

The Florida Legislature has passed a bill called the “Timely Justice Act,” and has sent it up to Gov. Scott for his signature. This piece of legislation is designed to address the frustrations of law-and-order hawks who believe that the death penalty appeals process is too time-consuming and expensive. It would curtail certain appeals, impose deadlines on filing others, and would force the governor to sign death warrants within a certain time limit.

Two things come to mind when I see this: First, Thomas Jefferson’s quotation, “Whenever the people are well-informed, they can be trusted with their own government.” One must draw from this that he also believed the opposite to be true, that ignorant people cannot be trusted. Unfortunately, the latter sounds like much of our current electorate.

And:

An informed voter will know that Florida is one of the leading states when it comes to death row exonerations due to exculpatory evidence, trial procedural issues, or whatever. The informed voter (as a citizen of the State and therefore complicit in the execution) wouldn’t want his legislator playing so fast and loose with the death penalty if there were a decent chance it was being wrongly applied. He would be willing to give the convict every opportunity to clear himself, rather than risk a wrongful execution.

The other thing that comes to mind is the bloodthirstiness of a Legislature that has gone to such pains (pains endured by many of the women of this state) to prove itself “pro-life.”  One would imagine that a Legislature so captivated by the concept of the Sanctity of Life would be falling all over itself to abolish the death penalty, not facilitate it.

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

Continuing Coverage of Boston Bombing Case

There are new profiles of attorney Judy Clarke, recently appointed as an attorney for Dzhokhar Tsarnaev.

"Newsmaker: Death penalty lawyer Clarke 'humanizes' client and jury," is by Joseph Ax for ReutersLegal.

When death penalty expert Judy Clarke joined the defense team for the Unabomber, Ted Kaczynski, she spent months trying to establish a rapport so she could convince him to accept a plea deal that would spare him capital punishment.

Though she and his other lawyers angered Kaczynski when they sought to introduce evidence of his mental illness, he eventually pleaded guilty in 1998 and received a life sentence.

"I think she has a real gift," David Kaczynski, his brother said on Tuesday, a day after Clarke was assigned to the defense team for Boston Marathon bombing suspect Dzhokhar Tsarnaev. "Even if it's the smallest sliver of common ground, Judy's going to be able to find that. There's no doubt in my mind that Judy saw my brother's humanity despite the terrible things he'd done."

Tsarnaev, 19, is accused of setting off explosives April 15 near the finish line with his older brother, Tamerlan, killing 3 and injuring 264. He was arrested April 19 after a massive manhunt that left his brother dead following a police shootout.

And:

Colleagues said Clarke is known for her meticulous research into the lives of her clients to find possible mitigating factors, and that she possesses a sharp sense of humor and a folksy style that belies her intense, no-nonsense preparation.

"She humanizes the client. But more importantly, she humanizes the jury, the lawyers, the judges," said Gerald Goldstein, a defense lawyer who has known Clarke for 30 years. "Judy's brilliant at making people reconsider their values ... to reconsider our place in making life or death decisions."

The Daily Beast posts, "Judy Clarke, the Defense Lawyer Appointed to Defend Dzhokhar Tsarnaev," by Michael Daly.

The 60-year-old woman, who has been called the most low-profile high-profile lawyer of all time, will pair that insight with her formidable legal knowledge and courtroom mastery in an effort to save him from the executioner, just as she did some of the most reviled killers in recent history.

“In addition to being a brilliant lawyer in terms of knowing the law and persuading a jury, perhaps her most impressive quality is her ability to connect and understand individuals that the rest of the world despises,” says her friend and fellow defense attorney Laurie Shanks. “She is really able not only to gain their trust but to make their actions understandable to others.”

Shanks notes: “It’s easy to look at someone who’s done something really horrible and see a monster. It is very difficult to look at monsters like that and see a human, and Judy is able to do that. You look at Jared Loughner and say, ‘Oh my God, that guy’s crazy,’ look at Susan Smith, ‘How despicable!’ You look at the guy in Boston, ‘How could you kill an 8-year-old?’ To be able to look at them and see their humanity is really a very unusual ability and unique ... not that she condones or expects others to condone their actions.”

In young Tsarnaev’s case, that promises to be in some ways harder and in some easier than in other cases. His actions cannot be as easily ascribed to mental illness as with Loughner, but he was apparently following the lead of his older brother and not acting on his own initiative, as were Rudolph and Kaczynski. Clarke no doubt will note that the victim in the carjacking recalls that when Tamerlan Tsarnaev spoke of the marathon bombing, he spoke in the first person, saying, “I did that.”

Clarke will most likely seek to avoid a trial and negotiate a plea. She has quoted a fellow defense attorney as once advising her, “The first step to losing a capital case is picking a jury.”

"Most want death penalty for Dzhokhar Tsarnaev if he is convicted of Boston bombing," is by Jon Cohen for the Washington Post.  He's the director of polling for Capital Insight, the independent polling group of Washington Post Media.  There is an infographic available, also.

A large majority of Americans support the death penalty for the suspect in the Boston Marathon bombing should he be convicted in federal court, according to a new Washington Post-ABC News poll.

Overall, 70 percent of those surveyed say they support the death penalty for 19-year-old Dzhokhar Tsarnaev. While most Democrats and Republicans alike say they would support the death penalty for Tsarnaev, there are deep racial divisions on the matter, reflecting a common gap in public views of the death penalty itself.

And:

Majority support for the federal approach crosses party lines, with 80 percent of Democrats, 73 percent of independents and 72 percent of Republicans saying they back a civilian trial. However, Democrats are by far the most apt to support it “strongly.” Democrats are also the least likely to strongly support the use of the death penalty, although most of them do support it, at least somewhat.

The bigger divide on the death penalty is between whites and African Americans. While 75 percent of whites say they would back the use of the death penalty were Tsarnaev convicted, the support among African Americans barely goes past the midpoint: 52 percent of African Americans would support the death penalty, and 43 percent would oppose it.

Hispanics also are less likely than whites to support the death penalty in this instance: 62 percent would support it; 35 percent would oppose it.

The large gap between whites and blacks has probably more to do with the death penalty itself than this particular case. In a recent Washington Post Maryland poll, 63 percent of whites and only 37 percent of African Americans said they favor the death penalty for people convicted of murder.

"The Atlantic Wire posts, "Americans Support the Death Penalty for Dzhokhar Tsarnaev — If It Gets That Far," on the polling.  It's by Philip Bump and features infographics.

Americans seem very willing to have Tsarnaev treated as a criminal, not as some exceptional circumstance warranting extreme measures. The Post/ABC poll also suggests that America is satisfied with how the prosecution of Tsarnaev has proceeded. An even larger percentage supports trying the terror suspect in federal court, as opposed to using a military tribunal. Since Tsarnaev is a citizen, a tribunal wasn't a legal option, despite calls from Sen. Lindsey Graham that he be tried in that way. Even conservatives strongly disagreed with that idea.

"Feds May Rule Out Death Penalty to Make Tsarnaev Talk," is the New York Magazine post by Margaret Hartmann.

Federal agents were reportedly able to question Dzhokhar Tsarnaev for two days before he was read his Miranda rights and stopped talking, but they still want more information from him, and might be willing to make a deal to get it. Two government sources tell CNN that talks have been underway for the past few days to have Tsarnaev continue speaking with investigators in return for prosecutors agreeing not to seek the death penalty.

The sources stressed that talks between prosecutors and Tsarnaev's lawyers are still in the very early stages, and any deal would be a long way off. It's normal for the two sides to begin communicating at this point, and a Justice Department official denied that they're working out a deal.

There are also new developments in the case, noted in two AP filings: "Police: 3 more in custody in Boston bombings," by Rodrique Ngowi; and, "Lawyer: 2 arrested anew are suspect's friends," by Michelle R. Smith and Denise Lavoie.

Earlier coverage of the Boston Marathon bombing case begins at the link.

Boyer v. Louisiana - UnSpeedy Trial

The Supreme Court ruling Boyer v. Louisiana is available in Adobe .pdf format.

"Divided Supreme Court dismisses Louisiana convict’s appeal over cause of 7-year trial delay," is the AP report, via the Washington Post.

A sharply divided Supreme Court dismissed an appeal Monday from a Louisiana man who claimed that most of a seven-year delay between his arrest and murder trial was the result of a breakdown in the state’s system for paying defense lawyers in death penalty cases.

The court’s conservative justices prevailed in a 5-4 vote to say they should never have taken the case of Jonathan Edward Boyer, who eventually was convicted of murder and sentenced to life in prison with no chance for parole. The outcome leaves his conviction and sentence in place.

The case was argued in January to address whether a state’s failure to pay lawyers for indigent defendants can violate the Constitution’s guarantee of a speedy trial.

In dissent, Justice Sonia Sotomayor said Boyer’s case is illustrative of systemic problems in Louisiana and the court should have ruled in his favor.

The justices occasionally agree to take up a case and then think better of it after the case is argued. When that happens, there is no decision from the high court and the lower court ruling that was appealed is allowed to remain in place.

The New York Times report is, "Supreme Court Backs State Restrictions on Who Can Ask for Information," by Adam Liptak.  The headline refers to another case decided by the Court.

A January argument that was the occasion for Justice Clarence Thomas’s first remark from the bench in almost seven years failed on Monday to produce a decision. The justices dismissed the case, Boyer v. Louisiana, No. 11-9953, as improvidently granted.

The court offered no opinion explaining the move, but seven justices debated its wisdom. In a concurrence, Justice Alito, joined by Justices Thomas and Antonin Scalia, said the court had accepted the case on a mistaken understanding of the facts.

The question the justices had agreed to decide was “whether a state’s failure to fund counsel for an indigent defendant for five years” in a capital case “should be weighted against the state for speedy trial purposes.” Justice Alito wrote that it turned out that “the single largest share of the delay in this case was the direct result of defense requests for continuances.”

The delay, moreover, seemed to assist the defendant, Jonathan E. Boyer, who was convicted of only second-degree murder despite overwhelming evidence that he had robbed and killed a driver who had picked him up while he was hitchhiking.

In dissent, Justice Sonia Sotomayor, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan, said the case would have provided an important opportunity for the Supreme Court to instruct states “that they have an obligation to protect a defendant’s constitutional right to a speedy trial.”

Justice Sotomayor said there were “systemic problems in Louisiana,” adding that “conditions of this kind cannot persist without endangering constitutional rights.”

At the Atlantic, Andrew Cohen asks, "Do Louisianans Have the Right to a Speedy Trial?"  Here's the beginning:

There has been for decades now an ideological split at the United States Supreme Court over the Sixth Amendment's right to a speedy trial -- one of the most basic of due process rights. Court conservatives have successfully limited the scope of the right by justifying and forgiving unconscionable delays in bringing criminal defendants to trial. And the Court's progressives, outnumbered now for a generation, have complained not just about the unjust results of those cases but about the indigent defense systems which have fostered trial delays in the first place.

And so it is again. On Monday, in a case styled Boyer v. Louisiana, none of the Court's five conservative justices were willing to come to the aid of a man who had to wait seven years between his arrest and his trial because of a "funding crisis" within Louisiana's indigent defense program. In fact, those five justices refused even to render a ruling on the merits of the matter, instead deciding after oral argument and all the briefing in the case that their earlier decision to accept the matter for review was "improvident."

Related posts are in the indigent defense and Supreme Court category indexes.

Updated Coverage From Boston

MSNBC posts, "Sentence the Boston bomber to meaninglessness, by University of St. Thomas Law School Professor Mark Osler.  He's a former federal prosecutor.

Understandably, there are already calls for the execution of Dzhokhar Tsarnaev, who is now charged with the bombings of the Boston Marathon. He is alleged to have planned and executed the horrific bombings with his brother, Tamerlan, who died in a subsequent shootout with police.

Tsarnaev undoubtedly deserves the most severe sentence available if he is found guilty (and it is hard to imagine another outcome). However, that sentence, for this defendant, is not execution. From everything we know about Tsarnaev, his principal fear is not death. After all, he walked the streets with a ticking time bomb strapped to his back, engaged the police in a shootout, and likely tried to kill himself as he was being captured. None of these actions are consistent with a man who bears a deep fear of death.

Rather, what someone like Tsarnaev probably fears most is meaninglessness.

Osler is a regular contributor at HuffPost.

"Will Prosecutors in the Boston Marathon Bombing Case Seek the Death Penalty?" is by Matt Vasilogambros for National Journal.

Federal officials will likely seek the death penalty for the surviving suspect of the Boston Marathon bombings, potentially making him the first terrorist to be executed since Timothy McVeigh nearly 12 years ago.

For a man who is suspected of killing three people, including an 8-year-old boy, and with plans to carry out further attacks in New York City, the death penalty only seems justified, some former prosecutors say.

This will be a textbook example of when the death penalty is used against federal terrorism suspects, said former Clinton Justice Department official Beth Wilkinson, one of Washington's most promiment attorneys and the woman who successfully argued for the execution of McVeigh for carrying out the Oklahom City bombing in 1995. 

And:

One of the biggest differences between this case and the one against McVeigh, Wilkinson said, is that it seems Tsarnaev is cooperating and talking with officials, whereas the Oklahoma City bomber exercised his right to remain silent through the entire trial. 

Not all former Justice Department officials think prosecutors should take this route. Joseph DiGenova, who was appointed by Ronald Reagan to be the U.S. attorney for the District of Columbia, said he would try to get Tsarnaev to plead guilty and avoid execution.

“If I was a prosecutor, I would want to get a deal so that he tells us everything we need to know in exchange taking the death penalty off the table and getting a full acceptance of responsibility,” he said.

"Boston suspect's defense team gets major boost," is the AP report by Denise Lavoie.  It's via Huffington Post.

The defense team representing the Boston Marathon bombing suspect got a major boost Monday with the addition of Judy Clarke, a San Diego lawyer who has won life sentences instead of the death penalty for several high-profile clients, including the Unabomber and the gunman in the rampage that injured former Arizona Rep. Gabrielle Giffords.

Clarke's appointment was approved Monday by U.S. Magistrate Judge Marianne Bowler.

The judge denied, at least for now, a request from Miriam Conrad, the public defender of 19-year-old suspect Dzhokhar Tsarnaev, to appoint a second death penalty lawyer, David Bruck, a professor at Washington and Lee University School of Law.

And:

Harvard Law School professor Alan Dershowitz said the decision to put Clarke on Dzhokhar Tsarnaev's defense team shows "they are going to litigate hard against the death penalty."

"They are not going to put on a jihadi defense," he said. "The client wants to live, and he wants to avoid the death penalty. They are not going to say, `I want to die, I want to join my brother.' "

The order appointing Clarke is available in Adobe .pdf format, via Politico.

Additional coverage of the appointment includes:

"Death penalty expert is appointed to Tsarnaev defense team," by Martin Finucane for the Boston Globe.

"Olympics Bomb Lawyer Chosen to Defend Suspect in Boston Bombing," by Erik Larson for Bloomberg News.  It's via the San Francisco Chronicle.

ReutersLegal posts, "Death penalty expert Clarke joins defense of Boston bomb suspect," by Terry Baynes.

Earlier coverage of the Boston Marathon boming case begins at the link.

Last Friday, Clarke gave the keynote address at the Loyola Law School Los Angeles, Fidler Institute on Criminal Justice's annual symposium.  AP Special Correspondent Linda Deutsch covered Clarke's speech.  The report is via ABC News.

The names of her past clients — Susan Smith, Unabomber Theodore Kaczynski and most recently, Tucson shooter Jared Loughner — run like a list of the most reviled in American criminal history. But she did not say whether she would add to that list the latest name in the news: The suspect in the Boston Marathon bombing.

Clarke was reticent throughout her keynote speech and declined to take questions from the audience. Instead, she talked about how she had been "sucked into the black hole, the vortex" of death penalty cases 18 years ago when she represented Smith, who drowned her two children.

"I got a dose of understanding human behavior and I learned what the death penalty does to us," she said. "I don't think it's a secret that I oppose the death penalty. "

She saved Smith's life and later would do the same for Kaczynski, Loughner and the Atlanta Olympics bomber Eric Rudolph. All received life sentences instead of death.

Before an audience of lawyers, judges and law students at Loyola Law School's annual Fidler Institute, Clarke shared her approach in handling death penalty cases.

"The first clear way death cases are different is the clients," said Clarke, now a visiting professor at Washington and Lee University School of Law in Virginia. "Most have suffered from serious severe trauma, unbelievable trauma. We know that from brain research. Many suffer from severe cognitive development issues that affect the core of their being."

Hearings at the Texas Legislature

The Texas Tribune posts, "House Panel Hears Testimony on 'Michael Morton Act'," by Brandi Grissom.

Just more than a week after the arrest of Ken Anderson, the former prosecutor who oversaw the wrongful conviction of Michael Morton in 1987, a House committee on Monday considered legislation that would require prosecutors to turn over evidence to defense lawyers in criminal cases.

Senate Bill 1611, dubbed the "Michael Morton Act" by state Sens. Rodney Ellis, D-Houston, and Robert Duncan, R-Lubbock, was approved unanimously April 11 by the Senate. Currently, prosecutors aren't required by state law to provide evidence to defense lawyers unless ordered to by the court. Among the charges Anderson faces is failing to comply with a judge's order regarding turning over evidence.

Morton told members of the House Judiciary and Civil Jurisprudence Committee on Monday that the bill would prevent wrongful convictions like the one he suffered.

"If it could happen to me, it could happen to you," said Morton, who spent nearly 25 years behind bars. The measure was left pending in the committee.

And:

"We want to improve fairness and consistency,” said state Rep. Senfronia Thompson, D-Houston, who is sponsoring the bill in the House. The measure, she said, is the first major reform to the Texas discovery system since 1965.

Many Texas prosecutors now have some form of open file policy, but the procedures vary by county and sometimes 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."

Under SB 1611, prosecutors would be required to turn over evidence both before trial and after it begins. A record would be kept of the exchange of evidence. 

Legislators have proposed opening the discovery process in previous legislative sessions, but the high-profile Morton case and his promotion of reform to prevent wrongful convictions gave the effort momentum this year.

"Exonerated Man Tells Legislature: Repeal Death Penalty," is Chris Tomlinson's AP filing, via KXAS-TV.

A man who spent 18 years on death row before a court exonerated him begged the Texas Legislature on Monday to repeal the death penalty.

Anthony Graves made his appeal to the House Criminal Jurisprudence Committee, which was considering a bill to stop executions in Texas.

"You tried to execute me twice for a crime that I knew nothing about," Graves told lawmakers. "You not only put me on death row, you put my family on death row, you put my children on death row ... and my children grew up without me."

Graves spent 18 years in prison before he was cleared by DNA evidence. The state gave him two execution dates before he was finally cleared and on Monday he pleaded with the lawmakers to end the death penalty.

"There are innocent men, mentally challenged men, insane men on death row, and you want to execute them," he added. "As long as we continue with this death penalty, as long as we don't get serious about it, you're going to continue to execute innocent people and you are going to call it justice."

Rep. Jessica Farrar, D-Houston, authored the bill, but she acknowledged it had little chance of passing.

"Every time we bring this up we get a bit closer to seeing this become a reality in Texas," Farrar said. "In the past six years, six states have done away with the death penalty."

Earlier coverage of the criminal discovery and death penalty repeal bills, at the links.  Related posts are in the Texas Legislature category index.

Florida Bill Heads to Governor

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

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

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

Whoa.

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

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

And:

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

That should give every Floridian pause.

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

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

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

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

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

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

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

And:

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

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

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

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

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

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

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

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

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

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

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

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

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

Earlier coverage of the Florida legislation begins at the link.

Florida Legislation Clears House

"Florida House approves bill to speed up capital punishment," is the AP report by James L. Rosica, via the Bradenton Herald.

The Florida House has passed a bill that would speed up the state's capital punishment process.

The House passed the Timely Justice Act of 2013 (HB 7083) by a vote of 84-34 on Thursday. The bill goes to the Senate, where a similar measure had been on the agenda Thursday. That chamber adjourned for the day without taking action.

The bill, sponsored by Republican Rep. Matt Gaetz of Fort Walton Beach, creates tighter time frames for appeals, post-conviction motions and imposes reporting requirements on case progress.

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

The Miami Herald report is, "House votes to speed up executions," by Mary Ellen Klas.  A similar version is available at the Tampa Bay Times.

Despite warnings that Florida will shrink the appeals of the innocent, the Florida House passed a bill Thursday designed to accelerate the execution of many of the 404 inmates on Florida’s death row.

By a 84-34 vote, the House passed HB 7083, the “Timely Justice Act of 2013” and sent it to the Senate, where a companion measure is expected to be taken up Friday.

Sponsored by Rep. Matt Gaetz, R-Shalimar, and Sen. Joe Negron, R-Palm City, the bill creates a new process that establishes a system to determine which inmates on death row have exhausted their post-conviction appeals and requires the governor to sign a death warrant within 30 days, after a Supreme Court review. The execution would then have to take place within 180 days.

The process would accelerate the execution for some, “but only those whose guilt or innocence is not in question,’’ Gaetz said.

The measure prohibits lawyers for death row inmates from using certain defenses in capital cases, requires that the North Florida region be allowed to hire full-time lawyers to provide defense in capital cases, and it puts penalties on lawyers accused of being ineffective counsel.

Florida’s inmates on death row wait an average of 13 years before they are executed. Among the 404 people awaiting execution now, 155 have been there for more than 20 years and 10 have been there for more than 35 years.

And:

The Florida Supreme Court has appointed a committee to revise the existing rules to ensure that capital cases can move more quickly through the court system and plans to release its study in September.

"House Backs Speeding Up Death Penalty," is by the News Service of Florida, via North Escambia.

After a debate that touched on justice, innocence and the Bible, the Florida House on Thursday approved a bill aimed at reducing delays in carrying out the death penalty.

Supporters of the bill (HB 7083) pointed to convicted murderers who, in some cases, have been on Death Row for more than 30 years. Rep. Matt Gaetz, a Fort Walton Beach Republican who is the bill sponsor, said it is a “blight on our whole justice system” when people are on Death Row for decades with no questions remaining about their guilt.

And:

But opponents said they fear that trying to shorten the appeal process could lead to innocent people being executed, particularly with scientific advances that have helped exonerate Death Row inmates.

“What in the world is the hurry?” asked Rep. Elaine Schwartz, D-Hollywood.

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

Approved in an 84-34 vote, the bill would make a series of changes to try to reduce delays and end what one lawmaker described as gamesmanship in post-conviction proceedings.

Earlier coverage of Florida legislation begins at the link.

Latest Developments in Boston Marathon Bombing Case

The Associated Press posts, "Lawyers defend Boston bomb suspect amid furloughs," by Michelle R. Smith.  It's via the San Francisco Chronicle.

The lawyers defending Boston Marathon bombing suspect Dzhokhar Tsarnaev are dealing with federal budget cuts that will force them to take three unpaid weeks off even as they prepare to defend one of the most complicated criminal cases in the nation.

The office of federal defender Miriam Conrad in Boston was appointed to represent Tsarnaev, who is charged with using a weapon of mass destruction to kill in the April 15 bombings. Her office must complete 15 days of furloughs between April and the end of September because of cuts of around 10 percent. Conrad has also asked that two death penalty lawyers be appointed.

Other federal defenders interviewed Wednesday said the defense could cost millions of dollars, given the amount of evidence to examine, the huge amount of federal resources being expended and the possibility that the government will pursue the death penalty.

And:

Conrad is extraordinary lawyer, said Michael Nachmanoff, a federal public defender in Virginia. But he said every conceivable law enforcement resource will be thrown at the case, while Conrad tries to manage cuts.

"Bomb Suspect Has Chance to Avoid Execution by Cooperating," is the title of extensive reporting by Erik Larson, Patricia Hurtado and Janelle Lawrence for Bloomberg Businessweek.  Here's the beginning:

The best chance for 19-year-old Dzhokhar Tsarnaev to avoid execution for the deadly Boston Marathon bombing may be to cooperate fully with investigators, or convince a jury he was “brainwashed” by his older brother.

U.S. authorities said Dzhokhar and Tamerlan Tsarnaev detonated two homemade bombs near the race’s finish line April 15, killing three people and injuring more than 200. Tamerlan Tsarnaev died after a shootout with police. Dzhokhar, captured hiding in a boat in a Watertown backyard, was charged with two capital counts, including use of a weapon of mass destruction.

His lawyers will probably blame his involvement on the “overpowering influence” of his 26-year-old brother, said Harvey Silverglate, a civil liberties and defense attorney. Tamerlan Tsarnaev “appears to have been an embittered and dangerous character, and it is well known that older siblings can often have tremendous power over younger siblings.”

"Balancing State and Federal Roles in Boston Bomber Case," is by Maggie Clark at Stateline.

Boston bombing suspect Dzhokhar Tsarnaev faces federal charges that carry the death penalty, a punishment that does not exist in Massachusetts since the state repealed it in the 1980s.

So far, no Massachusetts authorities have publicly objected to a potential death sentence, but the case does raise federalism questions, said Doug Berman, a law professor at the Moritz College of Law at the Ohio State University and the editor of the blog, Sentencing Law and Policy.

There is an understanding that federal authorities should be cautious before pursuing the death penalty in a non-death penalty state, said Berman. “But it’s well established that the federal government and the Commonwealth of Massachusetts are separate sovereigns and each side has the right to vindicate its interest,” he said.

Tsarnaev was charged by a federal court, but he could still face charges in state court for a number of state crimes, including the murder of MIT security officer Sean Collier, kidnapping and carjacking of a man from a convenience store in the Boston suburb of Allston, and other serious state crimes.

ReutersLegal posts, "Prosecutors face tough call on death penalty in Boston case," by Jessica Dye.

While local prosecutors will make a recommendation, and defense attorneys will weigh in, the ultimate decision will land on the desk of U.S. Attorney General Eric Holder and his deputies at the Department of Justice in Washington, D.C.

Such decisions carry political consequences, particularly in high-profile cases, legal experts said.

Michael Chertoff, former secretary of the Department of Homeland Security under President George W. Bush, said the Justice Department will be cautious and "make a decision based on the appropriate factors, not on what people on the sidelines are getting on TV and urging them to do."

Earlier coverage of the case begins at the link.

Sequestration's Impact on Federal Indigent Defense

The BLT, the Blog of Legal Times reports, "U.S. Courts Announce Sequestration Plan for Defenders," by Zoe Tillman.

It's rare for a furlough announcement to be considered good news, but that was the case yesterday for the federal public defender office in Washington.

The Executive Committee of the Judicial Conference, the body of judges that decides how the federal judiciary spends its money, announced it had reached a plan for the defender services budget under federally mandated cuts known as sequestration. The details are still being hammered out, but federal public defender offices would face no more than three weeks of furloughs—a significant amount of time, but less than originally projected for many offices.

The D.C. federal public defender's office faced 27 furlough days under sequestration. Federal Public Defender A.J. Kramer said today that the announcement was "welcome news." Still, he said that until the final details are worked out and they know exactly how many furlough days attorneys and staff will have to take, "you don't count on anything until it's done."

"It creates more uncertainty," Kramer said. But he added that "in this respect, it’s better uncertainty than if we were told it was more days."

Local federal public defenders have started taking furlough days, which Kramer said had already led to delays in cases. "It just makes it extremely difficult," he said.

The defender services budget also funds payments to private lawyers appointed by the court to represent indigent criminal defendants under the Criminal Justice Act. The sequestration plan would suspend those payments for three weeks at the end of the fiscal year in September. There are about 100 lawyers in Washington who serve on the CJA panel for the local U.S. district court.

"Public defenders offices shouldn’t suffer under sequestration," is the OpEd published by the Washington Post.  It's written by Federal District Judges Paul L. Friedman and Reggie B. Walton, both in the District of Columbia.

Generally, federal judges should not become embroiled in political disputes. But we feel compelled to speak out because sequestration poses an existential threat to the right of indigent defendants to have publicly funded legal representation — a right that the Supreme Court recognized 50 years ago in its landmark decision in Gideon v. Wainwright.

Before becoming judges, we served as federal prosecutors and as defense lawyers. As the former, we vigorously pursued the prosecution of individuals accused of violating the law. And upon securing convictions, we aggressively sought incarceration when the circumstances warranted. Our ethical obligation as prosecutors was not only to secure convictions but also to ensure that the results we obtained were just. Confidence in the justice of an outcome — especially when the accused loses his or her freedom — is maximized only if the defendant has had competent legal representation.

And:

Particularly as concerns grow about wrongful convictions, it is distressing to see resources so dramatically diminished for those who protect the rights of the poor in the criminal justice system. And the judiciary is virtually powerless to do anything about it. We appreciate that the country’s fiscal problems must be addressed. But the effect of sequestration on the courts severely threatens the rights guaranteed by the Sixth Amendment to those accused of crimes and, in the process, threatens our federal judiciary’s reputation as one of the world’s premier legal systems. This is a price we cannot afford to pay.

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.

Texas Legislative Update

KUT News posts, "Bill Would Change DNA Testing Procedures in Death Penalty Cases."  It's by Veronica Zaragovia and Laura Rice.  There is audio at the link.

A Texas Senate committee passed a bill last night that would require DNA testing of evidence in cases involving the death penalty.

The proposal will now go to the full senate for a vote.

Original Story (April 9, 2013, 5:24 p.m.) Texas lawmakers are weighing a bill that would require DNA testing of evidence in cases involving the death penalty.

In the state, local crime labs handle DNA testing at the discretion of local law enforcement. State Sen. Rodney Ellis (D-Houston), wants to change that.

Working with Texas Attorney General Greg Abbott, Sen. Ellis has authored a bill that would require the state to pay for DNA testing before death penalty trials begin.

The Texas Tribune posts, "Huffman Wants 'Michael Morton Act' to Add Restriction," by Brandi Grissom.

A fight over what defense lawyers can do with information about their clients in criminal cases after prosecutors turn it over to them is threatening to stymie the “Michael Morton Act.” 

The measure, Senate Bill 1611 by state Sens. Rodney Ellis, D-Houston, and Robert Duncan, R-Lubbock, would require prosecutors to turn over evidence to defense lawyers in criminal cases. Currently, prosecutors aren't required to provide evidence to defense lawyers unless ordered to by the court, though many Texas prosecutors have some form of open file policy.

The bill is one of several filed in response to the 2011 exoneration of Michael Morton, who spent nearly 25 years in prison after he was wrongly convicted in 1987 of his wife’s murder. His lawyers allege that the prosecutor in the case, Ken Anderson, who is now a Williamson County state judge, withheld critical evidence from Morton’s lawyers. Anderson denies any wrongdoing in the case.

State Sen. Joan Huffman, R-Southside Place, and some prosecutors want a restriction in SB 1611 that would limit whom defense lawyers can share information with once they’ve received it from the state. They said the current bill could jeopardize the safety of victims by allowing public disclosure of private information. Ellis, defense lawyers and at least one victims organization, however, say the current bill would not present danger for crime victims or witnesses. Some worry that Huffman and the prosecutors are working to render the measure meaningless.

Huffman, a former Harris County prosecutor and criminal court judge, said that she supports SB 1611 and that it contains "very necessary reforms." She described the changes she is requesting as “tweaks.”  

She and some district attorneys want to include a requirement in the bill that would force defense attorneys to seek court approval before sharing information they obtain in the discovery process with third parties. Defense lawyers could share information with their staff, the defendant, co-counsel in the case as well as expert witnesses. But they would be prohibited from telling anyone outside that “entrusted circle” without permission of the court.

More information on SB 1292 (DNA testing) and SB 1611 (Criminal Discovery) is at the Texas Legislature Online website.

Earlier coverage of the Texas Legislature current session notes several items:

• Racial justice legislation proposed by Dallas District Attorney Craig Watkins
• Creation of a Texas Innocence Commission
• Scientific standards for the evaluation of Intellectual Disability
• Criminal discovery
• Forensics
• Electronic recording of custodial interrogations

Related posts are in the Texas Legislature categoy index.

Also From Colorado - Judge Vacates Guilty Plea in Prison Murder

The order to vacate guilty plea in Colorado v. Montour is at Scribd.

"Edward Montour to get new trial in killing of corrections officer," is the Denver Post report written by Karen Augé.

A judge on Tuesday allowed convicted murderer Edward Montour to withdraw his guilty plea in the 2002 killing of a corrections officer, meaning the 11-year-old case must start over from square one.

Montour pleaded guilty in 2003 to killing corrections officer Eric Autobee, and a judge imposed the death penalty. The Colorado Supreme Court later overturned the sentence, saying only a jury can hand down a death sentence.

Since then, the case has taken twists and turns through various courts as attorneys argue over a number of legal issues.

Now, it returns to where it began, in a Douglas County courtroom where Montour will have a second chance to enter a plea, and where District Attorney George Brauchler says he will seek a second death sentence for Montour.

That means Brauchler's office will be pursuing two death penalty cases simultaneously. He announced last week that he will seek a death sentence for James Holmes, who is accused in last summer's attack at an Aurora movie theater.

And:

In Tuesday's ruling, Judge Richard Caschette noted that when Montour initially entered his guilty plea, ". . . he was not represented by counsel and he had a documented history of mental illness. . ." In addition, several public defenders offered statements that Montour refused to cooperate in providing a defense because, at the time, he wanted to die.

The AP report is, "Judge overturns guilty plea in 2002 slaying of prison worker; DA is seeking death penalty," is by P. Solomon Banda, via the Republic.

An inmate accused in the 2002 slaying of a prison worker will be placed on trial and prosecutors will seek the death penalty after a judge Tuesday allowed the suspect to withdraw his guilty plea.

Edward Montour Jr., already serving a life sentence in the 1997 death of his 11-month-old daughter, is accused of killing Eric Autobee, 23, by striking him in the head with a heavy kitchen ladle. At Limon Correctional Facility. Montour represented himself in the case and in January 2003, barely three months after the slaying, pleaded guilty to first-degree murder.

He told his advisory attorneys that he wanted to die by execution, according to court documents.

The case has lingered in court for more than 10 years following a judge's imposition of the death penalty which was later thrown out by the Colorado Supreme Court. The court ruled in 2007 that only a jury, not a judge, can hand down death sentences.

And:

Autobee's family opposes the death penalty but Brauchler said he's taking prison workers' safety into consideration.

Autobee's father, a retired prison employee, turned against capital punishment and spoke up for repeal of Colorado's death penalty in the current legislative session. More on Bob Autobee's comments are at the link. 

Earlier coverage of the Montour case begins at the link.  Also available coverage of the Colorado repeal legislation, the case of Nathan Dunlap, and the James Holmes case.

Florida Legislation Update

WFSU-FM reports, "Bills Streamlining Florida's Death Penalty Process Pass Another Committee."  It's by Sascha Cordner.  There is audio at the link.

Florida lawmakers are looking to streamline the death penalty process to avoid the lengthy appeals they say are currently plaguing the system. Two measures aiming to do just that cleared another committee Thursday, and are one step closer to coming up for a vote by the full Legislature.

Most states in the nation impose the death penalty. Florida is one of them, but it’s also a state that’s known for its lengthy death penalty process. It’s behind only California, the state in the nation with the most number of people facing the death penalty.

Today, there are more than 400 death row inmates in Florida—nearly half have been on death row for more than 20 years. And, Republican Representative Matt Gaetz of Shalimar is the sponsor of a bill that aims to speed up that process.

And:

His bill to cut down on the lengthy appeals process has several parts. It includes a provision that aims to cut down on “insincere” claims, like a death row inmate falsely claiming they have a conflict of interest with their attorney. Another type of appeal that Gaetz says contributes to delays in the process is from lawyers who say they were ineffective as counsel, and that a death row inmate now would have to get a new lawyer.

Earlier coverage of Florida legislation begins at the link.

Archived Video of Moyers & Company Program Available

If you missed Moyers & Company, "And Justice for Some," Friday night, the full program is now available in streaming video.

Fifty years ago, the Supreme Court’s landmark decision in the case of Gideon v. Wainwright established the constitutional right of criminal defendants to legal representation, even if they can’t afford it. The Court ruled there shouldn’t be one kind of justice for the rich and another for the poor, but the scales of the American legal system still tilt heavily in favor of the white and wealthy. Attorney and legal scholar Bryan Stevenson joins Bill to expose the system’s failures, and ongoing struggles at the crossroads of race, class and justice.

Stevenson’s Alabama-based Equal Justice Initiative has reversed the death sentences of more than 75 inmates. But right now, there are more than 3,100 inmates on death row, and more than 60% are members of racial or ethnic minorities. Over time, Supreme Court Justices have fine-tuned the circumstances under which the death penalty may still apply, but no set of laws or jurisprudence can undo wrongful executions — or, it seems, completely prevent them. According to journalists Martin Clancy and Tim O’Brien, authors of Murder at the Supreme Court, in recent years at least 18 inmates were released from death row because DNA evidence proved their innocence. These cases are among more than 140 death penalty exonerations over the last three decades.

The broadcast closes with a Bill Moyers Essay on the hypocrisy of “justice for all” in a society where billions are squandered for a war born in fraud while the poor are pushed aside.

Be sure to watch the segment with Bryan Stevenson, the founding director of Alabama-based Equal Justice Initiative.

Earlier coverage of the program begins at the link.

Tonight on Moyers & Company - The Death Penalty's Fatal Flaws

Tonight's edition of the PBS program Moyers & Company is," The Death Penalty's Fatal Flaws."

The program airs tonight on most PBS stations.  You can check the broadcast time in your market.

Fifty years ago, the Supreme Court’s landmark decision in the case of Gideon v. Wainwright established the constitutional right of criminal defendants to legal representation, even if they can’t afford it. The Court ruled there shouldn’t be one kind of justice for the rich and another for the poor, but the scales of the American legal system still tilt heavily in favor of the white and wealthy. On this week’s Moyers & Company, attorney and legal scholar Bryan Stevenson exposes the system’s failures, and ongoing struggles at the crossroads of race, class and justice.

Later on the show, Martin Clancy and Tim O’Brien, authors of Murder at the Supreme Court, join Bill to share the human stories behind the evolution of capital punishment in America, and the death penalty’s fatal flaws.

The broadcast closes with a Bill Moyers Essay on the hypocrisy of “justice for all” in a society where billions are squandered for a war born in fraud while the poor are pushed aside.

 

 

Moyers also posts, "WATCH: The Death Penalty's Fatal Flaws," at Huffington Post.

Right now, there are more than 3,100 inmates on death row -- more than 60 percent of them members of racial or ethnic minorities. Over time, Supreme Court Justices have fine-tuned the circumstances under which the death penalty may still apply, but no set of laws or jurisprudence can undo wrongful executions -- or, it seems, completely prevent them.

According to journalists Martin Clancy and Tim O'Brien, authors of Murder at the Supreme Court and my guests on this weekend's program, at least 18 inmates were released from death row in recent years because DNA evidence proved their innocence. These cases are among more than 140 death penalty exonerations over the last three decades.

The Annapolis Capital Gazette notes, "Bookworm: Death penalty book authors have signing in Annapolis."  It's by Theresa Winslow.

The authors of a new book about the Supreme Court and death penalty cases have a book signing from 7 to 9 p.m. Saturday at The Annapolis Bookstore.

"Murder at the Supreme Court: Lethal Crimes and Landmark Cases" came out last month. Authors Martin Clancy and Tim O'Brien are ABC News veterans.

The duo is also scheduled to appear on "Moyers & Company" on public television stations this weekend.

Earlier coverage of Gideon's 50th anniversary begins at the link.

Anthony Lewis, 1927-2013

Last week marked the 50th anniversary of the Supreme Court ruling in Gideon v. Wainwright.  Anthony Lewis' classic book, Gideon's Trumpet, has been educating readers about the case, the ruling, and criminal indigent justice since it was published in 1964.  It has remained continuously in print.

Today's New York Time publishes the obituary, "Anthony Lewis, Supreme Court Reporter Who Brought Law to Life, Dies at 85."  It's written by Adam Liptak, the paper's current Supreme Court reporter.

Anthony Lewis, a former New York Times reporter and columnist whose work won two Pulitzer Prizes and transformed American legal journalism, died on Monday at his home in Cambridge, Mass. He was 85.

The cause was complications of renal and heart failure, said his wife, Margaret H. Marshall, a retired chief justice of the Massachusetts Supreme Judicial Court.

Mr. Lewis brought passionate engagement to his two great themes: justice and the role of the press in a democracy. His column, called “At Home Abroad” or “Abroad at Home” depending on where he was writing from, appeared on the Op-Ed page of The Times for more than 30 years, until 2001. His voice was liberal, learned, conversational and direct.

As a reporter, Mr. Lewis brought an entirely new approach to coverage of the Supreme Court, for which he won his second Pulitzer, in 1963.

“He brought context to the law,” said Ronald K. L. Collins, a scholar at the University of Washington who compiled a bibliography of Mr. Lewis’s work. “He had an incredible talent in making the law not only intelligible but also in making it compelling.”

Coverage of the 50th anniversary of Gideon begins at the link.

Gideon at 50

There is some excellent news coverage and commentary on today's 50th Anniversary of the Supreme Court's ruling in Gideon v. Wainwright.  I hope that everyone can take some time today to reflect on this landmark ruling and the continuing struggle to fulfill the Supreme Court's promise of providing legal counsel to those who cannot afford an attorney.

Anthony Lewis' classic reporting Gideon's Trumpet began its life as an article in the New Yorker in 1964.  It was somewhat expanded and published as a book later the same year,  It has been in print ever since; an extraordinary accomplishment.

An excellent place to begin is the Constitution Project.  It has released a video today, "Defending Gideon."

"Serious problems persist in indigent legal defense," is the AP report filed by Mark Sherman.  It's also available via Huffington Post.

It is not the happiest of birthdays for the landmark Supreme Court decision that, a half-century ago, guaranteed a lawyer for criminal defendants who are too poor to afford one.

A unanimous high court issued its decision in Gideon v. Wainwright on March 18, 1963, declaring that states have an obligation to provide defendants with "the guiding hand of counsel" to ensure a fair trial for the accused.

But in many states today, taxpayer-funded public defenders face crushing caseloads, the quality of legal representation varies from county to county and people stand before judges having seen a lawyer only briefly, if at all.

"There is no denying that much, much needs to be done," Attorney General Eric Holder said Friday at a Justice Department event to commemorate the anniversary.

Clarence Earl Gideon had been in and out of jail in his nearly 51 years when he was arrested on suspicion of stealing wine and some money from vending machines at a Panama City, Fla., pool hall in 1961. Gideon asked the judge for a lawyer before his trial, but was turned down. At the time, Florida only provided lawyers for indigent defendants in capital cases.

CNN posts, "'Gideon' at 50 and the right to counsel: Their words," by Bill Mears.

"Violating the right to a lawyer," is the Los Angeles Times OpEd written by Stephen B. Bright and Sia Sanneh.  Bright is an attorney with the Southern Center for Human Rights in Atlanta; Sanneh, the Equal Justice Initiative in Alabama.

Guilty pleas account for about 95% of all criminal convictions. In many courts, poor people are processed through the courts without lawyers or moments after speaking for a few minutes with lawyers they just met and will never see again. This is called "meet 'em and plead 'em" or "McJustice."

Fifty years ago this week, one of the Supreme Court's most celebrated cases, Gideon vs. Wainwright, established the right of criminal defendants to have a lawyer. The cases above are stark examples of how that right is violated every day across the nation.

Andrew Cohen has written a three-part series of columns at the Atlantic.

• So You Want to Learn More About the Gideon Case?
• How Americans Lost the Right to Counsel, 50 Years After 'Gideon'
• Eric Holder: A 'State of Crisis' for the Right to Counsel

Miami Herald Syndicated columnist Leonard Pitts writes, "Right to counsel? It’s stacked against the poor."

“Make me wanna holler, way they do my life.” — Marvin Gaye, “Inner City Blues”

Karen Houppert has written a book of nightmares.

Houppert, a veteran reporter for, among others, The Washington Post and The New York Times, is the author of Chasing Gideon: the Elusive Quest for Poor People’s Justice, which comes out this week coincident with the anniversary of a legal milestone. It was 50 years ago Monday that the case of Gideon v. Wainwright was decided.

Clarence Earl Gideon, 51, was arrested in Panama City, Fla., in 1961 for burglary. When his case came to trial, Gideon, who was indigent, asked the court to provide him an attorney. The court refused and Gideon, a four time loser and eighth grade dropout, had to represent himself. He was found guilty and given five years.

But though he was no scholar, Gideon knew something was wrong with this picture. He wrote a letter — in pencil and with a dropout’s creative spelling and grammar — to the Supreme Court, which agreed to hear the case and appointed counsel to represent him. The decision it handed down affirmed the Sixth Amendment promise that every criminal defendant — even an indigent one — shall have “the Assistance of Counsel for his defence.”

Related posts are in the indigent defense index.

Almanac - March 18

From the Associated Press, Today in History:

On March 18, 1963, the U.S. Supreme Court, in Gideon v. Wainwright, ruled unanimously that state courts were required to provide legal counsel to criminal defendants who could not afford to hire an attorney on their own.

More on Gideon, via Oyez, where you can listen to the Supreme Court oral arguments.  More on Gideon at 50 in the next post.

Virginia's Shrinking Death Row

"Va.'s death row population down to 8," is the AP report, via the Bristol News.

Virginia's death row population has dwindled to eight from a peak of 57 in 1995, and it's not just because of the state's efficiency in carrying out capital punishment.

A couple of death sentences have been erased recently — one because of the inmate's mental health issues, another because a star witness changed his story and prosecutors withheld key evidence. Another inmate's innocence claim based on recanted testimony was revived last year by an appellate court and is in a judge's hands.

But another major reason for the declining population is that fewer death sentences are being handed down. David Bruck, director of the Virginia Capital Case Clearinghouse at Washington and Lee University School of Law, noted that Virginia's death row has received only two new inmates in nearly five years. Last year, there was not a single death sentence handed down in the state that ranks second only to Texas in the number of executions since the U.S. Supreme Court restored capital punishment in 1976.

And:

Bruck said one of the reasons for the shrinking death row population in Virginia is an increased acceptance of life without parole as a reasonable alternative. He said the 2000 exoneration of Earl Washington Jr., who came within nine days of being executed for a killing he did not commit, awakened the public to the justice system's fallibility. Before that, he said, people seemed focused solely on mistakes that allowed the guilty to go free.

The article notes that a statewide capital public defender's office was created in 2003.

Virginia carried out this year's first execution in an American death penalty state.  Prosecutorial misconduct in the Virginia case of Justin Wolfe is also an active issue.

More on Gideon

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

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

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

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

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

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

Related posts are in the indigent defense index.

Is an Innocence Commission in Texas' Future?

The Atlantic posts, "In Texas, From a Chief Justice, Welcome Candor About Unequal Justice," by Andrew Cohen.

Last Wednesday, in Austin, Texas, a remarkable thing happened. In a state where the promise of equal justice under law often is a farce, where poor people and people of color far too often are subject to unfair treatment by prosecutors, police, judges, jailors and jurors, the Chief Justice of the state supreme court spoke out at length with great clarity and candor about the desperate legal conditions of his fellow Texans and the immediate need to secure for them all the right to "liberty and justice." (Note good update below).

Wallace B. Jefferson, the first black justice on the state's supreme court, the first black chief justice of the state's supreme court, the man appointed by Republican Gov. Rick Perry to replace Alberto Gonzales, offered his remarks in his annual "State of the Judiciary" address and his timing could hardly be better. Next week, America marks the 50th anniversary of the United States Supreme Court's landmark decision in Gideon v. Wainwright, which was designed to secure the right to counsel for people too poor to afford their own attorney.

Jefferson's speech is yet another detailed reminder of how far we've come from the premise and the promise of Gideon. (Last week, on this topic, I wrote here about the Alabama case of Christopher Lee Price, a death row inmate whose constitutional right to counsel has been consistently denied by the courts. Next week, in advance of the March 18th anniversary of the decision, we'll be posting here at The Atlantic a special piece on the legacy of Gideon).

"Chief Justice Pushes for 'Innocence Commission'," is Maurice Chammah's coverage for the Texas Tribune.

At his biennial speech in front of the Legislature, Chief Justice Wallace Jefferson reiterated his calls for more funding for civil legal aid, indigent defense and juvenile justice reform, and pushed for the establishment of an "innocence commission" to investigate wrongful convictions. 

Presenting his State of the Judiciary speech to Texas lawmakers, Jefferson said that "wrongful convictions leave our citizens vulnerable, as actual perpetrators remain free" and recommended the Legislature create a commission "to investigate each instance of exoneration, to assess the likelihood of wrongful convictions in future cases, and to establish statewide reforms." He cited the recent exoneration of Michael Morton, who spent nearly 25 years in prison for murder.

The creation of such a commission nearly passed in 2011, but failed at the last minute. Part of the opposition has come from Jeff Blackburn, chief legal counsel of the Innocence Project of Texas, a nonprofit organization that attempts to overturn wrongful convictions and investigate why they happen in the first place. He said recently that such a commission would have to be “extremely well-funded,” and would more likely become “a paper commission that would give a lot of people an excuse to turn away from a lot of the real issues we face in the criminal justice system."

But the bill creating such a commission, House Bill 166, by state Rep. Ruth Jones McClendon, D-San Antonio, got a favorable review from the House Criminal Jurisprudence Committee on Tuesday.

Related posts are in the innocence commission and Texas Legislature indexes.

An Update on Florida Legislation

"WFSU-FM reports, "Lawmakers Looking To Streamline Florida's Death Penalty Process."  It's by Sascha Cordner, and there is audio at the link.  Here's an extended excerpt, but those watching Florida legislation will want to read the entire report.

Florida is one of the top states in the nation with the most number of people facing the death penalty—Close to half of which have been on death row for at least 20 years. And, a group of lawmakers is now trying to streamline the death penalty process through a couple of measures, but it’s facing much opposition.

Today, there are about 400 people on death row in Florida. That’s more than any other state aside from California. On average, it’s estimated that Florida death row inmates spend about 13 years on death row prior to execution, and Republican Representative Matt Gaetz says something has to be done.

“Our focus was on streamlining the process so that we didn’t have these cases lingering for 14, 15, 25 years,” said Gaetz.

Gaetz as the chair of the House Criminal Justice Subcommittee is spearheading an effort to streamline the death penalty process in Florida. Gaetz says it’s the lengthy appeals process that is contributing to delays in executions. So, through a proposed constitutional amendment, he hopes to only allow lawmakers to have rulemaking authority over the post-conviction appeals process, rather than courts.

He also has another proposal that outlines steps on how the Legislature should go about cutting down on the lengthy appeal process. That includes a provision that he hopes will stop “insincere” appeals from lawyers who say they were ineffective as counsel.

And:

But, Rex Dimmig with the Florida Public Defenders Association says he understands the need to punish lawyers who deliberately make those claims. But, the bill forces lawyers who sincerely admit they were ineffective to stop practicing for five years. And, Dimmig says that’s unfair.

“Honestly, capital cases take weeks to try. Mistakes can be made, and they are mistakes," Dimmig emphasized. "To take one of our lawyers—and capital lawyers have to have special qualifications, have to be specially trained—to take the limited resources we have of capital attorneys because someone has made a mistake and say for five years they cannot practice as a capital attorney, we believe is too harsh."

Another provision in the bill would eliminate publicly-financed clemency counsel for death row inmates. And, some like, Judge Belvin Perry, a Circuit Judge from the 9th Judicial Circuit, that’s not a solution to systemic problem and warned the state could have a legal challenge on its hands.

Earlier coverage of Florida capital punishment legislation begins at the link; also available, coverage of the case of Paul Howell, who has received no federal habeas review of his conviction and sentence.

Fighting for Their Lives

That's the title of a new book written by Susannah Sheffer, pulbished by Vanderbilt University Press.  It's subtitled, Inside the Experience of Capital Defense Attorneys.

There will be an author event in Austin, Tuesday, March 19, at Book People, our great, independent bookseller at 6th & Lamar, in the heart of Austin.  Book People will be happy to send you a signed copy.

Here's more about the book:

"Sheffer takes readers beyond the courtroom and execution chambers to explore how capital defense attorneys cope when they can’t save a client. ... The book is unexpectedly moving, as when an inmate consoles an attorney who has run out of options, and the author is especially adept at uncovering the ethical and professional nuances of these cases. ...  sobering and intimate ... "

    -- Publishers Weekly

"This is an important book. The death penalty's impact is so much broader than we realize, and these attorneys are affected in ways that even I had not imagined.  I am grateful to Susannah Sheffer for bringing these stories to light."

    -- Sister Helen Prejean, author of Dead Man Walking and The Death of Innocents

"One day the United States will outlaw capital punishment. One day Americans will look back on our time and wonder how people could ever have thought that executing other human beings was a good thing. Meanwhile, some of the most courageous men and women in our midst are lawyers who defend those convicted of capital crimes, attempting to save clients from being murdered by the state. Fighting for their Lives is the story of the heroic but ordinary bravery of these lawyers. Read it and be awed by their grace and intelligence. Read it and be furious at the needless miscarriages of justice. Read it and weep."

    -- Thomas Cahill, author of A Saint on Death Row and How the Irish Saved Civilization

It's also available from Amazon, Barnes & Noble, and your local independent bookseller; also available, Kindle and Nook e-reader editions.  I'll be posting the time and location of other author events as they are set up.

Here's our Q&A with Susannah:

Q. What led you to write this book?

A. I am always interested in people’s internal, emotional experience, and in terms of the death penalty, most of my work has involved looking at, and writing about, its impact on various affected people – particularly murder victims’ family members and family members of people who have been executed. Curiosity about the effect on defense attorneys was sort of a natural outgrowth of that work. I knew that this was a pretty unexplored area of the death penalty landscape, and in fact as I proceeded with the interviews for the book, I learned even more vividly and powerfully how reluctant defense attorneys have been to talk openly about the emotional impact of their work. I’m interested in how people cope with loss and specifically in how people in helping professions -- people who devote themselves to trying to help and even save other people -- manage internally when that effort fails.

Q. We usually only read a short quote from a death penalty lawyer in a news article.  What would you tell people about this group of people.

A. I have to say first that I didn’t set out to interview a random cross-section of capital defense attorneys. I interviewed some of the most dedicated, passionate, committed attorneys out there (of course, there are many other equally dedicated and committed attorneys whom I didn’t interview, but my point is that I didn’t interview anyone for whom this was “just a job”). My interviewees also tended to place a high value on forming relationships, even attachments, with clients – placing themselves at greater emotional risk, in some ways, although you can see in the book that they make a strong case for why they practice in that particular way. In the short quotes in news articles that you’re talking about, an attorney will be talking about the client or the legal issues that the client’s case highlights. This book’s inquiry was about the attorneys’ own experience. Every time they told me a story of a setback in a case, or a last visit with a client, I would keep asking, “And what was that like for you? What was going on inside you when that happened?” So I had the privilege – and it did feel like a privilege – of seeing some of the raw pain and struggle that capital defense involves. I have an indescribable amount of respect for the attorneys I interviewed and all that they encounter.

Q.How did you research the book?

A. I interviewed 20 capital defense attorneys who had lost at least one client to execution. That’s a rather ghoulish criterion, but I was particularly interested in the experience of loss and the emotional impact of being vested with the responsibility of trying to save a life and then sometimes – or, sadly, often – not being able to. I conducted the interviews in person, transcribed the recording of each conversation, and spent a lot of time immersing myself in that material and seeing what themes emerged.  In a few instances I asked follow-up questions over the phone. Because we were discussing such personal and emotional aspects of the work, and because there has not been a culture or a tradition among capital defense attorneys of having these kinds of conversations, I used pseudonyms and omitted identifying details. This meant sacrificing some narrative richness – I couldn’t give much biographical or even physical detail – in favor of an extraordinary emotional richness that I think would not have been possible if I hadn’t offered that confidentiality. It was a trade-off I was glad to make.

Q. How did you first come to work for the repeal of capital punishment?

A. I got involved in anti-death penalty work as part of working on other issues related to prisoners, when I was collaborating with a former prisoner to write his story (that book became In a Dark Time: A Prisoner’s Struggle for Healing and Change, published in 2005). That was in the mid 1990s. Then, as I mentioned earlier, I began working with family members of murder victims and family members of people who have been executed, first as a writer for Murder Victims’ Families for Reconciliation and, since the organization’s founding in 2005, as staff writer and project director for Murder Victims’ Families for Human Rights.

Related posts are in the books index.

New Report Points to Criminal Discovery Reforms for Texas

Improving Discovery in Criminal Cases in Texas is the title of a new report issued by Texas Appleseed and Texas Defender Service.  A news release announcing the report is also available.  This is from the news release:

The new report, Improving Discovery in Criminal Cases in Texas, is based on an analysis of discovery policies solicited from 43 district attorney’s offices across the state and interviews conducted by pro bono partner Locke Lord LLP in Dallas.

The report recommends Texas’ discovery statute (Code of Criminal Procedure, Article 39.14) be amended to provide these ABA best practices:

• Automatic access to discovery;
• Open file discovery that includes access to police reports, witness statements, expert reports, and criminal histories;
• Defined timelines for initiating discovery; and, 
• An explicit continuing obligation to disclose.

"Transparency could lessen wrongful convictions, study finds," is Chuck Lindell's report for the Austin American-Statesman.

Criminal justice in Texas could be fairer, faster and less likely to convict innocent people if prosecutors and defense lawyers were required to share more information before trial, a report by two legal advocacy groups says.

Texas law does not require prosecutors to disclose information that is commonly shared in most states, including police reports, witness statements and reports compiled by expert witnesses, says the report, “Improving Discovery in Criminal Cases in Texas,” to be formally released Wednesday.

The result is a hodgepodge of rules varying from county to county, with many district attorney’s offices employing a robust open-file policy for defendants while others restrict information, “meaning access to justice can depend, in part, on where the case is filed,” the report says.

What’s more, Texas is the only state that does not require some sort of mutual discovery before a criminal trial, with defense lawyers opening their files to prosecutors to reveal witness statements, expert opinions and other information that does not incriminate the defendant.

“By disclosing all relevant information, both parties are able to investigate and scrutinize the evidence against the accused. This increases the likelihood that a just result will be reached,” concludes the report, which was compiled by Texas Appleseed, a nonprofit public interest law center, and the Texas Defender Service, a nonprofit that represents death row inmates, by examining the practices of more than 40 Texas counties.

The Texas Tribune posts, "Report: Open Discovery May Thwart Wrongful Convictions," by Brandi Grissom.

The amount of evidence that Texans accused of crimes can get from prosecutors varies across the state, leading to inequities in the way justice is meted out, according to a report released Wednesday, which suggests that requiring more transparency could prevent wrongful convictions.

Texas Defender Service, which represents death row inmates, and Texas Appleseed, a nonprofit that advocates for social justice, researched discovery practices in 40 Texas counties. They found that the wide variation in discovery practices among prosecutors makes access to justice dependent upon the jurisdiction in which the defendant is charged. Those findings, said Rebecca Bernhardt, a Texas Defender Service spokeswoman, give weight to legislation filed in both the House and Senate that would create uniform discovery procedures and require both prosecutors and defense lawyers to share more information in criminal trials.

“We hope that lawmakers get an understanding of the status quo and understand the problems that exist under our current, outdated discovery statute,” Bernhardt said.

Rob Kepple, executive director of the Texas District and County Attorneys Association and a former prosecutor, said he agreed with the conclusions of the report.

“A good open file discovery system could help prevent some problems,” Kepple said. “I think it’s a pretty good report.” 

Efforts to reform discovery laws in Texas are not new but have picked up steam since the 2011 exoneration of Michael Morton. He spent nearly 25 years in prison for his wife’s murder before DNA evidence revealed that he was innocent and led to the arrest of another man who is awaiting trial for the crime.

Jordan Smith writes about a separate proposal, "Holding Prosecutors Accountable," at the Austin Chronicle.

In an effort to combat the growing number of wrongful convictions in Texas, state Sen. John Whitmire, D-Houston, on Tuesday filed a bill that would expand the statute of limitations for filing with the State Bar grievances alleging prosecutorial misconduct.

Senate Bill 825 would start once a person is released from prison on a wrongful conviction the four-year statute of limitations for pursuing a complaint of prosecutorial misconduct with the State Bar of Texas. The current statute begins the clock at the time the violation occurs.

The proposed change in the law was prompted by the plight of Michael Morton who was convicted and sentenced to life in prison for the 1986 murder of his wife Christine. Morton was finally released from prison in 2011 after evidence testing revealed the DNA of another man, Mark Alan Norwood, was mingled with Christine's blood on a discarded blue bandana found after the murder behind the Morton's home.

Related posts are in the Michael Morton and Texas Legislature category indexes.  The responsibility of the state to provide exculpatory evidence to the defense was articulated in the 1963 Supreme Court ruling in Brady v. Maryland; more via Oyez.

Another Florida Editorial Calls for Reform

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

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

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

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

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

And:

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

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

Earlier coverage from Florida begins at the link.

Ohio Task Force Continues Work Today

"Task Force On Capital Punishment To Meet Thursday," is the AP report, via WOUB-FM.

A state Supreme Court task force analyzing the effectiveness of Ohio's capital punishment law plans another meeting Thursday as part of its yearlong review.

Ohio Supreme Court Chief Justice Maureen O'Connor has convened the task force while making clear it won't debate whether the state should have the death penalty.

The committee of prosecutors, defense attorneys, judges and death penalty experts is looking at a variety of issues, from how the law affects minorities to the role of clemency.

The committee also is studying whether death sentences are proportional, meaning that any one death sentence is similar to others that have also been handed down.

Earlier coverage of the Ohio Task Force begins at the link.  The Joint Task Force to Review the Administration of Ohio's Death Penalty website has additional information and future meeting dates.

From Colorado

Scot Kersgaard of the Colorado Independent writes, "Colorado's Death Penalty: Spending Millions To Execute Almost No One."  It's via HuffPost Denver.  For those looking for details about the Colorado capital punishment experience, it's a must:read.  Here's the beginning:

With a bill to repeal the death penalty likely to be introduced in the 2013 Colorado Legislature, there are bound to be philosophical arguments about the merits of capital punishment. One thing that seems beyond debate, though, is that ending the death penalty could save Colorado taxpayers a lot of money.

No one can say exactly how much Colorado spends administering its death penalty, but it is certainly in the tens of millions of dollars for each person executed. A study by the Death Penalty Information Center in 2009 found that states with a death penalty spend an average of $10 million a year enforcing it. That same study said that 70 percent of the expense stems from legal work that’s not necessary in non-capital cases. Considering that Colorado executed one man in 1967 and one in 1997, the cost associated with killing almost no one quickly adds up.

“Since 1980, we (Colorado taxpayers) have spent tens of millions of dollars on one execution,” said criminal defense attorney David Lane who has represented many death-penalty eligible clients. “That’s money that could go to schools. It could go to police officers.”

One man alone, Nathan Dunlap, is said to have cost the state around $18 million so far in trial costs and attorney fees. Dunlap–convicted in 1996 of the 1993 killing of four people at an Aurora Chuck E. Cheese’s restaurant–is still on death row.

Earlier coverage of Colorado's possible consideration of repeal in 2013 begins at the link.  Also available, coverage of the state's Aurora theater shooting case.

Long-Running Georgia Case Ends in Plea Agreement

"Guilty plea clears out Gwinnett’s death penalty docket," is by Andria Simmons for the Atlanta Journal-Constitution.

Gwinnett County’s longest-pending death penalty prosecution ended Tuesday with a guilty plea from a Vietnamese nail salon owner who gunned down a man and his 2-year-old son over a gambling debt in 2004.

There are now no death penalty cases left on the county’s docket, since two other pending cases have been resolved by defendants entering guilty pleas within the past three months.

Khanh Dinh Phan, 49, of Duluth was sentenced by Superior Court Judge Ronnie K. Batchelor to serve two concurrent life sentences for the Dec. 29, 2004, slayings of his friend Hung Thai, 37, and his 2-year-old son Hugh. Under current parole board rules he could become eligible for parole 30 years from the date of his arrest. By then he’ll be 72 years old.

And:

Phan’s trial had been forestalled numerous times over the years because of underfunding in the state capital defender program that resulted in several pretrial appeals. Prosecutors set a deadline of Jan. 28 for Phan to accept the negotiated plea or be prepared to go to trial in the near future and face the possibility of getting the death sentence if convicted, Jones said.

Earlier coverage of the Phan case begins at the link.

Gideon Webcast - Starting Soon

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

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

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

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

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

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.

Adam Liptak's Latest Sidebar Column

"When Death Row Lawyers Stumble, Clients Take the Fall," is Adam Liptak's Sidebar column for tomorrow's print edition of the New York Times.  Here's the beginning:

Twice in recent years, the Supreme Court rebuked the federal appeals court in Atlanta for its rigid attitude toward filing deadlines in capital cases. The appeals court does not seem to be listening.

A few days after Christmas, a divided three-judge panel of the court ruled that Ronald B. Smith, a death row inmate in Alabama, could not pursue a challenge to his conviction and sentence because he had not “properly filed” a document by a certain deadline.

As it happens, there is no dispute that the document was filed on time. But it was not “properly filed,” the majority said, because Mr. Smith’s lawyer did not at the same time pay the $154 filing fee or file a motion to establish something also not in dispute — that his client was indigent.

Nor did the majority place much weight on the fact that the lawyer himself was on probation for public intoxication and addicted to crystal methamphetamine while he was being less than punctilious. In the months that followed, the lawyer would be charged with drug possession, declare bankruptcy and commit suicide.

Mr. Smith is almost surely guilty of murdering a convenience store clerk in 1994 in Huntsville, Ala. But it is not clear that he deserves to die for his crime.

His jury, by a vote of seven to five, determined that the murder did not warrant the death penalty, recommending instead that Mr. Smith be sentenced to life in prison.

But the Alabama capital justice system has many idiosyncrasies. One of them is that it allows judges to override such recommendations. The judge rejected the jury’s recommendation and sentenced Mr. Smith to death.

Only two other states, Delaware and Florida, allow such overrides. But it has been decades since anyone was sentenced to death in either state after a jury recommended life.

Earlier coverage from Alabama begins at the link; also available, more on Alabama's judicial override and the Alabama case of Maples v. Thomas.

Palm Beach Post Editorial

Today's Palm Beach Post publishes the editorial, "Decision to seek death penalty deserves more scrutiny."  It's written by Andrew Marra for the Post editorial board.

When Carey Haughwout, Palm Beach County’s longtime public defender, calls a courtroom policy “crazy,” that’s a pretty good sign it deserves scrutiny. When her target involves something as grave as the death penalty, that’s a clue it’s a matter of serious concern.

And “crazy” is precisely the word Ms. Haughwout used to describe a new policy at the Palm Beach County State Attorney’s Office that has prosecutors seeking the death penalty at the start of every first-degree murder case they prosecute — including some cases in which the accused clearly seems to suffer from mental illness.

As the Post’s Jane Musgrave reported, under this policy the number of death-penalty cases the office is prosecuting has doubled, from 12 in 2009 to 24 in 2012. And Ms. Haughwout and other defense attorneys say it makes prosecuting cases more expensive and leads to a host of complications for suspects, the victims’ families and the lawyers involved.

It didn’t always work this way. Under former State Attorney Barry Krischer, a committee of senior prosecutors reviewed first-degree murder cases to decide if the evidence and circumstances warranted pursuing the death penalty. The decision can be complex, with attorneys weighing a host of aggravating and mitigating circumstances such as the suspect’s prior criminal record and the extent to which a murder appeared premeditated.

Under interim State Attorney Peter Antonacci, who officially steps down this month when newly elected State Attorney Dave Aronberg takes over, this committee system has been discarded. Mr. Antonacci says that, as the office’s ultimate decision-maker, it ought to be left to him alone to decide when his office pursues the death penalty. And he has decided that, at least at the outset, the best tack is to seek the death penalty in all first-degree murder cases.

And:

Incoming State Attorney Dave Aronberg didn’t comment for the article but has said he intends to reimplement a committee system to make death penalty decisions. Doing so would be the best way to unwind what appears to have become a costly and antagonistic tactic.

Earlier coverage from Palm Beach County is in this Florida Roundup.

Florida Roundup

"Death Penalty Question Revisited," is the December 23 report from AP filed by Bill Kaczor.  It's via the Lakeland Ledger.

The Florida Supreme Court will be asked to take another look at how judges should determine whether a death row inmate is mentally disabled.

The issue divided the high court last week in a 4-2 opinion upholding Freddie Lee Hall's death sentence for murdering Karol Hurst, a 21-year-old pregnant woman who was abducted while leaving a Leesburg grocery store in 1978. A co-defendant is serving a life sentence.

Defense lawyer Eric Pinkard, who works for a state office that represents death row inmates, said Friday that he will ask for a rehearing and, if that fails, may take the case to the U.S. Supreme Court.

The federal high court has prohibited the execution of mentally disabled inmates as unconstitutional cruel and unusual punishment, but it has allowed states to determine what constitutes mental disability.

The majority of Florida justices ruled Thursday in Hall's case that they are bound by precedent set in earlier decisions prohibiting anyone with an IQ of 70 or higher from being declared mentally disabled, regardless of other evidence to the contrary.

The Palm Beach Post reported, "Lawyers question necessity, cost of local state attorney’s avid pursuit of the death penalty in murder cases," on December 26.  It's by Jane Musgrave.

With his arm wrapped tightly around his wife, Naomi, Gerard Gonsalves seemed to be protecting her from the looming possibility that the loss of one son could cost them the other.

At a recent court hearing, the West Palm Beach couple looked on as psychologists and psychiatrists told a judge what they already knew: Their 24-year-old son, Brandin, suffers from a panoply of mental ills.

Since he was diagnosed at age 13, they tried to get him help to deal with his demons. The search ended in July when Brandin stabbed his 25-year-old brother 69 times in a fatal attack he has said was ordered by God.

Still reeling from the loss, the couple is now confronted with another: The state wants to kill their youngest son for killing their firstborn.

The case underscores the problems with a system State Attorney Peter Antonacci instituted when he was appointed in March, some defense attorneys say. Now, instead of asking a committee of top prosecutors to review every case to determine which accused killer should die for his or her crime, the office automatically seeks the death penalty in all first-degree murder cases.

“It’s crazy,” said Public Defender Carey Haughwout, whose office defends the indigent and represents about half of those charged with murder. “There’s no review done before they file a notice to seek the death penalty. My concern is that it’s handled as a matter of course.”

Under the policy, the number of death penalty cases has doubled from 12 in 2009 to 24 this year. That means costs — both financial and human — have increased as well.

Haughwout and other defense attorneys say they hope the policy changes when State Attorney-elect Dave Aronberg takes office in January. Aronberg declined to discuss how he would decide which accused murderer deserves the death penalty. But on the campaign trail he promised to reinstitute the committee system that was used by his mentor, former longtime State Attorney Barry Krischer, who is helping him prepare to take office.

Three news articles focus on the 2012 DPIC report and Florida death sentences.  The South Florida Sun Sentinel published, "Florida leads nation in sending killers to Death Row," by Rafael Olmeda.  It's also available via Huffington Post.

Florida may be fourth in the nation when it comes to population, but we're still No. 1 when it comes to sending convicted killers to death row, according to a report from a national nonprofit group that studies the death penalty in America.

The Sunshine State sentenced 21 inmates to death in 2012 — more than California, more than Pennsylvania, and even more than Texas, which continues to lead in the number of inmates actually executed, according to the Death Penalty Information Center.

It's the second straight year in which Florida has held the top spot among the states that have a death penalty, but it still represents a big spike over last year, when we sent 13 people to death row. California came in second both years, having sent 10 inmates to death row in 2011 and 14 this year.

"Florida led the nation in death sentences in 2012, report says," by Jeff Weiner for the Orlando Sentinel.

A report by a national nonprofit group that studies the death penalty found that Florida remains among the most active states in using it and put more defendants on death row in 2012 than any other state.

The Death Penalty Information Center's report reveals that only nine states executed a prisoner this year, with Florida putting three to death. Texas, with 15, executed the most defendants, the report states.

However, the Sunshine State far exceeded other states in new death sentences: 21 defendants were sentenced to die in Florida through mid-December, the research says.

Also, "Report: Florida leads nation in new death penalty cases," is by Elaine Silvestrini for the Tampa Tribune.

As capital punishment declines in use and support nationwide, Florida leads the country in the number of death sentences handed down this year, according to a report by a group that advocates against the death penalty.

Florida judges sentenced 21 killers to death in 2012, followed by California with death sentences for 14 murderers, Texas with 9 and Pennsylvania with seven, according to the Death Penalty Information Center. The four states accounted for 65 percent of the death sentences handed out in the United States.

Nationally, the number of death sentences issued was the second lowest since capital punishment was reinstated nationwide in 1976.

In Florida, Duval County sent the most inmates to death row this year, at four, according to information from the state Department of Corrections. Hillsborough and Pinellas counties each sent one person to death row this year.

Earlier coverage from Florida includes the year's final execution and questions of an inmate's competency to be executed.  Earlier coverage of the 2012 DPIC report is also available.

Mediation Ordered in an Idaho Case

"Judge: Murder defendant, prosecutor must seek deal," is the AP report, via the Seattle Post-Intelligencer.

An eastern Idaho judge has ordered a prosecutor and a man accused of killing his estranged wife to try to reach a plea agreement.

Sixth District Judge Stephen Dunn issued an order on Monday telling defendant Michael Lane Sparks and Bannock County Prosecutor Mark Hiedeman to enter criminal mediation before the first-degree murder case is set to go to trial in March. Criminal mediation offers a way for opposing sides to try to find common ground for a plea deal in a confidential setting.

Sparks' attorney, Bannock County Public Defender Randy Schulthies, said such a move is rare and usually reserved for lesser crimes.

The ABA Journal posts, "Judge Orders Prosecutor and Defendant Into Mediation In Death Penalty Case."  It's written by Martha Neil.

Bannock County Prosecutor Mark Hiedeman, who is getting ready to retire after over 20 years on the job, told the Idaho State Journal (sub. req.) it's not all that unusual to mediate a felony case and said the mediation could be beneficial. The mediation is expected to take place with Sixth District Judge Robert Naftz, who is a certified mediator.

“I think there could be some resolution obtained, and if there were, it would save the incoming prosecutor from having to try a murder case,” Hiedeman said.

Utah Cost Coverage

"Utah’s death penalty costs $1.6M more per inmate," is the title of Brooke Adams' report in the Salt Lake Tribune.

Rep. Steve Handy, R-Layton, asked for the analysis, the first study to examine what the capital punishment option costs the state and local governments. Handy has not proposed any legislation and said Wednesday he is "under no illusion that people in Utah want to change the present law." But Handy said the comparative costs of life without parole and the death penalty — which a legislative fiscal analyst pegged "unofficially" at an added $1.6 million per inmate from trial to execution — should be understood.

"Which direction citizens of Utah choose to go remains to be seen," Handy told the committee.

It is a topic of discussion in other states as well. New Jersey, New Mexico, Illinois and Connecticut all did away with the option in recent years. A year ago, Oregon Gov. John Kitzhaber put a moratorium on executions and ordered a review of that state’s capital punishment law. On Nov. 6, voters in California, where more than 700 inmates sit on death row, rejected a proposition that would have repealed the state’s death penalty; proponents argued for doing away with the option based on its costs.

Lawmakers may get some insight into Utahns’ views of capital punishment from a survey being conducted by students at Utah Valley University under the direction of Sandy McGunigall-Smith, an associate professor of legal studies. The survey will be sent to 6,000 people randomly selected in Ogden, West Valley City, Kamas, Saratoga Springs, Alpine and Taylorsville.

Earlier coverage from Utah begins at the link.  Related posts are in the cost and state legislation indexes.

Parker County Joins Capital Indigent Defense Program

Today's Weatherford Democrat reports, "Program to help capital murder defendants, save county money."  It's by Judy Sheridan and Christin Coyne.

Parker County commissioners recently voted to join the Regional Public Defender for Capital Cases program, an action that could save the county thousands of dollars during the prosecution of expensive capital murder cases.

The program, funded through the Texas Indigent Defense Commission, represents defendants who are charged with the offense of capital murder and are eligible for the death penalty but cannot afford to hire their own attorneys.

The organization helps participating smaller counties meet the legal requirement to provide access to counsel for those defendants by providing a core team of four — two qualified attorneys, a mitigation specialist and a fact investigator — as well funds for an investigation.

The program, which began accepting cases in November of 2007, became available to Parker County and other small counties in northeast and north central Texas Oct. 1.

Parker County, which hasn’t tried a capital murder case since 2001, currently has four capital murder cases pending.

And:

To join the program, participating counties contribute according to a formula that takes into account both population size and the number of capital murder cases filed during a 10-year period, between 1998 and 2008.

The amount that counties contribute increases each year, reaching a maximum during year six. There is no cost to counties during the first year.

According to its recently approved contract, Parker County will pay $19,171 the second year, $25,561 the third, $38,341 the fourth, $51,121 the fifth and $63,902 in year six.

“It’s essentially an insurance risk pool,” Jack Stoffregen, chief public defender for the program, explained. “Counties hope they never have a case, but if they get one, they have protection.”

A capital murder case can cost $250,000 and up, Stoffregen said.

 Related posts are in the indigent defense and Texas Indigent Defense Commission catagory indexes.

True Costs of Justice

That's the title of an editorial in today's Miami Herald.  It's subtitled, "Judge right to reject law that raids courts’ budgets."

We depend on the court system to dispense justice — period. Not justice on a budget, not justice on the cheap, not justice with “ka-ching” in the back of a judge’s mind.

Nor should justice be denied because the funds simply aren’t there.

So applaud the decision of Miami-Dade Circuit Court Judge Victoria Sigler to reject a state law that ties the legal bills for defending indigent clients facing the death penalty to state judges’ annual budgets. It’s a violation of the state Constitution, she ruled.

In March, state lawmakers sought to curtail the expenses of a pool of private attorneys appointed to represent death-penalty defendants too poor to pay for legal assistance.

The attorneys are paid a fixed — and low — rate, which will entice few truly seasoned lawyers. Senate Bill 1960 mandated that payment of any overruns, which used to come from state revenue, now would come from the courts’ budgets. That’s not an insignificant expense. Miami-Dade County, for instance, has paid more than $700,000 of its $1.2 million allotted by the state for such legal bills.

But the law also crosses the line that separates the judiciary and the state Legislature, which, according to Judge Sigler, is supposed to allocate all the funds for indigent clients. There should be no onus on a judge, charged with impartiality in interpreting and carrying out the laws of the state, to count pennies — not that any would. Still, as private attorney David S. Markus told The Miami Herald, the law “makes judges think twice about paying a lawyer, knowing that he or she has to also think about paying his secretary or buying copier paper.”

And:

Gov. Rick Scott’s appeal-prone administration is likely to challenge Judge Sigler’s ruling. That would be unfortunate and costly — and it would do little to serve the cause of dispensing justice in the state.

Earlier coverage of the ruling on Florida's indigent defense funding begins at the link.

The ruling in Florida v. Martin is available in Adobe .pdf format.