The StandDown Texas Project

California Death Sentence Vacated

"Sacramento judge takes murderer off of death row," is by Denny Walsh in the Modesto Bee.

A federal judge on Tuesday threw out the death penalty of a transient who fatally stabbed a man 33 years ago on a bank of the American River in Sacramento, then fled in the victim’s car.

U.S. District Judge Lawrence K. Karlton adopted the recommendation of a magistrate judge that a lesser sentence be imposed on Larry Junior Webster, unless the Sacramento County District Attorney’s Office initiates a retrial of the penalty phase within 90 days.

“We’re glad the guilt phase was not overturned,” Chief Deputy District Attorney Steve Grippi said. “We will take a hard look at the penalty phase and decide whether we want to retry it.”

U.S. Magistrate Judge Dale A. Drozd had found that Webster, the recipient of a Bronze Star for combat bravery in the Vietnam War, was denied a fair trial in the penalty phase because his counsel was ineffective. Karlton agreed with Drozd that Webster was deprived of his Sixth Amendment right to “effective assistance of counsel” due to his lawyer’s “failure to investigate and present a mitigation case ... to the jury.”

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

e here: http://www.modbee.com/2014/08/26/3505596_sacramento-judge-takes-murderer.html?rh=1#storylink=cpy

Continued Arizona Botch Commentary

Jurist posts, "Botched executions & evolving standards of decency: What can we learn from Wood's death?"  It's by Sacha Baniel-Stark, a student at New York University School of Law.

The botched execution of Wood joined the botched execution in Ohio and two botched executions in Oklahoma to become at least the fourth botched execution so far this calendar year. All four have raised questions about the efficacy of lethal injection protocols; the manner of execution is often kept confidential and approved drugs are quickly expiring, raising significant concerns about what drugs are being used and how states are getting them. (For a recap of some of these issues, see Kimberly Newberry's June 2014 JURIST piece.)

Wood's case, however, has created some unique waves, even in this fraught area of law. Before his execution, Wood moved to stay the execution, arguing that he and others had a First Amendment right to know the protocol that would be used to kill him. The motion was ultimately denied, but along the way Alex Kozinski, Chief Judge of the US Court of Appeals for the Ninth Circuit, had occasion to weigh in on the issues (PDF) that are plaguing the system today.

Judge Kozinski's opinion, a dissent from the denial of en banc review of Wood's motion to stay his execution, argued that capital punishment by lethal injection is fundamentally flawed and that we as a society ought to return to execution by firing squad. Judge Kozinski's argument has three main reasons for this: First, "attacks" to executions will continue so long as lethal injection is used because of the secrecy surrounding drugs and execution protocols. Second, lethal injections are less effective than other, more seemingly primitive methods; Judge Kozinski favors the guillotine and death by firing squad, ultimately concluding the latter is favored because it is 'foolproof' but would still be relatively socially acceptable. Third, Judge Kozinski argued that if we are to put people to death—and it is a "we," for criminal prosecutions are done in the name of the people and criminal punishments are authorized on our behalf—we should do so without allowing ourselves to fall victim to the charade that executions are calm and dignified events. As he stated, "if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood."

Earlier coverage of Arizona's botched execution begins at the link.

In Iowa

The U.S. Court of Appeals for the Eighth Circuit ruling in USA v. Johnson is available in Adobe .pdf format.

"Appeals court broadens scope of death penalty retrial for Iowa woman who killed 5 in 1993," is the AP report filed by Ryan J. Floey, via the Daily Journal.  Here's an extended excerpt from the beginning:

The death penalty retrial for an Iowa woman convicted of helping kill five people in 1993 will be broader than the trial judge wanted, a federal appeals court ruled Monday.

Jurors will first decide whether Johnson is eligible for the death penalty, and, if so, whether that punishment should be imposed in each death, the 8th U.S. Circuit Court of Appeals ruled. The retrial is scheduled for March.

The 2-1 ruling is a victory for federal prosecutors because it allows them to present evidence that would have been excluded in the narrower retrial previously ordered by U.S. District Judge Mark Bennett.

Johnson was sentenced to death in 2005 for her role in the execution-style slayings of three adults and two children in northern Iowa in 1993, becoming the first woman to land on federal death row in decades. Prosecutors say she helped her boyfriend, methamphetamine kingpin Dustin Honken, carry out the killings to thwart a federal investigation into their drug enterprise. Honken was convicted separately and is on death row.

Johnson remains convicted and imprisoned. But Bennett ordered her a new sentencing hearing in 2012, saying that her defense was inadequate during that phase of the trial. In particular, the judge said her attorneys failed to present evidence about Johnson's mental state that may have convinced jurors to spare her life.

Earlier coverage of Angela Johnson's case begins at the link.

Related posts are in the federal death penalty and female category indexes.

Additional News Coverage of the Oklahoma Lawsuit

Scott Martelle writes, "Secrecy surrounding Oklahoma execution is unacceptable," at the Los Angeles Times Opinion LA blog.

The plaintiffs argue, rightfully, that by selectively opening and closing the shutters covering windows into the death chamber, prison officials denied the public’s right to know about a significant governmental action. After the fact, corrections officials released incomplete statements about what occurred, but the public’s eyes and ears — the media — were unable to offer independent corroboration or to refute the facts as the prison officials provided them.

Such secrecy is unacceptable. Oklahoma has scheduled another execution for Nov. 13, though that could get delayed (it was to have taken place shortly after Lockett’s execution but was postponed). The courts should side with the plaintiffs. Secretive executions should not be part of an open government, or society.

The Tulsa World reports, "Publications, ACLU sue corrections department for right to watch executions," by Cary Aspinwall.

Journalists have a right to view Oklahoma's executions without obstruction by prison officials, argues a lawsuit filed Monday by the American Civil Liberties Union and two publications.

The lawsuit, filed by ACLU's national and Oklahoma chapters on behalf of Guardian US and The Oklahoma Observer, seeks to stop Oklahoma prison officials from hiding portions of an execution from media witnesses.

"Journalists, ACLU file federal lawsuit over botched Oklahoma execution," is by Graham Lee Brewer in the Oklahoman.

A spokesman for the state Corrections Department declined to comment Monday.

The journalists involved in the lawsuit are seeking an injunction, asking that lethal injection be a more transparent procedure. They are attempting to put in place a restriction on closing the blinds during an execution and to require corrections departments to allow the press to witness the placement of the inmate’s IV.

“The more immediate goal of the case is really more about the curtain, so to speak,” said Brady Henderson, legal counsel for the Oklahoma chapter of the ACLU. “It’s about lifting it. It’s about making sure that press witnesses have the full access that they should. But, I think of course the larger goal is transparency as a whole. And, that transparency of course applies, whether or not things are going as planned, or whether they’re going awry, like they were in Lockett’s case.”

"Lawsuit Seeks Uncensored Access To Executions," is by Arnold Hamilton for the Oklahoma Observer.

The Oklahoma Observer, the Guardian US and the American Civil Liberties Union today filed suit in federal court, seeking to prevent Oklahoma prison officials from arbitrarily filtering what journalists can witness during executions.

The lawsuit follows April’s botched execution of Clayton Lockett at the state penitentiary in McAlester. When the procedure did not go as planned, prison officials closed the curtain in the death chamber, blocking the view of independent witnesses.

“Oklahoma taxpayers have an absolute right to know what their government is doing in their name – especially when it comes to imposing the court’s ultimate punishment,” said Observer Editor Arnold Hamilton, a plaintiff in the case.

"Media and ACLU sue Oklahoma over right to watch executions," is the LA Times news coverage written by Matt Pearce.

Monday's lawsuit was not the first time that the Guardian -- a British publication that has recently expanded its coverage of the United States with Guardian U.S. -- has sued American public officials over 1st Amendment rights.

In May, the Guardian, the Associated Press and Missouri's three-largest newspapers sued state officials over the state's execution secrecy laws, which have helped conceal the source of the state's lethal injection drugs and the identities of execution personnel. Schulz helped design the Missouri lawsuit.)

"News organizations sue Oklahoma prisons director over blocked view of botched execution," is AP coverage by Tim Talley.  It's via the Minneapolis-St. Paul Star Tribune.

Monday's lawsuit alleges prison officials used the viewing shade inside the execution chamber to block witnesses' view of the procedure both before and after it was under way.

"The assembled press was denied the opportunity to observe Clayton Lockett entering the execution chamber and his intravenous lines being prepared and inserted," it states. The viewing shade was lifted as Lockett's execution began but prison officials lowered it again in the middle of the procedure, "prematurely terminating press access," according to the lawsuit.

Associated Press writer Sean Murphy, who witnessed the execution, described Lockett writhing against the straps that held him on the gurney and gritting his teeth and moaning. Curtains in the execution chamber were closed about 16 minutes after the injection began. The director of the state's prison system, Robert Patton, later called off the execution, but Lockett died about 10 minutes later.

Additional coverage includes:

"Activists, newspapers sue over blocked access to Oklahoma executions," by Heide Brandes of Reuters, via GlobalPost.

UPI posts, "Oklahoma sued over botched execution," by Gabrielle Levy.

"Does press have First Amendment right to view entire execution? ACLU sues over closed blinds," by Debra Cassens Weiss for ABA Journal.

"Oklahoma sued over botched execution," by Susan Greene for the Colorado Independent.

"Oklahoma sued over secrecy of botched execution," by Peter Moskowitz for Al Jazeera America.

Oklahoma Observer v. Patton is available in Adobe .pdf format.

Earlier coverage of the Oklahoma lawsuit begins at the link.

National Law Journal Interview with Justice Ginsburg

"Justice Ginsburg Laments 'Real Racial Problem' in U.S.," is by Marcia Coyle of the National Law Journal.  Here's teh beginning and her comments on the death penalty.

The turmoil in Ferguson, Mo., and the controversial stop-and-frisk policy in New York City illustrate a “real racial problem” in America, one that recent U.S. Supreme Court decisions have done little to help, Justice Ruth Bader Ginsburg told The National Law Journal.

The high court was “once a leader in the world” in rooting out racial discrimination,” the justice said in a wide-ranging interview late Wednesday in her chambers. “What’s amazing is how things have changed.”

And:

NLJ: Towards the end of their tenure on the court, justices Harry Blackmun and John Paul Stevens, and even later than that, Justice Lewis Powell Jr., decided they could no longer support the constitutionality of the death penalty. As we see increased problems with lethal injection, what are your thoughts now about the penalty?

GINSBURG: I’ve always made the distinction that if I were in the legislature, there’d be no death penalty. If I had been on the court for Furman [v. Georgia, 1972, invalidating the death penalty], I wouldn’t have given us the death penalty back four years later. Stevens and Powell were part of that. I think there wouldn’t have been a big fuss. There was a big fuss initially over the decision that stopped executions. If the court had stayed there, it would have been accepted. That was the golden opportunity. I had to make the decision was I going to be like Brennan and Marshall who took themselves out of the loop [by dissenting in every case upholding the penalty]. There have been some good death penalty decisions. If I took myself out, I couldn’t be any kind of contributor to those.

NLJ: After more than two decades on the court, what types of cases still vex or challenge you?

GINSBURG: Death penalty. For one thing, our jurisprudence is dense and then we have these contributions from Congress like AEDPA [Antiterrorism and Effective Death Penalty Act]. Because we had no death penalty in the District of Columbia, my first year here, I asked my clerks to write a memo so I could become familiar with where the court was on the death penalty. It was dense then and it has gotten only worse.

Related posts are in the Supreme Court category index.  More on Furman v. Georgia, at the link.

California to Appeal Federal Court Ruling on State's Death Penalty

Today's Los Angeles Times reports, "Atty. Gen. Harris seeks to overturn ban on California executions," by Maura Dolan.

A federal judge's "flawed" decision declaring California's enforcement of the death penalty unconstitutional will be appealed, Atty. Gen. Kamala D. Harris announced Thursday.

Harris will ask the U.S. 9th Circuit Court of Appeals to overturn last month's ruling by U.S. District Judge Cormac J. Carney, who said decades-long delays and uncertainty about whether inmates will be executed violated the Constitution's 8th Amendment ban on cruel and unusual punishment.

"I am appealing the court's decision because it is not supported by the law, and it undermines important protections that our courts provide to defendants," Harris said.

Harris personally opposes the death penalty, but promised voters that she would enforce it. Legal analysts said the fate of Carney's ruling will depend in part on which 9th Circuit judges are randomly selected to review it.

Carney's ruling that California's death penalty system was dysfunctional sparked national attention. The judge, who serves in Orange County and was appointed by former President George W. Bush, noted that more than 900 people have been sentenced to death in California since 1978, but only 13 have been executed.

"California to appeal federal ruling on state's death penalty practices," is AP coverage, via the Guardian.

The announcement Thursday by Attorney General Kamala Harris came after US District Judge Cormac Carney in Los Angeles ruled last month that the state’s death penalty takes too long to carry out, and that the unpredictable delays are arbitrary and unfair.

Death penalty foes have long argued that California’s delays amounted to unconstitutional cruel and unusual punishment, but until Carney’s ruling, the argument failed to persuade a judge.

Harris, however, said the amount of time it takes to execute inmates in California ensures they receive due process.

“I am appealing the court’s decision because it is not supported by the law, and it undermines important protections that our courts provide to defendants,” Harris said in a prepared statement. “This flawed ruling requires appellate review.”

Death penalty foes had called on Harris to let Carney’s ruling stand rather than risk a reversal in the 9th US Circuit Court of Appeals.

“We hope the 9th Circuit will recognize that California’s death penalty system is as broken and unconstitutional as Judge Cormac found,” Matt Cherry, executive director of Death Penalty Focus, which seeks to abolish capital punishment, said in response to Harris’s move.

"Kamala Harris will appeal death penalty ruling," is by David Siders for the Sacramento Bee.

California Attorney General Kamala Harris said Thursday she will appeal a federal judge’s ruling that the state’s death penalty is unconstitutional.

“I am appealing the court’s decision because it is not supported by the law, and it undermines important protections that our courts provide to defendants,” Harris, a Democrat, said in a prepared statement. “This flawed ruling requires appellate review.”

The appeal comes after U.S. District Judge Cormac J. Carney ruled in July that the state’s administration of the death penalty is so dysfunctional that it violates the prohibition against cruel and unusual punishment.

Earlier coverage of the California Federal District Court's ruling begins at the link.

In Tennessee

Today's Tennessean reports, "Tennessee fights release of execution team identities," by Brian Haas.

State officials on Monday fought to block lawyers for 10 death row inmates from getting information about exactly who will kill their clients.

Appearing before the Tennessee Court of Appeals in Nashville, attorneys for the state argued that Davidson County Chancery Court Judge Claudia Bonnyman improperly ordered them to reveal the names of the lethal injection team that would execute prisoners. Bonnyman's ruling came in a lawsuit involving 10 death row inmates suing for more information about who would execute them and the drugs that would end their lives.

"We are here today because for the first time in the history of lethal injection in the state of Tennessee a court has ordered the state to disclose the identities of those people who are involved in the lethal injection process," said Special Assistant Attorney General Kyle Hixson. "This is an abuse of discretion."

At issue is a law passed in 2013 that made all details about lethal injection — from the execution team to how the state intends to get its lethal injection drugs — secret. The inmates sued, saying that without knowing details about how the drugs are being obtained and who is providing them, there's no way to ensure they'll work as intended and protect their right against "cruel and unusual punishment," which is outlawed by the U.S. Constitution.

"Appellate court considers whether lawyers can find out names of executioners," is AP coverage, via the Tribune.

Assistant federal public defender Stephen Kissinger, who represents some of the inmates, argued that there's no "executioner's privilege" that would stop the state from releasing the identities of the execution team in a court case because they would be sealed.

He said a ruling that would allow the state to keep such information secret would have far-reaching implications.

"This isn't a matter of simply hiding the identity of the executioner," he said. "This is a matter of hiding the identity of the manufacturer of the ax or the manufacturer of the robe."

Tennessee is one of several states where inmates have challenged the secrecy surrounding executions in court.

Earlier coverage from Tennessee begins at the link.

Dysfunction and the Death Penalty

That's the title of a column by James Poulos for the Orange County Register.  Here's the beginning:

Leave it to bad government to make the death penalty – a hallmark of justice systems for thousands of years – look like a terrible idea.

To be sure, eloquent critics of capital punishment have made forceful moral arguments against the ancient eye-for-an-eye quality of killing the perpetrators of society’s most egregious and grievous crimes.

Earlier coverage from California begins at the link.

More Execution Dates Set in Oklahoma

"State schedules executions of three more inmates," is the AP report, via the Muskosgee Daily Phoenix.

Execution dates have been set for three Oklahoma death-row inmates even as state officials continue to investigate what went wrong during a botched execution in April.

Death row inmates Charles Frederick Warner, Richard Eugene Glossip and John Marion Grant are scheduled to die by lethal injection within a four-week period later this year in spite of a federal lawsuit they and 18 other death row inmates have filed that challenges the way the state plans to execute them.

Attorneys for the inmates said they believe it is imprudent for the state to schedule executions when there is so much uncertainty about the protocols and lethal drugs that will be used — especially after trouble with executions here and elsewhere.

Earlier coverage from Oklahoma begins at the link.

Moratorium in Ohio Extended

"Moratorium on Ohio’s executions extended until January," is by Alan Johnson for the Columbus Dispatch.

All three Ohio executions scheduled this year have been postponed by a federal judge because of the continuing controversy over lethal injection drugs.

U.S. District Judge Gregory L. Frost extended his previous moratorium on executions, which would have expired Friday. Frost’s new order, issued last Friday, pushes the moratorium until Jan. 15.

That forces the postponement of the schedule executions of Ronald Phillips of Summit County on Sept. 18, Raymond Tibbets of Hamilton County on Oct. 15, and Gregory Lott of Cuyahoga County on Nov. 19. They will all have to be rescheduled by the Ohio Supreme Court.

Frost issued the delay “in light of the continuing need for discovery and necessary preparations related to the adoption and implementation of the new execution protocol...The parties shall continue to work together to coordinate efforts so that the court can set necessary deadlines following expiration of the stay.”

"Judge extends moratorium on Ohio executions,"is the AP report, via WTAM-AM.

A federal judge has extended a months-long moratorium on executions in Ohio as debate over the state's new two-drug combination continues.

The moratorium was to end this week. the new order extends it through Jan. 15.

The Cleveland Plain Dealer reports, "Ohio's death-penalty moratorium extended until next January," by Jeremy Pelzer.

Ohio's new execution protocol calls for 50 mg each of midazolam and hydromorphone, the same dosage of the drugs employed in a nearly two-hour-long execution in Arizona last month.

Frost issued an order Friday extending the moratorium "in light of the continuing need for discovery and necessary preparations related to the adoption and implementation of the new execution protocol."

Earlier coverage of the Ohio moratorium begins a the link.

Prosecutorial Ethics in the Spotlight in Arizona

"Ethics concerns in Pinal death-penalty cases," is by Sean Holstege for the Arizona Republic.  Here's the beginning:

When a judge declared a mistrial in a Pinal County murder case last week due to the actions of county prosecutors, it marked the third time in a month that ethics concerns were raised about the handling of death-penalty murder cases by the Pinal County Attorney's Office.

Superior Court Judge Boyd Johnson declared a mistrial after learning that prosecutors misled him by secretly interviewing, without an attorney present, a defense witness who was facing charges in another case.

The miscued murder case came days after the State Bar of Arizona opened an inquiry into how and why Pinal County prosecutors ignored a court order by viewing sealed documents in another death-penalty case.

And aday after the mistrial, prosecutors disclosed that a paralegal in the office "inadvertently" accessed off-limits documents in a third death-penalty case.

Court officials and representatives of the County Attorney's Office blame the misstepson a flawed case-management system, inadequate training and misguided judges.

Related posts are in the prosecutorial misconduct category index.

New Reporting Bolsters Todd Willingham's Innocence

"Fresh doubts over a Texas execution," is by Maurice Possley of the Marshall Project, via the Washington Post.  It's also available from the Dallas Morning News. 

At the Marshall Project website, it's titled, "The Prosecutor and the Snitch."

Here's the beginning of this must-read:

For more than 20 years, the prosecutor who convicted Cameron Todd Willingham of murdering his three young daughters has insisted that the authorities made no deals to secure the testimony of the jailhouse informer who told jurors that Willingham confessed the crime to him.

Since Willingham was executed in 2004, officials have continued to defend the account of the informer, Johnny E. Webb, even as a series of scientific experts have discredited the forensic evidence that Willingham might have deliberately set the house fire in which his toddlers were killed.

But now new evidence has revived questions about Willingham’s guilt: In taped interviews, Webb, who has previously both recanted and affirmed his testimony, gives his first detailed account of how he lied on the witness stand in return for efforts by the former prosecutor, John H. Jackson, to reduce Webb’s prison sentence for robbery and to arrange thousands of dollars in support from a wealthy Corsicana rancher. Newly uncovered letters and court files show that Jackson worked diligently to intercede for Webb after his testimony and to coordinate with the rancher, Charles S. Pearce Jr., to keep the mercurial informer in line.

Earlier coverage of Todd Willingham's case begins at the link.

While he was a reporter at the Chicago Tribune, Possley and Steve Mills first reported on the Willingham case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

All related coverage is in the Todd Willingham category index.

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

David Grann's September 2009 New Yorker article is noted here.

What Next in Kentucky?

"In Kentucky, execution debate finds new footing," is by Brett Barrouquere's Associated Press report, via the Daily Independent of Ashland, Kentucky.  Here's an extended excerpt from the beginning of this article:

With a spate of botched executions across the country this year looming over their discussion, Kentucky lawmakers are revisiting some fundamental questions about the death penalty, including whether the state should keep it on the books.

Along with activists on both sides, a joint committee of 32 state representatives and senators planned to meet Friday in Paducah for a forum on whether executions should have a place in Kentucky’s criminal justice system.

Kentucky is a long way from becoming a rare Southern state without capital punishment. This gathering cannot set policies or make official recommendations, and efforts to repeal the death penalty haven’t gotten off the ground in recent attempts in the General Assembly.

The public hearing, however, is the first of its kind since Kentucky reinstated the death penalty in 1975, a four-decade stretch during which the state has executed three men, with 34 more people on death row.

The Rev. Pat Delahanty, a Roman Catholic priest who heads the Kentucky Coalition to Abolish the Death Penalty, said that in his 25 years of anti-capital punishment work, this is the first time lawmakers given the issue such serious attention.

Kentucky has been under a court order since 2010 stopping all executions because of questions about how the state carries out the process, concerns that mirror those around the country over the sources, combinations, and methods of administering lethal drugs.

A shorter version is, "Debate Over Kentucky Executions Begins Again," via WKYU-FM.

Kentucky lawmakers are set to embark on a discussion of whether executions should have a place in Kentucky's criminal justice system and, if so, how should it be carried out. The Joint Legislative Committee hearing set for Friday morning in Paducah comes amid the backdrop of a spate of botched executions around the country this year.

Earlier coverage from Kentucky begins at the link.

LA Times Interview with Judge Alex Kozinski

"Judge Alex Kozinski on bringing back firing squads: No, I wasn't kidding," is by Los Angeles Times columnist Patt Morrison.  Here's the first question of this must-read:

Were you being hyperbolic about firing squads to get our attention?

No, I was quite serious. We've had a lot of litigation about problems with [lethal] drugs. Meanwhile we are spending an immense amount of money and resources, and giving false hopes to the victims' families, and we don't really have a death penalty at all in California.

I never thought using drugs was a good idea. People who make the equipment, the drugs, the catheters — they're involved in lifesaving, not killing. Lethal injection in particular, it's all hands-on; they have to strap the body down, they have to put the catheter in, take the vital signs. It's a hard position for a doctor. If there's still a pulse or heartbeat, maybe they'll give more drugs to finish the job, so the doctor is put in a position of essentially helping them.

With a firing squad, you strap him down and leave him and somebody else does the shooting. The people doing the shooting don't have to see him up close; in fact, you don't even need people to pull the trigger anymore. You can have it triggered remotely.

Of course it does raise the question of whether we are really comfortable with having a death penalty that literally sheds blood. The thing about the drugs is that it's a mask — you're not really shedding blood. [But] it's just as violent, just as brutal.

Earlier coverage of Arizona's botched execution begins at the link.  You can also jump to news of Judge Kozinski's dissent, with a link to the dissent itself.

Vermont Federal Death Sentence & Conviction Overturned

The Federal District Court ruling in USA v. Fell is available, via Scribd.

The Barre Montpelier Times Argus publishes the editorial, "A bedrock principle."

The decision by U.S. District Judge William Sessions to overturn the 2005 conviction of Donald Fell for the murder of Terry King, of North Clarendon, was a bitter disappointment for the victim’s family. But misconduct by one of the jurors who had sentenced Fell to death left Sessions with no alternative.

Everyone deserves a fair trial by an impartial jury. That is a bedrock principle embedded in the Constitution. Unless the courts adhere to fundamental principles of fairness, even in cases of the most heinous crimes, then democracy is undermined.

"Vermont Judge Vacates Death Penalty Conviction," is by Mark Hamblett of New York Law Journal.

The conviction and death penalty sentence of Donald Fell for the 2000 abduction and murder of a Vermont woman was vacated Friday because of juror misconduct.

U.S. District Judge William Sessions in Vermont said Fell, convicted in 2005 in the abduction of Teresca King in a Rutland supermarket parking lot on Nov. 27, 2000 and her murder three days later, will get a new trial because a rogue juror, Juror 143, visited crime scenes during the trial and then repeatedly lied about it, and therefore violated "the 'fundamental integrity' of Fell's trial."

"For Fell, the integrity of the trial was a matter of life or death," Sessions said.

The reversal was the result of years of work by a legal team led by Lewis Liman, a partner with Clearly Gottlieb Steen & Hamilton, who worked the case pro bono. The defense filed under 28 U.S.C. §2255 for a writ of habeas corpus in 2010.

Sessions held four days of hearings, including on Aug. 15 2013 when he heard testimony from Juror 143 and a second juror. A third juror under suspicion appeared on Sept. 27, 2013. Liman amended the petition on October 22, 2013 to add new factual allegations against the jurors.

Sessions also heard from Juror 143's former girlfriend who implicated him and he also heard arguments from Liman that both the trial and the death penalty verdict were irredeemably tainted. By March of this year, Liman's motion had expanded to 400 pages and included about 20 claims for relief.

The Burlington Free Press reports, "Judge orders new trial in Fell case," by Sam Hemingway.

According to court documents filed by Fell's lawyers over the past two years, Juror 143 secretly traveled to Rutland during the trial to look at the crime scenes, told a third party about what he saw and shared his observations with the jury panel.

Those observations included conclusions by Juror 143 about the neighborhood where Fell lived and the parking lot where King was abducted that were not part of the evidence presented in court.

"There is no question that Juror 143 was exposed to prejudicial information that was never introduced at trial nor subjected to the judicial safeguards of cross-examination, confrontation, and counsel." Sessions wrote. "For Fell, the integrity of his trial was a matter of life and death."

Compounding the misconduct, Juror 143 failed to tell the court at any time what he had done, and then lied under oath last August when questioned about his conduct during a court hearing before Sessions, the judge said in his ruling.

Earlier coverage of the Fell case is at the links.  Related posts are in the federal death penalty category index.

Another Look at Judicial Override in Alabama

"With Judges Overriding Death Penalty Cases, Alabama Is An Outlier," is the NPR report by Rebecca Buckwalter-Poza.

When Courtney Lockhart was tried for murder in Alabama, the jury unanimously recommended a life sentence, but the judge overrode that recommendation and sentenced Lockhart to death instead. Now the convicted murderer is asking the state Supreme Court to examine Alabama's unique process of judicial override.

Alabama is an outlier. It's the only state in which judges routinely override jury decisions not to impose the death penalty.

And:

Lockhart appealed his sentence to the state's Court of Criminal Appeals and lost. This May, Lockhart's lawyers appealed to the state Supreme Court in hopes that it would "reevaluate the propriety of judicial override," according to Bryan Stevenson, executive director of the anti-death penalty group Equal Justice Initiative. The court could take up the case any time in the next several months.

The U.S. Supreme Court, beginning in 2000, has said that juries must decide all key questions affecting a defendant's sentence. And the court has specifically applied that concept to death cases.

The result is that in practice, judicial overrides have all but faded away. Today only Alabama judges still override jury recommendations of life in prison and sentence defendants to death instead. In two other states — Florida and Delaware — laws on the books technically still permit judges to adjust jury-recommended sentences. But both states have enacted restrictions that amount to abolishing judicial overrides in practice. None of Delaware's death row inmates was sentenced by an override, and there have been no such judicial overrides in Florida in the last 15 years.

In contrast, the practice of judicial override in Alabama is so widespread that it accounts for one-fifth of death row prisoners.

Earlier coverage of judicial override in Alabama begins at the link.

Kansas Reactions

Today's Wichita Eagle publishes the editorial, "Court has serious job."

The Kansas Supreme Court’s decision overturning the death sentences for Reginald and Jonathan Carr was a tough reminder that the justices’ job is not to be popular but to hold lower courts accountable – a responsibility at its most serious when the issue before the high court is whether the state should end somebody’s life.

The Carrs were convicted and sentenced to death for a two-man crime spree of robbery, home invasion, beatings, kidnappings, sexual assault and execution-style killings in December 2000 that left five dead and Wichita traumatized.

And:

Twenty years after Kansas reinstated the death penalty, it’s not surprising that many are weary of the glacial pace of appeals and impatient to see executions begin. But lawmakers should allow for the possibility that the problem isn’t the Supreme Court but the costly law itself.

"High court's Carr decision may prompt push to change way justices are appointed" is the AP report filed by John Hanna, via the Topeka Capital-Journal.

The Kansas Supreme Court’s decision to overturn two brothers’ death sentences for a notorious robbery, rape and killing rampage likely will fuel another push by conservative Republicans to give the governor and legislators more say in how the justices are chosen.

Senate Majority Leader Terry Bruce said the judicial selection process will “absolutely” be an issue when legislators reconvene in January because of the court’s rulings last week in the cases Jonathan and Reginald Carr. The Nickerson Republican said the rulings weren’t surprising — the court hasn’t upheld a death sentence in two decades — and many members of the GOP-dominated Legislature believe the justices have shown an “activist” streak.

And:

Supporters of the current nominating process argue that it eliminates partisan politics so the selection process can focus on applicants’ skills and work history.

“There will always be cries for the heads of judges when they make difficult and unpopular rulings,” said Rep. John Carmichael, a Wichita Democrat and attorney. “It’s an imperative that we have independent courts.”

Earlier coverage of the Kansas Supreme Court ruling begins at the link.

Cleveland Plain Dealer Editorial

"Flawed Arizona execution must force another look at Ohio's death cocktail," is the editorial in today's Cleveland Plain Dealer.

Wood was put to death with a combination of midazolam, a sedative, and hydromorphone, a narcotic painkiller, the same drugs Ohio used when it executed Dennis McGuire in January. McGuire gasped and gulped in similar fashion while taking 26 minutes to die.

The Ohio Department of Rehabilitation and Correction stated after a review of McGuire's execution that he did not suffer "any pain and distress," but that the state would up the lethal dosage.

Well, the same dosage now contemplated by Ohio is what Arizona administered to Wood, according to Northeast Ohio Media Group reporter Jeremy Pelzer.

Gov. John Kasich should step in to insist on a more comprehensive investigation in Ohio.

This editorial board has long opposed the death penalty, but if Ohio is going to continue to execute prisoners, it must at a minimum certify that it can do so constitutionally, which means without cruel, painful, drawn-out deaths.

On Friday, the Columbus Dispatch reported, "After troubled execution in Arizona, Ohio to use same drugs, dosage."  It's by Alan Johnson.

Despite problems that plagued an Arizona execution, Ohio officials plan to use the same drugs in the same quantity during Ronald Phillips’ execution scheduled for Sept. 18.

Capital punishment in Ohio has been on hold for two months because of an order by U.S. District Judge Gregory L. Frost in a lethal-injection case. Frost’s order expires on Aug. 15. Barring further legal action, the execution will proceed for Phillips, a Summit County child-killer who already has had two reprieves.

However, the troubled execution of Joseph Wood in Arizona on Wednesday turned up the heat on a death-penalty debate that began on Jan. 16 when Ohio executed Dennis McGuire using a then-untested chemical combination.

And:

Jill Del Greco, spokeswoman for Ohio Attorney General Mike DeWine, said she could not predict what might happen after Frost’s order expires. But she added, “As of now, an execution is still scheduled for Sept. 18.”

Earlier coverage of Arizona's botched execution begins at the link.  Also available, earlier news from Ohio.

Continued News Coverage

Today's Wall Street Journal reports, "Secrecy Over Executions Faces Challenges," by Ashby Jones.

The move toward secrecy comes as states struggle to carry out capital punishment in a way that comports both with the Constitution's ban on "cruel and unusual punishment" and the desire for executions that are less gruesome than older methods, such as the electric chair or death by hanging.

But the trend has triggered a wave of lawsuits by the condemned, who argue they need details about the procedures, some of which rely on new drugs largely untested in lethal injections and have led to drawn-out executions. Without the information, they argue, they are unable to determine whether an execution runs the risk of causing needless pain and possibly violating the Constitution.

"Experts decry 'failed experiment' with new death penalty drug combinations," is the Guardian report by Ed Pilkington and Amanda Holpuch, and Tom Dart.

“There have been two executions using midazolam and hydromorphone, and both have led to problems. That indicates that it's possible that the combination doesn't work. These are failed experiments with this drug combination,” said David Waisel, associate professor of anaesthesia at Harvard medical school who has acted as an expert defence witness in many capital cases. “Given the two recent events it seems irresponsible to continue trying this combination.”

Mark Heath, a Columbia University anaesthesiologist in New York, and also a lethal injection expert, pointed out that of the 12 executions in which midazolam has been deployed, “four did not really go as you'd expect or want”. He said: "The common theme is that in all of them the prisoner seems to go to sleep but keeps moving or breathing for long after you'd expect that to happen.” He added that the use of midazolam was “at this point clearly a failed experiment”.

The experts' warnings add to pressure on the death penalty states that are wrestling with the fallout of recent botched or prolonged executions, most recently that of Wood on Wednesday. Eyewitnesses reported that the prisoner gasped for more than an hour, like “a fish on shore gulping for air”. John McCain, the Arizona senator, said the procedure had been “bollocks-upped” and said it was tantamount to torture – a charge all the more potent because McCain was a victim of torture in Vietnam.

Time posts, "America’s Execution Problem," by Josh Sanburn.

The prolonged execution in Arizona was the fourth troubled lethal injection death this year. If our most modern form of capital punishment isn't working, what happens to the death penalty?

"Arizona execution renews debate over methods," is by the Associated Press, via the Washington Post.

A third execution by lethal injection has gone awry in six months, renewing debate over whether there is a foolproof way for the government to humanely kill condemned criminals, and whether it’s even worth looking for one.

Earlier coverage of Arizona's botched execution begins at the link.

Much More Arizona Commentary

The New York Times Taking Note blog posts, "Why the Death Penalty Is Doomed," by Jesse Wegman.

Alex Kozinski, a federal judge on the Court of Appeals for the Ninth Circuit, has gone on the record saying he is “generally not opposed to the death penalty.” But his opinion in a recent case may nevertheless find itself in the history books one day — in the section explaining why the death penalty in America finally ended.

"An Agonizing Execution," is by Serge Schmemann for the New York Times Sunday Review.

CNN Opinion posts, "Botched executions can't be new norm," by Megan McCracken and Jennifer Moreno.

Four men -- Michael Wilson, McGuire, Clayton Lockett and Wood -- have been subjected to bungled executions this year. Although the drugs, doses and other details of the procedures differed in each execution, the commonality between them is that the departments of corrections used experimental drug combinations and shielded crucial aspects of their practices in secrecy.

Even in the aftermath of the executions, the lack of transparency continues. While governors in both Oklahoma and Arizona have called for reviews of the problematic executions, no outside authorities have been brought in to conduct the investigations.
Internal investigations are insufficient to the task. Departments of corrections cannot be allowed to provide pat explanations that leave central questions unanswered, minimize errors and hide relevant information about what went wrong.

"Death penalty becomes cruel and usual: Column," is by James Alan Fox, a regular USA Today contributor.

The Eighth Amendment to the Constitution prohibits punishments deemed to be cruel and unusual, a standard to which capital punishment does not rise, at least according to the U.S. Supreme Court. But with yet another botched execution, the third over the past six months, the cruelty is becoming pretty usual.

It was disturbing enough that the state of Arizona last week took nearly two hours to execute convicted double-murderer Joseph Rudolph Wood, during most of which time he appeared to witnesses to be gasping for breath and grunting in pain. To me, however, equally disturbing is how many people rejoiced over the poor excuse for justice.

"Let's look at the death penalty with statistics instead of emotion," is Scott Martelle's post at the Los Angeles Times Opinion LA blog.

The details matter. In Ohio, Dennis McGuire was seen writhing and gasping as his execution took place, after a doctor warned that the planned dosage of midazolam would not be sufficient to render McGuire unconscious to the point where he would not suffer from the ensuing injections. McGuire reacted pretty much the way the doctor warned he would, struggling to breathe from "air hunger." Still, Arizona decided to use that very same protocol this week in executing Joseph Wood. We know how that went, nearly two hours in all, including hundreds of gasps for breath, as reported by journalist witnesses.

"Arizona pays the price for execution secrecy," is by Mark White, the former Texas governor, in the Arizona Republic.

But for now, Arizona faces the consequences of a culture of secrecy that has enveloped its political leadership. Leading up to the botched execution of Joseph Wood, the state refused to provide information about the origin and safety of the drugs to be used and also refused to provide information concerning the training and skill of the personnel involved in carrying out the execution.

The Washington Times publishes, "A conservative case against the death penalty," by columnist Drew Johnson.

The death penalty is an affront to all we hold dear as conservatives and libertarians. It is a disastrous policy that fails at its goal of preventing crimes, it wastes taxpayers' hard-earned money, it has almost certainly been responsible for killing innocent Americans and it empowers government with the authority to kill its own citizens.

"The Death Penalty Is Big Government At Its Worst," by Casey Given at the Daily Caller.

Death row defendants may offer other options like the firing squad as a solution to lethal injections’ ills. However, no alternative can shorten the drawn-out appeals process that inevitably arises in each death row case. Be it by lethal injection, firing square, or a hangman’s noose, the death penalty will leave victims’ families waiting years for closure. The more humane solution to relieve suffering, save tax dollars, and keep the state’s monopoly of violence in check is to sentence convicted killers to life in prison, where they will spend the rest of their existence living with the agony of their crime. Isn’t that punishment enough?

"A modest proposal: Let our executions match our rhetoric," by Michael Bazemore in the News & Observer of Raleigh, North Carolina.

The botched execution this week in Arizona of a convicted murderer who spent nearly two hours gasping for air as he died is just one more reason to question the whole enterprise of capital punishment. It is morally untenable.

The Toronto Star posts, "The U.S. is one lousy executioner," by Heather Mallick.

When a nation kills its own citizens — even the incontrovertibly guilty — it steps deep into the moral mire, so deep that it isn’t better than any other country, as it claims.

Earlier coverage of Arizona's botched execution begins at the link.

Another Round of Editorials Focus on Arizona

"Why The US Should End the Death Penalty," is the Washington Post editorial.

The death penalty in the United States is in crisis for many reasons. Most states now use injected drugs to kill death-row inmates, and those drugs are in short supply as European manufacturers attempt to distance themselves from U.S. executions. States have been left to concoct novel combinations of sedatives, anti-convulsants and anesthetics and administer them without the help of professionals, who object to state-sponsored life-taking.

Meanwhile, a major reason the country has moved away from antique-seeming execution methods — firing squads, hanging, the gas chamber and the electric chair — toward lethal injection is that intravenous poisoning is less unpleasant for the public. The nation has moved from treating executions like attractive public spectacles to being disgusted by the act of purposely ending a human life.

The Sunday Arizona Republic published the editorial, "Sure, THIS will be a thorough investigation."

The state prisons director says he's committed to a thorough review of Joseph Rudolph Wood's excruciatingly long execution.

But in the same breath, Corrections Director Charles Ryan says the execution was not botched. "The evidence gathered thus far supports the opposite" conclusion, he said in a prepared statement.

So, just how thorough and comprehensive will Ryan's review of the execution be? Excuse us if we have no confidence it will be anything more than a whitewash.

"Arizona should stop executions," is the Tucson Sun editorial.

The Arizona Attorney General’s office has announced it will not issue any warrants of execution until authorities finish reviewing why it took nearly two hours to kill a convicted double-murderer by lethal injection using a controversial drug combination.

The uproar describing the execution as “botched” and “inhumane,” is a good time to consider our state’s position on capital punishment.

The answer should not be to search for a more “humane” way to kill a person.

"Problems with execution drugs must be solved," in Tennessee's Knoxville News.

The death penalty expresses society's legitimate outrage at heinous crimes, and it brings finality to the perpetrators of those crimes and some sort of closure to the survivors. But in a civilized society, if the death penalty cannot be administered properly to those guilty beyond a doubt, it should not be administered at all.

The Baltimore Sun publishes, "Another botched execution."

The Supreme Court declined to intervene in Wood's case, agreeing with a lower court that he had no First Amendment right to know more details about the composition and origin of the drugs that would be used to kill him. But after his botched killing and the three before it, the court surely has a duty to revisit its conclusions from the Baze case. When more than 15 percent of the executions conducted so far this year have resulted in prolonged deaths and/or evident suffering, does that not rise to the level of "substantial risk of serious harm"? When the next condemned prisoner makes an Eighth Amendment claim, can the justices be so sure that such problems would represent an "isolated mishap"?

"Capital punishment," in the Bergen Record in New Jersey, which abolished its death penalty.

There are many reasons to oppose the death penalty, among them a lengthy and costly appeal process and the all-too-real possibility of a defendant being wrongly convicted. But the most compelling reason has nothing to do with time, cost or the availability of lethal drugs: The death penalty is morally wrong.

"Another botched execution in the US," in the Fitchburg Sentinel & Enterprise of Massachusetts.

"A better way," in the Daily American of Somerset, Pennsylvania.

Earlier coverage of Arizona's botched execution begins at the link.

The Emergency Hearing During the Execution

The transcript of the Wood v. Ryan telephone hearing for a Motion for Emergency Stay of Execution is available in Adobe .pdf format.

The Arizona Capitol Times reports, "Killer was given two doses of lethal injection drugs in ‘botched’ execution," by Gary Grado.

U.S. District Court Judge Neil Wake was pulled away from a memorial for a recently deceased colleague and the phones to Gov. Jan Brewer and Department of Corrections Director Charles Ryan were ringing furiously.

Meanwhile, Joseph Wood III, condemned for a 1989 double murder, lay unconscious, making sounds like snoring and seemingly gasping for air as his attorney and an assistant attorney general were on the phone with Wake so he could decide whether to stop the execution, according to a transcript of the 30-minute emergency hearing.

The hearing was called because Wood’s attorneys filed a motion to stop the execution and have life-saving measures performed on him after he was still alive and making noises and involuntary movements an hour into the procedure.

As the hearing was taking place, Wood finally died, rendering the motion to halt the execution moot.

"Executed Killer Joseph Wood Died In Middle of Emergency Hearing," is by Tracy Connor for NBC News.

An Arizona judge was in the middle of an emergency telephone hearing on the execution of Joseph Wood when word came that the inmate had finally died after more than an hour of what witnesses have described as gasping.

A transcript of the hearing shows that 45 minutes after defense lawyers filed a motion asking that Wood's execution be stopped because he was still alive, no decision had been made.

Today's Arizona Republic reports, "Arizona officials deny execution was botched."  It's by Michael Kiefer, who witnessed the execution.

The director of the Arizona Department of Corrections said Thursday that the two-hour-long execution of death- row prisoner Joseph Rudolph Wood on Wednesday was not "botched" and called media reports to that effect "premature and erroneous."

But while Wood was gulping and snorting and dying on the execution gurney, Corrections Director Charles Ryan was on the phone with the Arizona Attorney General's Office, and he already had consulted with the general counsel of the Department of Corrections.

Assistant Attorney General Jeffrey Zick was talking to Ryan when he was interrupted by a call from the U.S. District Court after Wood's attorney, Robin Konrad, pleaded with a federal judge to stop the execution, according to a transcript of the telephone hearing.

"2-hour execution rekindles US death penalty debate; lawyer assured judge that man felt no pain," is the Associated Press coverage, via Medicine Hat News.

A transcript of an emergency court hearing reveals that Arizona officials assured a judge during the nearly two-hour execution of a U.S. inmate that he was comatose and not feeling pain at any point.

Joseph Rudolph Wood gasped for about 90 minutes during his execution on Wednesday. The process took so long that his lawyers had time to file an emergency appeal while it continued.

The Guardian posts, "'Judge, I just learned that the IV team leader has confirmed Mr Wood’s death'," by Tom Dart.

The telephone call gives an insight into the sense of urgency, uncertainty and confusion surrounding Wood’s physical state and the appropriate official response as the execution dragged on. Robin Konrad, one of Wood’s legal team, attempted to convince Neil Wake, an Arizona district judge, to halt the execution and order prison officials to start lifesaving techniques.

And:

Arizona’s execution protocol calls for trained medical personnel – who are not involved with the execution process – to be available nearby to respond to any medical emergency before the start of the execution, while any decision about whether to continue with the process if it is going awry is up to the director of the state department of corrections.

The National Journal posts, "Read the Lengthy Debate Over Whether to End Arizona's Botched Execution," by Dustin Volz.

"We have to deal with degrees of uncertainty, but it does not appear that with lack of physical reaction there is pain," Judge Neil Wake explained. "I am also concerned that if it were possible to suspend this in a better circumstance, I would be disposed to do that if it did not create even more risk of pain. It is not appearing to me that that is a realistic possibility at this time."

Near the transcript's conclusion, Jeffrey Zick, representing the Arizona attorney general's office, stops in mid-thought to announced that Wood has died.

 Earlier coverage of Arizona botched execution begins with the preceding post.

Two Kansas Death Sentences Overturned

The Kansas Supreme Court ruling in Kansas v. Reginald Carr is available in Adobe .pdf format, as is the ruling in Kansas v. Jonathan Carr.

"Jonathan and Reginald Carr death sentences overturned," is by Amy Renee Leiker of the Wichita Eagle.

The Kansas Supreme Court on Friday overturned death sentences for Jonathan and Reginald Carr, brothers who were found guilty and sentenced to death in one of Wichita’s most notorious crime sprees.

The Carrs’ cases also were affirmed in part, reversed in part and the cases remanded, according to a pair of opinions published online at around 9:30 a.m. on Friday. Their murder convictions were upheld, according to the decisions.

And:

They pair were convicted and sentenced to death in 2002.

The article notes that Kansas' last execution was in 1965, well before the Supreme Court ruling in Furman v. Georgia, which outlawed capital punishment in America until state laws were changed to conform with the Furman ruling.

The Topeka Capital-Journal reports, "High court overturns death penalty sentences for Carr brothers, upholds conviction," by Sherman Smith.

The Kansas Supreme Court overturned death penalty sentences Friday for Jonathan and Reginald Carr in the killing of four people in December 2000 in Wichita.

Justices upheld one count of capital murder and overturned the other three “because of charging and multiplicity errors.” New sentencing trials were ordered because the district court judge refused to allow separate penalty phase trials for the brothers.

At their 2002 trial, the brothers were convicted in the kidnapping, robbery, rape and forced sex of five victims. The victims were taken to a frozen field, shot and run over by a vehicle.

Overall, the court upheld 32 of Reginald Carr’s 50 convictions and 25 of Jonathan Carr’s 43 convictions.

And:

The court offered guidance for new penalty trials based on several errors, including garbled jury instructions, in the first trial. The ruling highlights a section of instructions that include an extraneous “not,” reversing their meaning.

Justices declined to consider if Kansas’ execution protocol would protect against unnecessary pain, noting the state’s evolving protocol doesn’t allow for them to address its consitutionality.

Earlier coverage of the Carr brothers' cases begins at the link.  Also available, unrelated news from Kansas.

Extensive News Coverage of Arizona's Botched Execution

"Arizona Takes Nearly 2 Hours to Execute Inmate," is the New York Times report by Erik Eckholm.

In another unexpectedly prolonged execution using disputed lethal injection drugs, a condemned Arizona prisoner on Wednesday repeatedly gasped for one hour and 40 minutes, according to witnesses, before dying at an Arizona state prison.

At 1:52 p.m. Wednesday, one day after the United States Supreme Court overturned a stay of execution granted by a federal appeals court last Saturday, the execution of Joseph R. Wood III commenced.

But what would normally be a 10- to 15-minute procedure dragged on for nearly two hours, as Mr. Wood appeared repeatedly to gasp, according to witnesses including reporters and one of his federal defenders, Dale Baich.

"Arizona execution takes nearly 2 hours," is the updated Associated Press filing.

It is the third prolonged execution this year in the U.S., including one in Ohio in which an inmate gasped in similar fashion for nearly a half-hour. An Oklahoma inmate died of a heart attack in April, minutes after prison officials halted his execution because the drugs weren't being administered properly.

Gov. Jan Brewer said later that she's ordering a full review of the state's execution process, saying she's concerned by how long it took for the administered drug protocol to kill Wood.

Arizona Attorney General Tom Horne's office said Wood was pronounced dead at 3:49 p.m., one hour and 57 minutes after the execution started.

"Two-hour Arizona execution sparks calls for rethink on death penalty," by David Schwartz for Reuters, via Yahoo News.

Lawyers for a double-murderer whose lethal injection in Arizona dragged on for two hours called for an outside review of the "horrifically botched execution" and prompted new calls on Thursday for the United States to abandon the death penalty.

The ordeal in putting Joseph Wood to death on Wednesday at a prison facility southeast of Phoenix followed lethal injections that went awry this year in Ohio and Oklahoma, renewing the U.S. debate over capital punishment.

Corrections officials said Wood was never in pain but Rob Freer, a U.S. researcher with human-rights group Amnesty International, asked, "How many more times do officials need to be reminded of the myth of the 'humane execution' before they give up on their experiment with judicial killing?"

The Los Angeles Times reports, "Arizona killer takes 2 hours to die, fueling lethal-injection debate," by Matt Pearce, Cindy Carcamo, and Maya Srikrishnan.

Joseph Rudolph Wood III's execution almost certainly will reinvigorate the national debate over the death penalty. He received an injection at 1:52 p.m. at the Arizona State Prison Complex in Florence. The execution became so prolonged that reporters witnessing the execution counted several hundred of his wheezes before he was finally declared dead at 3:49 p.m. — nearly two hours after the procedure began.

The incident comes in a year in which lethal injections had already triggered controversy over botched procedures and secrecy.

Wood had fought without success to get more information about the drugs and the expertise of his executioners. His request, which was rejected by the U.S. Supreme Court, prompted one prominent appellate judge to call for the return of the firing squad.

"Arizona Says Inmate Who Died After Nearly Two-Hour Execution Did Not Suffer," is by Dustin Volz at National Journal.

Arizona Gov. Jan Brewer announced Wednesday evening that she had asked her state's Department of Corrections to "conduct a full review" of its execution process. While noting concern for the length of time it took for Wood's death to be called, Brewer struck a largely defensive tone.

"Wood died in a lawful manner and by eyewitness and medical accounts he did not suffer," Brewer, a Republican, said in a statement. "This is in stark comparison to the gruesome, vicious suffering that he inflicted on his two victims—and the lifetime of suffering he has caused their family."

Other state officials in the attorney general's office said they believed Wood had not suffered. Michael Kiefer, an eyewitness reporter for The Arizona Republic, said he counted 660 gasps taken by Wood before he slipped into unconsciousness.

"We will renew our efforts to get information about the manufacturer of drugs as well as how Arizona came up with the experimental formula of drugs it used today," Wood's attorney, Dale Baich, said in a statement. "Arizona appears to have joined several other states who have been responsible for an entirely preventable horror—a bungled execution. The public should hold its officials responsible and demand to make this process more transparent."

The Guardian posts, "Joseph Wood: Arizona murderer dies almost two hours after execution begins,"
by Ed Pilkington

Baich said the state's investigation would be insufficiently independent. “Because the governor and the highest law enforcement official in Arizona have already expressed their view that Mr Wood did not suffer, and because the state of Arizona fought tooth and nail to protect the extreme secrecy surrounding its lethal injection drugs and execution personnel, the only way to begin to remedy this is with open government and transparency,” he said.

In a later interview with Rachel Maddow on MSNBC, Baich said that he had witnessed 11 executions but never any that took so long. He accused Arizona of carrying out an experiment on his client even though state officials had been fully aware of a previous botched execution that had taken place in Ohio using the same drug combination. He pledged to continue the effort to find out who made the drugs used in the execution of his client.

The chief judge of the ninth circuit federal appeals court, Alex Kozinski, told the Guardian that he was not surprised by what had happened. “I have seen this coming for a long time. It's hard to watch these executions and not realise that these blunders are bound to happen,” he said.

In his dissenting opinion to the stay of execution issued by the appeals court this week, Kozinski argued that the use in executions of drugs designed to help sick people was an “enterprise doomed to failure”. On Wednesday, he told the Guardian that he had thought about the problems with lethal injections for a long time, and that though his criticisms were not geared specifically to the Wood case in particular, he had decided it was time to speak out.

"Arizona execution lasts nearly two hours; lawyer says Joseph Wood was ‘gasping and struggling to breathe’," by Mark Berman at the Washington Post.

Wood was the third inmate executed in Arizona since last October and the first put to death using a combination of the drugs midazolam and hydromorphone.

Attorneys for Wood had argued that more information was needed regarding the drugs that would be used in the execution. Arizona planned to use a two-drug combination that had been used only once before in an execution. (That episode, a lethal injection in Ohio, lasted for nearly 25 minutes. Witnesses said the inmate was snorting and gasping during the process.)

Additional coverage includes:

"Condemned man's US execution takes nearly two hours," by AFP, via Global Post.

"Executed Arizona inmate 'gasping' for more than hour," by Danielle Haynes for UPI.

"Another botched execution? Inmate gasps during two-hour execution," by Dana Ford, Amanda Watts and Jason Hanna at CNN.

ABC News posts, "Inmate Dies 2 Hours After Execution Began in Arizona," by Bill McGuire and Danielle Genet.

NBC News posts, "Arizona Execution of Joseph Wood Took Nearly Two Hours," by Tracy Connor and M. Alex Johnson.

"Investigation launched over 2-hour ‘bungled’ Arizona execution," at Al Jazeera America.

Video and audio links are also available.  Phoenix station KSAZ-TV has video of a post-execution news conference, held at the prison.

NPR  Morning Edition aired, "Complications During Ariz. Inmate's Execution Reignite Controversy," by Jude Joffe-Block of Phoeniz public radio station KJZZ-FM.

Last night's Rachel Maddow Show on MSNBC carried, "Update: Arizona execution takes nearly two hours."

Earlier coverage of Arizona's botched execution begins with the preceding post.

 

Statement From Joseph Wood's Attorney

Dale Baich, an attorney representing Joseph Wood, issued the following statement last night:

"The Governor of Arizona and the Attorney General  have tonight already pronounced that Mr. Wood did not suffer during his two hour execution, during which time the witness from the Arizona Republic counted over 650 gasps for air, and that his execution was lawful. The fact is that Mr. Wood's conviction and sentence were found to be lawful by the courts, but his execution violated this country's ban on cruel and unusual punishment.

Because the Governor and the highest law enforcement official in Arizona have already expressed their view that Mr. Wood did not suffer, and because the state of Arizona fought tooth and nail to protect the extreme secrecy surrounding its lethal injection drugs and execution personnel, the only way to begin to remedy this is with open government and transparency. An independent investigation, led by someone outside of the Department of Corrections and outside of the executive branch of state government, must fully explore the practices which led to tonight's horrifically botched execution."

The Emergency Motion for Stay of Execution filed with the Arizona Supreme Court during the execution is available via Scribd.

Earlier coverage of Arizona's botched execution begins with the preceding post.

The Arizona Republic on Joseph Wood's Botched Execution

There is extensive news and commentary regarding yesterday's botched execution in Arizona.  I'll be breaking it out over the next few posts.  First, items from today's Arizona Republic.

"A moratorium on the death penalty is needed," is by the Republic's Editorial Board.

The increasingly irrational argument for attempting to humanely put a convict to death has run out the string in Arizona.

It is not humane to leave a human being, however deserving of death, to gasp for air for two hours before dying, as double-murderer Joseph Rudolph Wood did on Wednesday.

A firing squad armed with high-velocity rifles loaded with hollow-point ammunition would be more humane.

That is precisely what U.S. Ninth Circuit Court of Appeals Chief Judge Alex Kozinski argued in his dissent of an order to stay Wood's execution. The U.S. Supreme Court later overturned the ruling.

And:

Arizona must place a moratorium on any further use of the mysterious chemicals used for executions. Gov. Jan Brewer cannot permit another execution to go forward without solid assurance the death sentence will be carried out within the constraints of the Eighth Amendment — an assurance that Wood's botched execution rationally tells us is a fool's errand.

By trying to pretend we are putting these convicts quietly to "sleep," we have instead fallen into a protocol that assures a lingering horror. If that is not the definition phrase "cruel and unusual punishment," the words have lost all meaning.

Republic columnist Laurie Roberts writes, "Arizona needs a timeout after botched execution."  Here is an extended excerpt:

Joseph Rudolph Wood III shot and killed Debra Dietz, and her father, Eugene, on Aug. 7, 1989.

For nearly a quarter of a century that family has suffered.

For 116 minutes this afternoon, Wood suffered.

Suffering, I suppose, is relative.

Still, we're better than this, or we should be. We must be.

Joseph Rudolph Wood III didn't die easily and that blood? Well, it's on our hands.

The public needs to know what happened here. What drugs are we using to kill people and what's the big state secret, if there's not a problem with those drugs?

State officials need to immediately call a halt to all executions until we can be assured that we can kill smoothly and efficiently.

We should at least be as good a killer as Joseph Rudolph Wood III.

While we're waiting, perhaps we should also ponder the value of a penalty that takes 25 years to carry out.

Earlier coverage of Arizona's botched execution begins with the previous post.

Arizona Supreme Court Lifts Stay of Execution

"Arizona Execution Stay Lifted," is the breaking newss from CNN, via KSPR-TV.

The Arizona Supreme Court has lifted the stay it had imposed on the execution of convicted murderer Joseph Wood. Wood had asked the court to review his claims that the execution's drug combination would be cruel and unusual punishment, but the court has declined.

To date, there have been 25 executions in American death penalty states this year; a total of 1,384 post-Furman executions since 1977.  Arizona has conducted 36 executions since 1992.  The state's last execution was in October 2013.

Earlier coverage begins with the preceding post.

Arizona Suprme Court Issues Wood Stay

"Ariz. top court halts execution to consider appeal," is from the Arizona Republic, via USA Today.

The Arizona Supreme Court on Wednesday morning issued a temporary stay of double-murderer Joseph Rudolph Wood's execution so it could consider a last-minute petition for post-conviction relief.

The court's stay was to remain in effect until at least 1 p.m. Wednesday.

"I would anticipate there would be some formal ruling, but it may take a few hours,'' Arizona Department of Corrections Director Charles Ryan said.

Preparations for Wood's 10 a.m. Wednesday execution at the state prison in Florence were underway when the stay was ordered. Wood, 55, killed two people in 1989.

Earlier, AP filed, "Supreme Court denies inmate's last-ditch appeal," via the San Francisco Chronicle.

The U.S. Supreme Court cleared the way for Arizona to carry out its third execution in the last year Wednesday following a closely watched First Amendment fight over the secrecy surrounding lethal injection drugs.

Joseph Rudolph Wood, 55, was scheduled to be put to death at the state prison in Florence amid new scrutiny nationwide over lethal injections after several controversial executions.

Wood's lawyers used a new legal tactic in which defense attorneys claim their clients' First Amendment rights are being violated by the government's refusal to reveal details about lethal injection drugs. Wood's lawyers were seeking information about the two-drug combination that will be used to kill him, including the makers of the drugs.

Earlier coverage of Joseph Wood's case begins at the link.

Additional Arizona Coverage & Commentary

The Los Angeles Times Opinion LA blog posts, "Why mask the ugliness of executions? Bring back firing squads, judge says," by Scott Martelle.

These killings committed in our names are not pretty. This is brutality, pure and simple, and a brutality that serves no public interest, coming too long after the crime to serve as either punishment or deterrent. And the solution is not to speed up the process. As it is, a conservative estimate suggests an error rate of 4% in sentencing the innocent to death.

Recent polls have shown an erosion of public support for capital punishment, with one recording a slight majority of Americans now opposing it. Could it be that we’re slowly becoming a civilized nation? Could we be nearing the point at which we recognize the moral and ethical failure at the heart of giving our government the power to kill fellow citizens?

One can hope.

"Appeals court judge argues for return of firing squads," is by Arizona Republic columnist EJ Montini.

The chief judge of the Ninth U.S. Circuit Court of Appeals has a suggestion to prevent legal challenges to lethal injection as a method of execution:

Bring back firing squads.

I am not making this up.

The Republic also publishes the news report, "High court clears Ariz. to execute inmate today," by Michael Kiefer.

In their motions for a stay of execution, Wood's attorneys cited a long history of transparency about executions, from the display of ropes used in hangings to information about the gas chamber that still sits across the viewing room from the lethal-injection chamber in the death house at the Florence prison.

In recent years, the federal defender's office has been battling the state over secrecy.

"The people of Arizona have decided that the death penalty is an appropriate punishment," said Dale Baich, a federal public defender. "They should equally decide that the death penalty cannot remain shrouded in secrecy that prevents ... the public, the courts and the condemned from knowing if executions are carried out in compliance with all state and federal laws," Baich said.

The argument will continue in U.S. District Court in an ongoing lawsuit.

But Wood will no longer be part of the argument.

"First Amendment fight won't stop Arizona execution," is the updated AP filing, via the San Francisco Chronicle.

Wood has one more last-ditch appeal for a stay of execution before the U.S. Supreme Court, Wood's attorney, Dale Baich said.

Earlier coverage of the Arizona case begins at the link.

Supreme Court Vacates 9th Circuit Stay in Arizona LI Challenge

There are two Supreme Court Orders, Ryan v. Wood, and Wood v. Arizona, issued this evening.

The New York Times reports, "Execution in Arizona Is Approved by Justices," by Adam Liptak.

The Supreme Court on Tuesday allowed the execution of an Arizona inmate to proceed, lifting a stay from a federal appeals court that had been based on the secrecy of the state’s lethal-injection protocol.

The Supreme Court’s order was three sentences long and said little more than that the lower court had been wrong to stop the execution.

But the move was consistent with the Supreme Court’s reluctance to intercede in the growing turmoil in the capital justice system caused by drug shortages and boycotts that have made it difficult for states to obtain the chemicals for lethal injections.

States have responded to the shortages by using new chemicals, some obtained from lightly regulated compounding pharmacies. Lawyers for condemned inmates have said they need information about the new protocols in order to challenge the execution methods as violating the Eighth Amendment’s ban on cruel and unusual punishment.

"SUPREME COURT ALLOWS ARIZONA EXECUTION TO PROCEED" is the AP coverage.

The U.S. Supreme Court on Tuesday allowed an Arizona execution to go forward amid a closely watched First Amendment fight over the secrecy surrounding lethal injection drugs in the country.

The court ruled in favor of Arizona officials in the case of Joseph Rudolph Wood, who was convicted of murder in the 1989 shooting deaths of his estranged girlfriend and her father. The state plans to execute him Wednesday.

Wood, 55, argued he has a First Amendment right to details about the state's lethal injection method, the qualifications of the executioner and who makes the drugs. Such demands for greater transparency have become a new legal tactic in death penalty cases in recent months.

And:

Wood has one more appeal for a stay of execution pending before the 9th Circuit, Baich said. The habeas corpus challenge to his conviction and sentence will be decided by Wednesday.

Wood's case highlights scrutiny surrounding lethal injections after several controversial executions, including that of an Ohio inmate in January who snorted and gasped during the 26 minutes it took him to die. In Oklahoma, an inmate died of a heart attack minutes after prison officials halted the process of his execution because the drugs weren't being administered properly.

States have refused to reveal details such as which pharmacies are supplying lethal injection drugs and who is administering them because of concerns over harassment.

"Arizona execution is back on as Supreme Court reverses 9th Circuit," is by Maya Srikrishnan for the Los Angeles Times.

Arizona's execution of Joseph Wood was back on for Wednesday after the U.S. Supreme Court vacated a preliminary injunction imposed by the U.S. 9th Circuit Court of Appeals.

In overturning the 9th Circuit on Tuesday, the high court said a district court judge had not abused his discretion in denying Wood’s motion for an injunction.

Wood, 55, contends that Arizona is violating his 1st Amendment rights in denying him information about the lethal drugs that will be used in his execution and the qualifications of his execution team.

The Washington Post reports, "Supreme Court overturns stay, allowing Arizona execution to proceed," by Mark Berman.

The Supreme Court, in a pair of brief orders released on Tuesday night,vacated the stay and denied a request for a stay of execution.

In vacating the appeals court’s stay, the Supreme Court said that a district judge who had denied Wood’s request for a stay “did not abuse his discretion.” This application to vacate the stay was presented to Justice Anthony M. Kennedy and then to the entire court.

No explanation was offered for the decision to deny Wood’s request for a stay, which was also referred by Kennedy to the entire court and then denied.

The appeals court panel that had stayed the execution had agreed that more information was necessary to properly review the execution protocols that will be used to kill Wood. “We, and the public, cannot meaningfully evaluate execution protocol cloaked in secrecy,” the panel’s ruling on Saturday stated.

Earlier coverage of Joseph Wood's Arizona lethal injection challenge begins at the link.

Sacramento Bee Editorial

"Judge chastises California perpetuating dysfunctional death penalty system," is the editorial published in today's Sacramento Bee.

Death penalty opponents might be heartened by a federal judge’s decision declaring California’s capital punishment unconstitutional.

But the decision by U.S. District Judge Cormac J. Carney last week is less a victory for abolitionists than it is a condemnation of California officials’ mishandling of capital punishment.

And:

There always will be terrible crimes. But for an array of reasons, not the least of which is public ambivalence, California has failed to carry out death sentences. Policymakers and the citizenry ought to acknowledge that the death penalty is broken beyond repair.

"Justice delayed," is the title of the Economist's current Democracy in America column.

“A MAN is undone by waiting for capital punishment,” Albert Camus wrote, “well before he dies.” On July 16th a federal judge in California, Cormac Carney, ruled in Jones v Chappell that the machinery of death in the Golden State is so plagued by delays and arbitrariness that it amounts to a “cruel and unusual punishment” in violation of the Eighth Amendment to the federal constitution. Judge Carney struck down Ernest Jones’s 1995 death sentence for raping and killing his girlfriend’s mother, along with the capital sentences of 747 other convicts. Awaiting execution for decades “with complete uncertainty as to when, or even whether, it will ever come,” Judge Carney wrote, is a punishment “no rational jury or legislature could ever impose.”

And:

Stephen Bright of the Southern Centre for Human Rights says that the California death penalty is “uniquely dysfunctional” (a term Judge Carney used eight times) and “will collapse of its own weight eventually.” If and when the challenge reaches the Supreme Court, it is unclear how it will fare. Justice Stephen Breyer has been receptive to the delay argument in the past and this March Justice Anthony Kennedy asked the Florida solicitor general whether he thought waiting 35 years to die was "consistent with the purposes that the death penalty is designed to serve." Mr Bright has few doubts which way the wind is blowing. Judge Carney’s decision, he says, “has added to the conversation in a way that will lead to the inevitable end of the death penalty in California and the United States.”

The Bakersfield Californian reports, "Death penalty ruling used as argument in local cases," by Jason Kotowski.

Repercussions from last week's federal ruling calling California's death penalty unconstitutional are already being felt in Kern County.

The attorney representing Aaron Patrick Burris, charged with two counts of murder stemming from a shooting at a medical marijuana dispensary last summer, has filed a motion to strike the death penalty as potential punishment in Burris' case.

The motion, filed by Deputy Public Defender Paul Cadman on July 17, states, "The defendant seeks a fair and impartial trial, untainted by the moral repugnancy of the California penalty scheme, which ignores the clear reading and mandates of the 8th Amendment."

Earlier coverage of Judge Cormac Carney's California ruling begins at the link.

The federal district court ruling in Jones v. Chappell is available in Adobe .pdf format.

Former Judges Back Rodney Reed Appeal

Today's Austin American-Statesman reports, "Eight ex-judges support appeal of death row inmate Rodney Reed."  It's by Chuck Lindell.

Eight retired federal and state judges on Monday asked the U.S. Supreme Court to accept an appeal by Rodney Reed, who faces a January execution in the 1996 rape and murder of 19-year-old Stacey Stites in Bastrop County.

The former judges said they were taking no position on Reed’s claim of innocence or his insistence that he should be granted a new trial because he received poor representation from his trial lawyers.

Rather, they said in a friend-of-the-court brief submitted Monday, that the Supreme Court should intervene because a lower appeals court did not follow the correct procedure when it rejected Reed’s appeal in January.

According to the retired judges’ brief, the 5th U.S. Circuit Court of Appeals should have ordered a district judge to review Reed’s claims — hearing live witnesses who were cross-examined by lawyers — but instead engaged in improper fact-finding based on a “cold record” of briefs and affidavits.

And:

The retired federal judges in the brief were Royal Furgeson of Texas, appointed by President Bill Clinton; U.W. Clemon of Alabama, appointed by President Carter; Lee Sarokin of New Jersey, appointed by Carter and Clinton; Stephen Orlofsky of New Jersey, appointed by Clinton; and W. Thomas Dillard, a nonappointed magistrate judge in Tennessee.

The state judges included Charles Baird, a Democrat who served eight years on the Texas Court of Criminal Appeals and four years as a district judge in Austin; Sol Wachtler, a Republican formerly with the New York Supreme Court; and Oliver Diaz Jr., formerly with the Mississippi Supreme Court in a nonpartisan position.

The amicus brief in Reed v. Stephens is available in Adobe .pdf format.

Earlier coverage of Rodney Reed's case begins at the link.

Latest Developments in the Arizona LI Challenge

The 9th Circuit ruling in Wood v. Ryan, with Judge Kozinski's dissent is available in Adobe .pdf format.

"ARIZONA EXECUTION DRUG CASE HEADS TO SUPREME COURT," is by Astrid Galvan and Jim Salter of Associated Press.

A federal appeals court ruled Monday that Arizona cannot execute a death row inmate without providing detailed information about the drugs intended for his lethal injection, a decision that prompted state officials to say they will take their case to the U.S. Supreme Court.

The dispute centers on whether a man convicted of killing his estranged girlfriend and her father should have access to information the state of Arizona has refused to provide, and it comes amid nationwide scrutiny surrounding capital punishment and whether condemned inmates unduly suffer.

Arizona officials lost their attempt to overturn a three-judge panel of the 9th U.S. Circuit Court of Appeals, which ruled recently that death row inmate Joseph Rudolph Wood, convicted in the 1989 shooting deaths, "raised serious questions" about whether he should have "access to lethal injection drug information and executioner qualifications."

The Los Angeles Times reports, "Federal appeals court refuses rehearing on Arizona execution case," by Michael Muskal.

Arizona is expected to ask the U.S. Supreme Court to overturn the stay of execution.

Wood, 55, had been scheduled to die for the August 1989 shooting deaths of his estranged girlfriend, Debra Dietz, and her father, Eugene Dietz, in Tucson.

In seeking a delay, Wood’s lawyers had argued that their client had a right to know which drugs would be used in the execution and how the state had developed its protocol for administering a lethal injection. The lawyers maintained that Wood had a 1st Amendment right to such information.

“The 9th Circuit has correctly recognized the importance of the information Joseph Wood seeks. Without greater transparency from the state, it's impossible for the public to engage in informed debate, which is the cornerstone of democracy. We look forward to Arizona's compliance with this ruling,” Dale Baich, Wood’s attorney, said in a statement on Monday.

"Judge Kozinski: Bring Back the Firing Squad," is by Jacob Gershman at the Wall Street Journal Law blog.

One of the nation’s most prominent judges is urging states that have the death penalty to abandon lethal injection and switch to the “more primitive” but “foolproof” firing squad as their primary method of executing death-row inmates.

Alex Kozinski, chief judge of the Ninth U.S. Circuit Court of Appeals, wrote a blistering critique of lethal injection in a dissenting opinion in the death-penalty case of Joseph Wood, an Arizona convicted murderer whose July 23 execution was delayed by a Ninth Circuit panel on Saturday.

The court on Monday refused to rehear the case before the entire bench, letting stand a panel’s decision to hold up Mr. Wood’s execution until more was disclosed about the drugs and the executioners to be used in his lethal injection.

"Arizona execution remains on hold, could go to Supreme Court," is by Mark Berman for the Washington Post.

The full court did not offer an explanation for why it was declining to rehear the case. The panel of judges staying the execution had said that providing more information about how the death penalty is carried out is essential for both the public and the courts.

Both issues cited by the panel in its stay – the type of drugs used and the qualifications of the medical personnel involved — have been factors during executions this year. The two-drug combination that Arizona will use (medazolam and hydromorphone) was used in a January execution in Ohio that caused an inmate to choke, gasp and take nearly 25 minutes to die. Meanwhile, after an inmate grimaced and writhed during a botched lethal injection in Oklahoma, an independent autopsy found that the execution team failed to place the IV properly.

The Washington Post also reports, "Guillotine, firing squads better than lethal injection, says prominent federal judge," by Fred Barbash.

Kozinski let loose on the whole attempt, as he put it, to “mask the brutality of executions by making them look serene and peaceful — like something any one of us might experience in our final moments.”

Executions “are, in fact, nothing like that … and nothing the state tries to do can mask that reality,” he wrote. If the state’s going to kill, it should at least do it effectively, he said.

“The guillotine is probably best but seems inconsistent with our national ethos. And the electric chair, hanging and the gas chamber are each subject to occasional mishaps. The firing squad strikes me as the most promising. Eight or ten large-caliber rifle bullets fired at close range,” he wrote in his dissent, “can inflict massive damage, causing instant death every time. There are plenty of people employed by the state who can pull the trigger and have the training to aim true.”

Unlike drugs used for lethal injections, he said, guns and ammunition are bought by the state “in massive quantities for law enforcement purposes, so it would be impossible to interdict the supply. And nobody can argue that the weapons are put to a purpose for which they were not intended,” as unlike medications, “firearms have no purpose other than destroying their targets.”

"Top judge attacks lethal injection as Arizona fails in death penalty appeal," is by Ed Pilkington for the Guardian.

One of America’s top judges has launched a dramatic attack on the use of medical drugs in executions, stating that the attempt to disguise the brutality of the death penalty by giving condemned prisoners the appearance of serenity in their final moments is “doomed to failure” and that the country should return to the firing squad.

The sharply-worded statement from Alex Kozinski, chief judge of the ninth circuit federal appeals court, came as the court on Monday denied Arizona’s attempt to challenge the postponement of an inmate’s execution over the secrecy of its capital punishment procedures. Arizona state officials say they will now appeal to the US supreme court.

Kozinski’s statement represents one of the most high-profile attacks on the US death penalty. It adds to the sense of crisis surrounding the sentence in the wake of a European-led boycott of lethal injection drugs that has forced states to adopt increasingly desperate measures including new drug protocols and secrecy laws.

In his statement, Kozinski says that the decision made in the 1970s to move from the traditional methods of judicial killing - such as the electric chair, gas chamber, hanging and firing squad – to lethal injections using medical drugs was misguided. “Subverting medicines meant to heal the human body to the opposite purpose was an enterprise doomed to failure,” he writes.

Additional coverage includes:

"U.S. court denies bid to reconsider stay of Arizona execution," by David Schwartz for Reuters, via the Chicago Tribune.

"Appeals Judge Says Guillotine 'Probably Best' for Executions," by Tracy Connor for NBC News.

"Kozinski dissent: ‘Firing squads can be messy’ but they are better than lethal injection," by Debra Cassens Weiss at the ABA Journal.

Courthouse News Service posts, "9th Circuit Puts Killer's Execution on Hold," by Tim Hull.

"Arizona Execution Postponed By Appeals Court," by Al Macias at Phoenix NPR station KJZZ-FM.

"The Death Penalty Is Becoming a First Amendment Issue," by Ben Richmond for Motherboard.

MSNBC has posted a video link from the Monday night's Rachel Maddow Show, "Execution drug secrecy blocked by court."

Michael Kiefer, senior reporter for the Arizona Republic, talks with Rachel Maddow about the significance of a ruling by the 9th Circuit Court of Appeals that Arizona must reveal the source of its execution drug before it can kill a prisoner with it.

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

Continued Commentary on the California Ruling

Today's New York Times publishes the editorial, "A Lifetime on California’s Death Row."

In a remarkable ruling overturning the death sentence of Ernest Dewayne Jones, who was sentenced in 1995 for the murder of his girlfriend’s mother, Judge Carney, an appointee of President George W. Bush, pointed out that of the more than 900 people California has sentenced to death since 1978, 13 have been executed. More than 40 percent of the rest have been on death row for at least 19 years, and the backlog is growing.

The judge found that the delays are primarily due not to inmates’ repeated appeals, as is often assumed, but to the state’s own foot-dragging and underfunding of its indigent defense system.

California law provides for an automatic appeal of all death sentences, but it takes three to five years before death-row inmates — all of whom are indigent — are even assigned a lawyer. It takes four more years for the lawyer to go through the voluminous trial record and file an appeal, and two to three years for the State Supreme Court, which hears only 20 to 25 death-penalty appeals per year, to schedule oral arguments.

 "A sane ruling on California's crazy execution system," is by the Los Angeles Times Editorial Board.

This page has long argued for the abolition of the death penalty because it is barbaric, inconsistently applied and fallible in its implementation. Another judge has already found California's lethal injection process unconstitutional; the state Department of Corrections and Rehabilitation is crafting a new protocol.

The truth is that the constitutional issues surrounding executions have proved too thorny for political or legal resolution, and so the condemned sit for decades in limbo.

Some might see that as an argument to speed up the process. But the risk of executing the innocent is too high under a speedy system. This ruling, which undoubtedly faces its own protracted journey through the courts, firms up the case for doing away with the death penalty altogether.

Contra Costa Times columnist Byron Williams writes, "Times are changing for California's death penalty."

Carney's ruling is expected to be appealed. But in the words of Bob Dylan, "the times they are a-changin'!" Carney's ruling raises an additional question: How strong is the public mood to maintain a system that beyond appealing to the primordial thirst for revenge has been ineffective by every measure it set?

Carney's decision could create a ripple effect for similar arguments to be made in death penalty appeals nationwide. Hopefully, California and the rest of the nation will reach the age of enlightenment by joining the fraternity of countries like Angola, Mozambique, and Rwanda that see the death penalty for what it is -- an abject failure.

"Cruel and Unusual," is Stacey Nguyen's column in today's Daily Californian.

Anxiety shook me when my fifth-grade teacher assigned us a paragraph on what we thought about Stanley “Tookie” William’s death sentence. Williams, a former leader of the Crips charged with several accounts of first-degree murder, was put on death row in California. In prison, he began writing anti-gang and anti-violence books for children, some of which we had read in class.

Williams became an icon for many activists and leaders, with more than 2,000 attending his funeral. Before his execution, he left behind a recorded message for his mourners. “The war within me is over. I battled my demons and was triumphant,” Williams said in his recording. “Teach them how to avoid our destructive footsteps. Teach them to strive for higher education. Teach them to promote peace and teach them to focus on rebuilding the neighborhoods that you, others and I helped destroy.”

As a fledgling 10-year-old citizen, I had vague intuitions about the dilemma of justice presented before me. Part of me questioned whether it was morally just to penalize murder by executing murder under the thin veil of a bureaucratic procedure. As a young adult, I am more cognizant of the rhetorical moves supporters and opposers of this legal process use, which I explore here.

San Francisco Chronicle syndicated columnist Debra J. Saunders latest is, "The triumph of dubious death-penalty appeals."

A - all bow - federal judge has ruled that California's death penalty is unconstitutional because the state's "dysfunctional administration" has meted out the punishment to more than 900 murderers, but imposed it on "only 13" since 1972. That's too arbitrary, wrote U.S. District Judge Cormac J. Carney of Santa Ana. Besides, "the slight possibility of death, almost a generation after (killer Ernest Dewayne Jones) was first sentenced, violates the Eighth Amendment's prohibition against cruel and unusual punishment."

And: a "death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death."

It doesn't bother Carney that Death Row inmates' lawyers have created that preposterous sentence - remote possibility of death - by slowing the wheels of justice with dubious time-sucking appeals. If appellate attorneys think delays are too painful for their clients, maybe they should curb their appeals.

Earlier coverage of the California death penalty ruling begins at the link.

Judge Cormac Carney's ruling in Jones v. Chappell is available in Adobe .pdf format.

9th Circuit Stays Arizona Execution Over Drug Secrecy

The U.S. Court of Appeals for the Ninth Circuit ruling in Wood v. Ryan is available in Adobe .pdf format.  Also available, a dissent in the case and other documents.

"Court Delays Execution Over Secrecy With Drugs," is the New York Times report by Erik Eckholm.

A federal appeals court has delayed the imminent execution of an Arizona man, saying he has a legal right to details about the lethal injection drugs to be used and about the qualifications of the execution team.

The ruling on Saturday, by a divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, contrasted sharply with recent decisions by other state and federal courts defending states’ rights to keep information about drug sources secret.

“This is the first time a circuit court has ruled that the plaintiff has a right to know the source of execution drugs,” said Jennifer Moreno, an expert on lethal injection law at the Death Penalty Clinic of the University of California, Berkeley, School of Law.

The appeals court ruling came four days before the scheduled execution of Joseph Wood, who was convicted of the killings of two people and sentenced to death.

But Arizona officials were not backing down. On Sunday, the state appealed to the Ninth Circuit for reconsideration by a wider panel of judges and it appeared possible that the state would appeal all the way to the United States Supreme Court if necessary.

"Court: No execution unless Arizona reveals drug source," is by Michael Kiefer of the Arizona Republic, via USA Today.

The 9th U.S. Circuit Court of Appeals ruled Saturday that Arizona must divulge information about the drugs and executioners it will use to put a man to death Wednesday or the execution will not go forward.

Joseph Wood, who killed his estranged girlfriend, Debra Dietz, and her father, Eugene Dietz, in Tucson in 1989, is scheduled to die July 23.

But his attorneys at the Federal Defender's Office in Phoenix filed suit claiming he had a First Amendment right to know who supplied the drugs that will be used to kill him and the qualifications of the executioners who will carry it out.

Two of the judges in a panel of three sided with Wood; the third dissented.

At issue is a new drug combination that Arizona has turned to because it cannot obtain the drugs it normally uses for executions. That combination, and one of the drugs in particular, a Valium relative called Midazolam, has caused apparent "flawed executions," as the court called them, in Ohio and Oklahoma.

AP coverage is, "Execution of Ariz. inmate is postponed," via the Boston Globe.

A federal appeals court has granted an Arizona death row inmate’s request to postpone his execution until prison officials reveal details on the two-drug combination that will be used to put him to death.

The preliminary injunction granted by the US Court of Appeals for the Ninth Circuit reversed a lower federal court. It was issued Saturday, four days before the scheduled execution of Joseph Rudolph Wood.

Without weighing in on the ‘‘ultimate merits’’ of Wood’s case, the court wrote: ‘‘Wood has presented serious questions going to the merits of his claim, and that the balance of hardships tips sharply in his favor.’’

"Federal appeals court grants stay to Arizona death row inmate," the Los Angeles Times report by Maya Srikrishnan, via the Chicago Tribune.

Dale Baich, Wood's attorney, praised the court’s decision. “There is a continuing and intensifying debate over lethal injection in the country,” Baich said. “It’s important that specific and detailed information be provided so the public can know about how safely and reliably the death penalty is administered.”

According to court documents, the state argued that the information Wood seeks would offer “little value to the public debate,” and that releasing the information could deter drug manufacturers from providing drugs for lethal injections and could leak the identities of the execution team members who administer the drugs.

The Guardian posts, "Court tells Arizona to reveal provenance of death penalty drugs before execution," by Dominic Rush.

An appeals court ruled on Saturday that Arizona must divulge details about the drugs and qualifications of the medical personnel it plans to use to kill a death-row inmate, Joseph Wood, on Wednesday. If such details are not made available, the execution will be stopped.

Additional coverage includes:

"Appeals court puts Arizona execution on hold over drugs details," by David Schwartz for Reuters, via Yahoo News.

MSNBC posts, "No execution until Arizona reveals death penalty drugs, court says," by David Ingram.

"Appeals court delays Arizona execution over unknown drug combo," at Al Jazeera America.

"Federal Appeals Court Halts Arizona Execution Due To Secret Drug Cocktail," by Ian Millhiser for Think Progress.

Today's Arizona Republic publishes the OpEd,"Improve execution process with greater transparency," by attorney Dan Barr.

Until relatively recently, information about how executions are conducted has been publicly available. The Arizona Department of Corrections used to make execution-related information available when asked. Three years ago, the DOC turned over information about its lethal-injection drugs to death-row prisoners.

In 2013, when the DOC refused prisoners' requests for information about the drugs, a federal court ordered disclosure for three reasons: Executions have historically been open to the public; the DOC has previously disclosed this type of information; and prisoners have First Amendment rights of access to government information related to their executions.

Public access to government information about the manner in which prisoners are put to death improves the execution process itself by allowing the public to engage in informed debate.

Earlier coverage of Joseph Wood's lethal injection challenge begins at the link.

More Commentary and Analysis on Jones v. Chappell

"Justices Unlikely to Smile on Anti-Death Penalty Ruling," is by Marcia Coyle for the National Law Journal.

"It doesn’t totally surprise me that every few years a judge will speak honestly about what's going on," said death penalty litigator Bryan Stevenson of the Equal Justice Initiative. "Although some people would disagree with his legal conclusion, most people don’t disagree with his analysis of how things are functioning."

Carney's decision differed from rulings by other state and federal judges who have identified various problems with death sentences, said Diann Rust-Tierney, executive director of the National Coalition to Abolish the Death Penalty.

"The judge here has pulled together all of the ways the system is dysfunctional," she said. "He is not challenging the policy per se; he is saying that in practice, this isn't working in a constitutional way. His analysis is applicable to the rest of the country. It has implications certainly for the Supreme Court, but also for policy analysis."

Scott Martelle writes, "The real reasons California's death penalty system is so slow," for the Los Angeles Times Opinion LA blog.

A popular argument among the pro-death penalty crowd is that condemned murderers delay justice for years with "Hail Mary" appeals in desperate attempts to evade execution. But what Wednesday’s court decision by federal judge Cormac J. Carney makes clear is that, at least in California, the delays aren’t caused by those trying to stave off execution. They are caused primarily by the state itself. And seeing how many condemned prisoners eventually win reprieves from federal judges, those delays are a good thing.

The ruling by Carney, who found California's administration of the death penalty to be unconstitutional, is here, and you should read it. It’s succinct, with a minimum of the kind of dense legal language that can make some decisions read like they were written in code.

The San Francisco Bay Guardian posts, "San Franciscans could make death penalty ruling stick," by Steven T. Jones.

The decision about whether to file that appeal and possibly a subsequent appeal to the US Supreme Court falls to Attorney General Kamala Harris, who has maintained her opposition to capital punishment since her days as San Francisco’s district attorney, where she bravely endured lots of political heat for refusing to file capital murder charges in the death of San Francisco Police Officer Isaac Espinoza.  

San Francisco Public Defender Jeff Adachi today issued a public statement praising yesterday’s ruling and calling for Harris not to appeal it: “Today’s ruling, which found California’s death penalty unconstitutional, is a monumental victory for justice. I commend U.S. District Judge Cormac Carney for his courage and wisdom. Not only is the death penalty arbitrarily imposed, as the judge noted, its history is fraught with racial bias and haunted by the hundreds of death row inmates who were later exonerated. I am hopeful that California Attorney General Kamala Harris will choose not to appeal this decision.” 

Harris spokesperson David Beltran told the Guardian that she hasn’t yet made a decision whether to appeal the case: “We are reviewing the ruling.”

Economist Justin Wolfers writes, "Life in Prison, With the Remote Possibility of Death," for the New York Times Upshot blog.  There is an infographic at the link.

Judge Carney’s ruling calls into question a delicate political equilibrium that allows the public both to demand that their lawmakers pledge fealty to the death penalty when running for election, while not actually having to stomach the enormous number of executions that a systematic program of capital punishment would entail. The result is that death penalty statutes remain on the books in most states as death row continues to expand, yet relatively few are actually executed.

Some numbers put all this in perspective. The F.B.I. reports there were 14,827 cases of homicide or non-negligent manslaughter in 2012, of which 11,298 occurred in jurisdictions that have the death penalty. Research indicates that around one-fifth to a quarter of these homicides were for capital-eligible crimes, suggesting there were around 2,500 capital-eligible homicides in 2012, which is both high by global standards and much lower than in previous decades.

Yet there were only 45 executions last year. When fewer than one in 50 capital-eligible homicides leads to the death chamber, it is clear that capital punishment is rare.

"A weak opinion striking down California’s death penalty," is by law professor Orin Kerr for the Volokh Conspiracy blawg via the Washington Post.  Here's the beginning:

A federal trial judge in California has handed down an opinion, Jones v. Chappell, striking down California’s death penalty. I found the opinion unusually weak, and I thought I would explain why.

Let’s start with the judge’s argument. According to Judge Carney, California’s “death row” is really not death row at all. Once a person is sentenced to death in California, he then spends on average over 25 years fighting his conviction in state and federal court. The direct appeal following conviction usually takes more than a decade; the state habeas process usually takes around 5 years; and the federal habeas process usually takes more than a decade. The state and federal courts usually find ways to invalidate the sentences. But even when the courts don’t ultimately overturn the capital sentence, the execution can’t come until the legal arguments are resolved. Because that process takes around a quarter century or more, being on death row in California is pretty much the same as getting life in prison without the possibility of parole. Indeed, for every one person actually executed, around seven have died of natural causes. Of the 900 individuals that have been sentenced to death in California since 1978, only 13 have been executed. And California has not executed anyone since 2006.

U.S. News & World Report posts, "Should the Death Penalty Be Ruled Unconstitutional?" by Rachel Brody.

But could it reach farther? California Attorney General Kamala D. Harris is likely to appeal the case to the Ninth Circuit, where if upheld, it could head to the Supreme Court. Santa Clara law professor Gerald Uelman told the Los Angeles Times, “It is conceivable that the U.S. Supreme Court and the 9th Circuit could say California is such an outlier — its system is so dysfunctional, with twice the national delay — that it cannot be sustained.”

"Federal Judge Strikes Down California Death Penalty: What This Could Mean for California," is by Courtney Minick for Justia Verdict.

What does this mean for the 748 individuals currently on Death Row? It’s unclear. This decision applies only to the matter at hand, the death sentence of Petitioner Jones. According to press reports, the Attorney General is considering the matter and has not indicated whether she will appeal the ruling. Defendants and Petitioners will certainly cite the holding in their arguments, but other state and federal courts are not bound to follow it.

California, however, seems to be on the precipice of change when it comes to the death penalty. Public opinion has changed dramatically over the past couple of years, both in the state and across the nation. In 2012, a proposition that would have replaced the death penalty with life in prison without parole garnered 48% of the vote. Revelations about the high cost ($4 billion since 1978, and a projected $1 billion over the next five years), structural problems in the system, and the risk of executing an innocent person are leading many citizens away from the death penalty. Stories about botched executions horrify the nation, and many states—including California—are actually enjoined from carrying out executions until new protocols have been adopted. A recent poll shows that 63% of California voters support commutation of the sentences of the entire population of death row to life in prison without the possibility of parole. In 2013, Gallup found that support for the death penalty, nationwide, is at its lowest number in over 40 years.

Judge Carney’s opinion is in line with the direction of public opinion, whether he intended it or not. Regardless of whether his reasoning is upheld on appeal or in subsequent litigation, it could very well signal the imminent demise of the practice in the state.

The Pittsburgh Post-Gazette columnist Matt Mangino posts, "California death penalty struck down."

The most recent Gallup Poll on the death penalty has support at about 60 percent, down from a high in 1994 of 80 percent. That’s not to say that 60 percent is not a significant number or that 32 of 50 states with the death penalty is not a substantial majority. But, unequivocally the death penalty is trending downward.

 Earlier coverage of Judge Carney's ruling begins at the link.

Indigent Defense Funding by States Is Down

The The Department of Justice Bureau of Justice Statistics report, State Government Indigent Defense Expenditures, FY 2008-2012, is available in Adobe .pdf format.

"States Spend Less on Legal Defense for the Poor," is the Wall Street Journal Law blog post by Joe Palazzolo.

State spending on legal defense for the poor slumped in recent years, as court budgets felt the pinch from the financial crisis, according to a new study by the Justice Department’s research arm.

The $2.2 billion spent on indigent defense in fiscal 2012, the most recent year studied, was the lowest in five years, the Bureau of Justice Statistics found. From 2011 to 2012, state spending declined by $45 million, or about 2%. The study didn’t include federal, county and local spending on indigent defense.

The dip appeared to represent shrinking state budgets, rather than targeted funding cuts. As a share of total spending on the judiciary, legal defense for the poor held steady at 9.5% to 10% from 2008 to 2012, according to the study by BJS statisticians Erinn Herberman and Tracey Kyckelhahn.

The BJS study marks the reversal of a trend. The American Bar Association, which has funded its own research, found that state spending on indigent defense increased from $1.4 billion in fiscal 2002 to $2.4 billion in fiscal 2008.

Related posts are in the indigent defense and report category indexes.

Other States View the California Ruling

Today's Oregonian reports, "Is Oregon's death penalty as 'cruel and unusual' as California's?"  It's by Bryan Denson.

Jeff Ellis, a criminal defense attorney on the board of Oregonians for Alternatives to the Death Penalty, boiled the order down in a dozen words:

"California has nothing on Oregon. Our death penalty system is even worse."

Ellis noted that Oregon has executed just two men – both volunteers, both executed in the late 1990s after waiving their appeals – since the latest incarnation of capital punishment was passed into state law.

"Of the individuals currently under a death sentence in Oregon, eight have been on death row for over 25 years," Ellis wrote. "The last person to die on death row was Gary Zweigert in 2013. He died of natural causes.

 "Ruling against California death penalty could be raised in Missouri execution cases," is by Mike Lear at MissouriNet.

Washington University Law Professor Peter Joy says the ruling could come up in Missouri cases.

“Any lawyer representing somebody on death row who’s been on death row for a lengthy period of time should raise this argument now because there is this decision out there,” says Joy.

About 40 percent of California’s death row inmates have been there more than 19 years. Three Missouri inmates have been awaiting execution for 25 years, and about 22 percent of condemned Missouri inmates have been waiting 19 years or more.

Not all the delays cited by the judge stem from appeals.

Joy says also noted were, “delays [related to] the system itself, and have nothing to do with the person filing a lot of appeals.”

Earlier coverage of the California ruling begins with the preceding post.

Editorials on the California Ruling

Today's San Francisco Chronicle publishes the editorial, "Judge was right: California death penalty is flawed."

Judge Cormac Carney was precisely right: The death penalty, as applied in California, is so arbitrary and irrational that it amounts to cruel and unusual punishment in violation of the U.S. Constitution.

Supporters of the death penalty immediately seized on the U.S. District Court judge's ruling in Orange County to insist that the system needs an overhaul: that inmates have too many appeals and the courts have been too deferential to concerns about methods of execution.

Opponents viewed the ruling as a significant step toward banning the practice.

No one, however, could credibly argue with the judge's conclusion that "no rational jury or legislature" would impose a sentence of "life in prison with the remote possibility of death." And that is what we have today in this state.

"Ruling is a reminder of need to fix California death penalty," is the Los Angeles Daily News editorial.

A federal judge’s ruling against California’s death penalty may strike legal analysts as novel, but it only underscores what most residents already knew about how the state punishes its most despicable murderers.

The way the death-penalty law is applied — more to the point, not applied — hundreds are sentenced to die but the vast majority of them live in prison for years while awaiting appeals. As a result, the threat of execution is not the crime deterrent it should be, and murder victims’ loved ones seeking retribution may suffer through decades of false hope. The legal and incarceration costs to the state run to tens of millions of dollars a year.

In his ruling Tuesday, U.S. District Judge Cormac J. Carney added another layer to these objections. The long delays and uncertainties in the state’s death-penalty system, said the Orange County judge, violate the U.S. Constitution’s prohibition on cruel and unusual punishment. The application of the death penalty, he wrote, shouldn’t be random and arbitrary.

"California's death penalty system is unconstitutional," is the Desert Sun editorial.

The Desert Sun supported the End the Death Penalty Initiative and we still believe it's better than California's dysfunctional system. Since 1978, California has spent $4 billion on death penalty cases. Ending the death penalty could save the state more than $100 million a year.

Inmates spend an average of 34 years on death row. Most die of old age. In the absence of timely justice, California may as well join 17 states, the District of Columbia and 139 countries that have outlawed the death penalty.

Judge Carney is right. The long-delayed and abysmal rate of executions provides no deterrent to offenders and no closure for the victims' families.

Earlier coverage of the California ruling begins at the link.

Ronnie White Confirmed as Federal Judge in Missouri

"Senate confirms White as federal judge in Missouri," is the AP report, via the Columbia Daily Tribune.

A former Missouri Supreme Court judge whose two previous nominations to the federal bench were blocked in Washington was confirmed a U.S. District Court judge yesterday.

The U.S. Senate voted 53-44 in support of Ronnie White’s nomination by President Barack Obama. White, 61, was previously nominated to the post by President Bill Clinton in 1997 and again in 1999. The St. Louis native and former state lawmaker was the first black judge on the state Supreme Court, serving there from 1995 to 2007, including two years as chief justice.

White now is a lawyer in private practice in St. Louis.

Former Sen. John Ashcroft of Missouri, a Republican member of the influential Senate Judiciary Committee, helped derail White’s second nomination. The former Missouri governor said White, a Democrat, was “pro-criminal” and an activist judge who was soft on the death penalty and drug law enforcement. White’s first nomination expired when it wasn’t voted upon.

The National Law Journal posts, "Denied the Bench Under Clinton, Ronnie White is Confirmed," by Marcia Coyle.

Second chances are rare in the U.S. Senate's judicial-confirmation process. On Wednesday, Ronnie White, the first African-American judge on the Missouri Supreme Court, beat the odds by winning confirmation to a federal district court seat the Senate denied him 15 years ago.

In 1997, President Bill Clinton nominated White, then a state Supreme Court justice, to the U.S. District Court for the Eastern District of Missouri. The Senate rejected the nomination two years later after an aggressive attack led by then Sen. John Ashcroft, R-Mo.

Ashcroft accused White of being pro-criminal, particularly in his death penalty rulings. He bolstered the attack with opposition from local police groups. White's supporters countered that the opposition was based on race. Ashcroft subsequently convinced Republican senators to vote as a block, which doomed White's nomination.

When Ashcroft was later nominated as U.S. attorney general, the late Sen. Ted Kennedy, D-Mass., said during the confirmation hearings that Ashcroft's role in defeating White's nomination was "the ugliest thing that has happened to any nominee in all my years in the U.S. Senate."

Earlier coverage of federal judicial nominations begins at the link.  Related posts are in the judiciary and politics category indexes.

Earlier, unrelated, news from Missouri is also available.

Andrew Cohen on the California Ruling

"The troubling lessons of California's death penalty ruling," is Andrew Cohen's post at the Week.  Here's the beginning of this must-read:

U.S. District Judge Cormac J. Carney isn't the first federal judge in recent memory to declare the death penalty unconstitutional. And he surely won't be the last.

Still, Carney's ruling Wednesday vacating the death sentence of a California man named Ernest Dwayne Jones is as candid a judicial lament on the sorry state of capital punishment (in the state and in the nation) as you are ever likely to read.

If California can't or won't do the death penalty right, Judge Carney declared, it should not be allowed to do it at all. But his working theory isn't that the state's capital system is prone to error, or rife with racial disparity, or arbitrary in its application, even though it is plaintively all of those things. Instead, this appointee of George W. Bush concluded that the "machinery of death" grinds too slowly in California for it to sustain itself under the Eighth Amendment. Delay, he contends, is the decisive constitutional flaw in the grim mechanism.

Earlier coverage of the ruling begins at the link.

California Coverage of the Jones v. Chappell Ruling

The Los Angeles Times reports, "California death penalty unconstitutional, judge says," by Maura Dolan and Victoria Kim.

The ruling can be appealed to the U.S. 9th Circuit Court of Appeals. A spokesman for Atty. Gen. Kamala D. Harris said only that her office was reviewing the decision.

“I think it has a shot in the 9th Circuit, but I don’t know about the U.S. Supreme Court,” said Santa Clara University law professor Gerald Uelmen, who chaired a state commission that concluded the system needed substantially more money to operate effectively.

“It is conceivable that the U.S. Supreme Court and the 9th Circuit could say California is such an outlier — its system is so dysfunctional, with twice the national delay — that it cannot be sustained,” Uelmen added.

"Federal judge's ruling on California death penalty stuns experts," is also by Dolan and Kim for the Times.

Carol Steiker, a criminal law professor at Harvard Law School and an expert on the death penalty, described Carney's decision as "stunning" and "path-breaking."

"That's a ruling of tremendous breadth," she said. "We haven't seen very many rulings from the federal courts declaring a whole state's system unconstitutional. That's quite stunning."

Elisabeth Semel, a UC Berkeley law professor who directs the school's Death Penalty Clinic, described Wednesday's decision as "unprecedented in the modern death penalty in California."

"This is an issue that has been discussed in California for decades," she said. "What he did is both amass and synthesize what [this means] in the context of the 8th Amendment."

"California death penalty ruled unconstitutional," is by Bob Egelko for the San Francisco Chronicle.

Inmates sentenced to death must wait three to five years for a court-appointed lawyer and nearly 14 years for the California Supreme Court to make an initial ruling on their case, with further delays in additional appeals to the state and federal courts, Carney said.

"When the state permits the post-conviction review process to become so inordinately and unnecessarily delayed that only an arbitrarily selected few of those sentenced to death are executed, the state's process violates the Eighth Amendment," which bans cruel and unusual punishment, the judge said.

He noted that a statewide commission headed by former Attorney General John Van de Kamp concluded in 2008 that the death-penalty system had broken down and recommended changes that were largely ignored. They included a substantial increase in funding for legal representation.

"Federal judge: State death penalty unconstitutional," is by Howard Mintz for the San Jose Mercury News, via the Times-Standard.

In the short term, the decision will not have much effect in California, where executions have been on hold since 2006 because of legal challenges to the state's lethal injection method. At least 17 death row inmates have exhausted all their legal appeals and face execution, but none are likely to be scheduled for the foreseeable future. The state has yet to even put in place an updated lethal injection method that can be reviewed by the courts.

The judge cited that reality in his ruling, which noted that more than 40 percent of the state's 748 condemned killers, like Jones, have spent at least 19 years on death row, many of them much longer as their appeals drag through the system. Clarence Ray Allen, the last inmate executed in California, spent 26 years on death row.

"The delay is systemic, and the state itself is to blame," Carney wrote.

The Contra Costa Times reports, "Federal judge rules California’s ‘completely dysfunctional’ death penalty system is unconstitutional," by Sarah Favot.

On average, California’s post-conviction appeals process takes 25 years or more. That’s nearly twice the national average, Carney wrote.

Of the 748 inmates on death row today, just 17 have completed the post-conviction review process, according to the ruling. More than 40 percent of the state’s death row inmates have been there longer than 19 years.

Carney said arbitrary factors — such as the length of the appeals process — are not dependent on “legitimate factors” like the nature of the crime or when the death sentence was imposed.

Earlier coverage begins with the preceding post.

National News Coverage of California Death Penalty Ruling

Today's New York Times reports, "California Death Penalty System Is Unconstitutional, Federal Judge Rules," by Erik Eckholm and John Schwartz.

A federal judge ruled Wednesday that California’s death penalty system is so arbitrary and plagued with delay that it is unconstitutional, a decision that is expected to inspire similar arguments in death penalty appeals around the country.

The state has placed hundreds of people on death row, but has not executed a prisoner since 2006. The result, wrote Judge Cormac J. Carney of United States District Court, is a sentence that “no rational jury or legislature could ever impose: life in prison, with the remote possibility of death.”

That sense of uncertainty and delay, he wrote, “violates the Eighth Amendment’s prohibition against cruel and unusual punishment.”

About 40 percent of California’s 748 death row inmates have been there more than 19 years.

"US judge rules against California death penalty," is the update AP coverage, by Linda Deutsch.

Carney also wrote that since the current death penalty system was adopted by California voters 35 years ago, more than 900 people have been sentenced to death, but only 13 have been executed.

"As for the random few for whom execution does become a reality, they will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary," the judge stated.

While the decision's only immediate effect was on California, legal experts said it could echo elsewhere as the issues it addresses are in no way unique.

And:

Gil Garcetti, a former Los Angeles County district attorney who has become an anti-death-penalty activist, called the ruling "truly historic."

"It further proves that the death penalty is broken beyond repair," he said.

"Calif. death penalty ruled unconstitutional," is by Michael Winter at USA Today.

Carney, who was appointed by President George W. Bush, declared that "arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed."

That, he said, violates the Eighth Amendment of the U.S. Constitution.

The state could appeal to the 9th U.S. Circuit Court of Appeals. Attorney General Kamala Harris, a Democrat, is reviewing the opinion, her press secretary said.

"California's death penalty ruled unconstitutional," by Steve Almasy and Ann O'Neill for CNN.

Michael Laurence, executive director of the Habeas Corpus Resource Center and Jones's lead attorney, said he was glad that a federal judge reaffirmed what a state commission found in 2008.

"There is no rational explanation, much less any moral or societal justification, for which people are ultimately executed," Laurence said in a written statement. "The execution of Mr. Jones, and the others like him whose meritorious legal claims have gone unheard for decades, serves no valid state interest."

The executive director of Death Penalty Focus said the law in California needs to be changed.

"Justice requires that we end this charade once and for all," said Matt Cherry. "It's time to replace California's broken death penalty with life in prison without the possibility of parole. That's the best way to ensure that convicted killers remain behind bars until they die, without wasting tens of millions of tax dollars every year on needless appeals."

Reuters posts, "U.S. judge rules California death penalty system unconstitutional," by Sharon Bernstein.

In his ruling, Carney said that he was not suggesting that inmates seeking to preserve their lives should not be eligible to appeal their sentences. But he said the state's system caused delays that were so long as to make the sentence arbitrary and unfair.

It was not immediately clear whether the state would appeal the ruling. A spokesman for California Attorney General Kamala Harris said her office was reviewing Carney's ruling, and a spokesman for Democratic Governor Jerry Brown said the governor was not planning to comment.

Richard Dieter, executive director of the Death Penalty Information Center, said Carney's ruling applies only to Jones' case, and would not prevent courts from sentencing people to death in California.

Even so, he said, the ruling was important, because if Carney's ruling is upheld on appeal, it could have a broader impact.

"Death Penalty Ruled Unconstitutional In California," is by AFP (Agence France Presse), via Business Insider.

Diann Rust-Tierney, head of the National Coalition to Abolish the Death Penalty, welcomed the ruling.

"This is really significant given that the dealt penalty in the US is coming under increasing scrutiny," she said.

"In California, the reality is that the system is so dysfunctional that people on death row are being submitted to torture." She said it was all the more important given that Carney is a conservative judge, nominated by former president George W. Bush, who was not opposed to the death penalty.

 "Federal judge says California’s death penalty system is ‘unconstitutional’," is by Mark Bermanfor the Washington Post.

California has the largest number of inmates on death row, but it does not carry out nearly as many executions as the states that have fewer people there. The state had 742 people on its death row at the beginning of 2014, according to the Death Penalty Information Center, significantly more than Florida (410 inmates), Texas (278 inmates) and Missouri (48 inmates). But California has not executed anyone this year — the state hasn’t put an inmate to death since 2006 — while Florida and Texas have each put seven inmates to death and Missouri has carried out five executions.

Since 1976, California has executed 13 people. This number is relatively low, trailing 16 other states over that span. Texas, which executes the most inmates annually, has put at least 13 people to death in each of the last four years and has executed 515 people since 1976. (California, one of 32 states in the U.S. that has the death penalty, executes inmates with lethal injection unless an inmate asks for the gas chamber.)

"California's Death Penalty Declared Unconstitutional," is by Ina Jaffe for NPR Morning Edition.  There is audio at the link.

Unlike many recent death penalty rulings, the decision wasn't focused on the method of execution, but on the fact that executions in California are so rarely carried out. The last was in 2006.

The Central District of California ruling in Jones v. Chappell is available in Adobe .pdf format.

Earlier coverage of the California ruling begins at the link.  Next, California coverage of the ruling.

Missouri Executes John Middleton

"Convicted killer Middleton executed in Missouri after appeals fail," is the updated AP report, via the St. Louis Post-Dispatch.

A former methamphetamine dealer was executed Wednesday for killing three people in remote northern Missouri out of fear that they would report his drug activity to police.

John Middleton, 54, died Wednesday night from an injection of pentobarbital, the sixth execution in Missouri this year. Only Florida and Texas, with seven each, have performed more executions.

Middleton was convicted of killing Randy “Happy” Hamilton and Stacey Hodge in early June 1995, then Alfred Pinegar several days later. He maintained to the end that someone else was responsible for the slayings.

“You are killing an innocent man,” Middleton said in his final statement.

And:

Concerns about whether Middleton was mentally fit for execution, though, spurred a long delay in the execution, which occurred 19 hours after it was originally scheduled, at 12:01 a.m.

There have been 25 executions in American death penalty states this year; a total of 1,384 post-Furman executions since 1977.

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

Federal Judge in California Rules State's Death Penalty Unconstitutional

The Central District of California ruling in Jones v. Chappell is available in Adobe .pdf format.

National Journal posts, "Federal Judge Rules Death Penalty Unconstitutional in California," by Dustin Volz.

A federal judge has struck down California's death penalty on grounds the system is so broken it violates the Constitution.

In his opinion, Judge Cormac Carney said the state's death sentences are not carried out in any reasonable, timely or organized manner and therefore should be abolished.

And:

The death penalty has been lawful in California since 1976, when the Supreme Court overturned a national moratorium on the practice. In 2012, a proposition to end the death penalty in California was defeated at the polls, with 53 percent of voters turning it down.

The state has only executed 13 people during that time, with the most recent, Clarence Ray Allen, being put to death in 2006.

"Federal judge rules California death penalty unconstitutional; vacates prisoner's sentence," is the initial AP report, via the Tribune.

The ruling Wednesday by U.S. District Court Judge Cormac J. Carney follows a similar ruling in Northern California that has kept the death penalty on hold in California for years.

Ruling in the case of a prisoner who was condemned in 1994, Carney wrote that inordinate and unpredictable delays have resulted in a death penalty system in which arbitrary factors determine whether an individual will actually be executed.

Carney vacated the death sentence of Ernest Dewayne Jones.

"Federal Judge Strikes Down California's Death Penalty," is by Mollie Reilly at HuffPost.

A federal judge has ruled that California's death penalty system is unconstitutional.

U.S. District Court Judge Cormac J. Carney handed down an order Wednesday, finding that the system is arbitrary and in violation of the Constitution's 8th Amendment.

"California's death penalty system is so plagued by inordinate and unpredictable delay that the death sentence is actually carried out against only a trivial few of those sentenced to death," Carney writes. "For all practical purposes then, a sentence of death in California is a sentence of life imprisonment with the remote possibility of death -- a sentence no rational legislature or jury could ever impose."

Carney continues: "Inordinate and unpredictable delay... has resulted in a system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed. And it has resulted in a system that serves no penological purpose. Such a system is unconstitutional."

NBC News Bay Area posts, "Federal Judge Rules Death Penalty Unconstitutional in California," by Lisa Fernandez.

The case stems from a 1995 case of Ernest Dewayne Jones who sued Kevin Chappell, the warden of the California State Prison at San Quentin.

Earlier coverage from California begins at the links.

John Middleton Appeal Moves to Supreme Court

Reuters posts, "U.S. Appeals court lifts stay of execution for Missouri inmate," by Carey Gillam.

A U.S. appeals court on Wednesday vacated a stay of execution for a triple murderer that Missouri wants to execute before midnight.

The order takes effect after 6 p.m. (2300 GMT) and gives inmate John Middleton the opportunity to petition for a rehearing of his case, according to the ruling issued by the 8th U.S. Circuit Court of Appeals.

The 8th Circuit ruling in Middleton v. Roper is available in Adobe .pdf format.

"Appeals court vacates stay in Missouri execution; appeal filed to Supreme Court," is the AP report filed by Jim Salter, via the Republic.

The 8th U.S. Circuit Court of Appeals ruled Wednesday that the execution could proceed, but Middleton's attorneys appealed to the U.S. Supreme Court.

Missouri law allows a 24-hour window for executions. That means if Middleton has not been executed by midnight Thursday, the Missouri Supreme Court would need to set a new execution date.

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

State District Judge Rules in Hank Skinner Case

The state district court's order is at the link.

"Judge: DNA doesn't help Skinner case," is by Jim McBride for the Amarillo Globe-News.

Convicted capital murder defendant Henry Watkins Skinner likely would have been convicted in a 1993 Pampa triple slaying even if his original defense attorney introduced DNA testing results from evidence recovered at the crime scene, a judge ruled Tuesday.

In a decision Tuesday, 31st state District Judge Steven Emmert said he had reviewed DNA laboratory reports, findings presented by the state and defense, testimony from forensic experts and other documentation before ruling against Skinner and his defense team.

“The court finds that the DNA testing results are not favorable to Henry W. Skinner because, had the results been available during the trial of the offense, it is reasonably probable that Skinner would nevertheless been convicted,” Emmert wrote in his ruling, which adopted proposed findings of fact submitted to the court by Texas Attorney General Greg Abbott’s office.

And:

Earlier this year, Emmert conducted a two-day hearing in Pampa over defense claims that DNA evidence in the case pointed to someone else.

Attorneys for the state argued in proposed legal findings filed in June that a bevy of DNA evidence in the case pointed solely to Skinner as the killer of his girlfriend and her two sons.

Here is a, "Statement from Attorneys for Hank Skinner in Response to State District Court’s Ruling." Skinner is represented by Douglas G. Robinson, (of Skadden, Arps, Slate, Meagher & Flom LLP) and Robert C. Owen (of the Bluhm Legal Clinic, Northwestern University Law School.)

“We are deeply disappointed by the district court’s ruling and will appeal, urging the courts to carefully consider all the evidence of Mr. Skinner’s innocence.

‘At the DNA hearing in February, the State failed to present any dramatic new evidence confirming Mr. Skinner’s guilt. The opposite is true: the testimony confirmed DNA from an unknown person, along with Twila Busby’s blood, on a dishtowel that had been secreted in a plastic garbage bag at the crime scene. In addition, the DNA test results were at odds with the State’s theory of the crime. If Mr. Skinner stabbed Randy Busby in the manner claimed by the State, Mr. Skinner’s blood should have been on the blanket of Randy’s bed. It wasn’t. If Mr. Skinner’s hands were covered with the victims’ blood when he staggered out of the house, their blood should have been mixed with his on the doorknobs he touched. It wasn’t. Finally, Mr. Skinner’s DNA on the common kitchen knife used in the crimes could have come from his having innocently used it as a resident of the house and being cut with it by the assailant.

‘Moreover, the DNA testing produced significant and exculpatory results that raise grave doubts about Mr. Skinner’s guilt and point to a credible alternate suspect. The State’s expert analyst did not retreat from his conclusion that three of the four hairs found in Twila Busby’s hand – hairs with DNA consistent with a maternal relative of the victims – were ‘visually dissimilar’ to the victims’ own hair. Indeed, he confirmed that the differences were so obvious that he could see them without using a microscope. This result supports the conclusion that a maternal relative of the victims committed the crimes, not Mr. Skinner. Robert Donnell, who is Ms. Busby’s maternal uncle, stalked Ms. Busby at a party shortly before her death, and the State presented no compelling evidence linking these hairs to any other maternal relative. In fact, Ms. Busby’s mother stated under oath before Mr. Skinner’s trial that she had not been inside the house in the preceding four months.

‘Where is the sweat-stained, blood-spattered men's windbreaker jacket found next to Ms. Busby’s body and collected as evidence by the police? The State claims to have lost this  major piece of evidence, which  could corroborate the hair evidence pointing to Donnell.  From the earliest days of his fight for DNA testing, Mr. Skinner insisted that the jacket should be tested because it may have been worn by the assailant.  But the State’s failure to safeguard this evidence has made that impossible.

‘At the DNA hearing, Mr. Skinner sought to present testimony from a witness who can positively identify the jacket as Mr. Donnell’s, and to have his DNA expert explain how testing could have confirmed Mr. Donnell’s DNA on the jacket. The State fought to keep this evidence out of the record, and the court agreed with the State and excluded it. We respectfully disagreed with this decision. In our view, this evidence is at the center of the case. It shows why a jury that heard all the evidence, including DNA results, would have harbored a reasonable doubt about Mr. Skinner’s guilt.

‘Excluding evidence about the jacket added to the overall unfairness of this process, in which Mr. Skinner was wrongfully forced to wait 13 years before obtaining DNA testing. In the meantime, through bungling by the State, potentially exculpatory evidence was being mishandled, damaged, contaminated, degraded, and lost.

‘The doubts about Hank Skinner’s guilt are far too great to allow his execution to proceed, particularly where the State’s utter failure to preserve key pieces of evidence may make it impossible to resolve those questions conclusively.”

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

Missouri Update

"Missouri execution on hold after late stay granted," is this morning's updated AP report, via the Kansas City Star.

A Missouri execution has been delayed until at least midday Wednesday after a federal judge granted a last-minute stay.

John Middleton was scheduled to die one minute after midnight Wednesday for killing three people in rural northern Missouri in 1995. Less than two hours before the execution, U.S. District Judge Catherine Perry granted a stay, ruling that there was enough evidence of mental illness that a hearing should be held.

Courts have established that executing the mentally ill is unconstitutional.

Missouri Attorney General Chris Koster appealed to the 8th U.S. Circuit Court of Appeals, but that court adjourned for the night without a ruling.

The state could execute Middleton at any time Wednesday if the stay is lifted.

It was a confusing end to a day that saw a flurry of court actions. Perry first granted a stay early Tuesday, but it was overturned by the appeals court. The U.S. Supreme Court refused to overturn the appeals court ruling, and also declined to halt the execution on several other grounds, including the contention by Middleton’s attorneys that he was innocent of the crimes.

Middleton’s attorneys then went back to Perry, who once again granted a stay. However the appeals court eventually rules, the case is likely to end up again in the U.S. Supreme Court.

The St. Louis Post-Dispatch report is, "Federal judge grants second stay, delaying Missouri execution," by Jeremy Kohler.

The execution of murderer John C. Middleton was stayed by a federal judge for a second time late Tuesday, delaying an execution that had been scheduled for 12:01 a.m. today.

U.S. District Judge Catherine Perry had stayed the execution earlier Tuesday, writing that Middleton had demonstrated “a substantial threshold showing of insanity” and that the execution should be delayed until the court considers arguments that he is not competent to be executed.

A three-judge panel of the 8th Circuit U.S. Court of Appeals in St. Louis removed the stay, agreeing with Missouri Attorney General Chris Koster that Middleton should have made a more timely claim within the state court system, and saying Perry had abused her discretion.

But Perry reinstated the stay about 11 p.m. Tuesday, saying there was a lack of a clear procedure under Missouri law for raising the claim” and “reasonable confusion about the appropriate way to raise the claim before the Missouri courts.”

She said Middleton’s lawyers “did not intentionally delay resolution of the claim or delay it for tactical reasons.”

“Although I recognize that the state, the families of the victims, and the public have a very legitimate interest in seeing executions carried out without unnecessary delay, the public also has a legitimate interest in having constitutional rights of convicted persons upheld.”

Koster appealed the second stay to the 8th Circuit, asking it to “do the same thing it did a few hours ago.”

Richard Sindel, a St. Louis-based attorney for Middleton, filed a notice just after midnight indicating he would file a response to Koster’s appeal by 8 a.m. today, writing that he understood that the appeals court would not rule before then.

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

8th Circuit Panel Lifts Missouri Stay for John Middleton

The 8th Circuit panel ruling in Middleton v. Roper is at the link.

"Appeals court overturns stay of execution for Missouri inmate," is Jim Salter's AP filing, via the Greenfield Daily Reporter.

A three-judge federal appeals court panel on Tuesday overturned a stay of execution for a condemned Missouri man, hours before he was scheduled to be put to death.

John Middleton was set to die at 12:01 a.m. Wednesday for killing three people in rural northern Missouri in 1995 out of fear that they would tell police about his drug dealing.

U.S. District Judge Catherine Perry ruled early Tuesday that there was enough question about Middleton's mental health that a hearing should determine if he is fit to be executed, writing in her ruling that he "has provided evidence that he has been diagnosed with a variety of mental health disorders, and has received a number of psychiatric medications over the years." Courts have established that executing the mentally ill is unconstitutional.

Hours later, a three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis overturned the stay. Middleton's lawyers appealed that ruling. They also contend in a separate appeal to the U.S. Supreme Court that Middleton is innocent of the killings.

Middleton, 54, would be the sixth man put to death in Missouri this year — only Florida and Texas have performed more executions in 2014 with seven each.

The St. Louis Post-Dispatch reports, "Appeals court removes stay of execution for murderer John Middleton," by Jeremy Kohler.

Koster, in arguing against Middleton's petition for a stay, had argued that the condemned killer could have made the incompetency claim "long before today. But he chose not to." In his appeal to the 8th Circuit, Koster argued that Middleton was not entitled to a stay from the federal courts because he had not exhausted remedies in state court. He also argued that the claim of incompetence has no merit.

"The time for enforcement of Missouri’s criminal judgment against John Middleton is long overdue," Koster wrote.

The appeals panel agreed with Koster that Middleton had not properly exhausted his claim of incompetency within the state court system, and said it had been an abuse of discretion for Perry, a federal judge, to order a stay.

"Appeals Court Removes Stay, Clearing The Way For Missouri Execution To Proceed,"is by Chris McDaniel for St. Louis Public Radio.

"Middleton has provided evidence that he has been diagnosed with a variety of mental-health disorders and has received a number of psychiatric medications over the years," Judge Catherine Perry wrote in her order. "[Other] inmates indicate that he frequently talks to people who are not there and tells stories that could not have had any basis in reality."

In removing her stay, the 8th Circuit Court of Appeals panel disagreed -- and said the matter should have first been left to state courts.

"Middleton has not presented his present claim to the Supreme Court of Missouri or attempted to invoke the procedures that are available under state law," the conservative appeals court wrote. "The Missouri court has had no opportunity to consider the claim addressed by the district court or to apply the available Missouri procedures to Middleton’s present allegation of incompetency to be executed."

Middleton's attorneys will appeal to the full 8th Circuit, and then likely to the U.S. Supreme Court.

It would be the state's sixth execution this year, despite the inmate's insistence -- and new evidence -- that suggests he is innocent.

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

The Supreme Court established standards to assess whether severely mentally ill inmates are competent to be executed in the 1986 case, Ford v. Wainwright; more via Oyez.  The Court revisited the issue in its 2007 ruling in Panetti v. Quarterman, also via Oyez.

An Update From Missouri

The Federal District Court Order in Middleton v. Roper is available via Scribd.

"Missouri inmate's execution blocked over mental health concerns," is by Ed Pilkington at the Guardian.

A federal judge has blocked the impending execution of a death row inmate in Missouri, stating that there is substantial evidence that the prisoner is insane and incapable of understanding what was about to happen to him as he faced death by lethal injection just after midnight Wednesday morning.

Judge Catherine Perry of the US district court for the eastern district of Missouri issued a strongly worded ruling Tuesday morning in which she imposed a stay on the execution of John Middleton, 54, and ordered a full hearing to investigate his current mental health. Under the eighth amendment of the US constitution, it is forbidden to put to death any prisoner who is insane or who is unaware of the punishment they are about to suffer and why they are to suffer it.

The judge noted that Middleton, who was sentenced to death in the 1990s for three murders related to methamphetamine dealing, had a lengthy history of abusing the drug and that his mental health has deteriorated during the 17 years he has spent on death row. Fellow inmates had indicated in affidavits that Middleton “frequently talks to people who are not there, and tells stories that could not have any basis in reality”.

A psychiatrist who had examined Middleton also provided his expert opinion that the prisoner “lacks a rational understanding of the reason for the execution and is therefore not competent to be executed due to a diagnosis of delusional disorder, a psychotic mental illness”.

St. Louis Public Radio posts, "Citing Mental Health Concerns, Federal Judge Stays Missouri Execution," by Chris McDaniel.

"Middleton has provided evidence that he has been diagnosed with a variety of mental-health disorders and has received a number of psychiatric medications over the years," Judge Catherine Perry wrote in her order. "[Other] inmates indicate that he frequently talks to people who are not there and tells stories that could not have had any basis in reality."

Attorney General Chris Koster is expected to appeal the ruling to the 8th Circuit Court of Appeals -- a conservative court that has consistently refused or removed stays of execution in recent months.

It would be the state's sixth execution this year, despite the inmate's insistence -- and new evidence -- that suggests he is innocent.

Updated AP coverage is, "Federal judge grants stay in Missouri execution," via the Springfield News-Leader.

A federal judge on Tuesday granted a stay of execution for John Middleton, hours before he was scheduled to be put to death for killing three people in rural Missouri out of fear that they would tell police about his drug dealing.

U.S. District Judge Catherine Perry ruled that there was enough question about Middleton's sanity that a hearing should determine if he is fit to be executed. The U.S. Constitution prohibits executing the mentally ill.

And:

In a separate ruling, the 8th Circuit Court of Appeals late Monday refused to halt the execution on Middleton's claim that he is innocent of the killings. That case was appealed to the U.S. Supreme Court, said Richard Sindel, one of Middleton's attorneys.

"Judge Halts Murderer John Middleton's Execution Over Mental Health Concerns," is by Danny Wicentowski for River Front Times.

In the decision, the judge writes that "This is not a conclusion that he is actually incompetent, it is only a conclusion that he is entitled to a hearing on the issue," though she notes evidence of Middeston being diagnosed with "a variety of mental health disorders" as well as his long history of drug abuse. She adds:

"The affidavits he provided from other inmates and from the counsel who have dealt with him indicate that his mental state has deteriorated over the 17 years he has been incarcerated. The inmates indicate that he frequently talks to people who are not there, and tells stories that could not have had any basis in reality."

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

The Supreme Court established standards to assess whether severely mentally ill inmates are competent to be executed in the 1986 case, Ford v. Wainwright; more via Oyez.  The Court revisited the issue in its 2007 ruling in Panetti v. Quarterman, also via Oyez.