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December 2010

From DPIC: End of the Year Resources

Death Penalty Information Center

12-30-10 -- For our last post in 2010, the Death Penalty Information Center would like thank everyone who has contributed to and supported the Center’s efforts in many ways this year. We thought it would be helpful to highlight some of the resources available on our website that you may have missed. In 2010, we conducted with Lake Research Partners one of the most comprehensive national polls on public opinion about the death penalty. You can find the complete poll results here. In 2010, we also co-hosted, along with Equal Justice USA and Death Penalty Focus, an international forum of law enforcement officers on the death penalty. Videos of this unique panel discussion can be found here. In December, we released our annual Year-End Report on death penalty statistics and trends in 2010. You can find a breakdown of 2010 death sentences by state on our Sentencing page. The process of lethal injection was a significant issue this year--see more on our Lethal Injection page. Our audio podcast series, DPIC on the Issues, addresses various topics related to capital punishment. The latest edition answers questions raised by readers of DPIC's website.  Limited information in other languages is available on our Special from DPIC page. Finally, smart phone users can now access much of our information through our mobile web application, that includes a downloadable logo for the app section of your phone.

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CALIFORNIA

Editorials: "Governor, Save Inmate's Life"

Death Penalty Information Center

12-28-10 -- In an editorial, the Los Angeles Times has called on Gov. Arnold Schwarzenegger of California to commute Kevin Cooper's death sentence before leaving office in early January 2011.  The Times noted that considerable doubt has been cast upon the evidence used to convict Cooper of four murders that occurred in San Bernadino County in 1983. In particular, they cite the analysis offered by federal Judge William Fletcher of the U.S. Court of Appeals for the Ninth Circuit, who dissented from the court's refusal to review Cooper's case.  According to the editorial, "Fletcher wrote that Cooper 'is probably innocent of the crimes for which the state of California is about to execute him.'  Whether or not that's true, the judge makes a compelling argument that sheriff's office investigators planted evidence in order to convict Cooper and discarded or disregarded other evidence pointing to other killers — creating not just reasonable but serious doubt about his guilt."  The editorial concluded, "This newspaper opposes the death penalty under any circumstances, and we wouldn't object if the governor commuted the sentences of all 697 people on California's death row. But execution is especially outrageous when the prisoner may be innocent. Gov. Schwarzenegger should commute Cooper's sentence." Read the full editorial below.

STUDIES:

Racial and Geographic Disparities in the Federal Death Penalty

Death Penalty Information Center

12-28-10 -- A new study published in the Washington Law Review addresses the racial and geographical disparities in the implementation of the federal death penalty. The study, conducted by G. Ben Cohen, Counsel for the Capital Appeals Project in New Orleans, and Robert J. Smith, Counsel for the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, concludes that the disparities in the federal death penalty may exist because federal cases do not use a county-level jury pool but instead employ a wider pool from the federal-district level, resulting in the dilution of minority representation in the jury pool. According to the authors, “Capital verdicts become separated from the moral judgments of the community when [there are] fewer minority group members in the jury pool.” They proposed utilizing a county-level jury pool as is done in state cases: “If federal capital juries come from the county where the offense occurred, then prosecutors are left to determine whether to seek the death penalty based on the relative federal interest in the crime (and not the prosecutorial interest to secure a death sentence by any means possible). This solution is also more democratic—the citizens most impacted by the effects of high crime, overly aggressive policing, or poor public policy are the decision-makers responsible for redressing those harms.”

NEW RESOURCES:

Hispanics and the Death Penalty

Death Penalty Information Center

12-27-10 -- According to the latest figures from the Bureau of Justice Statistics, Hispanics represent a larger proportion of those on death row than in the past.  Hispanics constituted almost 20% of the new admissions to death row in 2009 (18 new inmates).  Half of the new Hispanic death row inmates were from California, bringing their total to 157 Hispanic inmates, the most in the country.  Hispanics now represent 13.5% of the U.S. death row population.  In 2000, they made up 11% of death row.  Of the executions carried out in 2009, 13% (7 out of 52, correcting earlier number) were of Hispanic inmates.  All of the executions of Hispanics occurred in the South.  In federal statistics, Hispanics are counted as an ethnic group, rather than as a racial group.

NEW RESOURCES:

Symposium in Vermont on Capital Punishment

Death Penalty Information Center

12-23-10 -- On February 11, 2011, a symposium will be held at the Vermont Law School in South Royalton to explore current issues in capital punishment. Entitled New Perspectives on Capital Punishment, the symposium will address the death penalty from the point of view of scholars, litigators, and educators. The goal of the symposium is to contribute to the vital discourse concerning capital punishment and its human rights implications. It will feature Hugo Adam Bedau, a prominent death penalty scholar.  Other speakers include nationally recognized death penalty litigators Mark Olive and Sean O'Brien, lethal injection expert Deborah Denno, constitutional scholar Eric Freedman, acclaimed sociologist Michael Radelet, and international law attorney Sandra Babcock. The symposium will address topics such as Applied Theory and Litigation Strategies and International Law and Capital Punishment.

TEXAS

Former Governors, Judges, and Prosecutors Urge Continuation of Texas Hearing

Death Penalty Information Center

12-22-10 -- On December 22, attorneys for John Green filed a brief with the Texas Court of Criminal Appeals asking that a pre-trial hearing concerning the constitutionality of the state's death penalty be allowed to continue.  An amicus brief in support of continuing the hearing was also filed by former governors, legislators, former judges and prosecutors, victim family members and freed death row inmates, all of whom shared a concern over the risk of wrongful executions in Texas. The brief stated, "[U]nless Texas addresses the proven causes of wrongful convictions, including eyewitness misidentification, faulty forensics, unreliable informant evidence, among other documented factors, the state runs the grave risk of executing an innocent person.” The signatories included: three former governors, including Gov. Mark White (TX), Gov. Parris Glendening (MD) and Gov. Joe Kernan (IN); former Dallas Assistant District Attorney James A. Fry; legislators, including Texas State Senator Rodney Ellis; and death row exonerees including Anthony Graves, who was freed from Texas’ death row in October after new evidence proved his innocence.

DPIC Releases 2010 Year End Report

Death Penalty Information Center

12-21-10 -- On December 21, the Death Penalty Information Center released its latest report, “The Death Penalty in 2010: Year End Report,” on statistics and trends in capital punishment in the past year.  The report noted there was a 12% decrease in executions in 2010 compared to 2009 and a more than 50% drop compared to 1999. DPIC projected that the number of new death sentences will be 114 for 2010, near last year’s number of 112, which was the lowest number since the death penalty was reinstated in 1976. Death sentences declined in all four regions of the country over the past ten years, with a 50 percent decrease nationwide when the current decade is compared to the 1990s.  Only 12 states carried out executions in 2010, mostly in the South, and only seven states carried out more than one execution. Texas led the country with 17 executions, but that was a significant drop from last year.  The number of new death sentences in Texas this year was 8, a dramatic decline from 1999 when 48 people were sentenced to death.  Since the death penalty was reinstated in 1976, 82% of the executions have been in the South. California has not had an execution in almost 5 years, and the same is true for North Carolina, Maryland, Pennsylvania, and many other states that rarely carry out the death penalty.  “Whether it’s concerns about the high costs of the death penalty at a time when budgets are being slashed, the risks of executing the innocent, unfairness, or other reasons, the nation continued to move away from the death penalty in 2010,” said Richard Dieter, DPIC’s Executive Director and the report’s author.

NEW RESOURCES:

New DPIC Podcast Addresses Readers' Questions

Death Penalty Information Center

12-20-10 -- The latest edition of the Death Penalty Information Center's series of podcasts, DPIC on the Issues, is now available for listening. This podcast, Readers’ Choice: Part One, is the first of two episodes that addresses questions submitted by readers of DPIC’s weekly e-newsletter. Generally, this series of podcasts offers brief, informative discussions of key death penalty issues. Other recent episodes include discussions on Victims, Representation, and Innocence. Click here to download DPIC's latest podcast. You can also subscribe through iTunes to receive automatic updates when new episodes are posted and receive access to all previous episodes. Other audio and video resources, along with all of DPIC's podcasts, can be found on our Multimedia page.

RELIGIOUS VIEWS:

Religious Leaders to Gather in Texas for Unique Dialogue on the Death Penalty

Death Penalty Information Center

12-16-10 -- On January 18, 2011, seven religious leaders from Texas will hold a groundbreaking panel discussion in Houston addressing faith-based views on the death penalty. The panel will be moderated by Sister Helen Prejean (pictured), author of Dead Man Walking, and Vicki Schieber of Murder Victims’ Families for Human Rights. The free presentation will include leaders from a diversity of faiths and denominations, including: Cardinal Daniel Dinardo of the Roman Catholic Church; Rev. Daniel Malendez, President of Pastors in Action; Bishop Mike Rinehart of the Evangelical Lutheran Church; Rabbi David Lyon of the Congregation Beth Israel; Rev. Mike Cole of the Presbytery of New Covenant; Rev. Harvey Clemons, Jr. of Pleasant Hill Baptist Church, and Bishop Janice Huie of the United Methodist Church.  Click here to see a brochure on the event (RSVP).

OKLAHOMA

Oklahoma Set to Execute First Inmate Using New Drug

Death Penalty Information Center

12-15-10 -- On December 14, the U.S. Court of Appeals for the Tenth Circuit rejected a claim by Oklahoma death row inmate Jeffrey Matthews that the use of the drug pentobarbital could result in a cruel and unusual punishment. The Court unanimously concluded that the amount of pentobarbital authorities plan to use, as the first in a three-drug procedure, would likely be lethal by itself. The decision also allows the execution of John David Duty, scheduled for December 16, to proceed. Duty would be the first death row inmate in the country to be executed using this new drug as part of a three-drug protocol.  Earlier this year, a shortage of sodium thiopental from the nation’s sole manufacturer forced corrections departments around the country to seek alternatives for their lethal injection procedures. (Matthews' execution date was set for Jan. 11, 2011.)

CALIFORNIA  

Reasonable doubts about executing Kevin Cooper

San Francisco Chronicle Editorial   

12-13-10 -- The legal effort to prevent the execution of Kevin Cooper has run its course. Unless the governor of California intervenes, Cooper is likely to be put to death next year for the brutal 1983 murders of a Chino Hills couple, their 10-year-old daughter and an 11-year-old houseguest. . . . Just one eyewitness survived the horrific scene, a 9-year-old boy whose throat had been sliced. His initial account of the attack is one of many disturbing contradictions that led five federal judges to take issue with their colleagues' decision to put a stop to Cooper's appeals. . . . The boy recalled three attackers - all white. Cooper is black. The surviving victim later changed his story to claim that he saw a black man with a great "poof" of hair standing over his parents' bed. Cooper, who had just escaped from a nearby minimum-security prison, wore his hair in cornrows at the time. . . . "He is on Death Row because the San Bernardino Sheriff's Department framed him," federal appeals Judge William Fletcher told Gonzaga University law students in an April speech.

NEW RESOURCES:

ACLU Report Finds Severe Deficiencies in Capital Representation and Appeals

Death Penalty Information Center

12-13-10 -- According to a new report by the American Civil Liberties Union (ACLU) entitled, "Slamming the Courthouse Doors: Denial of Access to Justice and Remedy in America," many states severely restrict access to justice for capital defendants and limit the availability of remedies to correct errors. The problem of inadequate counsel continues to pervade death penalty systems across the country:  “Few states provide adequate funds to compensate lawyers for their work or to investigate cases properly. In addition to inadequate funding, the majority of death-penalty states lack adequate competency standards. Many states require only minimal training and experience for attorneys handling death penalty cases, and in some cases capital defense attorneys fail to meet the minimum guidelines for capital defense set by the American Bar Association (ABA),” according to the ACLU.  The report also states that the absence of a right to counsel in post-conviction appeals leaves capital defendants with few options to address serious errors during their trial.  Read full report here.

NEW HAMPSHIRE

Editorials: New Hampshire's Concord Monitor Says "Abolish the Death Penalty"

Death Penalty Information Center

12-10-10 -- Following the release of the report from the New Hampshire Commission to Study the Death Penalty, New Hampshire's Concord Monitor called for an end to capital punishment in the state. The Commission concluded a year of public hearings and careful study and chose by a 12-10 vote to recommend neither expanding nor abolishing the death penalty. However, the Monitor pointed out that the evidence presented to the commission was primarily in favor of repealing the death penalty. One of the many arguments against the death penalty considered by the Commission was its arbitrary nature. Outcomes of capital cases depend on the makeup of capital juries, the resources available to the defendant, and the potentially unequal skills of prosecutors and defense lawyers.  The editorial noted that former attorney general Phillip McLaughlin recalled a case in which he charged the wrong man with murder and another in which an investigator failed to share evidence that might have proved that someone else committed the crime. He voted to repeal the law.  The editorial concluded: "States are not infallible. A life wrongly taken by the state cannot be returned. But an innocent person serving life without parole can be freed. New Hampshire should join the states and the many nations that have progressed beyond capital punishment." 

OHIO  

Federal judges overturn Ohio man's death sentence

By Lisa Cornwell, The Associated Press, Washington Post  

12-09-10 -- A federal appeals court has overturned the conviction and death penalty of an Ohio man accused of beating his roommate and burying him alive, finding police coerced his confession. . . . A panel of the 6th U.S. Circuit Court of Appeals in Cincinnati made the ruling Thursday in the case of Toledo resident Archie Dixon. He was convicted in Lucas County in the 1993 slaying of Christopher Hammer. . . . The ruling overturned a 2004 Ohio Supreme Court decision that had upheld the use of Dixon's confession in his trial despite a police decision not to initially read Dixon his rights.

CALIFORNIA

Possible Case of Innocence on California's Death Row

Death Penalty Information Center

12-08-10 -- A recent op-ed by Pulitzer Prize-winning columnist Nicholas Kristof of the New York Times focuses on the possible innocence of Kevin Cooper, a black defendant on California's death row. Kristof writes, “This case is a travesty. It underscores the central pitfall of capital punishment: no system is fail-safe. How can we be about to execute a man when even some of America’s leading judges believe he has been framed?”  Cooper faces execution for a 1983 quadruple-murder of a white family. According to Kristof, numerous anomalies in the case suggest that evidence used to implicate Cooper in the murders may have been corrupted. For example, a beige T-shirt was offered as evidence because it had a trace of Cooper’s blood, but the blood sample contained preservatives used by the police when they keep blood in test tubes. Later, a forensic scientist found that a sample from the test tube that contained Cooper’s blood held by the police contained blood from more than one person, suggesting that someone removed blood from the test tube and later filled the tube back to the top with another person’s blood. Police also failed to investigate other suspects. A woman reported that one of her housemates had shown up with several other people on the night of the murders wearing blood-spattered overalls and driving a vehicle similar to the one stolen from the murdered family. The witnesses said the man was no longer wearing a beige T-shirt he had on earlier in the evening and his hatchet, now missing from his tool area, resembled the one found in the crime scene. The witnesses gave the bloody overalls to the police for testing, but because of the police's focus on Cooper as the suspect, they threw the overalls in the trash. The full U.S. Court of Appeals for the Ninth Circuit refused to rehear the case, but five of its federal judges concluded, “California may be about to execute an innocent man.”  Six other judges dissented from the decision not to review the case. 

NEW RESOURCES:

Costs of Representation in Federal Death Penalty Cases

Death Penalty Information Center

12-08-10 -- A recent report to the Committee on Defender Services of the Judicial Conference of the United States by Jon Gould and Lisa Greenman provided an update on the costs of representation in federal death penalty cases.  The report examined all cases in which the federal death penalty was authorized by the U.S. Attorney General between 1998 and 2004.  The authors found that "The median cost of a case in which the Attorney General authorized seeking the death penalty was nearly eight times greater than the cost of a case that was eligible for capital prosecution but in which the death penalty was not authorized."  (emphasis added). The report found that the median cost for defense representation in a death case that went to trial was $465,602, including $101,592 for experts.  If the authorized case was settled by a plea, the median cost was $200,933, still far greater than the median cost of a death-eligible case in which the death penalty was not sought-- $44,809.  In other words, it is the seeking of the death penalty that considerably raises the costs, even if the case results in a plea bargain and no trial.  These figures do not include prosecution and judicial costs .

FEDERAL COURTS

Supreme Court Declines to Take Case of Federal Death Row Inmate With Mental Retardation

Death Penalty Information Center

12-07-10 -- The U.S. Supreme Court has declined to hear the appeal of Bruce Webster, an inmate on the federal death row with evidence that he is intellectually disabled.  In 2002, the Supreme Court ruled in Atkins v. Virginia that the execution of a person with intellectual disabilities (mental retardation) would be unconstitutional. Webster's evidence indicates that three federal doctors determined he had an intellectual disability when he applied for disability benefits in 1993, a year before he committed the murder that resulted in his death sentence. However, a 1996 law prohibits federal courts from considering new evidence discovered late in the appeals process unless it would prove the defendant’s innocence. In April, the U.S. Court of Appeals for the Fifth Circuit ruled that Webster had exhausted his appeals and his recent evidence of intellectual disability could not be considered, even though it would bar his execution if allowed in. Judge Jacques Wiener, writing for the court, expressed dismay at the restraint of the law, stating, “We today have no choice but to condone just such an unconstitutional punishment.”  (A comparable situation would be the belated discovery that an inmate was a juvenile at the time of his crime--another bar to execution, but perhaps producing a different result.)

TEXAS  

Appeals court halts death penalty hearing in Houston

DA tells her prosecutors to stay silent during judge's inquiry

By Brian Rogers, Houston Chronicle 

12-07-10 -- The Texas Court of Criminal Appeals halted an unprecedented death penalty hearing late Tuesday after an emergency appeal from the Harris County District Attorney's Office argued that a Houston judge was overstepping his boundaries. . . . The hearing on the constitutionality of the procedures surrounding the death penalty in Texas will be stopped to allow both sides 15 days to respond and file briefs in the state's highest criminal court. . . . State District Judge Kevin Fine had acknowledged that the appellate court may have been considering whether to order him to halt the proceedings in a preliminary hearing in the death penalty trial of John Edward Green. . . . Prosecutors and defense lawyers will now argue whether the hearing should take place. The district attorney's office said in its brief that Fine was exceeding his authority by allowing evidence regarding flaws in past death penalty cases to decide issues in Green's case.

CALIFORNIA

Lack of Qualified Attorneys in California Delays Death Penalty Cases

Death Penalty Information Center

12-06-10 -- A shortage of qualified criminal defense lawyers in California has caused major delays in the state’s capital punishment system.  Nearly half of those sentenced to death in California are waiting for the state to appoint them a post-conviction attorney.  Death row inmates wait an average of 10-12 years.  The long delay is attributed to the lack of experienced lawyers to take on this part of the appeals process.  The California Supreme Court requires that lawyers have experience in trial and appellate court. Criminal defense attorneys also attribute the scarcity to inadequate state funding.  University of California at Berkeley law professor Elisabeth Semel said that an investigation for post-conviction cases can cost about $250,000, which includes expenses related to expert witnesses and travel.  The current state budget for an investigation is $50,000 for an inmate.  Some experts believe that the shortage of defense lawyers will only be met when the state expands resources like the Habeas Corpus Resource Center, where lawyers have access to paid investigators and paralegals. California has the largest death row population in the country, with more than 700 inmates.

TEXAS  

A Texas Case Puts the Death Penalty on Trial

By Nathan Thornburgh, TIME 

12-06-10 -- Recent revelations about faulty evidence in two Texas death-penalty cases have raised new questions about the fairness of the death penalty. Now those questions will get an unprecedented hearing in the middle of a current murder trial: on Monday, a judge will hear evidence in the case of Texas v. Green that isn't about the crime in question at all, but instead about whether there's enough risk of wrongful execution in Texas to render the death penalty unconstitutional. . . . The trial's defendant is John Edward Green Jr., who is charged with capital murder in the 2008 shooting death of a Houston woman who was gunned down in her driveway in front of her children. Prosecutors in Harris County, where the case is being tried, declined to comment about the case, but Williamson County district attorney John Bradley said the death penalty is still needed for "horrific crimes." This would certainly qualify. (See "Stevens' Case Against the Death Penalty: Shirking the Blame.")

FLORIDA  

Extreme Makeover: Criminal Court Edition

By John Schwartz, New York Times 

12-05-10 -- When John Ditullio goes on trial on Monday, jurors will not see the large swastika tattooed on his neck. Or the crude insult tattooed on the other side of his neck. Or any of the other markings he has acquired since being jailed on charges related to a double stabbing that wounded a woman and killed a teenager in 2006. . . . Mr. Ditullio’s lawyer successfully argued that the tattoos could be distracting or prejudicial to the jurors, who under the law are supposed to consider only the facts presented to them. The case shows some of the challenges lawyers face when trying to get clients ready for trial — whether that means hitting the consignment shop for decent clothes for an impoverished client or telling wealthy clients to leave the bling at home. . . . “It’s easier to give someone who looks like you a fair shake,” said Bjorn E. Brunvand, Mr. Ditullio’s lawyer. . . . The court approved the judicial equivalent of an extreme makeover, paying $125 a day for the services of a cosmetologist to cover up the tattoos that Mr. Ditullio has gotten since his arrest. This is Mr. Ditullio’s second trial for the murder; the first, which also involved the services of a cosmetologist, ended last year in a mistrial. If convicted, he could face the death penalty.

OHIO  

High court: Ohio law provides for review of execution method

BY Jim Provance, Blade Columbus Bureau Chief

12-03-10 -- Ohio has no forum to judge its method of executing inmates, but the Ohio Supreme Court Thursday argued over whether it should take it upon itself to create one. . . . In a 5-2 decision responding to a question posed by a federal judge, Ohio's high court determined that state lawmakers have provided no forum for challenges to the constitutionality of its lethal injection process. It found state law already provides for review of a death-penalty case and even allows a defendant to petition the court to later reopen his appeals. . . . "… [W]e need not judicially craft a separate method of review under Ohio law,'' it said. . . . But Chief Justice Eric Brown, the only Democrat on the bench, and Justice Paul Pfeifer dissented. In an unusual move, two other justices, Evelyn Lundberg Stratton and Maureen O'Connor, issued their own opinions to criticize the dissents.

TEXAS

OP-ED: "Capital Punishment and Human Fallibility"

Death Penalty Information Center

12-03-10 -- A recent op-ed in the Wall Street Journal by Barry Scheck, co-director of the Innocence Project, highlighs flaws in Texas’s death penalty system that led to the execution of Claude Jones. Then-governor George Bush rejected Jones’s application for a reprieve.  Bush was not informed that the reprieve would allow time for DNA tests to be performed on a strand of hair that was found at the crime scene. This hair had been attributed to Jones at his trial and was the only piece of evidence tying him to the crime scene. Following six years of litigation, DNA testing was finally performed on the hair, and results showed it belonged to the victim, not Jones. Scheck asserts that if this test had been done in 2000, when Jones was facing execution, Jones would have likely been spared and the conviction reversed. The hair “match” was the key evidence cited in a 3-2 decision made by the Texas Court of Criminal Appeals upholding Jones’s death sentence. Scheck calls for a critical look into the death penalty in America, quoting George Will that “capital punishment, like the rest of the criminal justice system, is a government program, so skepticism is in order.” Democrat and Republican Senators are introducing a bill, already approved by the House, that would establish a National Criminal Justice Reform Commission to help prevent wrongful convictions like the case of Claude Jones.

TEXAS  

Stage is set for review of death penalty

Hearing in Houston murder case will zero in on safeguarding innocent

By Brian Rogers, Houston Chronicle  

12-03-10 -- The state of Texas does not adequately safeguard against executing the innocent, national anti-death experts and defense lawyers are expected to argue next week in an effort to persuade a Houston judge to renew his declaration that the death penalty is unconstitutional. . . . The hearing, a rare judicial review of capital punishment in Texas, is expected to last two weeks and attract some of the biggest anti-death penalty gunslingers to town, including Barry Scheck of the Innocence Project. Scheck is expected to try to convince the judge that Texas executed two innocent men and has almost certainly executed others. . . . State District Judge Kevin Fine nine months ago declared the procedures surrounding the death penalty in Texas unconstitutional, then rescinded his ruling to gather more information.

TEXAS

Conditions on Death Row in Texas

Death Penalty Information Center

12-02-10 -- In an article entitled "Solitary Men" in The Texas Observer, Dave Mann describes the conditions for inmates on Texas's death row.  Inmates in the Polunsky Unit near Livingston, Texas, spend almost their entire time alone in a 60-square-foot cell.  He writes, "The cells have a small window at one end. The steel door has a narrow window and, at the bottom, a slit through which guards slide trays of food. . . .Little penetrates these cement boxes except sound. Prison is a loud place, and sound can cause the most torment. The constant yelling and taunting and clanging doors—what one inmate describes as 'prison ruckus'—never ceases. Occasionally there are dull thuds of beatings and the screams of nearby prisoners descending into madness."  When they do get out for exercise for a short time 5 days a week, they can only exercise alone in adjacent cages.  Some inmates are kept this way for as long as 30 years, though the average stay is closer to 10 before an execution occurs.  Contact visits and televisions are never allowed in what Mann describes as "perhaps the harshest death row conditions in the country."  The article cites a number of studies showing that inmates enduring such solitary confinement conditions often slip into severe mental illness.

OP-ED: America's Death Penalty "Broken Beyond Repair"

Death Penalty Information Center

12-01-10 -- An op-ed by Bob Herbert of the New York Times highlights issues raised by former Supreme Court Justice John Paul Stevens that changed his mind on the death penalty in the U.S. Herbert cites information collected by the Death Penalty Information Center and points to shoddy defense and state misconduct in the deliberate withholding of evidence as prominent abuses in the system. “Executions have been upheld in cases in which defense lawyers slept through crucial proceedings. Alcoholic, drug-addicted and incompetent lawyers — as well as lawyers who had been suspended or otherwise disciplined for misconduct — have been assigned to indigent defendants.”  According to Herbert, “The egregious problems identified by Justice Stevens (and other prominent Americans who have changed their minds in recent years about capital punishment) have always been the case. The awful evidence has always been right there for all to see, but mostly it has been ignored. The death penalty in the United States has never been anything but an abomination — a grotesque, uncivilized, overwhelmingly racist affront to the very idea of justice.”

November 2010

INDIANA

Editorials: Indiana's Death Penalty "Too Costly and Applied Unfairly"

Death Penalty Information Center

11-30-10 -- In a recent editorial in the Fort Wayne, Indiana, Journal Gazette, the paper welcomed the proposal by the state's Attorney General to reconsider the death penalty in light of its enormous costs.  At a Criminal Justice Summit held at the University of Notre Dame, Indiana Attorney General Greg Zoeller asked state officials to look at the death penalty from a practical perspective. He cited a recent capital trial in Warrick County that cost $500,000 in defense attorney fees alone. “The costs can’t be borne by smaller counties," the paper quoted Zoeller as saying.   "[S]o if the crime occurs in a large county you might be charged with the death penalty, in a smaller county you’re not. That raises some significant questions about fairness.”  The paper noted that most of the high costs cannot be avoided: "[D]eath penalty cases demand the strictest set of protections and safeguards to make sure the conviction and sentence are correct and appropriate. New DNA evidence exonerating a killer can free a prisoner serving a life sentence; it can’t help someone who has been executed," and concluded, "The death penalty is too costly and applied too unfairly. Life without the possibility of parole is the appropriate penalty – and far less costly to taxpayers." 

Justice Stevens vs. the death penalty

The recently retired John Paul Stevens offers rare criticism of former Supreme Court colleagues. Will his argument change the debate over capital punishment?

Best Opinion:  Care2, Ann Althouse, NY Times

11-29-10 -- Retired Supreme Court Justice John Paul Stevens has written a detailed explanation of why he changed his mind about capital punishment, which he voted to reinstate in the U.S. in 1976 but now says is unconstitutional. In an essay in The New York Review of Books, Stevens says his late-career shift came after activist conservative justices handed down rulings that made executions more common, and less fair. Now, Stevens says, the capital punishment system is tinged with racism and politics. Will Stevens' candor change the way Americans view the death penalty? (Watch Stevens' "60 Minutes" interview)

NEW RESOURCES:

Congressional Quarterly Publishes Death Penalty Review

Death Penalty Information Center

11-27-10 -- Kenneth Jost of Congressional Quarterly has prepared a comprehensive review of the death penalty in the U.S. for the recent edition of the CQ Researcher.  The overview looks at death penalty trends in the past 10 years, public opinion, and arguments for and against repealing the death penalty.  Jost quotes many experts, including DPIC's Executive Director concerning the recent direction of capital punishment in the U.S. "'The decline in the use of the death penalty is the continuing story,' says Richard Dieter, the [Death Penalty Information] center's Executive Director.  'Death sentences, executions, the number of states that have the death penalty, and the size of the population on death row have all declined in the last decade.' The Center's statistics bear out Dieter's claims," Jost writes.  The report is accompanied by charts and graphs illustrating important trends, and contains a bibliography, chronology, and places to go for more information.  The significance of the innocence issue, including the large number of exonerations from death row in recent years, is highlighted in the review.  The volume concludes with a debate on whether the death penalty deserves to be retained between DPIC's Richard Dieter and Kent Scheidegger of the Criminal Justice Legal Foundation.

CALIFORNIA  

Lack of lawyers slows death sentence appeals in California, causing backlog

Los Angeles Times

11-27-10 -- The inability of the state to recruit lawyers for post-conviction challenges, or habeas corpus petitions, has caused a major bottleneck in the state's criminal justice system. Nearly half of those condemned to die in California are awaiting appointment of counsel for these challenges. . . . This "critical shortage," as the state high court describes it, has persisted for years, despite lawyer gluts. The average wait for these attorneys is 10 to 12 years. . . . Criminal defense lawyers attribute the scarcity to inadequate state funding, the emotional toll of representing a client facing execution and the likelihood that the California Supreme Court will uphold a capital conviction. . . . "There are myriad reasons why dozens of lawyers who used to do these cases decide they can't afford it," said UC Berkeley law professor Elisabeth Semel. "I am talking about not going broke because you are trying to do the right thing for your client."

TENNESSEE

Tennessee Judge Declares State's Execution Process Unconstitutional; Other States Confront Same Issue

Death Penalty Information Center

11-24-10 -- On Nov.19, a Davidson County judge ruled that Tennessee’s lethal injection procedure was unconstitutional, possibly delaying the execution of Stephen Michael West and others on death row. Chancellor Claudia Bonnyman, who issued the ruling, said that the state’s lethal injection procedure “allows for death by suffocation while conscious,” because it did not specify a sufficient dosage for sodium thiopental, the first of three drugs used in lethal injections. In Baze v. Rees, the U.S. Supreme Court decided that Kentucky’s lethal injection method was constitutional, although the decision did not specifically address the amount of sodium thiopental used in executions, provided it was administered properly. Federal public defender Stephen Kissinger presented two medical experts who testified that autopsies performed on executed inmates showed that concentrations of two of the drugs used in lethal injections were too low to cause their intended effect. Medical experts found that levels of sodium thiopental (the first drug used) in all three autopsies were too low to cause unconsciousness and levels of potassium chloride (the final drug used) were not enough to stop the heart.  UPDATE: Tennessee Supreme Court upheld the state's execution procedure, allowing West's execution date to be set for Nov. 30. . . . In other states: a federal court in Oklahoma approved the use of the anesthetic pentobarbital as the first of 3 drugs to be used in its executions.  It would be used in place of sodium thiopental, which is in short supply.  Oklahoma has an execution scheduled on Dec. 16.  Pentobarbital has been used in the euthanasia of animals.  In Texas, the Attorney General has ruled that the source of the state's lethal injection drugs should be made public.  Texas reportedly has sufficient quantities of sodium thiopental for 39 executions, but the supply has an expiration date in March 2011.  In California, the state has so far refused to divulge its source of sodium thiopental.  Arizona, which secured a supply of this drug around the same time as California, obtained the drug from overseas and carried out an execution.  Litigation in the United Kingdom is seeking to block the exportation of drugs used in executions after it was reported that U.S. states were acquiring sodium thiopental from a British company. (Various news stories.)

NEW VOICES:

Former Florida Justice and Texas Governor Urge Supreme Court to Examine Faulty Representation

Death Penalty Information Center

11-23-10 -- Gerald Kogan, a former Florida Supreme Court Justice, and Mark White, former governor of Texas recently urged the U.S. Supreme Court to consider the death penalty appeal of Boyd v. Allen because of inadequate defense representation.  According to the authors of an op-ed appearing in the National Law Journal, William Boyd’s defense lawyers in Alabama were barely paid and did very little to try to save his life.  They failed to present mitigating evidence of Boyd’s abused childhood: "[T]he jury never learned anything about the criminal assaults perpetrated against Boyd by his stepfather at least weekly throughout his youth; or the alcoholic grandparents who tried to stitch up his wounds when drunk; or the passive mother who sat mute while her husband drew her children's blood." The U.S. Court of Appeals for the Eleventh Circuit ruled against Boyd, finding that the attorneys’ failures were irrelevant because no amount of evidence would have convinced a sentencer to impose a sentence less than death. This standard used in deciding whether a defendant deserves a new hearing, according to the authors, disregarded the standards previously set by the U.S. Supreme Court. The op-ed noted that, contrary to the appeals court's holding that a death sentence was inevitable, the contrary may be true.  The jury in Boyd’s case recommended against a death sentence, though that recommendation was overridden by the sentencing judge.  The authors remarked, "As a prosecutor who sought the death penalty and a governor who oversaw 19 executions, we believe strongly that men and women facing the ultimate punishment should be provided with competent counsel and sufficient resources to mount a defense: We can have most confidence in the outcome when the playing field is level."

OKLAHOMA  

Oklahoma Judge Okays Use of New Lethal Injection Drug

By Nathan Koppel, Wall Street Journal (blog) 

11-22-10 -- It’s official: There’s a new drug in the capital-punishment orbit: pentobarbital. . . . On Friday, Oklahoma federal judge Stephen Friot gave the go ahead to the state’s use of the drug, which has been used to euthanize animals. . . . The nationwide shortage of thiopental sodium, the longtime go-to anesthetic in capital punishment, has forced states to try to come up with alternatives. The Oklahoma ruling, lawyers said, could prompt other states to use pentobarbital.  (Here’s a WSJ article on the latest development in the months-long saga surrounding the mechanics of how states will carry out capital punishment.) . . . In Oklahoma, defense lawyers have claimed that pentobarbital is unproven and risky, and could lead to torturous executions. . . . But Oklahoma stated in court filings that pentobarbital has been used to induce comas in humans and that the drug, like thiopental, is a central nervous system depressant that can effectively render a person unconscious.

INTERNATIONAL:

United Nations Resolution Shows Increasing Support for International Moratorium

Death Penalty Information Center

11-20-10 -- Earlier in November, a resolution was presented at the United Nations General Assembly to support a moratorium on the use of the death penalty around the world. Panama, the European Union, Paraguay, Philippines, East Timor, Rwanda, Mozambique and Russia were among the resolution's sponsors. Other co-sponsors included nations in Africa, Asia and Latin America. The resolution received 107 votes in favor, 38 against and 36 abstentions. In 2007, a similar resolution was adopted by the General Assembly, receiving 104 "yes" votes, 54 "no" and 29 abstentions. The increase in the number of supportive votes and the decline in negative votes (from 54 to 38) are indicative of an international trend away from the death penalty. The United States joined China, India and other nations in voting against the resolution. In recent years, China has consistently had the greatest number of executions in the world, with the U.S. being among the top five countries in that category.  In 2009, the U.S. carried out 52 executions.

ILLINOIS

Editorials: Illinois--"Outlaw Death Penalty to Save Lives and Cash"

Death Penalty Information Center

11-19-10 -- In a recent editorial, the Chicago Sun-Times supported the abolition of the death penalty in Illinois during the current legislative session.  The paper noted its past support for capital punishment:  "In the past, we've supported the death penalty as long as the legal system gives the accused a fair trial that results in a verdict of guilt beyond resonable doubt.  Sadly, in light of experiences in recent years, that goal seems unrealistic."  Among the reasons for favoring abolition, the paper wrote that, "The death penalty is arbitrary - handed down in some cases but not in others with similar facts.  Even with the best safeguards in place, it's unreliable, with irreversible consequences.  And it's costly," consuming $100 million in the past 7 years.  As an alternative, the editorial noted that, "Like the death penalty, life without parole keeps heinous criminals off our streets, deters serious offenses and gives victims a sense that justice has been served." 

OHIO

FREEDOM OF SPEECH ISSUE?

New rule will let warden halt condemned's last words

By Alan Johnson, The Columbus Dispatch

11-19-10 -- The last words of condemned killers in Ohio could be shortened, edited or stopped under a new prison rule that has critics voicing First Amendment complaints. . . . The change was prompted by the May 13, 2010, execution of Michael Beuke. He held death at bay for 17 minutes by reciting the rosary prayers of the Roman Catholic Church while strapped to the lethal-injection table at the Southern Ohio Correctional Facility near Lucasville. . . . Since resuming executions in February 1999, the state has imposed no limits or restrictions on last statements by the 41 men it has executed. The old policy said: . . . "There will be no restriction on the content of the condemned prisoner's statement and no unreasonable restriction on the duration of the prisoner's last statement." . . . The new policy: "The warden may impose reasonable limits on the content and length of the statement. The warden may also terminate a statement that he or she believes to be intentionally offensive to the witnesses."

ILLINOIS

Studies: Illinois Commission Questions Use of Millions for Death Penalty Prosecutions

Death Penalty Information Center

11-18-10 -- The Illinois Capital Reform Study Committee, created by the state legislature in 2003 and headed by Thomas P. Sullivan, a former U.S. Attorney, recently issued its sixth and final report on the Illinois death penalty.  The report found that taxpayers are spending tens of millions of dollars on the prosecution of a large number of death-penalty cases, even though relatively few result in actual death sentences.  Since 2003, 18 people have been sentenced to death, even though 500 defendants had capital charges brought against them. The report found that prosecutors seek the penalty as a bargaining ploy in pursuit of a lesser guilty plea and sentence.  Leigh B. Bienen, a senior lecturer at Northwestern University School of Law and a member of the study committee designed to help fix the state's system of capital punishment said, “It doesn’t look too fixed to me.”  Since 2000, she learned, $100 million in taxpayer money has been spent via the Capital Litigation Trust Fund. The money was meant to ensure defense counsel in capital cases, especially in places where public defender offices were inadequate for the task.  But the fund is also used by prosecutors to pay for their considerable nonsalary expenses, including those for investigators,

TEXAS

Time On Death Row: After 35 Years, Texas Inmate Dies of Natural Causes

Death Penalty Information Center

11-17-10 -- The longest serving inmate on Texas's death row died of natural causes in Dallas County Jail while awaiting a new sentencing hearing.  Ronald Curtis Chambers spent 35 years on death row awaiting execution. For much of the time, he was confined to his cell for 23 hours a day. Chambers was convicted of capital murder and sentenced to death in 1975, but his sentence was overturned repeatedly.  He was again sentenced to death in 1985 and 1992.  James Volberding, who worked on Chamber's appeals from 1996 to 2008, pointed to his case as an illustration of the flaws in Texas' death penalty system.  According to Volberding, court and prosecution errors were the cause of the long delay and he argued that these delays amounted to cruel and unusual punishment.  He said that Chambers was a changed man from the person who committed murder at age 20 and was very remorseful.  The Dallas County district attorney's office spokeswoman Jamille Bradfield stated on Monday that they were "actively preparing to retry Mr. Chambers on punishment at the time of his death."

PENNSYLVANIA

Arbitrariness: Jury Deadlocks on Death Penalty for Murder of Police Officer

Death Penalty Information Center

11-16-10 -- A capital jury in Philadelphia illustrated the divisiveness and arbitrariness of the death penalty when it could not decide on a sentence for Rasheed Scrugs, who admitted to killing Police Officer John Pawlowski.  The atmosphere in the jury room became "horrible" according to one of the jurors.  Jurors almost immediately reported no chance for a verdict, as deliberations began with seven for life in prison and five for death by lethal injection.  Some jurors reportedly refused to take part in the deliberations by "remaining silent or walking out to the lavatory."  Juror Fred Kiehm described the deliberations as: "Extremely tense... screaming, yelling, at one point I thought someone might break furniture."  Some jurors, Kiehm said, were influenced by one of Scrugs' "mitigating factors" for life in prison: he had four sons whom the jurors did not want to grow up with their father on death row. 

OHIO  

Ohio governor commutes inmate's death sentence

Writing by Andrew Stern; Editing by Jonathan Oatis  Reuters

11-15-10 -- Ohio's governor on Monday spared the life of a murderer who was due to be executed on Tuesday, citing the condemned man's genetic condition, which might have generated more sympathy from his judge and jurors. . . . Sidney Cornwell, 33, has been on death row since 1997 in the gang-related shooting in which a 3-year-old girl was killed and three others were wounded. . . . Governor Ted Strickland, a Democrat, commuted Cornwell's sentence to life in prison. He cited Cornwell's recent diagnosis of Klinefelter's syndrome, a genetic disorder afflicting males that can slow physical development and create embarrassing characteristics such as breasts. . . . "This condition, which impacts both the body and the mind of its sufferer, was unknown to the jury and judge responsible for determining Mr. Cornwell's sentence despite significant testimony and argument during Mr. Cornwell's trial regarding certain of his physical characteristics," Strickland wrote.

TEXAS

Another Texas Execution Thrown in Doubt by New DNA Tests

Death Penalty Information Center

11-12-10 -- Recent DNA tests raise serious doubts about the conviction of a man executed in Texas in 2000.  The tests revealed that a strand of hair found at the scene of a liquor-store shooting did not belong to Claude Jones, as was originally implied by the prosecution.  Instead, the hair belonged to the victim.  Jones was executed for the murder of the store's owner. The strand of hair was the only piece of physical evidence that placed Jones at the scene of the crime, and this revelation raises the question of whether Texas executed the wrong person for the murder. Before his execution in 2000, Jones’s lawyers filed petitions for a stay with both a district court and with the Texas Court of Criminal Appeals, requesting that the strand of hair be submitted for DNA testing. The necessary DNA technology had not been developed at the time the crime in 1989, but was available in 2000. Both courts, along with then-Governor George W. Bush, denied Jones a stay of execution.  Apparently, Gov. Bush was not even informed by his clemency advisors about the request for the DNA test.  Barry Scheck, co-founder of the Innocence Project, said “The DNA results prove that testimony about the hair sample on which this entire case rests was just wrong. Unreliable forensic science and a completely inadequate post-conviction review process cost Claude Jones his life.

MILITARY

U.S. Military Death Penalty: Facts and Figures

Death Penalty Information Center

11-11-10 -- The death penalty under the Uniform Code of Military Justice was reinstated in 1984.  The military death row is located at the U.S. Disciplinary Barracks in Fort Leavenworth, Kansas. There are currently seven death row inmates awaiting execution, five of whom are African-Americans and two of whom are white. Unlike state executions, members of the military cannot be executed unless the President personally confirms the death sentence. The President also has the power to commute a death sentence that has been imposed on a member of the military. A person in the military service may receive the death penalty for 15 offenses (10 USC Sections 886-934), many of which must occur during a time of war. All current military death row inmates were convicted of premeditated murder or felony murder.  Since 1916, 135 soldiers have been executed by the United States military, but none in almost 50 years. The last military execution occurred on April 13, 1961. U.S. Army Private John A. Bennett was hanged after being convicted of rape and attempted murder.

GENERAL

Experts to Review Infamous Child Molestation Case

Frank Eltman, The Associated Press, Law.com   

11-09-10 -- A co-founder of a group that works to exonerate wrongly convicted people was one of four legal experts named Monday to review a notorious 1980s child molestation case that was featured in an Academy Award-nominated documentary. . . . Innocence Project co-founder and co-director Barry Scheck, perhaps best known as a member of the 1995 O.J. Simpson defense team, agreed to participate along with three others in a review of the prosecution of Arnold and Jesse Friedman, a prosecutor said in a statement. . . . A teenage Jesse Friedman and his father pleaded guilty in 1988 to molesting 13 children during computer classes in the basement of their home in Great Neck, on Long Island, just east of New York City. Jesse Friedman, who was paroled in 2001, has long contended he was coerced into making the guilty plea. His father committed suicide in prison in 1995. . . . Their story was the subject of the 2003 Oscar-nominated documentary "Capturing the Friedmans." . . . Last summer, the 2nd U.S. Circuit Court of Appeals found "a reasonable likelihood that Jesse Friedman was wrongfully convicted."

GEORGIA  

Appeals court vacates ruling on mental retardation

By Bill Rankin, The Atlanta Journal-Constitution 

11-09-10 -- The federal appeals court on Tuesday vacated its ruling that found unconstitutional the burden Georgia puts on capital defendants to prove they are mentally retarded -- and thus ineligible for execution. . . . Georgia is the only state in the country that requires a defendant raising a mental retardation claim to prove it beyond a reasonable doubt, the highest burden-of-proof threshold.

OKLAHOMA

Oklahoma Proposes New Lethal Injection Drug

Death Penalty Information Center

11-09-10 -- Oklahoma recently filed a petition with a federal court asking that pentobarbital, an anesthetic agent used in euthanasia of animals, be allowed as a substitute for sodium thiopental in lethal injection procedures. Earlier this year, Hospira Inc., the nation’s sole manufacturer of the latter drug, announced that it has ceased production because of a shortage in one of the ingredients. The shortage has forced Oklahoma and other states to delay executions and seek other sources for the drug. Attorneys for John David Duty, who is scheduled for execution in Oklahoma in December, raised questions about the new drug, asserting that at this point the drug "is untested, potentially dangerous, and could well result in a torturous execution." Efforts to obtain sodium thiopental from other sources have initiated legal battles around the country. Some experts believe that inmates are at a greater risk of suffering severe pain during executions if states use imported or unproven drugs. A foreign supply of thiopental could be less powerful than the domestic variety. Defense lawyers also contend prison officials might not use proper care in transporting the drug, potentially exposing it, for example, to temperature extremes that could hurt its effectiveness. Oklahoma City federal judge Stephen Friot is expected to hear arguments next week. If approved, pentobarbital could be a new standard for lethal injections around the country.  Dr. A. Jay Chapman, the former medical examiner of Oklahoma who recommended thiopental in the 1970s as a suitable drug for lethal injections recently expressed a lack of concern about whether the drug worked as originally claimed: "If they (inmates being executed) have a bit of pain exiting this world, it is of no great concern to me."

NEW RESOURCES:

“Death Penalty for Female Offenders”

Death Penalty Information Center

11-08-10 -- A new report by Victor Streib, Professor of Law at Ohio Northern University, highlights trends in the death penalty regarding female offenders. The report shows that the death penalty in the United States is rarely imposed on women. Of the approximately 8,200 death sentences that have been imposed across the U.S. since 1973, less than 2% have been imposed on female defendants (167 out of 8,292, at the time of the report’s publication). Additionally, only 1% of executions in the modern era (since 1976) have been of women (12 out of 1232). The report also shows that over 50% of women currently on death row were convicted of killing a close family member.  Most women were convicted of killing their husbands or boyfriends, or children close to them. Finally, the study observed that the execution of women accounted for only 0.6% of all executions since the 1900s. When compared to earlier eras in American history, this data indicates that the practice of executing women is rarer than in previous centuries.  Click here for full report.

CONNECTICUT  

Jurors Vote for Death in Conn. Triple-Murder Case

By William Glaberson, New York Times   

11-08-10 -- A jury in Connecticut voted on Monday to impose the death penalty on a longtime criminal for his role in a home invasion in Cheshire, Conn., that left a mother and her two daughters dead. The panel had deliberated just more than three full days. . . . The defendant, Steven J. Hayes, sat motionless at the defense table as a court clerk read, again and again, the jurors’ findings that Mr. Hayes should die for joining in the July 2007 home invasion that led to a night and morning of unimaginable terrors, of sexual abuse, baseball-bat beatings and flames, in the bucolic suburban town. Only one person has been executed in the state since 1960. . . . Jurors stood in the jury box, some looking drawn, as the clerk of the court read through the long verdict form they had filled out. Some members of the victims’ family members rested their heads on the benches in front of them.

PENNSYLVANIA  

2 days of debate in Abu-Jamal case

By Julie Shaw, Philadelphia Daily News   

11-08-10 -- Tonight, defense attorney and activist Michael Coard and Philadelphia District Attorney Seth Williams are expected to share a stage at the National Constitution Center to discuss/debate or present facts of the Mumia Abu-Jamal case. The verb varies depending on who is asked. . . . Tomorrow, lawyers for the commonwealth and for the convicted killer of police Officer Daniel Faulkner will debate before a three-judge panel of the 3rd U.S. Circuit Court of Appeals whether a jury should again decide if Abu-Jamal should live or die. . . . Both events, with attendant rallies, are expected to be packed.

TEXAS

Death Row backers blind to injustice

In My Opinion: By Leonard Pitts Jr., Miami Herald

11-06-10 -- A few days ago, Anthony Graves called his mother and asked what she was cooking for dinner. She asked why he wanted to know. He said, “Because I’m coming home.” . . . Maybe it sounds like an unremarkable exchange. But Anthony Graves had spent 18 years behind bars, 12on Death Row, for the 1992 murder of an entire family, including four children, in the Texas town of Somerville. It wasn’t until that day, Oct. 27, that the district attorney’s office finally accepted what he’d been saying two decades: He’s innocent. . . . So the news that Graves would be home for dinner was the very antithesis of unremarkable. His mother, he told a news conference the next day, couldn’t believe it. “I couldn’t believe I was saying it,” he added. . . . Graves’ release came after his story appeared in Texas Monthly magazine (texasmonthly.com). The article by Pamela Colloff detailed how he was convicted even though no physical evidence tied him to the crime, even though he had no motive to kill six strangers, even though three witnesses testified he was home at the time of the slaughter.

ARKANSAS

Arkansas Supreme Court Orders Review of 1993 Capital Case

Death Penalty Information Center

11-05-10 -- On November 4, the Arkansas Supreme Court ordered evidentiary hearings to consider whether newly analyzed DNA evidence should result in a new trial for Damien Echols, Jessie Misskelley and Jason Baldwin, who were convicted of the 1993 murders of three West Memphis Cub Scouts. Echols was sentenced to death and the other defendants received life.  The results of the DNA tests on evidence from the crime scene excluded Echols, Baldwin and Misskelley as the sources. The high court also ordered an examination of claims of misconduct by the jurors. According to defense lawyers, Misskelley’s confession was not introduced at Echols' trial, but the jurors considered it anyway. The state Supreme Court had previously upheld Echols' conviction in 1996, when DNA testing was not available because of technical limitations. The case of the "West Memphis Three," a name used by their supporters, has attracted attention from the national media and celebrities. In August, a rally in Little Rock to support Echols featured actor Johnny Depp, Eddie Vedder of Pearl Jam and Natalie Maines of the Dixie Chicks.

INTERNATIONAL

New From DPIC: Video Excerpts from the International Police Forum on the Death Penalty

Death Penalty Information Center

11-03-10 -- On October 13, officials from the U.S. and Europe held what may have been the first ever international forum of law enforcement officers on the merits of the death penalty in reducing violent crime. The officers discussed whether capital punishment actually helps to keep citizens safe, assists healing for victims, and uses crime-fighting resources efficiently. The panelists, who included current and former police officers from the U.S. land Europe, addressed issues such as deterrence, closure to victims’ families, and costs as compared to alternative sentences.  The panel was held at the National Press Club in Washington, D.C. You can find resources regarding the forum and video clips of the presenters' remarks on DPIC's new webpage here.

NEW VOICES

Elie Wiesel Speaks about the Death Penalty

Death Penalty Information Center

11-01-10 -- Elie Wiesel, acclaimed author, human rights activist, Nobel Peace laureate and Holocaust survivor, spoke about his opposition to the death penalty during a lecture on capital punishment at Wesleyan University in Connecticut in October. Wiesel, who lost both parents and a sister in the Nazi death camps, focused his remarks on family members of murder victims. He said that murderers should be punished more harshly than other prisoners and encouraged the criminal justice system to focus efforts on the survivors of violent crimes "so that families will not feel cheated by the law."  "But," he said, "death is not the answer."  He said that he might change his stance if the death penalty could bring back victims. He remarked, “I know the pain of those who survive. Believe me, I know… Your wound is open. It will remain. You are mourning, and how can I not feel the pain of your mourning?  But death is not the answer.”

October 2010

ARIZONA

Editorial: "No Justification" for Recent Execution

Death Penalty Information Center

10-29-10 -- On October 29, a New York Times editorial raised many concerns regarding the recent execution of Native American Jeffrey Landrigan in Arizona.  The Times said “the system failed him at almost every level, most disturbingly at the Supreme Court.” Landrigan’s execution garnered national attention because a nationwide shortage of sodium thiopental forced the state to seek the drug from foreign suppliers. Despite repeated orders from a federal District Court judge, Arizona refused to divulge the source of their lethal drug supply.  The judge stayed the execution based on these concerns, but the stay was overturned by the U.S. Supreme Court in a 5-4 ruling that said there was “no evidence in the record to suggest that the drug obtained from a foreign source is unsafe.” But, as the editorial pointed out, "There was no evidence — either way — because Arizona defied orders to provide it."  In addition to concerns about the drugs used in Landrigan’s execution, recent statements made by Landrigan’s sentencing judge questioned the appropriateness of a death sentence in this case. Judge Cheryl Hendrix, who presided over Landrigan's trial, recently told the Arizona Board of Executive Clemency that she would not have sentenced Landrigan to death if his trial attorney presented evidence of the defendant’s brain damage and other problems.  The Board's vote was 2-2, so clemency was denied. Read full editorial below.

ARIZONA  

No Justification

The New York Times Editorial 

10-28-10 -- Two years ago, when a splintered Supreme Court approved lethal injection as a means of execution in Baze v. Rees, Justice John Paul Stevens made a prophecy. Instead of ending the controversy, he said, the ruling would raise questions “about the justification for the death penalty itself.” Since then, evidence has continued to mount, showing the huge injustice of the death penalty — and the particular barbarism of this form of execution. . . . In the case of Jeffrey Landrigan, convicted of murder and executed by Arizona on Tuesday, the system failed him at almost every level, most disturbingly at the Supreme Court. In a 5-to-4 vote, the court’s conservative majority allowed the execution to proceed based on a stark misrepresentation.

High Court Split Paves Way for Arizona Execution

Tony Mauro, The National Law Journal

10-28-10 -- The Supreme Court on Tuesday night split along conservative-liberal lines, with Justice Anthony Kennedy joining the conservatives, to allow the Arizona execution of Jeffrey Landrigan to proceed in spite of lower court concerns about the safety of the drugs being used for the lethal injection. After he uttered his last words "Boomer Sooner" -- a University of Oklahoma fan slogan -- Landrigan was executed at 12:26 a.m. Eastern time Wednesday, according to this CNN account. . . . The eleventh-hour court dispute stemmed in part from the shortage of sodium thiopental, an ingredient in the "cocktail" of drugs typically used in lethal injections in the United States. The sole U.S. manufacturer has stopped production, but Arizona obtained the drug from a foreign source. The state resisted requests for details about the sourcing by attorneys for Landrigan, citing a state law that protects the privacy of individuals and entities involved in executions.

Books: "The Confession" by John Grisham

Death Penalty Information Center

10-27-10 -- A new novel by acclaimed author John Grisham, entitled “The Confession,” tells the story of Donte Drumm, an innocent man who was convicted of murder and sentenced to death in Texas. The book begins as the execution of Drumm is only four days away and another man confesses to the crime to a minister.  Although a work of fiction, Grisham’s work offers a critique of our criminal justice system and of the death penalty in particular. USA Today's review of the book notes, "Readers who share [Grisham's] views as well as those sitting on the fence will find much to love and lament in the tragic story of Donté Drumm."

ARIZONA  

Arizona executes inmate after federal judge lifts stay

by Michael Kiefer, The Arizona Republic

10-27-10 -- In only the second Arizona execution since 2000, convicted killer Jeffrey Landrigan died by lethal injection late Tuesday after the U.S. Supreme Court removed the last legal barrier. . . . His death came shortly after a curtain opened into the execution room at 10:14 p.m. Tuesday. The condemned man looked quizzically at roughly 27 people gathered to witness the event. He smiled to friends and family, his lip curling slightly under his reddish mustache. . . . When asked for any last words, he said in a strong voice with a heavy Oklahoma accent: "Well, I'd like to say thank you to my family for being here and all my friends, and Boomer Sooner," a reference to the University of Oklahoma Sooners. . . . He looked around and smiled again. Then, as the first drug -- sodium thiopental -- took effect, he slowly closed his eyes. A medical technician entered to check that he was fully sedated. Then the execution continued.

TEXAS  

Execution 'ordeal' may not be over for Texas appeals judge

Panel urged to send Judge Sharon Keller's case back for review

By Peggy Fikac, Houston Chronicle Austin Bureau

10-26-10 -- It looks like it is not quite over yet for Presiding Judge Sharon Keller of the Texas Court of Criminal Appeals. . . . A judicial panel this month tossed out a public warning issued against Keller by the State Commission on Judicial Conduct. The commission acted after Keller refused to keep the court clerk's office open late to allow a condemned man, Michael Wayne Richard, to file a last-minute appeal of his 2007 execution.

Keller's lawyer, Chip Babcock, said then that his client's "ordeal" was over. . . . On Tuesday, however, the commission's executive director, Seana Willing, and special counsel John J. McKetta III asked the panel to reconsider its decision to dismiss the case. The two acted as prosecutors in the case. . . . The three-judge panel decided that because the commission had instituted formal proceedings against Keller, it did not have the authority to issue a public warning against her.

TEXAS

Texas Inmate May Be Executed Despite Proof of Intellectual Disability

Death Penalty Information Center

10-26-10 -- Michael Hall was sentenced to death in 2000 in Texas for kidnapping and murder. At the time of his trial, his IQ was measured at 67. Generally, a person with intellectual disability is defined as someone with an IQ of 70 or lower, along with limitations in adaptive skills. In 2002, the Supreme Court ruled in Atkins v. Virginia that executing someone who has an intellectual disability (mental retardation) constitutes cruel and unusual punishment, but the high court left it to each state to define and enforce the prohibition. State and federal judges in Texas have ruled that, even though Hall is mentally slow, he does not demonstrate an intellectual disability sufficient to be exempted from capital punishment in Texas.  Lawyers for Hall petitioned the high court to examine whether Texas has adopted adequate procedures to determine whether someone has an intellectual disability and whether those procedures were followed in Hall’s case in line with constitutional safeguards. The Supreme Court has declined to take up Hall's appeal.

New Resources: The Atlantic Center for Capital Representation

Death Penalty Information Center

10-25-10 -- The Atlantic Center for Capital Representation (ACCR) is a newly formed non-profit death penalty resource center located in Philadelphia, Pennsylvania. ACCR provides pre-trial consultation to capital defense practitioners and defense teams in Pennsylvania and Delaware. They are involved in conducting statewide capital defense trainings, as well as public education and advocacy. The ACCR is led by Marc Bookman and Dana Cook, both formerly of the Homicide Unit of the Defender Association of Philadelphia. If you are interested in or have additional questions about this new resource, please contact Mr. Bookman at 215-732-ACCR (2227); mbookman@atlanticcenter.org or dcook@atlanticcenter.org.

ARIZONA

Sentencing Judge Second-Guesses Death Sentence In Light
of New Evidence

Death Penalty Information Center

10-22-10 -- On October 20, attorneys for Jeffrey Landrigan filed a clemency petition with the Arizona Board of Executive Clemency calling on the Board to recommend the commutation of Landrigan’s death sentence largely because of errors by his trial attorneys. Landrigan’s original attorneys failed to present mitigating evidence at the sentencing hearing, which could have included evidence of brain damage and severe abuse. Judge Cheryl Hendrix, the judge who imposed Landrigan’s death sentence, recently signed a declaration admitting that, if she knew about Landrigan’s background and brain damage, she would not have sentenced him to death. Judge Hendrix wrote, “Had the trial counsel presented any of the mitigating information I have received [since the sentencing trial] – which was available at the time of sentencing – Mr. Landrigan would not have been sentenced to death.” UPDATE: A U.S. District Court Judge has stayed Landrigan's execution, forbidding the use of sodium thiopental in the lethal injection because the state has not adequately assured the court of the drug's efficacy.  The U.S. Court of Appeals for the Ninth Circuit upheld the stay. (Oct. 26, 2010). FURTHER UPDATE: The U.S. Supreme Court (5-4) lifted the stay of execution and Landrigan was executed late on Oct. 26.

TEXAS

Expert Who Predicted "Future Dangerousness" in Texas Death Cases Ruled Unreliable

Death Penalty Information Center

10-21-10 -- The Texas Court of Criminal Appeals recently held that the methodology used by Dr. Richard Coons to predict the "future dangerousness" of capital defendants was unreliable.  Whether a convicted defendant would be a future danger to society is a crucial question for juries in Texas in choosing between a life or death sentence.  Dr. Coons has testified in over 150 death penalty trials across the state. He admitted in a recent hearing that he had developed his own methodology for assessing future dangerousness, one in which he considers the defendant’s conscience, attitudes toward violence and criminal history. “These factors,” according to the court opinion, “sound like common sense ones that the jury would consider on its own.” Capital defense experts consider this a significant ruling pertaining to expert testimony in death penalty cases. Russ Hunt Jr., who represented the defendant in the case where this ruling was made, said, “If you are going to be an expert, you should have some scientific basis of what you are testifying about.” Hunt continued, “[Coons] basically just says, ‘Trust me. I’m a doctor. I know it when I see it.’” Dr. Coons, a forensic psychiatrist, has recently stopped taking death penalty cases.

Arbitrariness: 10% of Counties Account for All Recent Death Sentences in the U.S.

Death Penalty Information Center

10-20-10 -- A recent article in Second Class Justice, a weblog dedicated to addressing unfairness and discrimination in the criminal justice system, highlighted that the death penalty continues to be arbitrarily applied in the United States. Citing figures from the American Judicature Society, author Robert Smith revealed that only 10% of U.S. counties accounted for all of the death sentences imposed between 2004 and 2009, and only 5% of the counties accounted for all death sentences between 2007 and 2009. Even in states that frequently impose the death penalty (such as Texas, Alabama, Florida, California and Oklahoma), only a few counties produce the state’s death sentences.  According to the article, “The murders committed in those counties are no more heinous than murders committed in other counties, nor are the offenders in those counties more incorrigible than those who commit crimes in other counties. Examination of prosecutorial practices demonstrate that some prosecutors seek death in cases in their jurisdictions while other prosecutors in the rest of the state do not seek death for the same – or even more aggravated – murders.”  The article contains a series of slides illustrating the geographical disparities of the death penalty.

GEORGIA  

Update: Judge says Troy Davis should appeal directly to U.S. Supreme Court

By Jan Skutch, Savannah Morning News

10-19-10 -- Attorneys for Troy Anthony Davis must appeal a denial of a new trial to the U.S. Supreme Court – not the 11th U.S. Circuit Court of Appeals - in the 1989 slaying of off-duty Savannah police officer Mark Allen MacPhail, a federal judge has ruled. . . . “Any review of this court’s decision should be by the Supreme Court itself, not an intermediate appellate court,’’ U.S. District Judge William T. Moore Jr. ruled. . . . Moore ruled in a 172-page order in August that Davis failed to prove his innocence in the MacPhail slaying and will not get a new trial. . . . He sent his ruling directly to the Supreme Court.

ARIZONA

States Suddenly Acquiring Lethal Injection Drug from Unknown Source

Death Penalty Information Center

10-18-10 -- Lawyers for Jeffrey Landrigan, an Arizona death row inmate scheduled for execution on October 26, have filed a motion asking courts to compel the state to reveal its source of a drug to be used in his lethal injection. Despite a nationwide shortage of sodium thiopental, Arizona recently announced that it has obtained new supplies of the drug. The announcement came the same day that California filed a notice in federal court that it had obtained the same drug with an expiration date of 2014. Hospira Inc., the sole U.S. manufacturer of the drug, said it cannot be the manufacturer of the drug because the last batch the company manufactured expires in 2011 and it will be unable to produce any more of the drug until early 2011. Both the Arizona and California Departments of Corrections have declined to reveal the source of their new supply. The FDA says that because of Hospira’s shortage, there are currently “no FDA-approved manufacturers for [sodium] thiopental,” and the agency is not aware of any supplier currently able to supply the drug to the U.S. It is possible the drug was obtained from China or India where companies that manufacture the drug exist.

New Voices: Police Forum --Is the Death Penalty Necessary?

Death Penalty Information Center

10-14-10 -- On October 13, law enforcement officers from the U.S. and Europe held the first public discussion about whether the death penalty helps or hurts in keeping citizens safe, assists healing for victims, and uses crime-fighting resources efficiently.  The panelists addressed issues such as deterrence, closure to victims’ families, and costs in relation to alternatives.  Former Detective Superintendent Bob Denmark of Lancashire Constabulary, England, who investigated over 100 homicides in the U.K., said, “Out of the 100 or more cases that I was personally involved in… in the vast majority of those, I do not think deterrence would have been an issue at all.” He continued, “If you were to use execution of killers as a deterrent, I think you would end up having to execute every killer in the hope that you might deter some potential killer in the future. I think the deterrence argument, while I do not dismiss it, is very, very weak.” Police Chief James Abbott of West Orange, New Jersey, the Republican appointee to the New Jersey Death Penalty Study Commission, talked of how his time with the study commission changed his mind about the death penalty. He said, “I ... know that in practice, [the death penalty] does more harm than good. So while I hang on to my theoretical views, as I’m sure many of you will, I stand before you to say that society is better off without capital punishment… Life in prison without parole in a maximum-security detention facility is a better alternative.”  The forum also included Ronald Hampton, Executive Director of National Black Police Association International Leadership Institute and a 23-year veteran of the D.C. Metropolitan Police Department, and António Cluny, Senior Attorney General and Public Prosecutor from Portugal.

CALIFORNIA

Costs: "Can California Confront Costs of the Death Penalty?"

Death Penalty Information Center

10-13-10 -- A recent op-ed by Professor Gerald Uelmen of Santa Clara Law School in the Sacramento Bee highlighted major concerns about California’s death penalty, including its high costs and the difficulty in finding competent representation for death row inmates. Uelmen also noted that California has the broadest death penalty law in the country, which allows for more death-eligible offenses than other death penalty states. According to the op-ed, “Although death penalty laws are supposed to narrow the discretion of prosecutors and juries by requiring 'special circumstances' for a death sentence, in California there is nothing 'special' about special circumstances. Virtually every first-degree murder can be made into a death case if the prosecutor chooses.” California currently has the largest death row in the United States with more than 700 inmates, more than 40% of whom are still awaiting for the appointment of a lawyer to handle constitutionally-mandated appeals. Meanwhile, the state has cut the budget of the Public Defender’s Office, limited the role of the California Habeas Corpus Resource Center, and failed to appropriate funds needed to appoint private lawyers.  California is also planning to build a new $400 million death row prison that will house inmates at three times the cost of holding those with life without parole sentences. Prof. Uelmen was also Executive Director of the California Commission on the Fair Administration of Justice that carefully examined the state's death penalty.  Read full op-ed below.

UNITED STATES SUPREME COURT

Supreme Court to Hear DNA Testing Case on October 13

Death Penalty Information Center

10-12-10 -- On October 13, the U.S. Supreme Court will hear arguments in Skinner v. Switzer. Hank Skinner was convicted of murdering his girlfriend and her two sons in 1993 in their Texas home. He has always maintained his innocence, and there is untested DNA evidence that may prove someone else committed the crime.  Some DNA testing was conducted before trial, placing Skinner in the house where his girlfriend lived, a fact he does not dispute.  Although Texas has a law allowing some post-conviction DNA testing, Gray County District Attorney Lynn Switzer has refused to surrender the untested items, claiming that Skinner's appeal has come too late. Almost all such cases are settled in state court, but because of Texas's refusal to allow the testing before his execution, Skinner is asking the Supreme Court to rule that his legal challenge can be heard under the federal civil rights law, rather than as part of his ordinary appeal.  The lower federal courts are split on this issue, with most circuits allowing such a challenge. This preliminary issue of whether Skinner has an avenue to pursue the testing is a narrow one, but without the testing he could be executed soon.

Books: “The Search for Lofie Louise”

Death Penalty Information Center

10-11-10 -- “The Search for Lofie Louise” by Helen B. Anthony tells the true story of Louise Peete, a woman convicted of two murders in California over two decades apart in the early 1900s. She denied her guilt in both instances, and her story and trial were widely covered by the media in California. Peete received a life sentence for the first murder and a death sentence for the second; she was executed on April 11, 1947.  The author captures the history of the death penalty in an earlier era.  Today, the author posits, Peete might have been diagnosed with severe psychological problems and given help.  Louise Peete was the first wife of the author's father.

Police Chiefs Fear Budget Cuts May Lead to Crime Increase

Death Penalty Information Center

10-07-10 -- Police chiefs from around the country are expressing fears that crime rates will increase as law enforcement resources are cut during the economic downturn. In Sacramento, California, homicides are up 43% and assaults on police officers are up 13%, while the department was forced to eliminate its vice unit.  In Phoenix, Arizona, a lack of funds is causing police vacancies to go unfilled.  Similar concerns were expressed by police chiefs in Maryland and Virginia.  Chuck Wexler, Executive Director of the Police Executive Research Forum, said, "For the longest time, people thought that the police didn't matter, didn't affect the crime rate. Now we've seen that's not true." The Research Forum said that law enforcement agencies experienced an average cut of 7% this year.  In the past, improved policing led to dramatic drops in homicides in such places as New York City and Washington, D.C.  Now those gains are in jeopardy.  Budget reductions in Sacramento forced the city to cut important government programs and services, such as mental health services and job training programs for inmates being released from prison. Support groups like Alcoholics Anonymous and Narcotics Anonymous are also in decline. 

UNITED STATES SUPREME COURT

Supreme Court Considers Prosecutorial Immunity for Withholding Evidence in Death Penalty Case

Death Penalty Information Center

10-06-10 -- On October 6, the U.S. Supreme Court heard arguments in Connick v. Thompson. John Thompson, who was released from death row in 2003 after newly discovered evidence undermined his murder conviction, sued the New Orleans District Attorney’s office for failing to train its attorneys about their legal obligation to turn over evidence that could help defendants prove their innocence. Thompson’s lawyers discovered that prosecutors deliberately covered up inconsistencies in eyewitness statements and withheld police lab reports regarding Thompson. He was awarded $14 million.  Thompson was a month away from execution before the evidence was uncovered. According to a USA TODAY investigation of 201 federal cases since 1997 where prosecutorial misconduct was found, not a single federal prosecutor was disbarred as a result and only one was prosecuted. He was acquitted..

UNITED STATES SUPREME COURT

Supreme Court Denies Ga. Death Penalty Appeal

Greg Land, Fulton County Daily Report

10-06-10 -- The U.S. Supreme Court on Monday let stand the Georgia Supreme Court's decision on Jamie Ryan Weis, who has been in jail facing the death penalty in Pike County for more than four years while the Georgia Public Defender Standards Council struggles to pay for attorneys to handle his case. . . . Weis, accused of the 2006 robbery-murder of Catherine King, had asked the U.S. justices to review a March decision by the Georgia high court that his constitutional right to a speedy trial had not been violated. . . . Weis' case has been delayed because his appointed attorneys, hired by the Standards Council in 2006, were involuntarily dismissed by the trial judge in 2007 after complaining about not being paid. They were replaced by state-salaried lawyers, then re-appointed by a visiting judge in 2009 and continue to work without having been fully compensated.

New Voices: Growing Conservative Sentiment Concludes Death Penalty Not Needed

Death Penalty Information Center

10-05-10 -- In a recent op-ed in the Richmond Times-Dispatch, two leading conservatives declared that the death penalty in the United States "is no longer a necessary form of punishment." Richard A. Viguerie (pictured) and Brent Bozell urged their fellow conservatives to consider that the death penalty "is an expensive government program with the power to kill people."  "Conservatives," they wrote, "don't trust the government is always capable, competent, or fair with far lighter tasks." They particularly noted that they had called for clemency for Teresa Lewis, a woman with low IQ who was recently executed in Virginia.  Viguerie and Bozell based their conclusions on both religious grounds and the writings of John Locke. Regarding the need to protect society, they wrote, “We now… have maximum security prisons that were incapable of being built in Locke's time. Society may protect itself without putting a human to death as it would a wild animal. Since we believe each person has a soul, and is capable of achieving salvation, life in prison is now an alternative to the death penalty.” They concluded with the caution that, “When it comes to life and death, mistakes are made.”

Retired Supreme Court Justice Regrets 1976 Vote Upholding the Death Penalty

Death Penalty Information Center

10-04-10 -- In a recent interview on NPR, newly-retired Supreme Court Justice John Paul Stevens said he particularly regretted one vote during his 35 years on the high court--his 1976 vote to uphold the death penalty in Gregg v. Georgia. Stevens remarked, "I thought at the time . . . that if the universe of defendants eligible for the death penalty is sufficiently narrow so that you can be confident that the defendant really merits that severe punishment, that the death penalty was appropriate." But, over the years, he added, "the Court constantly expanded the cases eligible for the death penalty, so that the underlying premise for my vote has disappeared, in a sense."  Justice Stevens also said that the court has made death penalty procedures more sympathetic to prosecutors: “I really think that the death penalty today is vastly different from the death penalty that we thought we were authorizing.”

Books: "Evaluation for Capital Sentencing"

Death Penalty Information Center

10-01-10 -- A new book by Dr. Mark D. Cunningham, “Evaluation for Capital Sentencing,” provides conceptual and practical perspectives on mitigation and violence risk assessment, as well as current scientific data regarding these issues. The book focuses on information critical to forensic mental health professionals who conduct evaluations in capital cases. Prof. Andrea Lyon, Director of the Center for Justice in Capital Cases in Chicago, said, “This book is an invaluable tool for mental health practitioners, mitigation specialists and attorneys. Written in an accessible style, it puts in one place everything a mental health professional would need to know about doing assessment - and teaches the science and law of mitigation while it is at it.”  Dr.  Cunningham is Board Certified in Clinical Psychology and in Forensic Psychology.  The book is part of a series entitled "Best Practices in Forensic Mental Health Assessment" published by Oxford University Press.

September 2010

CALIFORNIA

Appeals Court Orders Federal Judge to Reconsider Execution Plan in California

Death Penalty Information Center

09-28-10 -- Late on Monday (September 27), the U.S. Court of Appeals for the Ninth Circuit ordered U.S. District Judge Jeremy Fogel of San Jose, California, to reconsider his plan that would have allowed the execution of Albert Greenwood Brown. In a ruling on September 24, Judge Fogel denied a stay of execution for Brown, and said that he lacked the time to inquire whether the state’s new lethal injection protocol contained sufficient safeguards against painful executions.  Fogel said that Brown could request that the state use a single drug (sodium thiopental) for the execution, but Brown refused to make a choice.  Brown's execution is now scheduled for September 30, and would be the first execution in the state since 2006 if it proceeds. The appeals court said that it appeared that the state’s haste to execute Brown was in part because California’s supply of one of the drugs used in its lethal injection protocol, sodium thiopental, has an expiration date of October 1. The state has not been able to secure more of the lethal drug because of a nationwide shortage that has affected other states. The manufacturer, Hospira Inc., has said that new supplies will not be available until at least January 2011.

CALIFORNIA  

Calif. Supreme Court Says Inmate's Execution Can't Be Hurried

Ginny LaRoe, The Recorder

09-30-10 -- The California Supreme Court on Wednesday dealt the latest blow to the state's effort to execute a condemned inmate. . . . The court unanimously refused to accommodate the state's timeline for executing Albert Greenwood Brown by suspending its own rules or speeding up its process for reviewing how the prison system adopted new execution regulations. . . . This comes after a federal judge stayed Brown's execution on different grounds. . . . The Supreme Court, in an order (pdf) issued Wednesday afternoon, put the blame squarely on the state, which has acknowledged it's on the clock because a key execution drug is set to expire Friday.

CALIFORNIA  

Federal Judge Blocks Calif. Execution

Paul Elias, The Associated Press, Law.com

09-29-10 -- A federal judge on Tuesday blocked what would have been California's first execution in nearly five years. . . . U.S. District Court Judge Jeremy Fogel canceled the execution of Riverside County rapist-murderer Albert Greenwood Brown after the 9th U.S. Circuit Court of Appeals ordered him to reconsider that decision using different legal standards. . . . Fogel said he halted the execution because he didn't have enough time to decide the weighty constitutional issues Brown raised before his scheduled execution at 9 p.m. Thursday. . . . If a higher court doesn't reverse Fogel's decision by midnight Friday, the state will be unable to execute Brown -- or any other death row inmate -- for several months because of Friday's expiration of the state's entire supply of sodium thiopental, a sedative used to knock out inmates before they are fatally injected with two other drugs.

GEORGIA

Death Penalty for Attempted Suicide

By Greg Bluestein | The Associated Press | New York Lawyer

09-28-10 -- A Georgia prisoner who tried to kill himself last week by slashing his arms and throat with a razor blade was executed Monday night amid heightened security for the 1998 murders of a trucking company owner and his two children. . . . Brandon Joseph Rhode, 31, was put to death by injection at the state prison in Jackson. He was pronounced dead at 10:16 p.m. by authorities. Rhode declined to speak any last words, and gave an emphatic "No" when he was asked whether he wanted a final prayer. . . . He was convicted in 2000 of the killings of Steven Moss, 37, his 11-year-old son Bryan and 15-year-old daughter Kristin during a burglary of their Jones County home. His coconspirator, Daniel Lucas, was also sentenced to death in a separate trial and remains on death row.

cALIFORNIA  

Federal Judge Clears Way for First Calif. Execution in 5 Years

Barring successful appeals to other courts, convicted rapist/murderer is scheduled to die Wednesday

Paul Elias, The Associated Press, Law.com

09-27-10 -- A federal judge cleared the way Friday for California's first execution in nearly five years, citing the state's efforts to revise its lethal injection procedure and a Supreme Court ruling making it more difficult for condemned inmates to delay their death. . . . Barring successful appeals to other courts, convicted murderer and rapist Albert Greenwood Brown is scheduled to die on Wednesday, after U.S. District Court Judge Jeremy Fogel refused to block the execution. . . . Brown failed to show "a demonstrated risk of severe pain" as required by a 2008 U.S. Supreme Court ruling upholding Kentucky's lethal injection process, the judge said in his ruling.

GEORGIA

Georgia and Virginia Executions Raise Concerns About Mental Disabilities

Death Penalty Information Center

09-26-10 -- Brandon Rhode (pictured) in Georgia received a second reprieve following his suicide attempt just prior to his scheduled execution on September 21.  His execution is now set for September 27 at 7 pm, despite questions about his mental competency.  Rhode has been diagnosed as suffering from organic brain damage and Fetal Alcohol Spectrum Disorder (FASD). According to experts, mental deficiencies associated with FASD exacerbate the impairments associated with adolescent brain immaturity.  Rhode was likely functioning at a younger level than his chronological age when he committed the crime that sent him to death row. His lawyer, Brian Kammer, asked the Georgia Supreme Court to stop the execution altogether: “The stress and barbarity of his present situation, coupled with his longstanding depression and mental illness, has resulted in Brandon Rhode now experiencing dissociative episodes as his mind tries unsuccessfully to cope with his current physical condition.”  Rhode was rushed to the hospital after slashing his arms and neck on the day before his originally scheduled execution. The case raises some of the concerns regarding the execution of Teresa Lewis in Virginia. Lewis was assessed as borderline intellectually disabled with an IQ of 72.  Gov. McDonnell refused to grant her clemency and she was executed on Sept. 23.

Studies: USA Today Investigation Reveals Prosecutorial Misconduct in Federal Cases

Death Penalty Information Center

09-24-10 -- An in-depth investigation conducted by USA Today found 201 criminal cases in which federal judges determined that U.S. Department of Justice prosecutors violated laws or ethics rules, including the recent prosecution of Senator Ted Stevens of Alaska. The investigation looked at cases since 1997, when Congress enacted a law aimed at ending prosecutorial misconduct. Some of the violations reviewed by USA Today resulted in judges throwing out charges, overturning convictions or rebuking prosecutors. Of the 201 cases, 47 ended in the exoneration and release of the defendant after the violations surfaced. Nino Lyons, for example, was convicted of drug trafficking based on suspicious testimony by prison inmates who were promised early release in exchange for their cooperation. By luck, one of Lyons’s lawyers discovered a discrepancy in one of the witness’s testimony. This led him to hundreds of pages of reports that the prosecution never disclosed.  Lyons’s conviction was overturned and he was declared innocent. In another case, federal courts blocked prosecutors from seeking the death penalty for a fatal robbery because prosecutors failed to turn over evidence. Bennett Gershman, an expert on prosecutorial misconduct, told USA Today that the abuses are becoming systemic and that the system is not able to control such behavior.  With respect to consequences for prosecutors who break the rules, the paper could identify only one federal prosecutor who was barred even temporarily from practicing law for misconduct during the past 12 years.

VIRGINIA  

Attorney: Teresa Lewis a 'Poster Child' for Broken Death Penalty System

Tony Mauro, The National Law Journal

09-23-10 -- The only thing sustaining Jim Rocap III in the last few days, he said Tuesday, was the classic Winston Churchill admonition: "If you are going through hell, keep going." . . . Rocap, partner at Steptoe & Johnson in D.C. has represented Virginia death row inmate Teresa Lewis since 2004. But this week the final avenues of appeal were closing, one by one. Virginia Gov. Bob McDonnell refused to grant clemency twice, and late Tuesday the U.S. Supreme Court denied Lewis a stay of execution by a 7-2 vote and rejected Rocap's petition for certiorari. Barring any unforeseen development, she will be executed tonight at 9 at the Greensville Correctional Center in Jarratt, the first woman put to death in nearly a century by Virginia. . . . "We are deeply disappointed," Rocap said in a statement after the Court action was announced. "A good and decent person is about to lose her life because of a system that is badly broken."

VIRGINIA  

Teresa Lewis loses fight to beat death; Supreme Court denies Virginia woman's stay of execution

By Michael Sheridan, Daily News Staff Writer

09-22-10 -- A Virginia woman's death sentence will go ahead without delay. . . . The Supreme Court has denied a stay of execution for Teresa Lewis, who may become the first woman in Virginia to be executed in nearly 100 years. . . . "The petition for a writ of certiorari is denied," the Court ruled on Tuesday. Justice Ginsburg and Justice Sotomayor were the only members to rule in favor of the stay. . . . The 41-year-old is set to be put to death by lethal injection on Thursday. . . . "We are deeply disappointed," said Jim Rocap, Lewis' lawyer. "A good and decent person is about to lose her life because of a system that is badly broken." . . . Lewis was convicted in 2003 of plotting to kill her husband and stepson. Two men, Matthew Shallenberger and Rodney Fuller, carried out the murders the night before Halloween in 2002.

GEORGIA

Georgia Execution Stayed After Suicide Attempt

Death Penalty Information Center

09-22-10 -- Brandon Rhode, a Georgia death row inmate, who was scheduled for execution on September 21, received a temporary stay after he attempted to commit suicide. The Georgia Supreme Court granted a stay until September 24 to allow Rhode access to counsel after he was taken to the hospital on the day of his scheduled execution. His attorney filed a motion stating that his client is incompetent, and his execution would violent standards of cruel and unusual punishment. In the court filing, Rhode's lawyers said Rhode suffered from brain impairments associated with fetal alcohol spectrum disorder because his mother was drinking alcohol and taking drugs until she found out she was pregnant well into her second trimester. The motion asserted that Rhode should not be executed because his brain damage "rendered him incapable of the requisite level of culpability required to justify execution.”

NEW HAMPSHIRE

Studies: New Hampshire Commission Holds Public Hearing on Death Penalty

Death Penalty Information Center

09-21-10 -- The New Hampshire Commission to Study the Death Penalty held a hearing on September 16 at Keene State College, inviting the public to share their views on whether the state should repeal the death penalty. Among those testifying were a retired police chief, a former prisoner, and the mother of a murder victim, all of whom spoke against capital punishment. Margaret Hawthorn, whose daughter was murdered last April, told the Commission that she did not want her daughter’s killer to be put to death. “The best possible outcome for me would be for there to be no more death. One was enough.” Mark Edgington, who served time in a Florida prison, said his time as an inmate changed him from a supporter to an opponent of capital punishment. Edgington said that in his experience the death penalty is not an effective deterrent: “Having spent 9 years in prison, let me tell you, those men don’t care about your deterrents.” Former Marlborough police chief Raymont Dodge agreed with Edgington, saying that people who commit crimes do not weigh the pros and cons beforehand. Dodge also cited wrongful convictions as a serious concern: “We can release an innocent person from jail. We cannot release an innocent person from the grave.” The Commission is scheduled to release its report to the legislature in December.

Books: “Peculiar Institution: America’s Death Penalty in an Age of Abolition”

Death Penalty Information Center

09-20-10 -- A new book by David Garland, “Peculiar Institution: America’s Death Penalty in an Age of Abolition,” offers a fresh perspective on why the death penalty endures in the United States when so many other countries in the Western world have already abolished it. The book seeks to understand the persistence of the death penalty in the U.S. as a social fact, using sociological, historical and legal analyses to explain the unique and peculiar manner in which the death penalty is applied. Garland concludes that the death penalty has survived in the United States because it is deeply connected to the fundamentally American institutions of local autonomy and popular democracy.  Anthony Amsterdam, Professor of Law at New York University, said of this book, “This is indispensable reading for students of criminal justice, race, and American culture, for lawyers and judges in the pathways of death, and for all who want to understand why our country can neither put capital punishment to any good use nor put an end to it.”

Studies: 2009 FBI Crime Report--Murder Rate Highest in the South, Lowest in the Northeast

Death Penalty Information Center

09-17-10 -- According to the latest FBI Uniform Crime Report released on September 13, the national murder rate has dropped from 5.4 (per 100,000 of population) in 2008 to 5.0 in 2009, an 8.1% decrease. Each region of the country experienced a decrease in its murder rate, with the Northeast experiencing the most significant drop of 9%, from 4.2 to 3.8. As in the past, the Northeast continued to have the lowest murder rate in the country, while the South continued to have the highest (6.0, the only region above the national average). In 2009, the South accounted for about 87% of the executions in the country. The other 13% of executions came from the Midwest, the region with the second-highest murder rate (4.6).

VIRGINIA

Virginia governor declines to stay woman's execution

By Brian Todd and Bill Mears, CNN

09-17-10 -- Virginia's governor has rejected a clemency request from a death row inmate scheduled to be the first woman executed in the United States in five years. . . . Teresa Lewis, a 41-year-old grandmother, is now set to die by lethal injection Thursday evening. She pleaded guilty to her part in the 2002 slayings of her husband and son-in-law in their rural home near Danville, about 145 miles from Richmond, Virginia. Two male co-conspirators -- the triggermen -- were given life in prison without parole. . . . "I'm a little nervous this morning. I'm also scared. But I am peaceful because I've got Jesus with me," Lewis told CNN in an exclusive interview by phone Friday, just hours before Republican Gov. Bob McDonnell made his decision. "But I'm good." . . . McDonnell refused to issue a stay for Lewis, who is the first woman scheduled to be executed in Virginia in nearly a century.

CONNECTICUT

Editorials: Connecticut Post Opposes Capital Punishment Even in the Face of Heinous Murders

Death Penalty Information Center

09-16-10 -- A recent editorial in the Connecitcut Post called for the end of the death penalty in the state even as the trial began in a capital case cncerning horrific murders in Cheshire in 2007.  In 2009, the Connecticut General Assembly voted to repeal the death penalty but Governor M. Jodi Rell vetoed the bill, citing the Cheshire crimes. The editorial cited a variety of reasons for repealing the death penalty, including its inability to deter crime, high costs, and the danger of executing innocent defendants. The editorial said, “To be sure, we are outraged by the brutal crimes committed against the Petit family. . . . But outrage and sympathy do not outweigh our firm belief that it is wrong - plain and simple - for the government to take an individual life.” Read full editorial below.

FEDERAL COURT

Federal Judge Says Prosecutor Lied and Overturns Mississippi Death Sentence

Death Penalty Information Center

09-16-10 -- A federal District Court judge ordered a new sentencing trial for Quintez Hodges, who is currently on Mississippi's death row, because former Assistant District Attorney James Kitchens, Jr., lied under oath during Hodges’s trial and the prosecutor conducting the trial should have known that Kitchens' testimony was false.  Kitchens is now a judge on Mississippi's circuit court.  As a part of the prosecution’s strategy to show Hodges lacked remorse and had a criminal history, Kitchens falsely testified that Hodges was given a light sentence on a previous robbery charge. The judge ruled, “[The defendant] has shown that there exists a reasonable likelihood that the jury’s verdict might have been affected as a result of the false testimony. In this instance, the State, seemingly unconcerned with the accuracy of the testimony to be given in a trial where the result could be death, provided the jury with false information.”

KENTUCKY

Kentucky Judge Rules Against Lethal Injection Protocol and Halts Execution

Death Penalty Information Center

09-14-10 -- On September 10, Franklin County Circuit Judge Phillip Shepherd ruled that Kentucky’s new execution protocol is inconsistent with state law and does not provide safeguards to prevent an inmate who is intellectually disabled or criminally insane from being executed. As a result, Judge Shepherd stayed the September 16 execution of Gregory Wilson, stating, “Because the state's protocol doesn't include a mechanism to determine if someone is mentally retarded and there are serious questions about Wilson's mental state, the execution cannot go forward.” Wilson’s attorney has stated that the only mental test given to him showed an IQ of 62, well below the limit of 70 usually used as an indication of intellectual disability. Judge Shepherd wrote, “The Court finds there is a good faith basis to believe that Wilson may be ineligible for the death penalty,” and noted that "Mr. Wilson appears to be the only inmate on death row in Kentucky who had no lawyer at trial."  The judge also questioned why Kentucky's new protocol did not allow for a 1-drug lethal injection process since that is permitted under the state law.  The state is appealing the ruling.

VIRGINIA  

John Grisham: Teresa Lewis didn't pull the trigger.
Why is she on death row?

By John Grisham, Washington Post

09-12-10 -- The Commonwealth of Virginia already has a serious relationship with its death penalty. In the past three decades, only Texas has executed more inmates. But on Sept. 23, the Old Dominion will enter new territory when it executes a female inmate for the first time in nearly a century. . . . Her name is Teresa Lewis, she is the only woman on death row at the Fluvanna Correctional Center for Women, and her appeals have all but expired. If she is executed, she will become another glaring example of the unfairness of our death penalty system. . . . Lewis is not innocent. She confessed to the police, pled guilty to the judge and for almost eight years has expressed profound remorse for her role in two murders.

VIRGINIA

In Virginia, a Woman on the Verge of Execution

By Katy Steinmetz and Alex Altman, TIME

09-10-10 -- Barring the U.S. Supreme Court's intervention or a decision by Virginia Governor Bob McDonnell to grant clemency, on Sept. 23 Lewis will become the first woman executed by the commonwealth in 98 years, and just the 12th overall since the U.S. reinstated the death penalty in 1976. No one disputes her guilt, or the heinousness of her crime. Whether she should be put to death for it is a murkier matter. . . . Lewis' lawyers have offered several reasons for why her sentence should be lightened, including tests that show Lewis is on the cusp of mental retardation. The U.S. Supreme Court has ruled that executing mentally retarded prisoners violates the Eighth Amendment's prohibition on cruel and unusual punishment. But Virginia does not consider prisoners mentally handicapped unless they score significantly below the mean on an IQ test and struggle to function in society. Lewis — who scored as low as 70 — hasn't qualified in the eyes of appeals courts. In addition to her poor cognitive abilities, says Lewis' current lawyer Jim Rocap, she was addled by an addiction to prescription painkillers at the time of the killings, a condition that Rocap says contributed to her apparent lack of remorse. (According to the court documents, she began inquiring about redeeming her husband's paycheck and stepson's life-insurance policy, for example, just hours after the murders.)

Resources: Free Online Educational Curricula for High School and College Students

Death Penalty Information Center

09-10-10 -- As many schools are now beginning their new terms, the Death Penalty Information Center is proud to remind you of our two educational curricula on the death penalty. Our award-winning high school program, Educational Curriculum on the Death Penalty, includes 10-day lesson plans, interactive maps and exercises, and a presentation of pros and cons on the death penalty for discussion and debate. Our college-level curriculum, Capital Punishment in Context, contains detailed case studies of individuals who were sentenced to death in the United States. The curriculum provides a complete narrative of each case, including original resources such as homicide reports, affidavits, and transcripts of testimony from witnesses. The narratives are followed by a discussion of the issues raised by each case, enabling students to research further into a broad variety of topics.  Both curricula are widely used by educators across the country in the fields of sociology, civics, criminal justice and many other areas.

UNITED STATES SUPREME COURT

Arguments Set in Three Death Penalty Cases in the Coming Term

Death Penalty Information Center

09-09-10 -- The U.S. Supreme Court has set oral-argument dates in three death penalty-related cases for the upcoming 2010-2011 term. The Court begins its new term on Monday, October 4.  On October 6, the Court will hear Connick v. Thompson.  This case challenges an award of $14 million to John Thompson, who had been sentenced to death in New Orleans but was later acquitted of all charges. Lower courts had found that the district attorney's office failed to train its lawyers about so-called Brady violations, which led to Thompson's wrongful conviction and death sentence in 1985. The current Orleans Parish District Attorney appealed the ruling to the Supreme Court, asserting that upholding the award "exposes district attorney's offices to vicarious liability for a wide range of prosecutorial misconduct."  On October 13, the Court will hear Skinner v. Switzer to determine whether a Texas death row inmate's (Hank Skinner) request for DNA testing can be considered as a civil rights claim rather than as part of his death penalty appeal. Lower federal courts have been split on this issue.  Skinner has always maintained his innocence, but death penalty appeals are tightly restricted in raising new evidence.  Finally, on November 9, the high court will hear Cullen v. Pinholster, reviewing a Ninth Circuit decision overturning Pinholster's death sentence because of ineffectiveness of counsel. The appeals court said his lawyer should have presented evidence of Pinholster's mental illness that might have persuaded the jury to opt for a lesser sentence. The Court may choose new death penalty cases for review in the coming weeks.

KENTUCKY

Kentucky Inmate Faces Execution Despite Sham Trial

Death Penalty Information Center

09-08-10 -- Gregory Wilson is scheduled for execution in Kentucky on September 16, despite having been represented by woefully unqualified and unprepared attorneys in his death penalty trial.  It took over a year for the trial judge to find an attorney to take Wilson’s case. Wilson was indigent, and the maximum state fee for a capital-murder representation was $2,500. The judge even put a note on his courthouse door, saying: "PLEASE HELP. DESPERATE. THIS CASE CANNOT BE CONTINUED AGAIN."  Eventually, two lawyers agreed to take the case: John Foote, who had never tried a felony (much less a capital) case, and William Hagedorn, a semi-retired lawyer who gave as his office number the phone of the local bar, "Kelly's Keg."  Hagedon volunteered to be lead counsel for free, even though he had no office, no staff, no copy machine and no law books. According to witnesses, Wilson’s lawyers came and went during trial, and attorney Hagedorn was absent more than half the time. The lawyers failed to interview and subpoena witnesses, investigate evidence collected by police, or contact certain family members who would have testified on behalf of sparing Wilson’s life. Stephen Bright, president of the Southern Center for Human Rights, said that Wilson’s case is a "travesty of justice and among the worst examples he's ever seen of a defendant tried for his life with unqualified counsel."

WASHINGTON

Washington Attorney General Says Death Penalty May Not Be Worth the Costs and Delays

Death Penalty Information Center

09-07-10 -- Washington Attorney General Rob McKenna recently said he is not sure the death penalty is the way to handle the worst crimes in his state. "I could live without it frankly. I think it's very expensive, and the delays are inordinate, delaying closure for the victims' families," he said.  McKenna said he uses the death penalty sparingly in Washington, reserving it for the most serious aggravated-murder convictions.  He said he would continue to uphold the law, if the people still desired it: "I support it as long as that's what the people of this state want." Although the death penalty is rarely used in Washington, the state is scheduled to carry out its first execution since 2001 on September 10. If the execution proceeds, Cal Brown, who has been on death row for 16 years, would be the fifth person executed since 1976.

VIRGINIA

Death Row Chaplain is Certain:
"This Woman Doesn't Deserve to Die"

Death Penalty Information Center

09-05-10 -- Teresa Lewis is scheduled to be executed on September 23 in Virginia, the first woman to be executed in that state in a century.  But Lynn Litchfield, the former prison chaplain who came to know Lewis over six years, has said she "doesn't deserve to die."  Litchfield recently wrote in Newsweek Magazine that Lewis "has an IQ of 72" and that "one of the the two men who carried out the killings admitt[ed] that it was he, not she, who masterminded the murders" of her husband and adult stepson. Ms. Lewis has taken full responsibility for her role in the crime. The men who actually carried out the killings were given life sentences, while Lewis pleaded guilty and received a death sentence. The former chaplain's complete column in Newsweek's "My Turn" is below.

OHIO

Clemency: Gov. Strickland Commutes Kevin Keith's Sentence to Life Without Parole

Death Penalty Information Center

09-03-10 -- On September 2, Ohio Governor Ted Strickland (pictured) granted clemency to Kevin Keith, commuting his death sentence to life without parole. Keith, who was convicted of killing three people, has always maintained his innocence, and some evidence pointed to another suspect. Gov. Strickland’s commutation statement addressed his concerns regarding Keith’s case: “Mr. Keith’s conviction relied upon the linking of certain eyewitness testimony with certain forensic evidence about which important questions have been raised. I also find the absence of a full investigation of other credible suspects troubling.” The governor acknowledged that Keith might well be guilty and that the Ohio Parole Board had recommended against clemency, but he could not allow an execution with the doubts that persisted.  The governor left open the possibility that future developments might require additional relief for Mr. Keith.  Attorneys for Keith applauded Gov. Strickland’s actions, but said they will continue to petition for a new trial to address newly discovered evidence, evidence withheld by the State, and new science behind eyewitness identification, all of which, they claim, point to Mr. Keith's innocence.

NORTH CAROLINA

Editorials: “The last man to die”

Death Penalty Information Center

09-02-10 -- A recent editorial in the Greensboro, NC, News & Record indicated that capital punishment may be "on its last legs" in North Carolina. "In practice," the editorial stated, "the death penalty nearly is eradicated. It is complicated, costly and no longer trusted."  According to the paper, use of the death penalty has been in steady decline. In 1999, 25 defendants were sentenced to death and another 16 were added the following year. In 2009, there were only two new death sentences in the state and only two so far in 2010. Juries and prosecutors have gravitated more to sentences of life without parole. There has been a hold on executions in the state because of challenges to the lethal injection protocols and because of concerns about the arbitrary implementation of the punishment. The last execution was in 2006.  Some inmates are on death row for less heinous crimes than those committed by people who received life sentences. The editorial concluded, “Locking someone up for the rest of his natural life - often 50 years or more - not only protects the public, it allows for errors to be discovered and corrected. Execution does not.” 

NORTH CAROLINA

North Carolina District Attorneys Support Moratorium on Executions

Death Penalty Information Center

09-01-10 -- Seth Edwards, president of the North Carolina Conference of District Attorneys, said that he supported a moratorium on the execution of any death row inmates whose cases include evidence from the State Bureau of Investigation. "[W]e need to make sure the issues are resolved in the SBI crime lab," Edwards said. "I just feel like the public right now is skeptical."  Last month, a government audit showed that the lab had tampered with evidence and issued false reports in over 230 criminal convictions, including capital cases. . . . The scandal at the SBI lab and recent studies revealing racial disparities in jury selection and sentencing in death penalty cases have raised concerns among others in the state regarding the reliability of the justice system in North Carolina. A group of supporters for Melvin Lee White, a death row inmate convicted before revelations about the crime lab began to appear, is asking that he be given a new trial or that at least his sentence be reduced to life. White has always maintained his innocence.

WASHINGTON   

Federal judge denies appeal by death row inmate

Judge: Execution set for Sept. 12 in murder of Burien woman, 22

Shannon Dininny; The Associated Press, The Olympian

09-01-10 -- A federal judge on Tuesday denied an appeal by Cal Coburn Brown, who is scheduled to be executed this month, and state officials continued preparations to carry out his sentence. . . . Brown was sentenced to death for the 1991 torture and murder of 22-year-old Holly Washa of Burien. He had challenged the state’s new one-drug protocol for lethal injection, as well as the state Department of Corrections’ authority to obtain that drug and the qualifications of the execution team.

August 2010

CALIFORNIA  

Judge again puts state efforts to resume executions on hold

By Howard Mintz, mercurynews.com 

08-31-10 -- California officials are trying to press forward with resuming executions after a hiatus of more than four years, but the state's lethal injection procedures continue to remain stuck in legal limbo. . . . A Marin County judge on Tuesday put up the latest roadblock to the state's effort to execute its condemned killers, issuing a brief ruling that for now bars prison officials from moving forward immediately with executions. . . . The order came the same day that state lawyers argued in federal court that nothing should stand in the way of setting execution dates soon for six death row inmates, including David Allen Raley, condemned to die in Santa Clara County for the 1985 murder of a Peninsula high school student and the attempted murder of her friend.

PENNSYLVANIA

Pennsylvania's Costly Death Penalty Produces Nothing in Return

Death Penalty Information Center

08-31-10 -- Pennsylvania Governor Edward Rendell has signed 113 execution warrants during his two terms in office, yet it appears likely that he will leave office in a few months without seeing any of them carried out. Since the state reinstated the death penalty in 1978, only three men have been executed, all of whom had waived their appeals. Inadequate funding for criminal defense may be one of the primary reasons for this de facto moratorium. Since 1978, state and federal courts have overturned 124 death penalty cases on post-conviction review, mostly because of inadequate representation. (Other reasons cited include prosecutorial misconduct, racial discrimination in jury selection, and improper argument and jury instructions).  When the cases are retried, almost all result in a life sentence.  Robert Dunham, a federal defender, said, “So long as Pennsylvania systematically fails to adequately provide resources at trial, cases will be reversed [in] post-conviction."  Marc Bookman, founder of the Atlantic Center for Capital Representation in Philadelphia, said "an ungodly amount of money" has been spent on the death penalty in the state.  "[I]t's an incredible waste of money," he added.  "We're propping this thing up so that some of our leaders can claim to be tough on law and order."  Pennsylvania has the fourth largest death row in the country.

Resources: DEATH ROW USA Winter 2010 Now Available

Death Penalty Information Center

08-30-10 -- The latest edition of the NAACP Legal Defense Fund's "Death Row USA" shows that the number of people on the death row in the United States is continuing to slowly decline, falling to 3,261 as of January 1, 2010.  The size of death row at the start of 2009 was 3,297.  In 2000, there were 3,682 inmates on death row.  Nationally, the racial composition of those on death row is 44% white, 41% black, and 12% latino/latina. California (697) continues to have the largest death row population, followed by Florida (398) and Texas (337). Pennsylvania (222) and Alabama (201) complete the list of the five largest death rows in the nation. Death Row USA is published quarterly by the NAACP Legal Defense Fund. The report contains the latest death row population figures, execution statistics, and an overview of the most recent legal developments related to capital punishment.

FEDERAL COURTS

Federal judge ignores forensics, going back to medieval past

Karen Boyd, Asheville Citizen-Times 

08-30-10 -- Nineteen years changes things — the science of forensics is now more sophisticated. DNA evidence convicts the guilty and frees the innocent more conclusively than ever before. Psychology studies show that eyewitness reporting, once used as reliable evidence in criminal trials, often skews the truth and often is just plain wrong, even when the intent of such testimony may be perfectly laudable. . . . A federal judge in Georgia harkens the medieval past (“Judge: Troy Davis failed to prove innocence,” AC-T, Aug. 24), leading us back when a man is pronounced guilty until he proves his own absolute innocence; and, regardless of statements from eyewitnesses that their original testimony may have been flawed, that same judge denies a new trial to Troy Davis, despite such admissions. Physical evidence implicating Davis does not in this case exist; however that fact holds no sway.

KENTUCKY

National Shortage of Drug for Lethal Injections Leads to Stays of Execution

Death Penalty Information Center

08-27-10 -- Kentucky Governor Steven Beshear recently held off signing death warrants for two inmates because of a shortage of the drug sodium thiopental, a key component of the state’s lethal injection protocol. Kentucky’s stock of the lethal injection drug expires October 1, and the Department of Corrections does not expect a new supply until early 2011 because the only supplier of this drug in the country, Hospira, is unable to obtain the active ingredient for the drug.  Even when a new supplier for the active ingredient is found, FDA approval will be needed. The governor did set a September 16 date for the execution of Gregory Wilson, which could occur before the state's supply of the drug expires.  In Oklahoma, the state’s Department of Corrections recently tried to substitute another drug for sodium thiopental for the execution of Jeffrey Matthews because of concerns about the purity of the supply on hand. A federal judge stayed the execution of Matthews in order to provide time to study the situation. Attorneys for Matthews challenged the substitution of a new drug as a form of human experimentation.  Almost all states in the country use essentially the same protocol for lethal injections.

UNITED STATES SUPREME COURT

Former Bush Solicitor General Sides with Former Death Row Inmate in Case Before Supreme Court

Death Penalty Information Center

08-26-10 -- Paul Clement, former Solicitor General under President George W. Bush, along with a group of former Justice Department prosecutors and civil rights officials, is asking the U.S. Supreme Court for time to argue on behalf of a former death row inmate in a case addressing prosecutorial misconduct. Lawyers for John Thompson claimed that the New Orleans district attorney's office systematically withheld important evidence that would have exonerated Thompson of an armed robbery and murder. Thompson was eventually acquitted and freed after 18 years in prison, mostly on death row in Louisiana. In October, the Supreme Court will consider whether cities can be held liable for a single violation of Brady v. Maryland (1963), the decision that requires prosecutors to disclose exculpatory evidence to criminal defendants. J. Gordon Cooney Jr, Thompson’s lawyer, said he welcomes the help from Clement and the group of Justice Department officials. According to Cooney, the range of officials, both Republican and Democratic, “reflects that this is not an issue that divides neatly along lines you would think of in a stereotypical way,” and that the group “understands that there needs to be accountab[ility] for conduct that nearly cost a man his life.”

MICHIGAN  

Spared death: 7 reactions from family, experts, attorneys to life in prison for Timothy O'Reilly

Jonathan Oosting | MLive.com

08-26-10 -- Timothy O'Reilly likely will spend the rest of his life in prison without the option of parole, but the 37-year-old Detroit resident will not face execution for his role in the 2001 murder of an armored car guard outside of the Dearborn Federal Credit Union. . . . O'Reilly was convicted earlier this month for his role in the $204,000 robbery, which involved five other men. Authorities said he shot Norman "Anthony" Stephens, who was already laying on the ground wounded, in the back during the heist.  And during the trial, prosecutors played a tape of O'Reilly laughing and bragging about the shooting during a secretly-recorded prison conversation. . . . Defense attorneys, meanwhile, argued O'Reilly was manipulated by the man who helped organize the heist, pointing out his death would only add to a tragic situation.

GEORGIA  

Ga. Death Row Inmate Failed to Prove Innocence, Rules Federal Judge

Condemned inmate's lawyers say they will appeal; case could move directly to the U.S. Supreme Court

Alyson M. Palmer, Fulton County Daily Report

08-25-10 -- A federal judge in Savannah, Ga., on Tuesday ruled against Troy Davis' claims that he is innocent of the 1989 murder for which he's been sentenced to death. . . . The decision came nearly a year after the U.S. Supreme Court granted the request Davis' supporters had been making for years: ordering a judge to review what they say is evidence showing that Davis did not murder Savannah police officer Mark Allen MacPhail.

But after hearing two days of testimony in June, U.S. District Judge William T. Moore Jr. declared in a 172-page order that he wasn't impressed.

Religious Views: Actions Affirming Catholic Opposition to Capital Punishment

Death Penalty Information Center

08-25-10 -- The organization Catholics Against Capital Punishment recently noted activities related to the Catholic Church's official position on the death penalty.  For the first time in recent years, the United States Conference of Catholic Bishops’s annual Respect Life program is urging its participants to make opposition to the death penalty a significant part of carrying out the Church’s pro-life teachings. The statement is based on the 1980 Statement on Capital Punishment of the U.S. Bishops in which they voiced their opposition to the death penalty and affirmed the Catholic Church’s belief in the sanctity of all human life. . . . In New Hampshire, Auxiliary Bishop Francis Christian of the Diocese of Manchester (including New Hampshire), submitted testimony to the state's Commission to Study the Death Penalty, stating, “I suggest that the death penalty is the last frontier of this historical movement that strongly accents the intrinsic value of every human person. At least for the past four centuries, humanity has lifted women, slaves and civilians trapped in war zones from the class of ‘human objects’ to the protected status of human beings who enjoy the inviolable right to life. This same right to life must now be extended to men and women convicted of capital crimes.”

GEORGIA

Federal Judge Sets High Standard of Proof and Rejects Troy Davis's Innocence Claim

Death Penalty Information Center

08-24-10 -- On August 24, U.S. District Court Judge William T. Moore Jr. rejected Troy Davis’s petition to overturn his conviction for killing a police officer in 1989 in Georgia. Judge Moore chose a high standard of proof that Davis would have to meet to establish his innocence claim:  Davis needed to prove by "clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence." Judge Moore did conclude that it would be unconstitutional to execute "those who can make a truly persuasive demonstration of innocence."  This holding has only been assumed for the sake of argument by the U.S. Supreme Court.  He also acknowledged that "the State's case may not be ironclad."  Davis, who has spent nearly two decades on death row, has attracted support from many human rights groups because a number of key prosecution witnesses recanted their trial testimony, and other witnesses have come forward implicating another suspect. Last year, the Supreme Court issued an historical ruling allowing Davis to present evidence that had been uncovered since his trial. It is possible that Judge Moore's ruling will now return to the Supreme Court for further review. Read Judge Moore's ruling: Part I and Part II.

NORTH CAROLINA

North Carolina Crime Lab Audit Too Late for Three Executed Inmates

Death Penalty Information Center

08-23-10 -- After an audit of the State Bureau of Investigation (SBI) conducted by former FBI agents at the request of North Carolina's attorney general, it was revealed that officials withheld blood evidence affecting 269 defendants. The report listed three death penalty cases that resulted in executions. Although each of the executed defendants confessed to the crimes, such confessions are sometimes suspect and evidence withheld by the state might have at least led to a lesser sentence. Desmond Carter, who was executed in 2002, was represented by attorneys who were inexperienced and unqualified to handle his capital case. The attorneys never evaluated and challenged the SBI evidence, only assuming the evidence was true. Another impacted case was that of John Hardy Rose, who confessed to killing his neighbor. Ken Rose, his attorney (no relation), said there was doubt as to whether his crime was premeditated or impulsive. Rose said he believes previously undisclosed negative results of a test for blood could have been used to secure a life sentence or a second-degree murder conviction for his client, who was executed in 2001. The final executed defendant was Joseph Timothy Keel.  His lawyers are still exploring how the withheld evidence might have affected his case. Jay Ferguson, one of the lawyers, lamented, “[T]here are no do-overs with the death penalty. We can’t go back and fix these errors.”

Resources: New DPIC Podcast Explores Victims' Families and the Death Penalty

Death Penalty Information Center

08-20-10 -- The latest edition of the Death Penalty Information Center's series of podcasts, DPIC on the Issues, is now available for download. This podcast, Victims and the Death Penalty, explores the issues faced by murder victims' families when capital punishment is being considered. Generally, this series of podcasts offers brief, informative discussions of key death penalty issues.  Other recent episodes include discussions on Representation and Race. Click here to download the latest episode of the podcast on Victims. You can also subscribe through iTunes to receive automatic updates when new episodes are posted and receive access to all eight episodes. Other audio and video resources can be found on our Multimedia page.

NORTH CAROLINA

North Carolina Bureau of Investigation Charged With False Reports, Including in Capital Cases

Death Penalty Information Center

08-19-10 -- A government-ordered audit of the North Carolina State Bureau of Investigation found that the agency falsely reported blood evidence in dozens of cases, including three that ended in executions. The inquiry, ordered by Attorney General Roy Cooper, found that SBI agents improperly aided prosecutors for over a 16-year period, calling into question convictions in 230 criminal cases. Duane Deaver, a veteran SBI analyst who performed the work in five particularly troubling cases, has been suspended pending further investigation.  According to the audit, SBI lab reports omitted or overstated important information about test results that would have been favorable to the defense. The report blames the flaws on "poorly crafted policy, inattention to reporting methods which permitted too much analyst subjectivity; and ineffective management and oversight.”  The state Supreme Court ruled in 1992 that lab notes are evidence that should be made available to the defense. According to the report, however, “that did not happen for several reasons, including a mindset, led by a section chief, that the lab’s main customer was law enforcement.” North Carolina's News & Observer just completed a four-part investigative series into the SBI entitled "Agents' Secrets: Junk Science, Tainted Testimony at SBI."

NEW HAMPSHIRE

New Voices: Former Warden Calls Executions Traumatic for Prison Staff

Death Penalty Information Center

08-18-10 -- Ron McAndrew, a former warden who oversaw executions on Florida's death row, recently testified at a New Hampshire hearing regarding the trauma prison staff endure during an execution. McAndrew said, “Many colleagues turned to drugs and alcohol from the pain of knowing a man had died at their hands. And I've been haunted by the men I was asked to execute in the name of the state of Florida.” The New Hampshire hearing was conducted by a legislative commission studying the effectiveness of the state’s death penalty and comparing it with a sentence of life without parole. McAndrew said he has received calls from distressed prison workers and executioners. Some corrections officers, he said, have committed suicide because of their guilt and regret. McAndrew concluded, "Being a corrections officer is supposed to be an honorable profession. The state dishonors us by putting us in this situation. This is premeditated, carefully thought out ceremonial killing."

CALIFORNIA

Editorials: "What Price is Too High for Death Row?"

Death Penalty Information Center

08-17-10 -- In California, Governor Arnold Schwarzenegger announced that his administration plans to borrow over $64 million from the state’s general fund for the construction of a new death row at San Quentin. At the same time, the governor’s lawyers have recently sought approval from the courts to furlough state workers and reduce their pay. Teachers, police officers and firefighters are losing jobs because of the budget crisis. The governor also plans to end safety net services for some of the poorest and most vulnerable citizens in the state. Yet the $64 million loan would merely be a down payment on the new death row, which is estimated to cost taxpayers nearly $500 million. According to an editorial in the Sacramento Bee, “The plan to build a shiny new 541,000-square-foot death row within San Quentin's boundaries underscores fundamental problems with capital punishment. So long as there is a death penalty, the state will need to house, clothe and feed the inmates at huge costs.”

TEXAS  

Supreme Court Denies Keller's Request for Appeal

by Morgan Smith, The Texas Tribune   

08-16-10 -- Sharon Keller at the 2010 Texas Republican Convention. . . . The Texas Supreme Court has denied Judge Sharon Keller's request for intervention in her sanction from the State Commission on Judicial Conduct. . . . The agency issued Keller a "public warning," in the now-infamous death penalty case, in which she refused to keep her offices open past 5 p.m. for a last minute appeal. Questioning the constitutionality of the sanction, essentially just a public reprimand, Keller asked the high court for mandamus relief, which could have allowed the court to unilaterally reverse the commission's decision in an advisory opinion. She took that route instead of appealing the decision through the usual method, which would involve a new trial weighing the allegations against her in front of a Supreme Court-appointed tribunal of appellate court judges. Now that the court has denied her mandamus request, she can still decide to go that route.

Another Death Row Inmate Offers Scientific Evidence to Dispute Arson Charge

Death Penalty Information Center

08-16-10 -- Another death row inmate is challenging his conviction with new evidence that the charge of arson in his case was based on faulty science.  Daniel Dougherty, a Pennsylvania man who faces execution for setting a fire that killed his children in their home in 1985, has always maintained his innocence.  In 2006, Dougherty filed an appeal with the Pennsylvania Supreme Court containing the reports of two arson investigators who re-examined his case and found no conclusive indicators of arson. In 2004, Texas executed Cameron Todd Willingham, who was also convicted of starting a fire that killed his children in their home. Last month, the Texas Forensic Science Committee admitted in a preliminary report that flawed arson science was used in the Willingham case. Until the early 1990s, guidelines for determining arson were largely based on imprecise criteria used by fire investigators with little formal training.  In 1992, the National Fire Protection Association released its first arson guidebook, based on years of simulations and studies. Both Willingham and Dougherty were convicted based on reports prepared prior to the release of this new guidebook. Dougherty was not convicted until 15 years after the fire that killed his children.  His second wife, with whom he was having a custody dispute, claimed that he admitted to setting the blaze. His first wife, and the mother of the deceased children, does not believe that Dougherty committed this crime.

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OKLAHOMA

After Two Trials With Grossly Inadequate Representation, Death Row Inmate is Allowed to Plead and Leave State

Death Penalty Information Center

08-13-10 -- James Fisher, who spent 27 years on Oklahoma’s death row, was recently released to a re-entry program at the Equal Justice Initiative (EJI) in Montgomery, Alabama, after he accepted a plea agreement with prosecutors. Fisher, who is now working at EJI, had been sentenced to death twice, and in both instances, higher courts overturned his death sentence after finding that his defense attorneys provided him inadequate representation. His first lawyer, E. Melvin Porter, was unwilling or unable to reveal holes evident in the state's case. According to a federal appeals court, Porter exhibited "actual doubt and hostility" about his client's defense and failed to present a closing argument, even though the state's case was “hardly overwhelming.” Porter later admitted that, at the time, he considered homosexuals to be “among the worst people in the world” and considered Fisher a “very hostile client.” John Albert, Fisher’s second lawyer, later admitted that at the time of the trial, he was drinking heavily and abusing drugs, and once even physically threatened Fisher. Court records also show that Albert all but ignored defense material concerning the case and failed to sufficiently challenge the testimony of the state’s primary witness. Fisher instructed his new lawyer to seek a plea deal with prosecutors, avoiding a third trial. In an exchange for his freedom, he agreed to plead guilty to first-degree murder, to complete a comprehensive re-entry program in Alabama, and to never return to Oklahoma.

PENNSYLVANIA

Junk science? Another inmate on death row fights to disprove arson

By Stephanie Chen, CNN

08-12-10 -- This is the story of two fathers who drank too much and fought with their wives but, their families say, loved their children more than anything in the world. . . . The two never knew each other. One was in Texas and one in Pennsylvania, but each watched a fire swallow their home with their children inside. . . . One father, Cameron Todd Willingham of Corsicana, Texas, was convicted on murder charges; authorities said he set the fire that killed his three children in 1991. He was executed by lethal injection in 2004. . . . Across the country, at a prison outside of Waynesburg, Pennsylvania, where authorities say they hold the "worst of the worst," is 50-year-old Daniel Dougherty. He, too, was found guilty of deliberately igniting fires in his home that killed his two sons, Danny, 4, and Johnny, 3, in 1985. Police arrested Dougherty 14 years later, when his estranged wife came forward and claimed he confessed. A jury found him guilty on capital murder charges in 2000. . . . He is awaiting death. . . . Last month, a Texas state board admitted in a preliminary report that flawed arson science was used in Willingham's investigation. . . . Read about the Texas state board admitting to using flawed science in the Willingham case . . . The board's announcement raises a frightening question: Could the state of Texas have executed an innocent man?

Editorials: Life Sentence Plea Helps California Victim's Family Move On

Death Penalty Information Center

08-12-10 -- Recently, a California man pled guilty to the 2006 murder of Highway Patrolman Earl Scott.  The defendant, Columbus Allen Jr., whose pre-trial proceedings took more than four years, will now spend the rest of his life in prison, having waived his appeals. The Stanislaus County district attorney originally sought the death penalty against Allen, but there were no guarantees that verdict would have been reached. Additionally, when the death penalty is imposed in California, years of appeals often follow, and it is not unusual for convicted murderers to outlive the family members of the murder victims. An editorial in the Modesto Bee noted that the plea will save the county over $1 million in additional expenses that would have been spent in a capital trial. Moreover, the paper noted, the emphasis can now be put on the victim, rather than on the pepetrator: "In recent years, it has seemed that Earl Scott was the forgotten victim and all the attention was on Allen, who went through multiple defense attorneys. Every time the trial was about to proceed, there would be another motion causing a delay. It was frustrating, even for those who value the process over a rush to justice. . . .[Now] Earl Scott . . . will be remembered - by his family and friends, of course, but also by his colleagues in law enforcement and by our community."  Read full editorial below. / Read more

NORTH CAROLINA

135 of the state's 159 death row convicts have filed claims for sentence reconsideration under the new Racial Justice Act

By The Associated Press, Winston-Salem Journal 

08-11-10 -- The office of state Attorney General Roy Cooper said yesterday that 135 of the state's 159 death row convicts have filed claims under the new Racial Justice Act and that more could be added to the list as Cooper's office gets notice. . . . Tuesday was the deadline for a death-row inmate to file a claim. That law allows them to argue that racial bias influenced their sentencing.

OHIO

Ohio "Timeout from Death"-Part II

Death Penalty Information Center

08-11-10 -- Although the number of executions in Ohio in the past two years is second only to those in Texas, there is considerable support in Ohio for a review of the entire system. Two former prison directors, Reginald Wilkinson and Terry Collins, agree that death row cases should be reviewed to decide whether they are the “worst of the worst.” Wilkinson (pictured), who was director from 1991 to 2006 and witnessed many executions, would take it even further: "I'm of the opinion that we should eliminate capital punishment," he said. "Having been involved with justice agencies around the world, it's been somewhat embarrassing, quite frankly, that nations just as so-called civilized as ours think we're barbaric because we still have capital punishment."  Earlier this year, Ohio passed legislation aimed at preventing wrongful convictions. The law requires the preservation of crime scene evidence and aims to reduce faulty eyewitness identifications. The bill's sponsor, Republican State Senator David Goodman, said an independent review of death row cases and a moratorium on executions would also help prevent wrongful convictions. "It was astounding to see what was presented to me in terms of mistaken identification in criminal cases. I am not anti-death penalty, but if there is anything we can do to make sure we are not executing the wrong man, we should do it."

OHIO

More than 30 Former Judges and Prosecutors, 61 Innocence Projects and Legal Organizations, Over 100 Ohio Faith Leaders, Leading Eyewitness Experts, and Thousands of Supporters Call on Ohio Parole Board and Governor Strickland to Grant Clemency to Kevin Keith

Execution Scheduled for September 15, 2010, Despite New Evidence of Innocence

PRNewswire-USNewswire/ -- SOURCE Supporters of Kevin Keith

08-10-10 -- Amid growing concern that the State of Ohio may be on the verge of executing an innocent man, prominent individuals from Ohio and across the country today called on the Ohio Parole Board and Governor Ted Strickland to grant clemency to Kevin Keith. . . . Mr. Keith is scheduled for execution on September 15, 2010, despite new overwhelming evidence of innocence that no court or jury has ever heard in its entirety. The new evidence shows that Mr. Keith was wrongfully convicted based on faulty and improperly influenced eyewitness identification. Additional new evidence identifies an alternative suspect who told a police informant that he was paid to carry out the crime for which Mr. Keith now stands to be executed. . . . Letters urging clemency were delivered to the Parole Board and the Governor today from over 30 former state and federal judges and prosecutors, the Ohio Innocence Project, the National Innocence Network (comprised of 61 innocence projects and legal organizations), over 100 Ohio faith leaders and organizations, 13 leading eyewitness and memory experts, law enforcement, and death row exonerees, among others.

OHIO

Ohio Governor and Attorney General Urge DNA Testing in Death Row Case

Death Penalty Information Center

08-10-10 -- Ohio Governor Ted Strickland and Attorney General Richard Cordray recently urged prosecutors in seven criminal cases to allow DNA testing that could either prove innocence or confirm the defendant's guilt. The seven cases include one man currently on death row, Tyrone Noling, two inmates serving long sentences, three men who are no longer in prison but want to clear their names, and a man who died in prison in 2006. Gov. Strickland said, “I really think it's irrational not to take advantage of methods that could establish either guilt or innocence when those technologies are available to us. I can think of no good argument why anyone would be denied DNA testing if, in fact, there is a reasonable or relevant opportunity to bring clarity to whether or not someone is guilty of a crime."  In all seven cases, prosecutors have resisted the DNA testing and judges have declined to grant it.

GEORGIA  

Death Row Inmate's Team Fights to Save Case

Alyson M. Palmer, Fulton County Daily Report 

08-09-10 -- Lawyers for Troy Davis are fighting to fix the damage caused by their failure to call at a recent hearing the man they say committed the murder for which Davis has been sentenced to die. . . . The problem occurred in June, during an event Davis' supporters had fought for years to achieve: an evidentiary hearing at which Davis could press his claims that he did not kill Savannah, Ga., police officer Mark Allen MacPhail. . . . Courtesy of an unusual order from the U.S. Supreme Court, they received that opportunity before U.S. District Judge William T. Moore Jr. . . . But after the hearing got under way, Moore said he had a problem with Davis' case: Where was Sylvester Coles? Going back to Davis' murder trial in 1991, Davis' advocates had pointed the finger at Coles as the real killer of MacPhail.

OHIO

Ohio Leaders Express Concern about State's Death Penalty as Troublesome Execution Approaches

Death Penalty Information Center

08-09-10 -- Prominent leaders in Ohio are calling for a comprehensive review of the state's death penalty system, particularly as an execution nears for a man whose guilt is being seriously questioned.  Kevin Keith (pictured) has been on Ohio’s death row for over 15 years and has an execution date of September 15. But new evidence has arisen about the unreliability of those who originally testified against him.  Ohio's governor, Ted Strickland, recently said Keith's case, “has circumstances that I find troubling. We are looking at that case very seriously." A clemency hearing is scheduled for August 11.  Ohio Supreme Court Justice Paul E. Pfeifer, who played an influential role in reinstating Ohio’s death penalty law in 1981 as a Republican state senator, is now leading the call for a review of Ohio’s system.  Other officials expressing similar concerncs include two former prison directors, Reginald A. Wilkinson and Terry Collins, and two other prominent Republicans: former Attorney General Jim Petro and state Sen. David Goodman of New Albany.  Petro said, "We should show restraint, caution and diligence with these cases.  DNA has opened a lot of people's eyes with what it can do. When you are talking about death, you can't afford to make even one mistake."

TEXAS

Editorials: Implications of Texas Execution Based on Flawed Science

Death Penalty Information Center

08-06-10 -- A recent editorial in the Fort Worth Star-Telegram raised questions about Texas' entire death penalty system, given the preliminary finding by the Texas Forensic Science Commission that arson experts relied on outdated and flawed science during their investigation of a death penalty case.  Cameron Willingham was executed in 2004 for setting a fire that killed his three daughters in 1991 based on this faulty research.  Now it appears that the fire may not have been deliberate at all.  The Commission did not comment on whether the reliance on flawed science constitutes professional negligence or misconduct.  "But," the editorial stated, "even if the evidence doesn't clearly show wrongdoing, a conviction based on bad science might still mean a wrongful execution.” The whole death penalty system needs review: "If an automaker discovers that a faulty design is making some of its cars accelerate without warning, the company doesn't just make fixes going forward, it inspects older models to repair the defect. . . .All Texans, including those who support the death penalty, should want to know the truth -- and to make certain that no one's life is taken erroneously in our name." Read full editorial below.

ALABAMA

Alabama Inmate May Face Execution Because of Mailroom Mix-Up

Death Penalty Information Center

08-05-10 -- Cory Maples, an inmate on Alabama’s death row, may pay for a simple clerical error with his life. When copies of an Alabama court ruling in his case were sent to the New York law firm handling his appeals, both copies were returned unopened because the firm's attorneys representing Maples had left the firm. By the time the error was discovered, Maples’s time to appeal had expired. So far, the firm has failed to persuade a federal appeals court to waive the deadline for filing an appeal.  Maples's new attorney is arguing that Maples should not be penalized for a mistake he did not commit. Prof. Deborah Rhode, an authority on indigent defense and legal ethics at Stanford, said, “Maples’s case is a textbook illustration of why the doctrine of imputing responsibility to the client for a lawyer’s mistake is so out of touch with reality.”  Alabama is the only state that does not provide lawyers for all indigent death row inmates to challenge their convictions. Hence, defendants rely on volunteer attorneys, often from out of state, to fill the gap, and that contributed to the confusion.

NORTH CAROLINA

First North Carolina Death Row Inmates File Appeal Under Racial Justice Act

Death Penalty Information Center

08-04-10 -- Five men on North Carolina’s death row filed motions to have their death sentences reduced to life without parole based on data that indicate racial disparities in the state’s justice system. These cases are the first to request application of North Carolina’s Racial Justice Act, which allows the use of statewide or regional statistical studies to challenge a death sentence because of racial bias. In all five cases, the victims in the underlying murder were white and the defendants were black.  Moreover, prosecutors struck eligible blacks from the juries in these cases at greater rates than whites. In some cases, prosecutors struck eligible black jurors while accepting similar white jurors. Ken Rose, staff attorney at the Center for Death Penalty Litigation (CDPL), said, “We would like to live and practice in a system where race does not matter. But the results show that white victims are valued more highly than black ones, and that black jurors are being denied their right to serve. This evidence of racial bias cannot be ignored.”

PENNSYLVANIA  

Lawyer on Death Row Finally Disbarred After 2001 Conviction for Five Murders

By Zack Needles | The Legal Intelligencer | New York Lawyer

08-04-10 -- Convicted murderer Richard Baumhammers' death warrant was signed before his disbarment order was. . . . In January, Gov. Edward G. Rendell signed a death warrant for the Pittsburgh immigration lawyer who was convicted by a jury of first-degree murder and other crimes in 2001. . . . On July 30, more than six months after the death warrant was signed, the state Supreme Court issued an order to disbar Baumhammers.

Books: "Ending the Death Penalty: The European Experience in Global Perspective"

Death Penalty Information Center

08-03-10 -- A new book by Andrew Hammel offers insights into the different perspectives on the death penalty in America and Europe. "Ending the Death Penalty: The European Experience in Global Perspective" examines three countries that do not have the death penalty (Germany, France and the United Kingdom), and analyzes how capital punishment was ended in those countries. Hammel ultimately believes that the governmental structure, culture, and political traditions in the U.S. make the European model of abolition unlikey to succeed here, though he also states that "important piecemeal victories" in limiting capital punishment are likely to continue in the U.S. Andrew Hammel is Assistant Professor for American Law at the University of Dusseldorf, Germany. He has worked as a lawyer with the Texas Defender Service, where he represented death row inmates in U.S. state and federal courts.

TEXAS  

Judge Sharon Keller Asks Texas High Court to Vacate Public Warning

Mary Alice Robbins, Texas Lawyer

08-02-10 -- In a petition for writ of mandamus filed July 29, Texas Court of Criminal Appeals Presiding Judge Sharon Keller asks the state Supreme Court to vacate the public warning the State Commission on Judicial Conduct issued to her on July 16. Keller also asks the Supreme Court to dismiss all charges against her. . . . According to the petition, Keller seeks mandamus relief because SCJC executive director Seana Willing, who serves as the examiner in cases involving alleged judicial misconduct, "has publicly admitted" that the commission's public warning order "does not comport with the Texas Constitution." Keller further alleges that the commission lacked authority to issue the public warning and that its warning is "void on its face because it was rendered contrary to limiting constitutional authority." As alleged in the petition, "[T]he SCJC had no more authority to render a public warning against Keller than it would to order her home to be forfeited."

July 2010

VIRGINIA

Woman with Mental Disabilities Facing Execution in Virginia

Death Penalty Information Center

07-29-10 -- An execution date of September 23 was recently set for Teresa Lewis, the only woman on Virginia’s death row. Although a number of other people were involved in the same crime, including the actual shooters of the two victims, Lewis was the only person sentenced to death.  She pled guilty at trial.  Since being sent to death row in 2002, Lewis has taken responsibility and apologized for her actions.  She has had an exemplary record while in prison and does not appear to be a future danger if she remained there.  Her current attorneys have pointed to her low IQ (measured as low as 72) and her vulnerability to being led by others as mitigating factors for the crime.  She has a Dependent Personality Disorder and suffered from other mental disabilities at the time of the crime.  If her execution goes through, Lewis would be the first woman to be executed in Virginia since 1912 and the first in the United States since 2005.

TEXAS

Texas Commission Says Case of Executed Man Based on Flawed Science

Death Penalty Information Center

07-28-10 -- In a preliminary report, the Texas Forensic Science Commission recently found that fire investigators used flawed science in the case that led to the death sentence and execution of Cameron Todd Willingham. Willingham was executed in 2004, having been convicted of setting the fire that killed his three children. Willingham had always maintained his innocence and said the fire could have been an accident. The Commission acknowledged that new fire investigation standards were developed in 1992, the year Willingham was convicted, but said the standards were not adopted nationally until several years later. Hence, the Commission did not find professional negligence on the part of the investigators because they were relying on standards available at the time.  Nevertheless, the jury convicted Willingham on the basis of the flawed evidence and Texas may have executed an innocent man.  Patricia Cox, Willingham’s cousin, told the Commission, "Even though there may not have been any malice or intent by fire investigators about not being informed on current standards, that doesn't excuse the fact that, based on this misinformation, Cameron Todd Willingham was executed, and that can't be corrected."

NORTH CAROLINA

Studies: Research Shows That Race of the Victim Matters in North Carolina Death Penalty

Death Penalty Information Center

07-27-10 -- A recent study in North Carolina found that the odds of a defendant receiving a death sentence were three times higher if the person was convicted of killing a white person than if he had  killed a black person. The study, conducted by Professors Michael Radelet and Glenn Pierce, examined 15,281 homicides in the state between 1980 and 2007, which resulted in 368 death sentences. Even after accounting for additional factors, such as multiple victims or homicides accompanied with a rape, robbery or other felony, researchers found that race was still a significant predictor of who was sentenced to death.  The study will be published in the North Carolina Law Review. It is the first examination of the North Carolina death penalty since the state passed the Racial Justice Act in 2009. The law allows murder suspects and death row inmates to present statistical evidence of racial bias to ensure that the defendant’s or victim’s race does not play a key role in the defendant’s sentence.

CALIFORNIA

Public Opinion: California Poll Shows Increase in Support for Life Without Parole

Death Penalty Information Center

07-26-10 -- A recent poll conducted in California showed that support for life without parole for first-degree murder has increased among registered voters since 2000. When asked which sentence they preferred for a first-degree murderer, 42% of registered voters said they preferred life without parole and 41% said they preferred the death penalty. In 2000, when voters were asked the same question, 37% chose life without parole while 44% chose the death penalty. Some commentators say that the increased support for life without parole and decreased support for the death penalty is very telling. Stefanie Faucher, associate director of Death Penalty Focus, said "I think they reflect a growing preference for life without parole as an alternative. It is more cost-effective, is carried out more quickly and doesn't drag victims through years of appeals." The Field Poll revealed that 70% of California’s registered voters support the death penalty, but Faucher says that figure represents support for the death penalty “in the abstract” and is less revealing than people’s views on what punishment they prefer.

Retired Prosecutor Says Death Penalty Does Not Serve Families of Homicide Victims

Death Penalty Information Center

07-23-10 -- Dan Glode, a former district attorney in Lincoln County, Oregon, recently criticized the death penalty for "the enormous expense in dollars and emotional capital [it takes] for the families of homicide victims."  Writing in the Newport News-Times, he experienced crime both as a prosecutor and as a relative of a murder victim: “The emotional cost on the families of the victim is also enormous. I have some knowledge of this, as a close relative of mine was murdered back in the 1980s. It took several years to finally catch those responsible, and I realized I just wanted it over. When they were finally tried and incarcerated, I knew I could move on. The justice system, as good or imperfect as it may be, cannot make the victim’s family whole again, but it can reduce the trauma by not dragging things out interminably. In these capital cases, the process goes on and on. Sometimes these family members have to go through additional trials if the cases get kicked back for re-trial, and the hurt begins anew. The wound never heals; it doesn’t even scar over."

TEXAS

Texans wonder if they executed an innocent man

By the CNN Wire Staff

07-23-10 -- A Texas state board is set Friday to revisit questions surrounding a controversial 2004 execution, with supporters of the man's family warning the panel is trying to bury its own critical review of the case. . . . Cameron Todd Willingham was executed in 2004 for a fire that killed his three daughters. Prosecutors argued that Willingham deliberately set the 1991 blaze -- but three reviews of the evidence by outside experts have found the fire should not have been ruled arson. . . . The last of those reports was ordered by the Texas Forensic Sciences Commission, which has been looking into Willingham's execution since 2008. But a September 2009 shake-up by Texas Gov. Rick Perry has kept that panel from reviewing the report, and the commission's new chairman has ordered a review of its operating rules. Critics say that may kill the probe. . . . "They are attempting permanently to keep the investigation from continuing and moving on, and I do believe it's because they don't like the direction the evidence is leading," Willingham's cousin, Pat Cox, said Thursday.

Former Police Investigator Says Law Enforcement Doesn't Need the Death Penalty

Death Penalty Information Center

07-22-10 -- Terrence Dwyer, formerly with the New York Police Bureau of Criminal Investigation, recently chronicled the evolution of his thinking about the death penalty and whether it serves the needs of law enforcement. Dwyer cited several examples of recent exonerations and noted, “Clearly, by keeping the death penalty in place, we run the unacceptable risk of executing the innocent. Those of us in law enforcement do our best to take the guilty off the streets, and more often than not we get it right. But in a world where mistakes are inevitable, the death penalty has no place.” Dwyer also discussed the suffering victims’ families endure during the years of death penalty appeals: “Everyone in a capital trial — the prosecutors, defense attorneys, investigators and judge — knows that it will take decades before the case is resolved. But prosecutors still go for the death penalty, and victims' families are left to endure endless trials and appeals.” Dwyer concluded that, “When [Connecticut] Gov. Rell vetoed the death penalty repeal bill, she kept in place a broken system that fails to deter crime, wastes $4 million a year and often adds to the pain of victims' families.”

Five Myths About the Death Penalty

Death Penalty Information Center

07-21-10 -- David Garland, a professor of law and sociology at New York University, recently addressed some common myths regarding the death penalty in America.  In an op-ed in the Washington Post, Garland provided information challenging the common wisdom about capital punishment: . . . The United States is a death penalty nation. Garland contends that, in fact, the death penalty is rarely imposed today. It has been abolished in 15 states and in the District of Columbia. Of the 35 states that have the death penalty, one-third rarely impose death sentences, and another one-third impose death sentences but hardly ever carry them out. Eighty percent of executions are carried out in the South, largely in Texas and in Virginia. . . . The United States is out of step with Europe and the rest of the Western world. Since 1981, when France stopped executing people by the guillotine, Europe has been an abolitionist continent. However, for most of the past 200 years, American states have been actively working towards death penalty reform. Michigan abolished the death penalty for all ordinary crimes in 1846, a century before most European nations did so. . . . This country has the death penalty because the public supports it. Even though polls show that a majority of respondents say they support the death penalty, it is less clear whether people are well-informed about the issue, have given the matter much thought, or have considered alternatives to capital punishment.

TEXAS v. MEXICO

Foreign Nationals: Texas Execution Delayed Following State Department Request

Death Penalty Information Center

07-21-10 -- A hearing to set an execution date for Texas death row inmate Humberto Leal was postponed after the presiding judge received a letter from a high-ranking U.S. State Department official. Leal, a Mexican citizen who was sentenced to death in 1995, had already been transferred to Bexar County Jail for the hearing to set the execution date. Harold Hongju Koh, a top legal adviser to Secretary of State Hillary Clinton, wrote the judge requesting an indefinite postponement while Congress is working on legislation that could affect Leal’s case. Leal is one of 51 Mexican citizens included in a 2004 ruling by the International Court of Justice (ICJ) (Avena and Other Mexican Nationals) that Mexican foreign nationals on U.S. death rows were not given proper notification of their rights to contact their foreign consulate. Koh said that the case is important in U.S. foreign relations, and wrote that, “The Executive Branch is engaging in consultations with Congress and with the Government of Mexico to determine how best to ensure the United States complies with its obligations under Avena.”

FEDERAL ISSUES

San Francisco Gang Cases to Test DOJ's Death Penalty Policy

Dan Levine, The Recorder

07-20-10 -- Erick Lopez, aka "Spooky," is a hard-core MS-13 gang member who killed two people in San Francisco's Excelsior district, say federal prosecutors. He is eligible for the death penalty. . . . Luis Herrera, aka "Killer," is also allegedly part of MS-13, and he too is eligible for capital punishment. But while prosecutors say Herrera took part in a different murder -- the February 2009 killing of Moises Frias at the Daly City, Calif., BART station -- they don't think Herrera pulled the trigger. . . . Lopez and Herrera are two of six San Francisco Bay Area MS-13 defendants for whom Attorney General Eric Holder Jr. must ultimately decide whether to seek capital punishment. The relative culpability of each is a key factor the Justice Department will consider, so where Holder draws the line among those six MS-13 defendants will be one measure of prevailing death penalty attitudes in Washington, D.C., say attorneys involved in the case.

FEDERAL COURT

Federal Inmate Faces Execution Despite Clear Evidence of Intellectual Disability

Death Penalty Information Center

07-19-10 -- Bruce Webster faces a federal execution despite new evidence--including evaluations by three doctors--indicating he is intellectually disabled. Although the U.S. Supreme Court banned the execution of the “mentally retarded” (now referred to as “intellectually disabled”) in 2002, the U.S. Court of Appeals for the Fifth Circuit in April denied Webster’s request for a hearing on his mental capacity claim. The court found that Webster had exhausted all his appeals and that the court could not consider new evidence unless it related to Webster's innocence.  The fact that the new evidence would make him ineligible for the death penalty under the constitution was insufficient to grant him a hearing.  Judge Jacques Wiener, writing for the Fifth Circuit, contended that the court was limited because Congress passed the Anti-Terrorism and Effective Death Penalty Act in 1996: “We today have no choice but to condone just such an unconstitutional punishment.” The judge agreed that the evidence would show that Webster was intellectually disabled, "If the evidence that Webster attempts to introduce here were ever presented to a judge or jury for consideration on the merits, it is virtually guaranteed that he would be found to be mentally retarded." David Bruck, a death penalty expert at Washington and Lee University law school said, "It's an outrageous situation. Sometimes the law just doesn't fit the facts. This is one of those times."

TEXAS

Chief Texas Judge Reprimanded for Discrediting the Judiciary in Death Penalty Case

Death Penalty Information Center

07-17-10 -- Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals, received a public warning from the State Commission on Judicial Conduct on July 16 for her conduct in barring access to the courts to a death row inmate who was about to be executed in 2007.  The Commission said her actions constituted "willful or persistent conduct that is clearly inconsistent with the proper performance of her duties."  When requested at home to allow a late-appeal filing by death row inmate Michael Richard, Judge Keller responded, "We close at 5."  Richard was executed the same day, the last person to be executed in the country while the U.S. Supreme Court considered the constitutionality of lethal injections. Every other inmate scheduled for execution received a stay until the Supreme Court upheld the execution process in April 2008.  The Commission described Keller's response as "willful or persistent conduct that casts public discredit on the judiciary."

Judge rebuked but avoids ouster

Keller denies wrongdoing in execution appeal refusal and vows to appeal decision of ethics panel.

By Chuck Lindell , American-Statesman Staff 

07-17-10 -- Condemning Judge Sharon Keller's conduct but declining to push for her removal from office, a judicial ethics panel reprimanded the state's top criminal judge Friday for her role in a botched execution-day appeal in 2007. . . . The State Commission on Judicial Conduct issued a "public warning" to Keller, saying she failed to properly perform her duties when she chose to close the Court of Criminal Appeals clerk's office at 5 p.m. despite knowing that defense lawyers wanted to file an appeal in a pending execution. . . . Keller's decision violated court procedures and meant death row inmate Michael Richard was executed later that night without his final appeal being heard in court, the commission ruled. . . . "Judge Keller's conduct...is clearly inconsistent with the proper performance of her duties as a judge" and brought discredit upon the legal system, the commission said. . . . Keller, who has denied wrongdoing, will appeal the reprimand.

ILLINOIS

Public Opinion: Majority of Illinois Voters Supports Alternatives to the Death Penalty

Death Penalty Information Center

07-16-10 -- A recent poll conducted by Lake Research Partners found that a majority of Illinois registered voters prefer an alternative sentence to the death penalty for those who commit murder. The pollsters surveyed voters in April, and found that 43% believed that the penalty for murder should be life with no possibility of parole and a requirement to make restitution to the victim’s family. Another 18% felt that the penalty for murder should be life in prison with no possibility of parole. Only 32% responded that the penalty for murder should be death. The poll also found only 39% of registered voters even know that Illinois has the death penalty. Jeremy Schroeder, executive director of the Illinois Coalition to Abolish the Death Penalty, attributed this to a declining murder rate and a declining use of the death penalty in the state. There has not been an execution in Illinois since 2000, when then Governor George Ryan imposed a moratorium on executions in the state. Between 1977, when capital punishment was reinstated in Illinois, and the moratorium in 2000, Illinois freed 13 men from death row and put 12 to death.

TENNESSEE

Tennessee Governor Commutes Death Sentence of Gaile Owens

Death Penalty Information Center

07-14-10 -- On July 14, Tennessee Governor Phil Bredesen commuted the death sentence of Gaile Owens to life in prison. Owens, who was sentenced to death in 1986 for hiring a man to kill her husband, had accepted a deal to plead guilty to the crime in exchange for a sentence of life in prison. However, the man who did the killing refused to plead guilty, and prosecutors then rescinded the deal for Owens.  Both co-defendants were sentenced to death.  In deciding to commute her sentence to life in prison, Governor Bredesen said the decision was based in part on the plea bargain that was later withdrawn and the possibility that Owens was abused by her husband. Governor Bredesen said, “Nearly all the similar cases we looked at resulted in life-in-prison sentences.” John Seigenthaler, formerly on staff at the Tennessean, said of her case, “As heinous as the crime was, the record of how Tennessee has dealt with similar cases over the last century makes it clear that her death would have been a terrible miscarriage of justice."

OKLAHOMA

After Two Faulty Trials With Inadequate Representation, Oklahoma Death Row Inmate Released 27 Years Later

Death Penalty Information Center

07-13-10 -- An inmate who spent 27 years on Oklahoma’s death row was released earlier in July after he accepted a plea agreement with prosecutors. James Fisher  was convicted of murder and sentenced to death in 1983. A federal appeals court overturned his death sentence because of inadequate attorney representation, thus sending the case back to trial. In 2005, Fisher was again convicted and sentenced to death. The second death sentence was also overturned, this time by the Oklahoma Court of Criminal Appeals, again for inadequate representation. Under the new plea agreement, Fisher pleaded guilty to murder and was given a life sentence with the possibility of parole. District Judge Kenneth Watson suspended the sentence and released Fisher to a reintegration camp in Alabama.  Fisher will be on probation for life, and he is not allowed to return to Oklahoma. First Assistant District Attorney Scott Rowland said, “I believe if he had been convicted and sentenced to life in 1983, he would probably have been out in 15 years.”

CALIFORNIA

‘Grim Sleeper’ Arrest Fans Debate on DNA Use

By Jennifer Steinhauer, New York Times 

07-08-10 -- The arrest in the case of the “Grim Sleeper” — a serial killer who terrorized South Los Angeles for two decades — has put one of the hottest controversies in American law enforcement to its first major test. . . . Only two states, Colorado and California, have a codified policy permitting a so-called familial search, the use of DNA samples taken from convicted criminals to track down relatives who may themselves have committed a crime. It is a practice that district attorneys and the police say is an essential tool in catching otherwise elusive criminals, but that privacy experts criticize as a threat to civil liberties. . . . This week, law enforcement struck a significant blow for the practice when the Los Angeles Police Department used it to arrest a man who they say murdered at least 10 residents here over 25 years. It is the first time an active familial search has been used to solve a homicide case in the United States. . . . Lonnie D. Franklin Jr., 57, was charged Thursday with 10 counts of murder and one of attempted murder after the state DNA lab discovered a DNA link between evidence from the old crime scenes and that of Mr. Franklin’s son, Christopher, who was recently convicted of a felony weapons charge. . . . The information developed from the state’s familial search program suggested that Christopher Franklin was a relative of the source of the DNA from the old crime scenes. The police confirmed the association of Lonnie Franklin through matching of DNA from a discarded pizza slice. The match provided the crucial link in a seemingly unsolvable crime that struck terror and hopelessness throughout one of the city’s poorest areas for years.

GEORGIA

Briefs Filed in Troy Davis Case in Georgia

Death Penalty Information Center

07-08-10 -- Briefs from both parties in the Troy Davis case were filed in the U.S. District Court in Savannah, Georgia, on July 7, 2010.  The federal judge considering the possible innocence of Davis, a death row inmate from Georgia who has been granted a stay of execution from the U.S. Supreme Court, requested the briefs following an evidentiary hearing on June 23 reviewing new evidence that had arisen since Davis's original trial.  A ruling is expected in the near future and further action by the U.S. Supreme Court may follow. The briefs may be found here: Defendant's brief and Attorney General's brief. (Posted by DPIC, July 8, 2010).

GEORGIA

Georgia Death Penalty Defendant Lacked Representation Because of Budget Problems

Death Penalty Information Center

07-07-10 -- Defense attorneys for Georgia capital defendant Jamie Weis have asked the U.S. Supreme Court to block the state from seeking the death penalty because state prosecutors hand picked the public defenders assigned to the case and because the case has languished for years without adequate representation. Prosecutors announced in August 2006 that they would seek the death penalty against Weis.  By March of the next year, the state ran out of money to pay Mr. Weis’ attorneys.  The prosecutors then asked the judge to appoint two overworked public defenders instead, identifying them by name.  Against the wishes of the defendant, the judge granted their request, resulting in the new lawyers filing three motions to withdraw citing their lack of experience, time, or money to pay experts or investigators.  Finally, after years of lost time that the attorneys could have spent working on Weis' defense, the state agreed to reinstate Weis’ original attorneys on the eve of the trial.  Prosecutors had spent those years steadily building their case while the defense lost leads and witnesses went missing or died.  The defense maintains that such a lack of adequate defense for so many years is unconstitutional.

INDIANA

Costs: Death Penalty Cases Cost Indiana Counties Ten Times More than Life Without Parole

Death Penalty Information Center

07-06-10 -- A recent state analysis of the costs of the death penalty in Indiana found the average cost to a county for a trial and direct appeal in a capital case was over ten times more than a life-without-parole case. The average death case cost $449,887, while the average cost of a life-without-parole case was only $42,658.  The study, prepared by the Legislative Services Agency for the General Assembly, found that even while factoring the longer incarceration period for those sentenced to life without parole, the cost of the death penalty still outweighed the cost of life without parole. The study also noted that Indiana was following the national trend of declining use of the death penalty.  Indiana prosecutors did not file a single new death penalty case for more than a year from August 2006 through December 2007, according to the public defender council.  Between 1990 and 2000, prosecutors requested the death penalty in 153 cases from the 4,617 murders and homicides reported in the state.  From those 153 cases where the death penalty was sought, 48 went to trial, 25 resulted in death sentences, and 4 actually resulted in an execution.  Clark County Prosecutor Steven Stewart stated that, while he agrees with the death penalty, it does cost more than life in prison without parole. 

GEORGIA

U.S. Supreme Court Orders Reconsideration of Georgia Death Sentence Because of Inadequate Representation

Death Penalty Information Center

07-01-10 -- On June 29, the U.S. Supreme Court returned a death penalty case to the Georgia Supreme Court to reconsider whether the failures of the defendant's lawyer probably affected the sentence he received. Demarcus Sears was sentenced to death in 1993 for the murder of a woman in Cobb County.  Sears' attorneys attempted to convince jurors to spare his life by saying that he came from a stable and loving family who would be devastated if he received the death penalty. However, the defense lawyers failed to conduct an adequate investigation of Sears' childhood. They neglected to show that his parents had been in a physically abusive relationship, that he was sexually abused and inappropriately disciplined. By the time Sears reached high school, he was “described as severely learning disabled and as severely behaviorally handicapped.” One expert determined he was among the "most impaired individuals in the population" as a result of significant frontal lobe brain damage. Although a lower court in Georgia found the defense attorneys conduct to be faulty, it concluded that the mitigating evidence that was not presented would not have made a difference.  The U.S. Supreme Court held that the evidence "might well have helped the jury understand Sears and his horrendous acts ...." The Court granted certiorari, vacated the judgment below, and ordered Georgia to reconsider the possible prejudice to Sears from the ineffective representation rendered by his lawyers, especially in light of other Supreme Court decisions where attorneys failed to conduct a thorough investigation.

June 2010

GEORGIA  

Ga. Capital Case Revives Controversy Over State's Public Defender System

State Supreme Court directs trial court to determine if indigent defense in Georgia has suffered 'systemic breakdown'

Janet L. Conley, Fulton County Daily Report

06-30-10 -- In an opinion that once again raises concerns about the state's shortage of funds for indigent capital defense, a divided Georgia Supreme Court has sent a death penalty case back to the trial court to determine if a systemic breakdown in the state's public defender system deprived the defendant of counsel. . . . If the lower court finds that there was a systemic breakdown affecting this particular defendant, an indigent Vietnamese immigrant who allegedly killed another Vietnamese man and his 2-year-old son and severely injured the man's wife in execution-style, back-of-the-head shootings, Justice Harold D. Melton wrote for the majority in the 4-3 decision, then that determination must be factored into an analysis of whether the defendant's speedy trial rights were violated.

OREGON

Editorials: "Forget the Death Penalty"

Death Penalty Information Center

06-30-10 -- On June 24, the Democrat Herald (Oregon) featured an editorial about Randy Lee Guzek, who was recently sentenced to death for the fourth time for murders committed in 1987. The Oregon Supreme Court overturned his three previous death sentences on various grounds. The editorial questioned whether such a death penalty process made any sense.  "If the procedures are so difficult that Oregon trial courts cannot get them right in three tries, maybe there is something wrong with the procedures and the system."  In 26 years, Oregon has executed two defendants, both of whom waived their appeals.  The paper concluded, "The appellate courts are telling the people something: Forget the death penalty; it's not gonna happen. And if it ever does happen, it will be many, many years after the crime. By that time, it will be easy to argue that the man facing execution is not the same bad character who, decades before, took someone's life. So why kill him now?"  The editorial posed life without parole as an alternative to death penalty in Oregon, saying " Unless we want to keep making a mockery of the death penalty law by refusing to carry it out, Oregon would be better off if prosecutors just asked for life without parole instead." Read full editorial below. / Read more

GEORGIA

Federal Court Reviews New Evidence that Might Prove Troy Davis's Innocence

Death Penalty Information Center

06-29-10 -- On June 23-24, U.S. District Judge William T. Moore heard new testimony in the case of death row inmate Troy Anthony Davis, who was given an unusual chance by the U.S. Supreme Court to "clearly establish" his innocence after almost 20 years. Davis was convicted in 1991 of the shooting of a Savannah police officer based on eyewitness testimony that identified him as the shooter. During the recent hearings in federal court, four witnesses recanted their original testimony, saying that they were threatened or coerced into giving false statements. Davis's attorney, Jason Ewart, expressed confidence in the testimony of Benjamin Gordon, who stated for the first time that he witnessed Sylvester "Redd" Coles commit the murder of the officer. Coles was one of the few remaining original witnesses who have not recanted their testimony against Davis.  Neither side called Coles to the stand.  Judge Moore did not issue a ruling at the close of the hearings, but instructed attorneys to file legal briefs by July 7. Moore said he would rule as promptly as possible.

ALABAMA

U.S. Supreme Court Upholds Alabama Inmate's Challenge to Death Sentence

Death Penalty Information Center

06-28-10 -- On June 24, the U.S. Supreme Court ruled in favor of Billy Joe Magwood, an Alabama defendant convicted of a 1979 murder whose challenge to the state's death penalty law had been ruled untimely by lower courts. Magwood's first death sentence was overturned, but he was sentenced to death a second time.  When Magwood filed a habeas petition challenging his new death sentence, the U.S. Court of Appeals for the Eleventh Circuit held that Magwood's challenge to his new death sentence was an unreviewable “second or successive” challenge since he could have brought the same challenge to his first death sentence.  Justice Clarence Thomas, writing for the majority of the U.S. Supreme Court, said "because Magwood's habeas application challenges a new judgment for the first time, it is not 'second or successive.'" The Supreme Court decision allows Magwood to challenge his second death sentence as a brand new judgment, even if it raises issues that could have been made against the original sentence.  Justices Stevens, Scalia, Breyer, and Sotomayor concurred.  Justice Kennedy, joined by the Chief Justice and Justices Ginsburg and Alito, dissented.

GEORGIA

Former Georgia Supreme Court Justice Would Have Granted Troy Davis a Hearing

Death Penalty Information Center

06-25-10 -- Judge Norman Fletcher served on the Georgia Supreme Court and was in the majority that upheld Troy Davis's original conviction and death sentence on direct appeal.  However, Judge Fletcher has noted he was not on the court after many of the witnesses from Davis's trial recanted their testimony, and he probably would have voted in favor of a new evidentiary hearing for Davis if he was on the court today.  Judge Fletcher recently wrote about the wisdom of retiring U.S. Supreme Court Justice Stevens regarding his decision in the Troy Davis case to grant such a hearing: "[His] leadership in this case was a triumph of the common-sense notion that innocence matters; it matters more than procedural technicalities. No matter whether one opposes or supports the death penalty, I would hope we can at least agree that the innocent should not be executed." Of Davis's case, he wrote further, "No matter the outcome of this case, Davis stands for the principle that the factual innocence or guilt of people sentenced to death matters. For those facing the irreversible punishment of death, we should always do our best to get to the truth. Never should procedural rules trump the consideration of newly discovered exculpatory evidence."

Editorials: "Congress Must Rewrite the Law Governing Lawyers for Poor Death-Row Inmates"

Death Penalty Information Center

06-24-10 -- The Washington Post recently published an editorial calling for Congress to rewrite the part of the Anti-Terrorism and Effective Death Penalty Act of 1996 that governs legal representation for indigent death-penalty defendants. The law allows a fast-track for federal appeals of state capital convictions provided states guarantee and pay for a system of legal representation that covers all capital defendants . Originally, the program had to be certified by the federal courts. In 2006, Congress changed the law, giving the U.S. Attorney General the authority to certify a state that "'established a mechanism for the appointment of counsel for indigent prisoners under sentence of death' and has set up a 'mechanism for compensation' for appointed attorneys." According to the editorial, "These provisions are so lax that choosing lawyers by shoe size and paying them with bubble gum could meet the test." . . . The new rules are currently on hold and are under reconsideration by Attorney General Eric Holder. The editorial suggests stricter standards, such as requiring that lawyers who take assignments under the fast-track program have significant experience handling death penalty cases. However, it ultimately concludes that the law itself should be abandoned: "[A]ll of the administrative tinkering in the world cannot fix what is most wrong with the current law… states should not be in the business of truncating even further what for many is a last, best hope for justice."

NEW HAMPSHIRE

Former New Hampshire Supreme Court Justice Calls for Abolition

Death Penalty Information Center

06-23-10 -- Joseph P. Nadeau, who served on New Hampshire's Supreme Court for six years and as a judge for 37 years, recently testified before the state's death penalty commission about his opposition to the practice. In an op-ed, Judge Nadeau summarized the moral and practical reasons why he believes capital punishment should be repealed. "Our thinking evolves, as people, technology, and societies progress," he said.  "And what is acceptable at one time in our history may become unwelcome at another. So we are encouraged to re-examine our core principles and to consider whether death continues to be an acceptable punishment in New Hampshire." He dismissed the notion that the death penalty is needed to honor law enforcement officers: "Its abolition does not dishonor those who serve in law enforcement because honor comes from personal pride and earned respect, not from the ability of the state to execute a human being." . . . Judge Nadeau continued, "No legal system is perfect. Human beings make mistakes. That is one reason we accept the notion that occasionally the guilty will go free and the innocent will be convicted. But I do not believe anyone accepts the notion that it is all right for a person to be wrongfully executed. So with the most respected judicial system in the world, how can we willingly embrace a sentence which cannot be reversed after it is imposed; and how can we continue to believe that it is morally acceptable for the state to take a human life?" Read full op-ed below.

New Resources: "The State of the World's Human Rights"

Death Penalty Information Center

06-22-10 -- Amnesty International recently released its annual report on international abuses and progress in the field of human rights: "The State of the World's Human Rights." The report covers January to December 2009 and addresses human rights issues in every country around the world. The report also highlights countries' involvement in international and regional human rights treaties. Among the nations in the Americas, the United States had the most active death penalty practices with over 100 new death sentences and 52 executions. Although death sentences were handed down in the Bahamas, Guyana, and Trinidad and Tobago, no executions were carried out. The majority of North American and South American countries are abolitionist in law or in practice.

GEORGIA

Death row inmate's rare chance to prove his innocence

By Benjamin Todd Jealous, Special to CNN

06-22-10 -- On Wednesday the saga of death row inmate Troy Anthony Davis will begin its last chapter. In an extremely rare ruling last summer, the United States Supreme Court ordered a federal judge in Georgia to grant Troy an evidentiary hearing to prove his innocence. . . . The ruling is unusual in that the Supreme Court has not granted this writ of habeas corpus in more than 50 years. Their decision is a strong indication that they are concerned about the constitutionality of executing the innocent -- as am I. . . . Although much work still must be done in our justice system to ensure the innocent do not pay the price of the guilty, the granting of this evidentiary hearing is a major step for Troy Davis and for many other likely innocent prisoners sitting on death row; Troy Davis will have an opportunity to tell his side of the story and new evidence will be considered in this nearly 20-year-old case. . . . The hearing will allow the testimony of witnesses who have recanted or contradicted their original eyewitness testimonies to be heard and examined in a court of law. At long last, the courts will hear critical testimony that they were prevented from hearing in the original trial. . . . Troy's journey to death row began in the summer of 1989, when he was arrested in connection with the killing of an off-duty police officer outside a Burger King restaurant in Savannah, Georgia. Two years later he was convicted and sentenced to death for a crime many believe he did not commit.

GEORGIA

Federal Court Finds Georgia's Standards for Mental Retardation (Intellectual Disability) Unconstitutional

Death Penalty Information Center

06-21-10 -- On June 18, a federal appeals court in Atlanta held that the burden Georgia places on death-penalty defendants to prove they are intellectually disabled, and thus exempt from the death penalty, is unconstitutional. The U.S. Court of Appeals for the Eleventh Circuit said that requiring defendants to prove intellectual disability (mental retardation) "beyond a reasonable doubt" violates the Eighth Amendment's ban against cruel and unusual punishments. It could also result in the execution of intellectually disabled defendants, which the U.S. Supreme Court barred in 2002 in Atkins v. Virginia.  "This conception of the reasonable doubt standard, by its very terms, ensures that some, if not many, mentally retarded offenders will be executed in violation of the Eighth Amendment," said the court.  Fred Bright, a district attorney in Georgia, said the ruling came as no surprise. "I like to try a death case once and get it right the first time. I knew Georgia's law was hanging by a thread because it was all the way out there all by itself."  The ruling could result in new hearings for 10 death row inmates according to the Georgia Appellate Practice and Educational Resource Center. The defendant in the current case is Warren Hill, who was sentenced to death in 1991 despite evidence that he was mentally retarded.

TEXAS  

Sharon Keller Case in Hands of Judicial Conduct Commission

Commission's special counsel tells commission that Texas' top criminal court's presiding judge violated long-standing execution-day protocols

Mary Alice Robbins, Texas Lawyer

06-21-10 -- The attorney defending Texas Court of Criminal Appeals Presiding Judge Sharon Keller against misconduct charges that could result in her removal from office on Friday accused the State Commission on Judicial Conduct of doing a poor job of investigating complaints against Keller in connection with a death-row inmate's case. "I think the commission has failed in every step of the way in this," Charles "Chip" Babcock, a partner in Jackson Walker in Dallas and Houston, said during an approximately five-hour hearing before the 13-member commission. . . . Babcock made his comments as the commission heard objections to the findings of a judge who served as special master in In Re: Sharon Keller. Judge David Berchelmann Jr., of San Antonio's 37th District Court, who heard testimony in the case during a four-day hearing in August 2009, recommended in findings submitted to the commission in January that Keller not be removed from the bench or reprimanded.

Books: Voices of the Death Penalty Debate

Death Penalty Information Center

06-18-10 -- Voices of the Death Penalty Debate: A Citizen’s Guide to Capital Punishment is a new book that explores arguments for and against the death penalty through testimony given at the historic 2004 and 2005 hearings in New York on whether the state's death penalty should be reinstated.  The state's law was struck down by the N.Y. Court of Appeals in 2004.  Authored by Russell Murphy, a Suffolk University Law School professor, the book walks readers through testimony from experts, ordinary citizens, victims, organizations, religious leaders, and individuals who had been exonerated and freed from death row.  (New York's legislature has repeatedly refused  to reinstate the death penalty, and in 2007 the last person was removed from the state's death row, ending a 12-year experiment with capital punishment, which had been reinstated in 1995).

UNITED STATES SUPREME COURT

Supreme Court Agrees to Hear California Death Penalty Case

Death Penalty Information Center

06-17-10 -- On June 14, the U.S. Supreme Court granted certiorari in Cullen v. Pinholster. In 1984, Scott Pinholster was convicted and sentenced to death for killing two men during a burglary in Los Angeles, California. The U.S. Court of Appeals for the Ninth Circuit overturned Pinholster's death sentence because of ineffectiveness of counsel since his lawyer did not give the jury evidence of Pinholster's mental illness during the penalty phase of the trial. The appeals court said the evidence might have persuaded the jury to opt for a lesser sentence. The Supreme Court will review the lower court's decision and decide whether Pinholster should receive a new sentencing hearing or whether his death sentence should be reinstated.  The case will be heard in the Court's next term beginning in the fall of 2010.

UNITED STATES SUPREME COURT

Supreme Court Allows Late Appeal Under Extraordinary Circumstances

Death Penalty Information Center

06-15-10 -- On June 14, the U.S. Supreme Court ruled in favor of Albert Holland, who lost his right to file a federal appeal of his death sentence when his lawyer missed the 1-year deadline established under the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA). The U.S. Court of Appeals for the Eleventh Circuit ruled that Holland's attorney's conduct in missing the deadline was not egregious enough to warrant setting aside the imposed deadline. The appeals court said that the attorney would have had to act with "bad faith, dishonesty, divided loyalty, or mental impairment" to be excused from the imposed deadline, and that gross negligence was not enough of a reason. The U.S. Supreme Court reversed the appeals court's decision, saying that its standard was too rigid.  The  Court said, "We have previously held that a garden variety claim of excusable neglect, such as simple miscalculation that leads a lawyer to miss a filing deadline, does not warrant [an exemption from the deadline]. But this case before us does not involve, and we are not considering, a garden variety claim of attorney negligence. Rather, the facts of this case present far more serious instances of attorney misconduct." Holland's lawyer failed to communicate with him for several years, despite letters from Holland asking information regarding his appeals. Holland also contacted state courts and the Florida Bar Association in an effort to have the lawyer removed from the case.

FLORIDA  

Test of justice

Our Opinion: Court makes right call in Florida Death Row case

MiamiHerald.com Editorial 

06-16-10 -- The U.S. Supreme Court won't win any popularity contests with its 7-2 decision offering a second chance to a convicted cop killer on Florida's death row, but it was undoubtedly the right call. . . . Albert Holland was sentenced to death in 1991 for killing Pompano Beach police Officer Scott Winters. An appellate court overturned the conviction because of problems with a psychiatrist's testimony, but in 1997 he was retried and sentenced to death for first-degree murder, armed robbery, attempt to commit sexual battery and attempted murder. . . . The problem arose when Holland's lawyer failed to petition for federal review before the deadline expired. Justice Stephen Breyer's decision chastised the original defense attorney for failing to file on time, apparently failing to research when deadlines occurred, and failing to communicate with Holland over the course of several years. . . . ``These failures violated fundamental canons of professional responsibility,'' Justice Breyer wrote. The case was remanded to the 11th Circuit for review of the specifics to determine if Holland's claims have merit. . . . Convicted killers don't deserve sympathy. But in Florida, where at least 11 citizens have been wrongfully convicted and imprisoned in recent years -- and later cleared by DNA evidence -- it is particularly important to ensure that death-row inmates get an opportunity to exhaust all potentially valid legal claims.

UNITED STATES SUPREME COURT

Supreme Court Delivers Rare Victory to Death Penalty Defendants

Tony Mauro, The National Law Journal

06-15-10 -- The U.S. Supreme Court on Monday sympathized with a Florida death row inmate whose lawyer missed a deadline for his habeas appeal and failed to communicate with him for years despite numerous written pleas for help. . . . By a 7-2 vote in Holland v. Florida, the Court said that the lawyer's misconduct may entitle convicted murderer Albert Holland to "equitable tolling," or a delay in what otherwise would have been a one-year statute of limitation for filing the appeal under the Antiterrorism and Effective Death Penalty Act of 1996. . . . The lawyer's failures, wrote Justice Stephen Breyer for the majority, "seriously prejudiced a client who thereby lost what was likely his single opportunity for habeas review."

UNITED STATES SUPREME COURT

Supreme Court Rules for Persistent Death-Row Inmate Whose Lawyer Blew Habeas Deadline

By Debra Cassens Weiss, ABA Journal

06-14-10 -- The U.S. Supreme Court is giving a Florida death row inmate a chance to challenge his conviction, despite his lawyer’s failure to file a habeas appeal within the one-year deadline. . . . The U.S. Supreme Court ruled 7-2 that the statute of limitations governing federal habeas appeals may be tolled for equitable reasons in extraordinary circumstances. The case of inmate Albert Holland may qualify, the court said, and remanded for further proceedings. . . . Holland had correctly informed his court-appointed lawyer, Bradley Collins, that he was wrong about the time period for filing a federal habeas appeal, Justice Stephen G. Breyer wrote in the majority opinion (PDF). Before that, Holland had complained repeatedly to the courts asking for new counsel and had written several letters to Collins seeking updates on his case. The Florida Supreme Court denied Holland’s pro se requests for a new lawyer on the ground they should have been made through his counsel. . . . Breyer’s opinion included the text of several of Holland’s polite letters. “Dear Mr. Collins,” the letters began, “How are you? Fine, I hope.” A letter to the clerk of the Florida Supreme Court offered, "I’m not trying to get on your nerves. I just would like to know exactly what is happening with my case on appeal to the Supreme Court of Florida.” After Holland learned on his own—in the prison library—that the Florida Supreme Court had ruled against him, and a habeas appeal had not been filed by the deadline, he filed his own pro se petition and complained to the Florida Bar. Holland finally got a new lawyer.

Multimedia: "Waiting to Die" on CBS News Sunday Morning

Death Penalty Information Center

06-14-10 -- CBS News Sunday Morning featured a report titled, Waiting to Die, which addressed many of the issues regarding the use of the death penalty today. The report highlighted the cases of Ronnie Lee Gardner, who is scheduled to be executed in Utah this week, and Gaile Owens, whose scheduled execution in September would make her the first woman to be executed in Tennessee since 1820. The video featured interviews from many death penalty experts, including Kelly Henry, a federal public defender who is representing Gaile Owens's appeals. Henry believes that mitigating circumstances of sexual and emotional abuse that were not presented during Owens's trial could have changed the outcome of the case, and that Owens's trial counsel is an example of the worst representation. Richard Dieter, Executive Director of the Death Penalty Information Center, who was also featured in the report, said, "If we had a death penalty that only picked the worst of the worst that it would make some sense, but what we have is often the death penalty for those who had the worst lawyer."

UTAH

Utah Religious Leaders Express Concerns about the Death Penalty in Anticipation of Firing Squad Execution

Death Penalty Information Center

06-11-10 -- The upcoming execution of Ronnie Lee Gardner, who has opted to be killed by a firing squad in Utah on June 18, has attracted the attention of many people of faith in the state. Hours before Gardner's execution, prominent religious leaders will gather for a vigil to protest the execution. Religious leaders from groups often associated with being supportive of the death penalty have recently voiced concerns about the practice.  The Mormon Church has moved from a position of support for capital punishment to one of neutrality, with some leaders opposing it.  Philip Barlow, who holds the Arrington Chair of Mormon History and Culture at Utah State University said, "I can't imagine Jesus Christ participating in that sort of justice."  State representative Greg Hughes, R-Draper and a Mormon, agreed with Barlow's opposition for other reasons .  "I don't want to give government the right to execute citizens, period," he said. "Inevitably, you're going to kill innocent people."  Shuaib-ud Din, imam of the Utah Islamic Center believes that the Quran and Prophet Muhammad's sayings support the death penalty, but he has reservations about how well the system works and whether innocent people have been executed. He said, "The judicial system has to be near perfect for capital punishment to take place."

UTAH  

Lawyer would have opposed his killer's execution, family says

By Ashley Hayes, CNN

06-11-10 -- By all accounts, Michael Burdell was a gentle soul with a soft spot for people in need. . . . A Vietnam veteran, he was issued a weapon but refused to carry it, serving as a technician on communications equipment, his fiancée, Donna Nu, said in court documents. . . . The two had known each other for six years. Had Burdell, a 36-year-old attorney, not died on April 2, 1985, shot to death by Ronnie Lee Gardner during Gardner's escape attempt at a Salt Lake City courthouse, they would have been married. . . . But Nu, along with Burdell's friend, Ron Temu, and his 86-year-old father, Joseph Burdell, are now arguing on Gardner's behalf. . . . Gardner is to face a Utah firing squad on June 18. But driven by Burdell's pacifism and opposition to the death penalty, the three have filed statements in the case seeking to have his sentence commuted. . . . "Michael Burdell would not have wanted Ronnie Lee Gardner put to death," Nu said in court documents. "There is absolutely no question about this in my mind." . . . Legal maneuvers aimed at delaying or avoiding Gardner's execution have accelerated. His defense attorneys went before the Utah Supreme Court this week to argue that he should receive a new sentencing hearing, appealing an earlier state court's denial. The justices took the case under advisement.

CALIFORNIA

California Regulators Reject New Death Penalty Procedures

Death Penalty Information Center

06-10-10 -- On June 8, California's Office of Administrative Law rejected the new lethal injection procedures proposed by the Department of Corrections and Rehabilitation, identifying several passages that conflicted with state law, that were unclear, or failed to properly state reasons for the new procedures. There has been a de facto moratorium on all executions in the state since 2006 after a federal judge ordered the state to revise its lethal injection process because it posed a risk of severe pain to the inmate being executed.  A state court also ruled that revisions to the execution process were subject to a period of public review and comment before becoming effective.  After drafting new regulations, the state received about 20,000 mostly critical comments from the public.

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FLORIDA  

Judge Nixes Murder Defendant’s Efforts to Fire Counsel, Excludes Him From His Own Trial

By Martha Neil, ABA Journal

06-09-10 -- Unhappy with the court-appointed defense lawyers in his capital murder case, Eric DeShann Floyd told a Pennsylvania judge Monday that he'd rather be executed than continue with his current attorneys. . . . But Common Pleas Court Judge Renee Cardwell Hughes rejected Floyd's request to fire his lawyers and let him represent himself, telling the accused cop-killer that he was being "irrational" and that his lead lawyer, William Bowe, is one of the best in Philadelphia, reports the Philadelphia Inquirer. . . . By yesterday, she had held Floyd in contempt, telling him that he would have to watch his own trial on closed-circuit television due to his disruptive behavior during jury selection, the newspaper reports in another article. . . . This morning, Floyd punched Bowe twice after the judge offered him the opportunity to attend his own trial if he would agree to behave, the latest Inquirer article reports. Bowe slumped to the side after Floyd struck him behind the ear, and the 35-year-old defendant hit his lawyer again before sheriff's deputies removed Floyd from the courtroom.

TEXAS  

Texas Judge Fires Back in Controversy Over Handling of Execution

Mary Alice Robbins, Texas Lawyer

06-09-10 -- The latest shot has been fired in an ongoing battle between Court of Criminal Appeals Presiding Judge Sharon Keller and the State Commission on Judicial Conduct examiner regarding events on the day Texas executed convicted murderer Michael Richard. . . . In a response filed June 4, Keller urges the judicial conduct commission to dismiss immediately all the charges against her. She argues the allegations are "based on a fiction" that she alleges David Dow, litigation director for the Texas Defender Service, which represented Richard, created to blame Keller for TDS' failure to file documents to stop Richard's execution. . . . Keller made her arguments in her June 4 response to the objections the judicial conduct commission examiner filed in February to the findings of the special master appointed to hear the allegations against Keller.

New Resources: The Death Penalty for Drug Offences - Global Overview 2010

Death Penalty Information Center

06-09-10 -- The International Harm Reduction Association (IHRA) recently published a report on the use of the death penalty for drug crimes around the world. The report distinguishes between countries that have legislation allowing a death sentence for drug offenses and those that actually apply it in practice. According to the report, 32 jurisdictions retain the death penalty for drug offenses (out of the 58 countries that have the death penalty for any offense), at least 12 of which were known to have carried out an execution for such offenses in the last three years.  These countries include China, Iran, Saudi Arabia, and Viet Nam.  Additionally, 13 of the 32 jurisdictions use a mandatory death penalty for certain categories of drug offenses. Five of the 32 jurisdictions are abolitionist in practice, i.e. they have not carried out an execution in many years. The United States, whose federal law allows the death penalty for certain drug offenses even where a murder has not occurred, is considered a jurisdiction with only symbolic commitment to such a practice since this part of the federal death penalty law has not been applied to any defendant. Read full report here.

OHIO

Ohio Governor Spares the Life of Death Row Inmate

Death Penalty Information Center

06-08-10 -- On June 4, Ohio Governor Ted Strickland granted clemency to Richard Nields, reducing his death sentence to life without parole.  Nields was scheduled to be executed later in June for the 1997 murder of his girlfriend in suburban Cincinnati. In May, the Ohio Parole Board recommended Nields for clemency because of problems with medical testimony at Nields's trial.  Dr. Paul Shrode, who was still in training at the time of the trial, testified that bruising on the victim proved that Nields strangled her. Another doctor testified later that there was no scientific evidence to support Shrode's testimony. The U.S. Court of Appeals for the Sixth Circuit also said his death sentence barely fit the definition of capital punishment under Ohio law. Federal public defender Carol Wright said of the case, ''A death sentence should be reserved for the worst of the worst cases. The facts of Richard's case were never the worst of the worst.''  Dr. Schrode was recently dismissed as the chief medical exmainer in El Paso County, Texas, after discrepancies were found in his resume and revelations were made about his unsupported evidence in the Ohio case.

PENNSYLVANIA

Pennsylvania Cost Commission to Consider Expensive Death Penalty System

Death Penalty Information Center

06-07-10 -- On Monday, June 7, the Pennsylvania State Government Management and Cost Study Commission will hear from experts on proposals to cut the costs of various government programs. The Commission, established in 2009, is comprised of private and public sector cost-minded leaders in Pennsylvania and has been charged with studying the management of government operations and making recommendations for cost-cutting measures. Among the experts who will testify at the hearing is Richard Dieter, Executive Director of the Death Penalty Information Center, who will provide information on the high costs of the death penalty. His testimony states: "[T]he death penalty is not an essential government function and, in fact, is probably one of the least effective and most costly programs, when measured in terms of the people it affects. What Pennsylvania calls the death penalty is in reality a very expensive form of life without parole. Despite having the fourth largest death row in the country, Pennsylvania has not had an execution in 11 years" and no "contested execution since 1962."  Read full text of Richard Dieter's testimony below. / Read more

TEXAS

Texas to Execute Man 32 Years After the Crime; Many Say He's Not the Same Person

Death Penalty Information Center

06-04-10 -- David Powell (pictured left), who was sentenced to death in 1978 for the shooting of Austin police officer Ralph Ablanedo faces execution in Texas on June 15. During his 30 years on death row, Powell has shown sincere remorse and regret for his actions.  In 2009, Powell wrote to Officer Ablanedo's family: "I am infinitely sorry that I killed Ralph Ablanedo. I shot Officer Ablanedo and I take responsibility for his death. In a few frightful seconds, I stole from you and the world the precious and irreplaceable life of a good man, and destroyed your worlds of shared love, dreams, and possibilities….There is no excuse for what I did….In thirty-one years of imprisonment, I have had much time to contemplate my sin."  Powell's story is told in a recent report from Amnesty International (see below). /

Read more

BOOKS

The Last Gasp: The Rise and Fall of the American Gas Chamber

Death Penalty Information Center

06-03-10 -- The Last Gasp: The Rise and Fall of the American Gas Chamber details the history and development of the gas chamber as a method of execution in the United States.  Author Scott Christianson explores connections between the gas chamber and the eugenics movement, as well as new evidence about Hitler’s adoption of gas chamber technology developed in the United States.  Charles Lanier, Director of the Capital Punishment Research Initiative, said, "Scott Christianson has used his extensive experience as an investigative reporter, criminal justice official, historian, and scholar to probe one of the darkest and most neglected regions of American death penalty history—the story of the gas chamber. This book opens new doors and charts new territory in its gripping historical tale documenting the development and use of lethal gas as a method of execution in the United States."

STUDIES

Racial Discrimination in Jury Selection Continues in Death Penalty Cases

Death Penalty Information Center

  06-02-10 -- A recent study published by the Equal Justice Initiative, a nonprofit human rights and legal services organization in Alabama, shows that the practice of excluding blacks and other racial minorities from juries remains widespread and largely unchecked, especially in the South. The study, "Illegal Racial Discrimination in Jury Selection: A Continuing Legacy," found that in Alabama, courts have found racially discriminatory jury selection in 25 death penalty cases since 1987, and in some counties, 75% of black jury pool members have been struck in capital cases. In Jefferson Parish, Louisiana, an analysis by the Louisiana Capital Assistance Center found that blacks were struck from juries more than three times as often as whites between 1999 and 2007.  In North Carolina, at least 26 current death row inmates were sentenced by all-white juries.  According to Bryan Stevenson, Executive Director of the Equal Justice Initiative, "There's just this tolerance, there's indifference to excluding people on the basis of race, and prosecutors are doing it with impunity. Unless you're in the courtroom, unless you're a lawyer working on these issues, you're not going to know whether your local prosecutor consistently bars people of color."

UNITED STATES SUPREME COURT

High Court Turns Down Death Row Appeal in Rogue Juror Case

The Associated Press, Law.com

06-02-10 -- The Supreme Court on Tuesday rejected an appeal from a federal death row inmate who said his death sentence should have been thrown out because of a juror's misconduct. . . . The justices did not comment in turning down Brandon Basham, who was sentenced to death for kidnapping and killing 44-year-old Alice Donovan in 2002. The forewoman on Basham's jury was held in contempt of court by the trial judge after it was learned that she called five news organizations and made 71 other calls to two fellow jurors, despite repeated warnings from the judge to refrain from discussing the case with anyone.

NORTH CAROLINA

Editorials: Murder Victim's Family Helps Case Settle with Life Sentence

Death Penalty Information Center

06-02-10 -- When the student body president of the University of North Carolina, Eve Marie Carson, was murdered in 2008, both the state and the federal government initiated death penalty prosecutions against one of the defendants.  However, many of Ms. Carson's family and friends were convinced that she opposed the death penalty and would not want it sought in her case.  Family members were influential in the recent decision by U.S. Attorney General Eric Holder to accept a plea of guilty from defendant Demario Atwater in exchange for a sentence of life without parole in the federal case.  North Carolina prosecutors followed suit and accepted a similar deal.  A recent editorial in the Charlotte News & Observer noted that the family said the outcome "honors Eve's love of life and all people."  The editorial concluded: "A desire for revenge, an eye for an eye, would have been entirely understandable. Somehow, the Carsons managed to resist it in the name of their daughter. For their courage in even facing this day, they deserve the admiration of all. Their daughter was a very special person. The same may be said of those who raised her."   Read full text of article below. / Read more

UTAH  

Judge gives green light to Ronnie Lee Gardner execution

Utah Supreme Court will next consider his case on Thursday

By Emiley Morgan, Deseret News

06-01-10 -- As his execution looms on the horizon, death row inmate Ronnie Lee Gardner has lost one of three remaining battles he is waging in an attempt to keep the state of Utah from carrying out his death sentence. . . . It took only four pages for 3rd District Judge Robin Reese to deny Gardner's motion to stay the execution, signaling — at least for now — a green light for his June 18 execution. . . . Defense attorneys for Gardner had asked for a stay of the execution because that they had filed a petition for post-conviction relief, but Reese said that because he denied the petition last week, the execution will go forward. . . . The interpretation from Gardner's attorneys that the law requires a stay of execution whenever a petition for relief is filed could "result in an absurd outcome," Reese said. The judge added that halting an execution every time a petition is filed could lead to an interminable cycle of execution warrants, execution dates and then petitions that would nullify them

May 2010

Books: Last Words of the Executed

Death Penalty Information Center

05-28-10 -- Last Words of the Executed  by Robert K. Elder is a compilation of the final statements of death row inmates shortly before their execution.  The book, with a foreword by Studs Terkel, also describes the crime and some of the social setting of each case presented.  According to a review in The Economist, "The last words are remarkable for their remorse, humour, hatred, resignation, fear and bravado…. America's diverse heritage is stamped even onto its killers' final moments."  Sister Helen Prejean wrote, "This is a dangerous book.  Who knows how we will emerge from the encounter?"  Robert Elder has written for the New York Times, Chicago Tribune, Salon and many other publications. He currently teaches journalism at Northwestern University.

UNITED STATES SUPREME COURT

Supreme Court Directs Lower Court to Reconsider Death Penalty Decision

Death Penalty Information Center

05-27-10 -- On May 24, the U.S. Supreme Court reversed a decision by the U.S. Court of Appeals for the Eleventh Circuit, thereby giving the defendant another chance to show that his trial counsel was constitutionally ineffective.  Lawrence Jefferson was sentenced to death in Georgia, despite the fact that he had suffered serious head injuries as a child.  In an appeal in state court, he claimed that his attorney failed to investigate this early trauma.  The state court rejected this claim, and asked the prosecutors to draw up an opinion denying the appeal.  The court then issued the opinion verbatim without giving the defense a chance to intervene.  The Eleventh Circuit gave great deference to the state court's decision and upheld the death sentence.  The U.S. Supreme Court held that the Court of Appeals failed to adequately consider whether Jefferson had been afforded a fair hearing in state court. The Court held that the Court of Appeals only considered one of the eight exceptions to the usual deference given state court findings.  As with a number of capital cases this term, the Supreme Court granted certiorari and rendered its decision the same day, without oral argument or a signed opinion.  Justices Scalia and Thomas dissented from the per curiam opinion.

TEXAS

Texas County Fires Chief Medical Examiner Who Testified in Death Cases

Death Penalty Information Center

05-26-10 -- El Paso County (Texas) recently fired its Chief Medical Examiner, Paul Shrode, who had testified in capital cases in Texas and Ohio.  He was dismissed after evidence he provided in an Ohio death penalty case turned out to be unsupported by science. It was also discovered that he had made numerous misrepresentations on his resume.  Earlier in May, the Ohio Parole Board voted to recommend clemency for death row inmate Richard Nields, citing problems with Shrode's 1997 testimony that helped secure Nields's death sentence. Shrode had previously been questioned by the County Commissioners Court in Texas after discrepancies were discovered in three resumes he submitted. Shrode had stated he had a "graduate law degree" from Southwest Texas State University, although there was no law school at the university. It also stated that he was a member of the State Bar of Texas. The County Human Resources Director told the court Shrode had taken courses in political science at the school, but received no graduate degrees. The State Bar of Texas had no record of Shrode being a member, either as an attorney or a paralegal.

UTAH

Prosecutor Views on the Decline in Death Sentences

Death Penalty Information Center

05-25-10 -- Robert Stott, a veteran prosecutor in the Salt Lake County (Utah) District Attorney's Office, recently commented on why death sentences have declined.  "What I have found," he said, "is that since the statute was changed to offer life without the possibility of parole, it's more difficult to get the death penalty. Jurors realize that instead of having to make that terrible decision (voting for the death penalty), they can vote to put someone in prison and ensure that defendant is no longer a harm to society. It makes it easier for them to return a verdict of life without the possibility of parole."  Stott said in the past 24 years, only two death penalty sentences have been returned by Salt Lake County juries.  He said death penalty cases are the toughest cases to take on:  "We have to prove every element beyond a reasonable doubt."  Public outrage at horrific crimes sometimes fades away as jurors struggle with the weight of ending another human life.

UNITED STATES SUPREME COURT

Supreme Court to Review Texas Death Row Case

Michael Graczyk, The Associated Press, Law.com

05-25-10 -- The U.S. Supreme Court agreed Monday to decide whether a Texas death row inmate should have access to evidence for DNA testing he says could clear him of three murders. . . . The justices said they will use the case of Hank Skinner, who was as little as an hour away from being executed earlier this year, to decide whether prisoners may use a federal civil rights law to get DNA testing that was not performed before their conviction. . . . Federal appeals courts around the country have decided the issue differently. . . . Skinner's lawyer, Rob Owen, said having the case accepted was "the necessary first step to our eventually obtaining the DNA testing that Mr. Skinner has long sought. . . . "We look forward to the opportunity to persuade the court that if a state official arbitrarily denies a prisoner access to evidence for DNA testing, the prisoner should be allowed to challenge that decision in a federal civil rights lawsuit." . . . Mark D. White, the lawyer for Gray County District Attorney Lynn Switzer, the defendant in Skinner's lawsuit, said he saw the high court review as a chance for the justices to affirm that once a prisoner had adequate chances to challenge his conviction, "other post-conviction proceedings are better left to the states to handle." . . . Skinner has lost state appeals that sought the new DNA tests. At the time of his trial, his original lawyer chose not to have the additional tests because he feared the results could further incriminate Skinner.

UTAH

Prosecutor Views on the Decline in Death Sentences

Death Penalty Information Center

05-25-10 -- Robert Stott, a veteran prosecutor in the Salt Lake County (Utah) District Attorney's Office, recently commented on why death sentences have declined.  "What I have found," he said, "is that since the statute was changed to offer life without the possibility of parole, it's more difficult to get the death penalty. Jurors realize that instead of having to make that terrible decision (voting for the death penalty), they can vote to put someone in prison and ensure that defendant is no longer a harm to society. It makes it easier for them to return a verdict of life without the possibility of parole."  Stott said in the past 24 years, only two death penalty sentences have been returned by Salt Lake County juries.  He said death penalty cases are the toughest cases to take on:  "We have to prove every element beyond a reasonable doubt."  Public outrage at horrific crimes sometimes fades away as jurors struggle with the weight of ending another human life.

UNITED STATES SUPREME COURT

Supreme Court to Hear Case of Death Row Inmate Seeking DNA Test

By Debra Cassens Weiss, ABA Journal

05-24-10 -- The U.S. Supreme Court has agreed to decide whether a Texas death row inmate has the right to DNA tests that his lawyer rejected because he feared they would be incriminating. . . . The Supreme Court agreed today to hear the appeal by inmate Hank Skinner, convicted of murdering his girlfriend and two sons in 1993, according to SCOTUSblog and the Associated Press. At issue is whether Skinner can seek DNA tests under federal civil rights law—his only remaining chance to obtain the evidence—rather than a habeas challenge.

GEORGIA  

Ga. Murder Case Shines Spotlight on Nation's Indigent Defense Systems

Murder suspect lost his lawyers after state ran out of money to pay them

Marcia Coyle, The National Law Journal

05-24-10 -- Jamie Weis, accused in 2006 of killing an elderly neighbor, had two state-appointed lawyers defending him from capital murder charges for more than a year. . . . When the state of Georgia ran out of money to pay them, the trial judge removed them, appointing public defenders who spent nearly two years trying to withdraw. . . . Weis, in county jail now for four years, is asking the U.S. Supreme Court to delve into what he claims is a breakdown of Georgia's public defender system. . . . Weis wants the justices to make clear that "lawyers are not fungible," said lead counsel Stephen Bright of the Southern Center for Human Rights in Atlanta.

OKLAHOMA

Oklahoma Governor Grants Clemency

Death Penalty Information Center

05-21-10 -- Oklahoma Governor Brad Henry granted clemency to Richard Tandy Smith, who was originally sentenced to death for a 1986 shooting during an alleged drug deal. Earlier this year, the Pardon and Parole Board approved a clemency recommendation for Smith and forwarded it to the governor for approval. Governor Henry said, "This was a very difficult decision and one that I did not take lightly. I am always reluctant to intervene in a capital case, and I am very respectful of a jury's verdict, the prosecutors who tried the case and the victim's family who suffered because of the crime. However, after reviewing all of the evidence and hearing from both prosecutors and defense attorneys, I decided the Pardon and Parole Board made a proper recommendation to provide clemency and commute the death sentence. As a result, Richard Smith will be punished by serving the rest of his life behind bars without the possibility of parole."

OHIO

Ohio Board Recommends Clemency Based on Questionable Expert Testimony

Death Penalty Information Center

05-20-10 -- The Ohio Parole Board recently recommended clemency for death row inmate Richard Nields, who was sentenced to death for killing his live-in girlfriend during an argument in 1997. The board questioned the validity of medical evidence used at trial that helped support the death sentence. Testimony provided by a doctor-in-training indicated the victim had been beaten and strangled. However, the deputy coroner and supervisor of the trainee told the parole board there was no scientific evidence to indicate when the victim had received those bruises.  The board also cited concerns by the U.S. Court of Appeals that the death sentence barely fit the definition of capital punishment under Ohio's law, and similar concerns from a dissenting judge on the state Supreme Court. Justice Paul Pfeifer, who helped draft Ohio's death penalty as a state legislator in 1981, wrote that Nields's crime was not what lawmakers considered a death eligible case when the law was created.  Gov. Ted Strickland will make the final decision on clemency.

OHIO

Ohio Supreme Court Justice Calls for Review of State's Death Cases

Death Penalty Information Center

05-19-10 -- Ohio Supreme Court Justice Paul E. Pfeifer recently said all current death row cases should be reviewed to discern which ones warrant execution and which ones should be commuted to life in prison without parole. "There are probably few people in Ohio that are proud of the fact we are executing people at the same pace as Texas," Justice Pfeifer said.  "When the next governor is sworn in, I think the state would be well served if a blue-ribbon panel was appointed to look at all those cases." Justice Pfeifer was one of three Republican state senators who led the effort to reinstate the death penalty in Ohio in 1981 after the U.S. Supreme Court declared the old law unconstitutional. Pfeifer emphasized that the point of the review was to decide if death is the appropriate punishment for those presently on death row, predicting that if the majority of the old cases were tried today under current law and societal standards (including the availability of life without parole sentences), they would not result in capital punishment. He also said, "the number of people we have accumulated on death row has been rather staggering. It's improbable that all of those are going to be executed." Ohio only sentenced one person to death in 2009, but is currently executing inmates at a rate of one per month.

TEXAS

Lawyer For British National Had Many Clients Sent to Texas Death Row

Death Penalty Information Center

05-18-10 -- Twenty clients of Texas defense attorney Jerry Guerinot have been sentenced to death–a number higher than the death row populations of 18 death penalty states around the country. Guerinot also represented Linda Carty, a British national who was facing the death penalty for arranging a murder.  She asserts she was wrongly convicted and poorly represented by Guerinot.  He failed to visit her for three months after being appointed her counsel, did not call key witnesses who would have testified on her behalf, and neglected to contact the British Consulate for legal assistance. Regarding trial preparation, Carty stated, "I met this guy for less than 15 minutes. Once."  David Dow, litigation director of the Texas Defender Service, which represents some of Guerinot's former clients who are now on death row, said the large number of death sentences reflect a failure to conduct simple investigations. "He doesn't even pick the low-hanging fruit which is hitting him in the head as he's walking under the tree."  Steve Humphries, a filmmaker investigating Carty's case, said in a brief urging the Supreme Court to hear Carty's case, "It is no exaggeration to suggest that Mr. Guerinot has perhaps the worst record of any capital lawyer in the United States."

FEDERAL COURTS

Federal Judge Asks U.S. Attorney General to Re-consider Death Penalty Over Costs

Death Penalty Information Center

05-17-10 -- United States District Court Judge Nicholas Garaufis recently wrote a letter to U.S. Attorney General Eric Holder asking that the government reconsider seeking the federal death penalty in the trial of a reputed mob boss.  According to Judge Garaufis's letter, preparations for the murder trial of Vinny Basciano in Brooklyn, N.Y., have already cost the government over $3 million in legal fees since 2005, and the trial proceedings have not yet begun. "Current circumstances require a candid reappraisal of whether the resources necessary for a death-penalty prosecution should be devoted to this case," Garaufis wrote. The defendant is already serving a life sentence without parole for the murder of another rival.

OHIO

Racial and Geographic Disparities in Ohio Executions

Death Penalty Information Center

05-14-10 -- Over the past two years, Ohio has executed more inmates than any other state except Texas.  Since resuming executions in 1999, Ohio has executed 38 people, more than any other state outside of the South in that time period.  As in the South, race appears to play a significant role in who receives the death penalty.  In the Ohio cases resulting in an execution, 75% of the victims in the underlying murder were white.  Generally, in Ohio about 65% of murder victims are black (Ohio Office of Criminal Justice Services-2005), but those cases are not resulting in a similar percentage of executions.  Of the 57 victims in cases resulting in an execution, only 11 (19%) were black.  Moreover, none of the 38 executions in Ohio involved a white defendant who killed a black victim.  On the other hand, at least 7 black defendants have been executed for murdering a white victim.

Justice Stevens Warns of Increased Risk of Mistakes in Death Penalty Cases

Death Penalty Information Center

05-13-10 -- In a recent address to lawyers and judges at a judicial conference, retiring U.S. Supreme Court Justice John Paul Stevens explained the evolution of his views on the constitutionality of the death penalty. Regarding his 2008 assertion that the death penalty should be abolished, Justice Stevens elaborated, "The risk of an incorrect decision has increased," and that because of advances in DNA testing that have led to freeing some innocent convicts, "we're more aware of the risk than we might have been before." Justice Stevens also said that capital juries are dominated by people who favor the death penalty, and that the brutality of the murders that often lead to a capital trial can put pressure on prosecutors. While concurring with the majority opinion upholding the use of lethal injection as a method of execution in Kentucky in 2008, Justice Stevens nevertheless concluded that "the death penalty represents the pointless and needless extinction of life with only marginal contributions" to society. (Baze v. Rees (2008), quoting Furman v. Georgia (1972)).

MARYLAND

Public Opinion: Maryland Voters Prefer Life Without Parole Over the Death Penalty

Death Penalty Information Center

05-12-10 -- A recent poll by the Washington Post revealed more Marylanders prefer a sentence of life in prison with no chance of parole over the death penalty for someone convicted of murder– by 49% to 40%. Maryland has had a de facto moratorium on executions since 2006, after the state's highest court ruled that procedures for lethal injections had not been properly adopted. Maryland Governor Martin O'Malley sponsored legislation to abolish the death penalty, and a state commission in 2008 recommended that the legislature repeal capital punishment, but the eventual measure was amended to sharply restrict the death penalty instead.  The last execution in Maryland was carried out in 2005. . . . In general, Marylanders support the death penalty when not presented with an alternative sentence by a margin of 60% to 32%.  The poll revealed racial and gender divisions on the issue. Whites are far more likely than blacks to favor capital punishment (70% to 43%), and more men than women support the death penalty (66% to 54%).

The Angolite: A Prison Magazine's Inside View on Choosing Execution

Death Penalty Information Center

05-11-10 -- A recent issue of the award-winning prison news magazine, The Angolite, featured a story by inmate Lane Nelson about Gerald Bordelon, the first person to be executed in Louisiana since 2002. Bordelon expedited his own execution by choosing to waive his appeals, including his direct appeal, which was previously thought to be a mandatory part of the state's death penalty process. Bordelon volunteered for execution after he was found guilty of raping and murdering his 12-year-old stepdaughter. The choice to waive his appeals was met with strong disagreement from his team of inmate counsels (volunteer prisoners who act as attorney substitutes), who decided they would not assist him in his choice.  Bordelon was represented in his desire to be executed by a noted constitutional attorney from Baton Rouge, Jill Craft.  She succeeded in having the court allow Bordelon to waive his appeals, but later said she would never do it again. Bordelon told The Angolite why he volunteered for his execution: "I'm doing this for [the victim] Courtney.  I'm doing it for her family.  I'm doing it for me.  I'm doing it for my family so they don't have to worry and deal with it for the next 20 or 30 years.  I'm doing it for a lot of reasons."

MISSISSIPPI

Mississippi Inmates Challenge State for Appointing Ineffective Counsel

Death Penalty Information Center

05-10-10 -- Sixteen death row inmates have filed a lawsuit against the state of Mississippi, claiming that their executions should be halted because their state-appointed attorneys were "untrained, inexperienced, and overwhelmed." Under Mississippi law, the state must provide "competent and conscientious" counsel for death row inmates before execution dates can be set. The law suit, filed in Hinds County Chancery Court, claims that the attorneys appointed through the Office of Capital Post-Conviction Counsel did not meet that criteria and were overwhelmed with other cases.  In one example cited in the lawsuit, the Mississippi Supreme Court ordered the office to file a motion for DNA testing on behalf of Blayde Grayson, who was sentenced to death in 1997, but the office never filed the motion.  Two death row inmates who are part of the lawsuit are scheduled to be executed consecutively later this month. Gerald Holland, age 72 and the oldest inmate on death row, is scheduled to be executed on May 20. Paul Everette, age 62, will be executed on May 19. The last back-to-back executions in the state took place in 1961.

MISSISSIPPI

Multimedia: NPR Documentary Features Historical Coverage from Mississippi Execution
Death Penalty Information Center

05-07-10 --  On Friday, May 7, NPR's Radio Diaries will feature a half-hour documentary entitled, "Willie McGee and the Traveling Electric Chair." The documentary focuses on the life of Willie McGee who was executed in Mississippi during the Jim Crow era after being convicted by an all-white jury of raping a white woman. During that time in Mississippi, the state used a portable electric chair, which the state transported from county to county. According to NPR, it was not just the portable electric chair that made McGee's execution unusual, but the unprecedented live radio coverage that accompanied it. The documentary includes excerpts of the live coverage from McGee's execution, broadcast from outside the courthouse where the execution took place. 

UTAH

Victims: Murder Victim's Family in Utah Opposes Upcoming Execution

Death Penalty Information Center

05-06-10 -- Family members of the victim whom Ronnie Lee Gardner killed in Utah are now asking that his life be spared.  Gardner's attorneys have requested a clemency hearing and the family members of the victim, Michael Burdell, would be called to testify in favor of sparing Gardner's life.  Gardner has chosen to be executed by firing squad.  "Knowing Michael, as I did, he would not want Ronnie Lee to be executed," said Donna Nu, Burdell's former girlfriend at a court hearing recently. "Further, he would not want to be the reason Ronnie Lee is executed." Nu noted that Burdell, who was a pacifist, served in Vietnam but refused to carry a gun. Burdell's father and another friend would also testify for Gardner.  At the time of his death, Michael Burdell served as an attorney helping poor people at the courthouse. 

Books: "Condemned: Letters from Death Row"

Death Penalty Information Center

05-05-10 -- "Condemned" is a compilation of the correspondence between Irish author Sean O' Riain and an inmate on death row in the United States, known as "Ray" in the book. Riain became involved in writing letters to a death row inmate through the Comunita di Sant'Egidio, an organization in Rome that partners death row inmates with penfriends around the world. "Ray" is on death row for killing a man–-a crime he committed at a young age, and now freely admits and deeply regrets.  Among the many glimpses of life on death row explored in this book is "Ray"'s rehabilition. He writes, "I want to prove to the nay-sayer that I can be a productive citizen out in the world, I've grown up a lot since I came here and I'd like to make the ones I've disappointed throughout my lifetime proud of what I've become now." 

NORTH CAROLINA

North Carolina District Attorney Notes Decline in Death Sentences

Death Penalty Information Center

05-04-10 -- North Carolina's News & Observer recently reported on the declining use of the death penalty in the state. North Carolina has over 150 inmates on death row but has not had an execution since 2006. Last month, a jury opted for a sentence of life without parole for Samuel Cooper, who was convicted of five first-degree murders. Jim Woodall, president of the N.C. Conference of District Attorneys, said this decline points to a climate against trying capital cases. "If you can't get the death penalty in that case, gee, what case are you going to get the death penalty in? You have to have almost the perfect trial for it to be upheld."  The decline of the death penalty in North Carolina follows a nationwide trend and may reflect public reaction to wrongful convictions, racial disparities in sentencing, and geographical differences in seeking the death penalty, all of which have been a factor in the state.  Woodall, who is also the Orange-Chatham district attorney, said it is not clear that leaders still strongly support a death penalty in the state. "The will of the state is not clear," he said. 

American Board of Anesthesiologists Bars Participation in Executions

Death Penalty Information Center

05-03-10 -- The American Board of Anesthesiologists (ABA), representing 40,000 members, recently ruled that it will revoke the certification of any member who participates in an execution by lethal injection. Most hospitals require board certification for their anesthesiologists.  According to the board secretary Mark Rockoff, the decision reflects the ABA's belief that anesthesiologists are "healers, not executioners."  Some states have recruited doctors, including anesthesiologists, to play a role in lethal injections.  While not taking a stance on capital punishment itself, the Board decision asserted that the participation in executions by anesthesiologists is unethical. Rockoff also cited patients' existing wariness of medical procedures as another reason for the decision: "When any of us go into surgery, it's a frightening time. If lethal injections are medicalized, it could make it look like operating rooms are like death chambers, that anesthesiology drugs are death drugs and anesthesiologists are executioners. That would all undermine public confidence in the medical profession."  Read the text of the ABA statement here. 

April 2010

TEXAS

After 20 Years, Texas Court Throws Out Two Death Sentences

Death Penalty Information Center

04-30-10 -- After spending 20 years on death row, inmates Roy Gene Smith and David Lewis had their death sentences thrown out by the Texas Court of Criminal Appeals on April 28. The state's highest criminal court ruled that jurors who convicted Smith were erroneously kept from hearing testimony about his upbringing in a crime-ridden Houston neighborhood. The court also determined that Lewis should have been able to present evidence of his damaged eyesight and that he began using drugs and alcohol with his abusive mother at the age of 13.  The decisions were in keeping with rulings made by the U.S. Supreme Court since the defendants' trials regarding Texas's mishandling of death penalty cases.  Smith and Lewis may face re-trials in Harris County and Angelina County, respectively.

TEXAS

What’s More Compromising Than Money?

New York Times Editorial

04-27-10 -- The Supreme Court abdicated its responsibility to address fundamental questions of ethics and fairness when it declined to review the case of Charles Dean Hood, an inmate on death row in Texas. . . . The one-line order, issued without comment from any of the justices, left in place an egregiously tainted 1990 double-murder conviction. Eighteen years after Mr. Hood was sentenced to death, the state trial judge, Verla Sue Holland, and Tom O’Connell, then the Collin County district attorney, admitted that they had had a secret affair that appears to have ended not long before the trial. . . . After considering these seamy circumstances, the Texas Court of Criminal Appeals last year denied Mr. Hood’s request for a new trial, ruling — incredibly — that he took too long to raise the conflict of interest and should be executed. Yet it took a court-issued subpoena to get the two officials to confirm their long-rumored affair. Their success in hiding their relationship should not count against Mr. Hood.

CALIFORNIA

State's death penalty: a hollow promise?

‘The death penalty in California doesn’t really exist,’ one victim’s father says of a system that has been declared dysfunctional by a state commission

By John Wilkens, Union-Tribune Staff Writer

04-25-10 -- In the three decades since the death penalty was reinstated, 86 condemned inmates have died in California. . . . Thirteen were executions. . . . Death-row prisoners are far more likely to succumb to natural causes. That’s what claimed 50 of them. Suicide is more common, too. . . . There’s disagreement about whether it’s good or bad that so few have been executed. Death-penalty advocates say it’s “justice delayed, justice denied,” especially when victims’ relatives die before the killers. Opponents say delays leave time for evidence to be found to exonerate the innocent. . . . Still, almost no one disputes the conclusion of a state commission two years ago that capital punishment in California is “dysfunctional” — costly, inefficient, deadlocked.

CALIFORNIA

California Senate Committee Passes Bill to Adopt One-Drug Lethal Injection
Death Penalty Information Center

04-23-10 -- A bill that would change California's lethal injection procedure unanimously passed the Senate Public Safety Committee on April 20.  Senate Bill 1018, authored by Sen. Tom Harman, would require the California Department of Corrections and Rehabilitation to develop and implement a one-drug lethal injection process involving an appropriate anesthetic. California has had a de facto moratorium on executions since February 2006 when a federal judge held that the state's 3-drug lethal injection system constituted an "unconstitutional risk of cruel and unusual punishment."  California state courts have also ruled that changes to the execution method must go through a period of public notification and comment.  The state conducted public hearings and thousands of comments were submitted regarding a revised 3-drug protocol for executions.  That process is near completion, though court challenges are possible.

UTAH  

Utah's Frontier Justice: Death By Firing Squad

Gawker  

04-23-10 -- A death row inmate, when given the choice between execution by lethal injection or firing squad, wants the latter. He is one of four condemned prisoners in Utah who have asked for the option. State politicians fear a spectacle. . . . A judge today will decide if a warrant of execution will be signed for Ronnie Lee Gardner, who was convicted for a Wild West-style killing 25 years ago. Lawmakers, activists, and the family of the murder victim are against the idea, after the last firing squad execution in 1996 caused a media sensation. Utah is the only state to have used a firing squad since the Supreme Court reinstated capitol punishment in 1976.

FLORIDA  

Embattled Broward Judge Ana Gardiner resigns

Avoids proceedings launched by judicial watchdog agency

By Jon Burstein and Paula McMahon, Sun Sentinel

04-22-10 -- Embattled Broward Circuit Judge Ana Gardiner announced her resignation Thursday, avoiding going before a state judicial watchdog agency to answer accusations that she had an inappropriate relationship with a prosecutor. . . . Gardiner, the first Hispanic woman ever to sit as a Broward Circuit judge, had been accused of exchanging hundreds of phone calls and text messages with then-prosecutor Howard Scheinberg as she oversaw a death penalty case he was arguing before her. The state Judicial Qualifications Commission launched proceedings last month that could have led to the Florida Supreme Court stripping Gardiner of her judgeship. . . . She resigned in a three-sentence letter to Gov. Charlie Crist dated Wednesday, saying that her last day on the bench will be May 28. In a written statement released Thursday, she said she was leaving to take a job with the law firm of Cole, Scott & Kissane.

Death Row Inmates' Long Wait for Execution May Be Second Punishment
Death Penalty Information Center

04-22-10 -- The AFP recently examined the time an inmate spends on death row between sentencing and execution and questioned if inmates are being punished twice with long-term imprisonment and execution. They found an average inmate spends 13 years on death row, with some spending 30 years or more. Craig Haney, professor of psychology at the University of California, Santa Cruz and expert on prisoners held in isolation, said, "People on death row live under the threat of death, which is of course an extraordinary psychological trauma, and they are denied most of the ways that people make life in prison more tolerable: meaningful social activity, programming of any kind, activities." U.S. Supreme Court Justice John-Paul Stevens, in a case involving a prisoner who had spent 29 years on death row, wrote, "The delay itself subjects death row inmates to decades of especially severe dehumanizing conditions of confinement."

District Attorney and Murder Victim's Father Call Death Penalty an "Empty Promise"
Death Penalty Information Center

04-21-10 -- In California, families of murder victims Amber Dubois and Chelsea King agreed to a life sentence without parole for the girls' killer, John Albert Gardner. Brent King, Chelsea's father, said that agreeing with County District Attorney Bonnie Dumanis' decision not to seek the death penalty for his daugther's killer was "torturous," but so would have been a death penalty trial and the years of appeals that follow. Dumanis said there was enough evidence to convict Gardner for Chelsea's murder, but she agreed to a life sentence without parole in exchange for Gardner's confession because it was the only way to convict him of Amber's death and to find her body. In explaining this difficult decision, the district attorney called California's death penalty "a hollow promise."

Oklahoma City Bombing Victim's Father Says Executions are Not Part of the Healing Process
Death Penalty Information Center

04-20-10 -- Bud Welch, father of Julie Welch who was killed in the Oklahoma City Bombing, recently appeared on The Rachel Maddow Show, just a few days before the 15th anniversary of the bombing in Oklahoma.  Welch, who is the president of Murder Victims' Familes for Human Rights, has been a long-time opponent of the death penalty and has said that executions are more often "staged political events" instead of a part of the healing process for victims.  When asked how he came to oppose the death pealty for Timothy McVeigh, Welch told Maddow, "I reached that point probably about a year after the bombing - close to a year.  All my life, I had always opposed the death penalty.  I just thought it was something that society should not be doing.  And after Julie‘s death, I was so full of revenge and hate that I had to get retribution in some way.  So I was for the death penalty probably for the first year.  And after recognizing that killing Tim McVeigh was not part of my healing process, then I was able to move forward."   Watch the video here.  Read the full transcript of the interview here.

Editorial: Death Penalty "Neither Just Nor Moral"
Death Penalty Information Center

04-19-10 -- A recent editorial in the Salt Lake Tribune calls for Utahns and their elected leaders to consider abandoning the death penalty citing that "state-sponsored killing of a human being, no matter how heinous the crime, is permitted by a system that has been proven beyond doubt to be inherently capricious, unfair and shockingly fallible." The editorial also pointed to the declining use of the death penalty nationwide, with an all-time high of 328 death sentences in 1994 compared to 106 death sentences in 2009, a downward trend driven by the amount of inmates who have been freed from death row based on new evidence or recanted witness testimonies. The editorial concludes, "There simply is no denying that our system of capital punishment in the United States is unalterably broken. To continue to adhere to it is to tread beyond the bounds of what constitutes a humane, moral and just society."

OHIO

Studies: Ohio Releases Annual Capital Crimes Report

Death Penalty Information Center

04-15-10 -- The Ohio Attorney General's Office recently released its annual Capital Crimes Report, analyzing the state's death penalty cases and death row population. In 2009, there was only one death sentence handed down in Ohio, mirroring a nationwide trend of declining death sentences. This was the fewest death sentences in a year since Ohio reinstated the death penalty.  The report indicated that over half of the current death row population of 160 inmates are African-American (51%), while Caucasians make up roughly 44%. The average age of the death row inmates in Ohio is 45, and they have spent an average of 14 years on death row.  In recent history, the majority of removals from death row have been for reasons other than execution. While there have been 33 executions (now 36) since 1981, 52 inmates received life sentences after appeal and remand, another 11 had their sentences commuted to life by the governor, and 7 were sentenced to life after a mental retardation determination. Another 20 inmates died of natural causes while they were on death row.  View the full report here.

New Resources: Death Row USA, Fall 2009

Death Penalty Information Center

04-14-10 -- The NAACP Legal Defense and Educational Fund recently released its Fall 2009 edition of Death Row USA, a report detailing death row populations across the United States. According to the report, California, Florida and Texas continue to lead the nation in the number of death row inmates, with California (694) having a death row population almost twice as large as either Florida (395) or Texas (339). In addition, while Florida's and Texas' death row populations have declined in the last decade, California's population has grown steadily, from 551 inmates in 1999 to 694 in 2009.  California has not had an execution since 2006.  Overall, the country's death row population decreased since Death Row USA's report of July 1, 2009--from 3,279 to 3,263 as of Oct. 1.  View the full report here.

OHIO

DNA appeal hangs over Ohio execution

UPI.com     

04-14-10 -- Activist lawyers have gone to federal court to try to head off the impending execution of a death-row inmate in Ohio. . . . The state branch of the American Civil Liberties Union contends Darryl Durr of Cuyahoga County should not be put to death Tuesday because authorities have not allowed testing for DNA evidence on his 16-year-old victim's necklace, The Columbus Dispatch reported Wednesday. The lawyers' advocacy group is seeking a temporary restraining order in U.S. District Court until it is decided whether Durr has "a constitutional right to a mandatory appeal of his denial of DNA testing." . . . "Death is the most severe punishment society can give and deserves the highest level of scrutiny to ensure no innocent person is wrongly convicted," the Dispatch quoted state ACLU Legal Director James Hardiman as saying. "To deny those facing execution the same level of due process given to other inmates will only increase the likelihood of a grave injustice."

Anesthesia allergy could complicate Ohio execution

(AP) FOXNews

04-14-10 -- A condemned Ohio inmate who says he's allergic to anesthesia is undertaking what appears to be a unique legal maneuver, arguing that no one knows how his body will react if state officials are allowed next week to inject him with the one lethal drug they now use. . . . A doctor is studying what impact, if any, the allergy could have on the execution process after lawyers for Darryl Durr uncovered evidence of Durr's allergy in his 800-page prison medical record. Durr was sentenced to die for raping and strangling a 16-year-old girl in 1988. . . . "One of the things the Ohio Constitution guarantees is that he has a quick and painless execution," said defense attorney Kathleen McGarry. . . . "If he's going to react to the anesthetic drugs in such a manner that he's going to have a violent reaction, either vomiting or seizures or whatever the spectrum is that could happen, then obviously the execution has problems," she said. . . . McGarry said she doesn't know what drugs Durr is allergic to, or whether they include thiopental sodium, the anesthetic that Ohio uses to put inmates to death. The state last year became the first to switch to a single intravenous dose of anesthetic for executions instead of three drugs, a move followed by Washington state in March.

CALIFORNIA

As California Spends Hundreds of Millions on the Death Penalty, Los Angeles Can't Afford Homicide Investigations

Death Penalty Information Center

04-13-10 -- In California, a state that is spending $137 million per year on the death penalty, many homicide investigations have been put on hold due to a budget crisis in Los Angeles.  The Los Angeles Police Department (LAPD) is forcing officers to suspend work on their cases and take days or weeks off because of new overtime limits.  One of the LAPD's most productive investigators sat idle for 6 weeks, unable to follow old leads or to pick up on new ones because he had accumulated overtime on cases.  Homicide detectives have especially demanding work schedules that routinely require them to investigate a case through the nights and weekends. "The hours have to come from some place," LAPD Chief Charlie Beck said. "It has a serious impact on our ability to respond to some of the large, violent incidents we've been experiencing lately. That is especially true of homicide investigations because of the long hours they demand." In one region, Southeast L.A., 9 of the 14 killings this year remain unsolved. "That is horrible compared to our typical rates," said Det. Sal LaBarbera, a 24-year homicide veteran who supervises the Southeast squad. "All of those cases are solvable. None of them are mysteries. A few of them would likely already be solved, if I could just let my guys loose to work."

NORTH CAROLINA

Former Death Row Inmate Acquitted in One Court, Now Convicted in Another

Death Penalty Information Center

04-11-10 -- Master Sgt. Timothy Hennis was convicted in 1986 of murdering three people in North Carolina.  He was tried in state court.  However, his conviction was overturned because of weak evidence and improper statements by the prosecution.  He was re-tried, and the jury voted unanimously for his acquittal in 1989.  The evidence from the crime scene was perserved and, when DNA testing became available, a re-evaluation of the evidence pointed to the possibility that Hennis was indeed guilty of the murders.  Although the constitutional protection against double jeopardy prevented his being re-tried in North Carolina's court, military courts have separate jurisdiction and can try cases under military laws, allowing a  re-trial even after an acquittal in state court.  Hennis, who had left the service, was re-instated in the military and then recently tried for the third time for the murder of a woman and two children.  A military jury convicted Hennis of murder on April 8.  The prosecution is seeking the death penalty, and a sentencing hearing will begin soon.  Hennis was formerly included on DPIC's list of exonerated individuals.

NEW JERSEY

New Voices: Chief of Police Says Death Penalty Does Not Serve Victims

Death Penalty Information Center

04-07-10 -- James Abbott, Chief of Police of West Orange, New Jersey, recently spoke at an international forum regarding his experience as a member of the New Jersey Death Penalty Study Commission.  Chief Abbott, who was Governor Codey's Republican appointee to the Commission, said he did not anticipate changing his mind regarding capital punishment, but was greatly influenced by the stories of murder victims' famlies who testified during the commission's hearings.  "I had no idea how much families suffer facing years of death penalty appeals and reversals....For every person that had been sentenced to death, there was a family waiting for the promised punishment to be delivered.... The reality is that there is no closure in capital cases, just more attention to the murderer and less to the victim. Unfortunately, it’s easier for most of U.S. citizens to name notorious killers than it is their victims."  Abbott lamented the lack of support for murder victims' families: "I would want to know that the person who did it was behind bars for life, so they could never kill again, and that my family had the services they needed to heal and the financial support they needed to live without further sacrifice. Our Commission learned that those kinds of services were sorely lacking – and that they could be improved with the financial savings from ending the death penalty."  Read Chief Abbott's full presentation here.

CALIFORNIA

Studies: Death Sentences in California Show Arbitrariness of the System

Death Penalty Information Center

04-06-10 -- A new report released by the ACLU of Northern California reveals that only three counties–Los Angeles, Orange, and Riverside–accounted for 83% of the state's death sentences in 2009. Los Angeles County, with 13 death sentences, was the leading death penalty county in the entire country last year. According to the report, California, with the largest death row in the country, spends $137 million annually on the death penalty, while the state is cutting back on many vital services. The report also indicated an increase in the Latino population of California's death row in recent years; 50% of the death sentences in 2007 were for Latinos even though they comprised only 36% of the state's population. . . . The executive summary of the report concluded, "A shift to permanent imprisonment would mean significant savings in a time of fiscal crisis, would eliminate the risk of executing the innocent, and would lead to more consistent policies across all California counties. California is on track to spend $1 billion on the death penalty in the next five years, though even more funds are required to protect the innocent from wrongful conviction and to ensure timely review of lengthy death penalty cases. For all the money dedicated to the death penalty in California, only 1 out of 100 people sentenced to death has actually been executed during the last thirty years."  Click here for the full report.

PENNSYLVANIA

Editorials: "Dollars and Death"

Death Penalty Information Center

04-05-10 -- A recent editorial in the Philadelphia Inquirer cited the high costs of Pennsylvania's death penalty as a key reason for supporting an abolition bill that was proposed last month by a state senator. According to the editorial, the state could significantly cut spending by eliminating the death penalty and the lengthy court proceedings that accompany it.   Taxpayers would also save by not having to maintain the state's high-security death row, which currently houses 220 inmates.  According to the editorial, "Pennsylvania has reached the point where the right moral course - ending capital punishment - coincides more than ever with the need to get the state's fiscal house in order. The state has not had an execution since 1999 and has had six exonerations since the death penalty was reinstated in 1976.  The paper suggested that "A useful step toward scrapping the flawed capital punishment system would be to impose a moratoriuem on executions."

TEXAS

New Voices: Former Texas Governor Says Death Penalty Trial "Breached Every Standard of Fairness"

Death Penalty Information Center

04-02-10 -- Mark White, former governor of Texas and a death penalty supporter, recently wrote an op-ed in the National Law Journal calling for a new trial for Charles Hood, a Texas death row inmate whose trial was compromised by the fact that the prosecutor and the trial judge had been in an intimate relationship prior to the trial.  As former Gov. White explained, "The judge and the prosecutor at Hood's trial had a long-term secret affair prior to the trial and concealed the relationship for 20 years. This was a secret that the pair kept even when they knew Hood was on the brink of execution and was trying to verify the rumors of the relationship." The Texas Court of Criminal Appeals granted a new sentencing hearing for Hood on grounds of improper jury instructions, but refused to address the conflict of interest caused by the long-term, extra-marital affair. White writes, "The trial judge and the prosecuting attorney's affair breaches every standard of fairness that you would expect a defendant to receive during a capital case or, for that matter, a noncapital case. Hood could not have gotten a fair trial under these circumstances."  The former governor also voiced his concern about the fallibility of this system: "Hood's case shows, at the most basic level, that there are huge flaws in our procedures and human frailties in the people who administer them."

OKLAHOMA

Oklahoma Execution Stayed; Jurors Did Not Have Life Without Parole Option

Death Penalty Information Center

04-01-10 -- Governor Brad Henry of Oklahoma recently granted a stay to Richard Smith, who was scheduled for execution on April 8. The governor wanted to allow more time to review the recommendation of the Oklahoma Pardon and Parole Board that Smith's death sentence be commuted, and to meet with prosecution and defense attorneys to hear their perspectives.  Smith was convicted of a 1986 murder during a time when evidence of fundamental errors in the criminal justice system was not as apparent as it is now. A year after his conviction, Oklahoma's legislature passed a law adopting life without parole as a sentencing option. Three jurors from Smith's trial have sinced signed affidavits stating that if life without parole had been an option, they would have voted for it. Jurors have also signed affidavits recalling that they were "unimpressed" by the performance of Smith's defense lawyer at trial.  In 2005, a U.S. District Court stated that, by today's standards, the defense's failure to request a psychiatrist to assist him for the penalty phase was unreasonable.

March 2010

International Studies: Only 18 Countries Carried Out Executions in 2009
Death Penalty Information Center

03-31-10 -- Amnesty International recently released its annual global report on the death penalty, covering executions and death sentences worldwide in 2009. The report states that more than 700 people were executed in 18 countries in 2009, and at least 2,000 people were sentenced to death. One hundred and seventy-nine (179) countries had no executions last year.  Countries with the highest number of executions were Iran (with at least 388 executions), Iraq (with at least 120 executions), Saudi Arabia (with at least 69), and the United States (with 52). These figures, however, do not include China's executions, where information regarding the death penalty remains a secret. According to the report, China remained the global leader with more executions than the rest of the world combined.  The number of peple being executed around the world appears to be declining. For the first time, there were no reported executions in Europe and no executions in Afghanistan, Pakistan, Indonesia and Mongolia for the first time in many years.  The U.S. was the only country in the Americas to carry out an execution. Burundi and Togo abolished the death penalty in 2009.  The United Nations General Assembly has called for a moratorium on all executions.  Click here to view the full report.

NORTH CAROLINA

Mental Health Experts Say North Carolina Case Shows Need to Exempt Mentally Ill from Death Penalty

Death Penalty Information Center

03-30-10 -- In North Carolina, Kristin Parks of Disability Rights N.C. and John Tote of the Mental Health Association-N.C. pointed to the case of Abdullah El-Amin Shareef as illustrating the need for a law exempting the mentall ill from the death penalty.  A jury recently sentenced Shareef to life in prison without parole in a case where prosecutors had sought the death penalty. In April 2004, Shareef committed a senseless crime that killed one man and injured three others, primarily because his paranoid schizophrenia went untreated. At the time, Shareef was declared incompetent to stand trial.  A psychiatrist described Shareef's behavior on the day of the incident as "the result of an extreme condition of psychosis."  Recently, a judge said he could now be tried after years of medication and treatment.  The authors of the op-ed in the Charlotte-Observer noted, "A death penalty trial is a long and Sthe verdict is life. In the Shareef trial, much pain and many resources could have been saved had a law that has been proposed in the General Assembly been in effect."

NEW HAMPSHIRE

Death penalty hurts – not helps – families of murder victims"

Death Penalty Information Center

03-29-10 -- Kathleen Garcia, a victims' advocate and expert on traumatic grief, recently shared her opinions on the death penalty in New Hampshire, a state that is studying the issue through its Commission on Capital Punishment.  Garcia, a member of New Jersey's Death Penalty Study Commission, wrote, "Make no mistake – I am a conservative, a victims’ advocate and a death penalty supporter. But my real life experience has taught me that as long as the death penalty is on the books in any form, it will continue to harm survivors. For that reason alone, it must be ended." Garcia suffered through the murder of a family member in 1984, but has found the death penalty to be much more harmul than helpful: "It is my opinion, as well as the view of other long-standing victim advocates throughout New Jersey, that our capital punishment system harmed the survivors of murder victims. It may have been put in place to serve us, but in fact it was a colossal failure for the many families I serve."

UNITED STATES SUPREME COURT

High Court Justices Delay Execution,
May Examine DNA Testing Issue

Marcia Coyle, The National Law Journal

03-26-10 -- The Supreme Court's "11th hour" stay of execution issued Wednesday evening for a Texas death row inmate may give the justices another chance to revisit a key DNA testing question left unanswered last term. . . . The justices unanimously granted the delay one hour before Henry Skinner was scheduled to die for the 1993 murders of his girlfriend and her two adult sons. Skinner, who claims he is innocent, has sought DNA testing of bloody knives, material beneath the dead woman's fingernails, rape kit samples and other items found at the murder scene. The Court's order (pdf) will remain in effect until the justices act on Skinner's petition for certiorari. . . . Skinner's counsel, Robert Owen of the University of Texas School of Law, expressed relief in a statement Wednesday night, saying, "As a result of this action, the Court will have more time to determine whether to hear his appeal. This action suggests that the Court believes there are important issues that require closer examination. We remain hopeful that the Court will agree to hear Mr. Skinner's case and ultimately allow him the chance to prove his innocence through DNA testing."

FEDERAL COURTS

Prosecutors Suggest Victim Liaison in Death Penalty Case Could Be Tool for Trickery

Dan Levine, The Recorder

03-26-10 -- Federal prosecutors are urging Northern District of California Judge William Alsup to deny defense requests for taxpayer-funded victim outreach. . . . The debate comes in the midst of a sprawling death penalty prosecution against alleged members of MS-13, a violent Central American gang. Earlier this month court-appointed lawyers asked Alsup to OK money for a victim liaison, a person who contacts families of the slain to ask if they want to communicate with the defense team. . . . The government is leery of the possibilities, however. While the defense has the right to approach and interview witnesses, it can't do so under false pretenses, Assistant U.S. Attorneys Wilson Leung and Christine Wong wrote in a filing last week.

GEORGIA

Georgia High Court Allows Death Penalty Case to Proceed Despite Lack of Funding

Death Penalty Information Center

03-26-10 -- The Georgia Supreme Court ruled on March 25 that the capital prosecution of Jamie Ryan Weis could proceed despite the defendant's claims that a lack of state funding for capital defense has deprived him of effective representation and a speedy trial. Weis, who was arrested 4 years ago, was first appointed two defense lawyers with death penalty experience but the agency that funds defense lawyers in capital cases could not pay them. They were replaced by salaried public defenders who subsequently asked to withdraw, saying that they did not have the time, funds or qualifications to pursue a death penalty case. Weis argued that he should have had the first legal team and would not work with the second. In the two years since the representation has bogged down, Weis's mother, who was expected to testify on his behalf, passed away.  The majority opinion said that much of the delay in the case was due to the defendant's actions.  Justice Hugh Thompson, dissenting with two other justices, wrote that the Constitution requires that Weis receive a “vigorous defense,” and that Georgia “cannot shirk this responsibility because it is experiencing budgetary constraints.” He wrote further, “The State should not be allowed to fully arm its prosecutors while it hamstrings the defense and blames defendant for any resultant delay.”  Stephen Bright of the Southern Center for Human Rights, who is working on Weis's appeal, said the public defenders “are so overwhelmed they can’t possibly represent Jamie Weis.”

ALABAMA  

Judicial Override Allowed In Alabama, But Still Controversial

Wendy Halloran WHNT NEWS 19 Chief Investigative Reporter

03-25-10 -- Convicted cop killer Kenneth Shipp's life hangs in the balance even though the jury that convicted Shipp recommended he be sentenced to life in prison without the possibility of parole. The judge can exercise what's known as judicial override and sentence Shipp to death instead. A lot of people have been trying to convince the judge to impose the death penalty. And that has prompted WHNT News 19 to take a closer look at this unique law. . . . Alabama is one of only three states that has judicial override. Delaware and Florida are the other two. But it's the only state in the nation where there are no restrictions on the judge. Judicial override is the reason legal experts say we have the highest death sentencing rate per capita in the country. . . . The Fraternal Order of Police wants execution for Kenneth Shipp. . . . Bill Davis the President of the Alabama Fraternal Order of Police says, "We think the judge should set aside the jury's recommendation of life without parole, and sentence him to death." . . . So does Leslie Freeman, widow of slain police officer Eric Freeman.

TEXAS

Foreign Nationals: British National Faces Execution in Texas

Death Penalty Information Center

03-25-10 -- When citizens of other countries are arrested in the U.S., special notification procedures are required under the Vienna Convention on Consular Relations, a treaty that the U.S. has signed and ratified.  These same procedures apply to U.S. citizens arrested in other countries.  There are over 130 people on death row in the U.S. from other countries, and many of them were not afforded their notification rights under the Vienna Convention.  Linda Carty is a British national on Texas' death row from St. Kitts.  She could face execution if her request for a retrial is denied.  She currently has a petition before the U.S. Supreme Court claiming she received inadequate representation during her original trial and that the United Kingdom could have provided additional legal support if the proper procedures had been followed in her case. Carty's attorneys assert that Texas authorities neglected to inform the British Consulate that she held a UK dependent-territory passport. Carty has always maintained her innocence of the murder that placed her on death row.

UNITED STATES SUPREME COURT

Court Weighs Timing of Death Row Appeal

By Adam Liptak, New York Times 

03-24-10 -- As is his custom, Justice John Paul Stevens did not ask a question on Wednesday until the lawyer before him had almost finished his argument. When Justice Stevens did speak up, it was in a seeming effort to guide his colleagues on the Supreme Court toward what he considered to be the central argument advanced by the death row inmate in the case. . . . “Let me just ask,” Justice Stevens said, “is this the case in which the claim is he’s ineligible for the death penalty?” . . . Corey L. Maze, Alabama’s solicitor general, said that was so. . . . “The merits of the claim have never been decided?” Justice Stevens went on. . . . Mr. Maze said no, adding that the question should be left unresolved and that the inmate should be executed because his lawyers had raised the issue too late. . . . The other justices had been focused solely on that procedural question, and it was not clear whether Justice Stevens’s attempt to reorient their thinking had had any effect. . . . The inmate, Billy Joe Magwood, shot and killed an Alabama sheriff in 1979. At the time, Alabama law allowed defendants to be sentenced to death only if they had committed murders in connection with at least one of several listed “aggravating circumstances.”

LOUISIANA   

Death penalty lawyer admits stealing $200,000 from Capital Appeals Project

By Gwen Filosa, The Times-Picayune

03-24-10 -- The former director of a nonprofit death penalty appeals agency has admitted stealing more than $200,000 from the office he was hired to run in 2004, and awaits sentencing in April at Orleans Parish Criminal District Court. . . . Jelpi Picou, 49, resigned abruptly in November as state officials were headed to the New Orleans office to inspect the financial records he kept. At least $100,000 in state and other public funds were missing. . . . On Feb. 26, Picou pleaded guilty as charged to five counts of theft, having bilked $202,701 from the Capital Appeals Project between 2005 and 2009. He is hoping that Judge Robin Pittman will consider ordering restitution and probation. . . . "The state does not oppose probation," is handwritten on Picou's guilty plea form in his thin case file at court.

TEXAS  

U.S. Supreme Court delays Texas execution

By Allan Turner, Houston Chronicle

03-24-10 -- The U.S. Supreme Court on Wednesday halted the execution of Henry Skinner just one hour before he was to be put to death for the 1993 murders of his Pampa girlfriend and her two adult sons. . . . The stay will remain in effect until the high court rules on a second petition filed by Skinner's attorneys asking for a review of an appellate court decision denying a request for DNA testing of bloody knives, material beneath the dead woman's fingernails, rape kit samples and other items found at the murder scene. Skinner's request for testing was denied because it was filed as a civil rights claim. . . . Lead attorney Rob Owen of the University of Texas' Capital Punishment Center said in his petition for a writ of certioari that seven of the nation's nine federal circuit courts of appeal would have accepted a civil rights claim. Only two, including the Circuit Court of Appeals for the Fifth District, which turned Skinner down, would not. . . .  Skinner expressed surprise at the stay. . . . “I had made up my mind that I was going to die,” Skinner told prison officials upon learning of the stay. He said he was eager for DNA testing to take place to “prove my innocence so I can get the hell out of here.” / You can access the stay order at this link.

GEORGIA

Budget Cuts in Georgia Threaten Courts

Death Penalty Information Center

03-19-10 -- Georgia Supreme Court's chief justice recently warned that cuts to the state budget are making it increasingly difficult for its courts to carry out their constitutionally mandated duties. Carol Hunstein announced during a state of the judiciary address that the court's backlog has grown as money has dwindled. In 2009, the judicial branch received less than eight-tenths of 1% of the total state appropriations. Hunstein said, "The consequences of these cuts … hit everyone, threatening the basic constitutional rights of civil litigants and criminal defendants as core court functions go by the wayside. And, according to the Wall Street Journal article, while judiciaries are being squeezed nationwide, 'Georgia's situation appears particularly severe.'" Hunstein also indicated that one superior court judge has 16 death penalty cases still pending, partly because of the elimination of funding for senior judges. In Fulton County, there are currently 183 murder cases awaiting trial, half of which are more than a year old. Chief Judge Dee Downs said of the situation, "This isn't justice. We're losing the rule of law."

WASHINGTON

Editorial: "Death Row's Elimination Would Save State Money"

Death Penalty Information Center

03-18-10 -- A recent editorial in the Spokane (WA) Spokesman-Review called for elimination of the death penalty in light of its high costs and the state's tight budget. Executions are uncertain and delayed by the necessity of appeals to ensure the constitutionality of the trial. The editorial cited a study by the Washington Bar Association that identified over $600,000 in additional costs for a capital case: “death penalty cases are estimated to generate roughly $470,000 in additional costs to the prosecution and defense over the cost of trying the same case as an aggravated murder without the death penalty and costs of $47,000 to $70,000 for court personnel. On direct appeal, the cost of appellate defense averages $100,000 more in death penalty cases than in non-death penalty murder cases.” The editorial said changing the state's method of execution only sidestepped the problems and called for life imprisonment without the possibility parole as the best solution to the issues raised by the death penalty.

New Resources: Slide Presentation of Police Chiefs' Views on the Death Penalty

Death Penalty Information Center

03-17-10 -- The results of a poll of police chiefs recently featured in DPIC's report "Smart on Crime: Reconsidering the Death Penalty in a Time of Economic Crisis" is now available in the form of a slide presentation on the Web, suitable for use in workshops or discussion groups. The poll, commissioned by DPIC and conducted by R.T. Strategies of Washington, DC, surveyed a national sample of 500 randomly selected U.S. police chiefs on questions regarding the death penalty and reducing violent crime. Although the police chiefs did not oppose the death penalty philosophically, they found it to be an ineffective crime fighting tool.  Among those surveyed, only 1% of the chiefs listed greater use of the death penalty as the best way to reduce violence. The poll also showed police chiefs ranking the death penalty as the least efficient use of taxpayers' money among programs to fight crime.  Most of the police chiefs did not believe the death penalty acts as a deterrent to murder. . . . Access the slide presentation here; read DPIC's "Smart on Crime" report.

Law Reviews: Challenging the Constitutionality of the Federal Death Penalty

Death Penalty Information Center

03-16-10 -- A recent article in the Akron Law Review asks whether the Federal Death Penalty Act (FDPA) is in compliance with the Sixth Amendment's right to confront witnesses because it allows hearsay evidence in determining whether a defendant is eligible for the death penalty. During a typical criminal trial, the accused has the right to challenge and cross examine the testimony of state witnesses who must appear in person.  But in a death penalty case, the FDPA allows statements of witnesses not present in the courtroom to be used to determine whether the defendant's case fits one of the aggravating factors necessary for a death sentence.  The article's authors, Michael Pepson and John Sharifi, write: "[A]llowing the government to prove statutory aggravating factors … with testimonial hearsay, even where the defendant has never had an opportunity to cross-examine the declarant(s), is not constitutional."  The authors suggest two constitutional alternatives: doing away entirely with the FDPA or revising the law to include the aggravating-factor determination in the guilt phase of the trial, subject to the usual rules of evidence. This would allow federal capital defendants to confront witnesses regarding the critical question of whether they are eligible for a death sentence. 

GEORGIA

Representation: Underfunded Georgia Capital Case Still Waiting for Trial After Five Years

Death Penalty Information Center

03-15-10 -- Lawyers for Khanh Dinh Phan asked the Georgia Supreme Court to dismiss the charges against him or to bar the state from seeking the death penalty because the state has been unable to pay for Phan's defense. After his arrest in 2005, Chris Adams and Bruce Harvey were appointed to represent Phan. "The state of Georgia has made Mr. Harvey and myself potted plants," Adams recently said. "We are lawyers in name only. ... The state of Georgia has failed, and failed miserably, in this case."  The case has yet to go to trial, and the state public defender system has been unable to pay for attorney fees, expert witnesses, and for investigators. Gwinnett District Attorney Danny Porter agreed that there has been no money for the defense, and that the state defender system is "fatally flawed," but urged the judges not to dismiss the charges or strike the death penalty. Porter said, "We all agree that funding has not been provided, and I don't know if there's a realistic possibility funding will be provided."  The Georgia Supreme Court is expected to rule in a similar issue in which a Pike County death penalty defendant has waited four years to go to trial because there was no funding for his defense.

GENERAL

In Search of Volunteer Lawyers for Death Row Inmates

By Tony Mauro | The Blog of Legal Times | New York Lawyer

03-10-10 -- For several months last year Robin Maher, director of the American Bar Association Death Penalty Representation Project was feeling like the proverbial Maytag repairman. "I could not even get a return phone call," she said, from law firms she had called in search of volunteers to help the hundreds of death row inmates nationwide who are without counsel. "I think there was a lot of uncertainty about layoffs and other changes that made law firms reluctant to commit to new pro bono projects," Maher said in an interview. . . . Unfortunately, at the same time, the economic downturn has also made the need for pro bono lawyers greater than ever, she said. "Reductions in state and county budgets mean that defender offices with crushing workloads and inadequate funding are struggling more than ever to represent poor people facing death sentences." The project receives numerous letters from prisoners and public defenders every week, she said. Despite having recruited hundreds of private firm lawyers over the years, she added, "We do not have nearly enough to meet the tremendous need."

OHIO

Governor Postpones Execution of Inmate Found Unconscious in Death Row Cell

Death Penalty Information Center

03-10-10 -- On March 8, Ohio Governor Ted Strickland postponed the execution of Lawrence Reynolds, who was found unconscious in his death row cell hours before he was to be driven to the execution facility. Reynolds, who was sentenced to die for a murder in 1994, apparently took an overdose of pills despite being under a 72-hour watch that includes frequent monitoring by prison guards. He was found unconscious in his cell around 11:30 pm, and was rushed to a hospital in Youngstown, Ohio. Ohio State Penitentiary spokeswoman Julie Walburn confirmed that Reynolds was alone in his death row cell. The state has rescheduled his execution for March 16.  This is the second time the state has postponed Reynolds' lethal injection. He was scheduled for execution in October 2009, but Gov. Strickland delayed executions so the state could review its lethal injection procedure following the failed attempt to execute Romell Broom. Since then, Ohio became the first state to adopt a one-drug lethal injection protocol, a method that Reynolds has challenged.

TEXAS  

Texas Judge Rescinds His Own Order Over Constitutionality of Death Penalty

Mary Alice Robbins, Texas Lawyer

03-10-10 -- At a hearing Tuesday, Judge Kevin Fine of Houston's 177th District Court rescinded his March 4 order in which he granted defendant John E. Green's "motion to declare Article 37.071 of the Texas Code of Criminal Procedure unconstitutional," says Alan Curry, appellate division chief in the Harris County District Attorney's Office. Article 37.071 is the state's death penalty statute. . . . But neither Curry nor Robert K. Loper, a Houston criminal defense solo who is one of the lawyers representing Green, believe Fine has changed his interpretation of Article 37.071. . . . "Based on what he [Fine] said from the bench, I'm pretty sure he hasn't changed his mind," Curry says. And Loper says Fine "certainly did not change his mind."

Law Reviews: Condemned Defendants Should Comprehend Death

Death Penalty Information Center

03-09-10 -- A recent  article by Prof. Jeffrey Kirchmeier of the City University of New York School of Law entitled, "The Undiscovered Country: Execution Competency & Comprehending Death" explores whether mentally disabled inmates who do not understand that execution means the end of their physical life should be spared. Kirchmeier examines Supreme Court precedent under the Eighth Amendment that requires that a condemned defendant be competent in order to be executed. The article argues that the penological goals of the death penalty could not be fulfilled unless the condemned person comprehends what his death means. Kirchmeier writes, "Those who do not comprehend death are not as a category a group of people who will be deterred by the death penalty more than life in prison, and such persons will not be able to appreciate the moral condemnation designed to be delivered by the death penalty." The article also discusses a standard for comprehension of death consistent with earlier Court rulings. Click here to read the full article.

NORTH CAROLINA

Studies: High Percentage of Death Sentences in North Carolina Later Deemed Excessive

Death Penalty Information Center

03-08-10 -- Most of those originally condemned to death in North Carolina eventually received lesser sentences when their cases were concluded, according to Professor Frank Baumgartner, a researcher at the University of North Carolina.  Many of those sentenced to death received a new trial because their first trial was seriously flawed.  At their subsequent trials, the vast majority were sentenced to a punishment less than death, typically a life sentence. Only about 20% of the cases that were finally resolved resulted in an execution. Baumgartner used information from the state's Department of Corrections to examine what happened to those sentenced to death between 1977 through 2009.  He found that of the 388 people sentenced to death, 43 were executed. Of the remaining cases, 158 were still on death row, 5 had been cleared of their charges, 6 committed suicide, 19 died of natural causes, and 12 are in jail pending a new trial, but no longer on death row.  Of the defendants who received new trials, 130 were sentenced to life, 10 to a sentence less than life, and 5 were found not guilty. Another 5 received commutations to life without parole from the governor. 

TEXAS  

Houston Judge Declares Death Penalty Unconstitutional

Brenda Sapino Jeffreys, Texas Lawyer

03-08-10 -- On Thursday, 177th District Judge Kevin Fine of Houston declared the death penalty unconstitutional. Fine granted a motion filed by defense attorneys in a capital murder case seeking to have the court find that Texas Code of Criminal Procedure Article 37.071 "violates the protections afforded to the Accused by the 8th and 14th Amendments ... and that the option to sentence the Accused to die for a crime that he did not commit should be precluded as a sentencing option." . . . "What he's saying, and what the motion is saying, is that you can't administer the Texas death penalty fairly in Texas," says John P. Keirnan, a lawyer for the defendant. "Kevin Fine has taken a courageous stance, finally. This is the beginning of the end of the death penalty in Texas."

FLORIDA  

Loveseat to Hot Seat?: Prosecutor Faces Renewed Probe Over Cozyness With Judge in Death Case

By Jordana Mishory | Daily Business Review | New York Lawyer

03-05-10 -- The Florida Bar reopened a misconduct complaint against Plantation attorney Howard Scheinberg on Thursday after the state produced new records tying him to Broward Circuit Judge Ana Gardiner while he was prosecuting a murder suspect facing the death penalty. . . . The Bar found no probable cause, for lack of evidence, against Scheinberg last May but reopened the case a day after the state judicial ethics watchdog accused Gardiner of starting a “close personal relationship” with Scheinberg during the trial that resulted in a death sentence for Omar Loureiro.

WASHINGTON

Washington Becomes Second State to Adopt One-Drug Protocol

Death Penalty Information Center

03-03-10 -- On March 2, Washington became the second state to switch its lethal injection method from the three-drug cocktail used in almost all states to a one-drug protocol. Ohio was the first state to change to the single-drug protocol after the failed execution attempt involving Romell Broom. Broom was ultimately removed from the execution chamber when the correctional officers were unable to complete the execution.  In Washington, the one-drug protocol will be the presumed method, but the three-drug protocol remains an option for inmates who request it.  Washington Attorney General Rob McKenna, who filed the new policy with the state Supreme Court, also asked the court to dismiss portions of death-row inmate Darold Stenson's appeal challenging the constitutionality of the state's lethal injection procedure. The state supported the constitutionality of its three-drug protocol but made the switch because "the one drug protocol is simpler… to administer, and it no longer embroils the department in the legal challenges to the three-drug protocol," according to Dick Morgan, prisons director for the state Department of Corrections.

TENNESSEE

Battered Woman on Tennessee Death Row at Critical Juncture

Death Penalty Information Center

03-02-10 -- Gaile Owens is currently on death row in Tennessee and awaiting a decision from the Tennessee Supreme Court on a request to reduce her sentence to life. Owens's attorneys have asked the state's high court to remove the death penalty because her case presents unique circumstances that warrant the rare move.  Owens may face execution soon for soliciting the 1985 murder of her husband, Ronald Owens, a man she said repeatedly abused her. Sidney Porterfield, whom she hired to kill her husband, is also currently on death row. Owens accepted an offer from the prosecutor to plead guilty in exchange for a life sentence, but the prosecutor backed out of the agreement when Porterfield would not accept the same plea. Owens and Porterfield were tried and sentenced to death together, after a judge refused to try their cases separately. Owens is the only inmate on death row who agreed to a plea bargain for a life sentence.

KANSAS

Appeals keep executions a long way off

By Scott Rothschild, Lawrence Journal-World

03-01-10 -- Kansas legislators recently completed an exhaustive review of the death penalty that resulted in a 20-20 vote in the Senate that left capital punishment on the books. . . . But an actual execution in Kansas of someone on Death Row won’t happen for years, if ever. . . . “It’s impossible to determine” when an execution will be carried out, said Rebecca Woodman, who is an attorney with the Capital Appellate Defender Office for the State Board of Indigents’ Defense Services. “It could be years. It could be never,” she said. . . . Kansas reinstated the death penalty in 1994. Since then, 12 men have been sentenced to death. Of those, one sentence was removed at the request of the district attorney, two have had their sentences vacated by the Kansas Supreme Court and others remain in the early stages of appeals. . . . The appeals process in death penalty cases is greater than any other. . . . A death sentence triggers a mandatory review by the Kansas Supreme Court. After that there are other avenues of review, and then there are appeals before the federal judiciary, all the way to the U.S. Supreme Court.

February 2010

NEW JERSEY  

Accused NJ lawyer won't face death penalty

The Associated Press, phillyBurbs.com

02-28-10 -- Federal prosecutors won't seek the death penalty for a New Jersey defense attorney accused of arranging the murder of one witness and trying to set up the murder of another. . . . The decision in the case against Paul Bergrin, a former federal prosecutor, was made by U.S. Attorney General Eric Holder. Bergrin remains in the Metropolitan Detention Center in Brooklyn to await trial. . . . "Obviously, he's relieved," Lawrence Lustberg, one of Bergrin's attorneys, told the Asbury Park Press of Neptune. "He still recognizes that while the death penalty is off the table, his life is on the line. If he is convicted of a number of these allegations, he could spend the rest of his life in prison."

INTERNTIONAL

4th World Congress on the Death Penalty Meets In Geneva

Death Penalty Information Center

02-26-10 -- Over 1,000 human rights activists from over 100 countries gathered in Geneva, Switzerland, for the 4th World Congress Against the Death Penalty. Many participants hope to achieve a moratorium on the imposition and execution of the death penalty around the world. At present, 56 states and territories still have the death penalty, including China, Iran, Saudi Arabia, North Korea and the United States.  In 2007, the UN General Assembly adopted a resolution calling for a moratorium on the death penalty. In recent years, the number of  countries that have repealed capital punishment has been accelerating. The World Congress issued a resolution on February 26, calling for a series of steps toward ending the death penalty: "We call, from the host city of international organizations and a symbol of peace . . .[for] the universal abolition of capital punishment."

TEXAS

Texas Death Sentence Overturned, But Conflicts of Interest Remain

Death Penalty Information Center

02-25-10 -- On February 24, the Texas Court of Criminal Appeals overturned the death sentence of Charles Dean Hood because the jury was improperly instructed about potentially mitigating evidence at his trial. Hood's case more recently made national news when a prior extramarital affair between the trial judge and the prosecutor was revealed. In 2008, even after the judge and the prosecutor admitted to their intimate relationship, the Court of Criminal Appeals concluded that Hood should be executed anyway.  Hood's attorneys have recently petitioned the U.S. Supreme Court to review the conflict of interest in this case. Twenty-one former judges and prosecutors and 30 legal ethics experts have filed amicus briefs stating that the relationship between the judge and the prosecutor severely undermined the integrity of the proceedings. The Court has yet to act on the request, which could result in a new trial on guilt, as well as on sentencing, as now required by the Court of Criminal Appeals for other reasons.

New Voices: Head of Rutherford Institute Cautions Against Expansion of Death Penalty

Death Penalty Information Center

02-24-10 -- John Whitehead, president of the conservative Rutherford Institute, recently voiced concerns in the Huffington Post about expanding the death penalty in Virginia. He noted, "As capital punishment studies have shown, whether or not you are sentenced to death often has little to do with the crime committed and everything to do with your race, where you live, and who prosecutes your case."  Whitehead cited several reasons for not expanding the death penalty, including the risk of executing the innocent, the opening to prosecutorial overreach, the lack of a deterrent effect from the death penalty and its high costs. He cited Death Penalty Information Center data that showed the murder rate in states without the death penalty was nearly 40% lower than in states with the death penalty. The expansion bill was defeated in a Virginia Senate committee

TEXAS  

Appeals Court Reverses Death Sentence, Doesn’t Mention Judge-Prosecutor Affair

By Martha Neil, ABA Journal

02-24-10 -- The Texas Court of Criminal Appeals has reversed the death sentence for a convicted double murderer who was nearly executed in 2008 before the state ran of out time to perform the lethal injection. . . . But in determining that Charles Dean Hood should be resentenced, the court makes no mention of a now-admitted affair between the judge and the prosecutor in his case that created a legal ethics ruckus when it became known years later, according to the Associated Press. . . . The court finds, in a split decision today, that mitigating evidence not presented to jurors requires that Hood be resentenced, according to the Dallas Morning News. That evidence includes allegations that Hood was abused as a child.

TEXAS

Supreme Court Reinstates Texas Death Verdict

Death Penalty Information Center

02-23-10 -- On February 22, the U.S. Supreme Court agreed to hear, and then summarily reversed, a federal appeals court decision that would have given a Texas defendant a new trial based on improper jury selection. The U.S. Court of Appeals for the Fifth Circuit had ruled that Anthony Haynes should be retried or released because a prospective juror was improperly excluded based on the juror's race. Two different judges had presided over the jury selection; one actually observed the juror's demeanor during questioning, and the second listened to the prosecution's explanation for excluding this juror.  The Fifth Circuit said that the second judge's decision was not entitled to special deference because he had not observed the actual juror.  But the U.S. Supreme Court, in a per curiam decision, held that the lower court had misinterpreted its prior rulings, and deference should have been accorded to the judge's decision.  The high court's ruling did not exclude a review of  the juror's exclusion under the proper standard. 

KANSAS

Kansas Senators Equally Divided on Repealing Death Penalty

Death Penalty Information Center

02-22-10 -- A bill that would have ended the death penalty in Kansas lost by a tie vote of 20-20 in the state Senate on February 19. The bill would have replaced the death penalty with a sentence of life without parole.  Republican Senator Carolyn McGinn, the original sponsor of the legislation, argued for repeal, pointing to the high cost of the death penalty: "It costs half a million dollars, or 70 percent more, to try a death penalty case than a non-death penalty case and yet the state hasn’t executed anyone since 1965. We’re not executing anybody. Can we use this money to prevent future heinous, horrible crimes? Can we use it to solve cold cases that are up on the shelf for those families who don’t even know who murdered their family member?" Sen. McGinn also based her opposition to the death penalty on her respect-for-life position: Those who have committed even heinous murders are still children of God, she said. "Tell me, at what point in time did they lose that status and who made that decision," she asked.  Twelve of the 20 senators who voted for repeal were Republicans.

Death Penalty to be Put on Trial in London

Death Penalty Information Center

02-19-10 -- Amicus, an organization based in the United Kingdom that assists in the legal representation of those awaiting capital trials in the United States, will be hosting a mock trial at the Emmanuel Centre (pictured) in Westminster, London on Tuesday, March 2, beginning at 6:30 PM.  The question is whether the death penalty in the U.S. perverts the course of justice.  The trial will be presided over by Lord Woolf, Geoffrey Robertson, QC, and Sir Louis Blom-Cooper, QC, and will feature prominent death penalty experts including Prof. Paul Cassell (former federal prosecutor and former law clerk to Justice Antonin Scalia), Prof. Robert Blecker (NY Law School) and Kent Scheidegger (Criminal Justice Legal Fdn.) defending the death penalty, and Prof. Julian Killingley (Birmingham City Univ.), Rev. Cathy Harrington (Murder Victims' Families for Reconciliation), and Nick Trenticosta (Center for Equal Justice) prosecuting the death penalty.  The program hopes to raise awareness of issues surrounding the application of the death penalty in the United States.  Click here for more details about his event.

TEXAS  

Both Sides Object to Special Master's Findings in Judge Sharon Keller Case

Judge charged with failure to follow procedures related to last-minute appeal of 2007 execution

Mary Alice Robbins, Texas Lawyer

02-19-10 -- Prosecutors for the Texas State Commission on Judicial Conduct argue in objections filed Wednesday that Texas Court of Criminal Appeals Presiding Judge Sharon Keller's "willful and/or persistent conduct" in the case of Michael Richard authorizes the commission to sanction her. . . . Keller's conduct on the day the state executed Richard was "clearly inconsistent with the proper performance of her duties" and "cast public discredit on the judiciary and/or on the administration of justice," Seana Willing, the commission's executive director, and John J. "Mike" McKetta III, special counsel for the commission's formal proceedings against Keller, write in their objections. They were responding to the findings of fact (pdf) that 37th District Judge David Berchelmann Jr. of San Antonio, special master in In Re: Honorable Sharon Keller, submitted to the judicial conduct commission on Jan. 20.

TEXAS  

Prominent attorneys seek Supreme Court review of Hood death penalty case

Diane Jennings/Reporter,  Dallas Morning News (blog)

02-18-10 -- A former governor, a former district attorney, a former U.S. attorney from North Texas, and the former director of the FBI are among a group of 21 lawyers who have petitioned the U.S. Supreme Court to hear a controversial Texas death penalty case. . . . The group, which was organized by the Constitution Project, is asking the court to hear the case of Charles Dean Hood, who was sentenced to death for killing two people in Collin County in 1989. Hood's case has garnered national attention not for the horrific crime, but because the prosecutor in the case had an intimate relationship with the judge.

GEORGIA  

U.S. Supreme Court orders new look into 1993 rape-murder trial

Juror regrets racy candy that fed killer's appeal

By Bill Torpy and Bill Rankin, The Atlanta Journal-Constitution

02-17-10 -- The U.S. Supreme Court had two options: Let killer Marcus Wellons’ execution go forward or try to get to the bottom of a bizarre episode in American jurisprudence. . . . In 1993, after a wrenching two-week trial, a Cobb County jury voted to sentence Wellons to death for raping and strangling a 15-year-old girl on her way to school. But after returning their verdict, jurors also did the unimaginable, the high court was told in Wellons’ final appeal of his conviction: They gave the judge a gag gift: erotic candy. . . . In a 5-4 decision, the U.S. Supreme Court last month ordered the federal appeals court in Atlanta to decide if Wellons had received a fair trial in light of the “unusual events going on behind the scenes.” . . . Capital trials “must be conducted with dignity and respect,” the court’s majority said. “The disturbing facts of this case raise serious questions concerning the conduct of the trial.” . . . Among those questions: Who would send a judge — a woman to boot — a chocolate penis after a disturbing rape/murder trial? And was it evidence of an unseemly — and illegal — relationship between the judge and jury, enough to warrant a new trial for a convicted killer?

Books: Messages of Life from Death Row

Death Penalty Information Center

02-17-10 -- Messages of Life from Death Row features correspondence from Texas death row inmate Roger McGowen to sociologist and writer Pierre Pradervand.  McGowen’s letters describe his life on death row and point to flaws in the American criminal justice system, especially the arbitrary nature of the death penalty.  The publisher, BookSurge, said the book offers a "unique juxtaposition of carefully selected texts next to the heartfelt and memorable letters written by McGowen ... giv[ing] readers a historical, ethical and pragmatic overview of American criminal justice as well as an inside view of death row in Texas."  Sister Helen Prejean, author of Dead Man Walking, said, “This book of letters by a Texas death row inmate, who for over twenty years has been claiming his innocence, has a powerful message of unconditional love, dignity and forgiveness. It has already touched and transformed thousands via its French and Dutch versions. I cannot too warmly recommend it.”

KANSAS

OP-EDS: "Kansas pretends its capital punishment system is working"

Death Penalty Information Center

02-16-10 -- Mike Hendricks, columnist for the Kansas City Star, recently described how the state goes through the motions of having a death penalty, but with no immediate prospect of its use after 16 years.  Kansas reinstated the death penalty in 1994; eight years ago, the Lansing Correctional Facility held an open house for the media, showcasing its new death chamber. The room was then sealed and has remained untouched. Ten prisoners await execution, one of whom has been on death row for thirteen years.  “No one that I’m aware of is even close,” said Kansas Department of Corrections spokesman Bill Miskell.  Hendricks wrote: "Wouldn't sentencing the worst killers to life without chance of parole be a whole lot cheaper, simpler and - given the cold-blooded nature of state executions - more morally acceptable?"  A bill to abolish the death penalty is currently before the legislature.  Read full text: Read more

SOUTH DAKOTA

Death Penalty Repeal Bill Considered in South Dakota

Death Penalty Information Center

02-15-10 -- A bill that would repeal the death penalty in South Dakota was scheduled for a hearing in the House State Affairs Committee on February 10. The bill, HB 1245, would mandate life imprisonment without parole for people convicted of Class A felonies. South Dakota has only executed one person in the last 50 years, and currently has 3 people on death row. The bill is sponsored by Rep. Gerald Lange (D-Madison), and strongly supported by the Association of Christian Churches of South Dakota. Gene Miller, Executive Director of the Association, said, "We don't have to go that far back in our history to find, for example, segregation laws. That made that legal, but it was never moral. Our position on this would probably be similar to that: You can make it legal, but that doesn't necessarily make it right."  (South Dakota is one of several states considering legislative action regarding the death penalty this year. See DPIC's Recent Legislative Activity page.)

David Dow's "The Autobiography of an Execution"

Death Penalty Information Center

02-12-10 -- A new book by David Dow, The Autobiography of an Execution, captures the author's personal and legal experiences in representing over 100 inmates on death row. The book is a personal memoir of Dow’s encounter with the death penalty system, as he represents defendants and witnesses their executions. Publisher’s Weekly called the book “sobering, gripping and candid."  Dahlia Lithwick of Slate said it is "a powerful collage of the life of a death penalty lawyer," in a NY Times book review (Feb. 14, 2010). . . . Dow, a former death penalty supporter, is a professor of law at the University of Houston Law Center and an internationally recognized defense attorney. He is the founder and director of the Texas Innocence Network.

PENNSYLVANIA

Editorials: Pennsylvania "Could Save by Ending Death Penalty"

Death Penalty Information Center

02-10-10 -- A recent editorial in Pennsylvania’s Patriot-News recommended doing away with the death penalty as a way to address the state budget crisis. "Problems are entrenched in the system and given its high cost, Pennsylvania should definitely put the idea of doing away with the death penalty on the table," the paper wrote.  Among the reasons cited was the fact that the death penalty in Pennsylvania is essentially a very expensive form of life without parole: "In Pennsylvania, with the exception of the three prisoners who were executed, death row already means life without parole. . . . the majority of death penalty cases in our state that move through the appeals process end up as life sentences or less."  The editorial also noted the risk of executing the innocent: "Of course, there is a competing reason, or really a sounding alarm, that also is causing more states to take a hard look at their death penalty. At least 139 death row inmates have been released after their innocence was established, including 6 in Pennsylvania.  This should shake our confidence."

KANSAS

Death Penalty Abolition Bill Nearing a Vote in Kansas

Death Penalty Information Center

02-10-10 -- The Senate Judiciary Committee in Kansas recently advanced (7-4) legislation that would eliminate capital punishment in the state and replace it with a sentence of life without parole. Kansas enacted its current death penalty law in 1994, but has not executed anyone for more than 40 years. There are currently ten men on the state’s death row, though none are close to execution.  The abolition legislation, which was originally introduced by Republican Sen. Carolyn McGinn to address the high costs of capital punishment, would only apply to future cases.   Senator Tim Owens, chair of the Judiciary Committee, spoke of the bill's importance, "This is truly life and death that we're talking about.  We need to have a vote."  On January 29th, the 149th anniversary of Kansas joining the union as a free state, Senator David Haley (Kansas City-D) remarked in support of abolition, “I'm reminded of what Kansas is, and what we stand for. We have values in this chamber, and as a state, that I hope we live up to."  The bill will be voted on by the full Senate soon.

SOUTH CAROLINA

After 28 Years, Judge Spares Life of Inmate With Mental Disabilities

Death Penalty Information Center

02-09-10 -- Edward Lee Elmore, South Carolina’s longest-serving death row inmate, was spared from execution when a state circuit court ruled he suffered from mental retardation.  The sentence reversal came almost 28 years after Elmore was sent to death row in 1982 for a sexual assault and murder, and 8 years after the U.S. Supreme Court held in Atkins v. Virginia that the execution of the mentally retarded is a cruel and unusual punishment, and therefore violates the Eighth Amendment. The decision left defining “mentally retarded” to individual states. Elmore failed and repeated first grade twice, failed and completed second grade once, and did not finish third grade until he was 12. He then withdrew from fifth grade when he was 15. In 1971, at age 12, Elmore's IQ tested at 72 and 58 on separate tests.

Past President of Prestigious American Law Institute Says Death Penalty "Unworkable"

Death Penalty Information Center

02-08-10 -- Michael Traynor, President Emeritus of the prestigious American Law Institute (ALI), called the ALI’s recent withdrawal of its model death penalty law “a striking repudiation from the very organization that provided the blueprint for death penalty laws in this country.” He noted that the ALI had carefully reviewed the death penalty process, and that "Now, after searching analysis by our country's top legal minds, the institute has concluded that the system it created does not work and cannot be fixed."  The ALI, with membership of more than 4,000 lawyers, judges and law professors, is the leading independent organization in the United States producing scholarly work to clarify and improve the law. Its model penal code became the prototype for death penalty laws across the United States after the old state laws were struck down by the Supreme Court in 1972. Last fall, Traynor noted, the ALI withdrew its support for the model death penalty law, effectively concluding that “we cannot devise a death penalty system that will ensure fairness in process or outcome, or even that innocent people will not be executed.”

PENNSYLVANIA  

Mumia Abu-Jamal’s Case Stuck in Legal Limbo

By Dave Lindorff, The Public Record

02-08-10 -- The recent decision by the US Supreme Court to send convicted police killer Mumia Abu-Jamal’s case back down to the Third Circuit Court of Appeals in Philadelphia, with instructions for a three-judge panel there to reconsider its decision to uphold the lifting of the prominent African-American journalist’s death penalty, is only the latest in a long string of examples of how courts at all levels have made special exceptions to precedent in order to try and kill this particular prisoner. . . . .The high court found on January 19, that Frank Spisak, a self-described Nazi and killer of three in Ohio, had been properly sentenced, because at the time the Ohio Supreme Court affirmed his death penalty on appeal, “settled law” was that the jury instructions given to his jury had been proper. And under the terms of the 1995 Effective Death Penalty Act, federal courts, including the Supreme Court, have to defer to the judgements of state courts unless those courts’ decisions are deemed “unreasonable.”

TEXAS

Texas Inmate Facing Execution Denied DNA Testing

Death Penalty Information Center

02-05-10 -- Henry Skinner is scheduled for execution in Texas on February 24 despite the lack of DNA testing of critical evidence from the crime scene that could lead to his exoneration.  Skinner has always maintained his innocence of the 1993 murder of his girlfriend and her two grown sons in Tampa, Texas.  At his trial, the prosecution presented the results of selective DNA testing on some of the crime evidence that tended to prove Skinner's presence at the scene, which was his place of residence, a fact he has never disputed.  But the state has repeatedly refused his request to test other evidence, including material found on the victim, that could point to another suspect.  In addition, an investigation by journalism students from Northwestern University in 1999 and 2000 revealed that a key witness from the trial had recanted her testimony linking Skinner to the crime.  Texas has already executed a number of individuals who may have been innocent, leaving a cloud of doubt on the fairness of the criminal justice system.  By conducting relatively routine DNA tests before his execution, the doubts surrounding Skinner's case could be resolved one way or the other.

NEW JERSEY

Medical Society of New Jersey Urges AMA to Oppose Death Penalty

Death Penalty Information Center

02-04-10 -- The Medical Society of New Jersey recently approved a resolution calling upon the American Medical Association (AMA) to advocate for the "abolition of capital punishment by each jurisdiction in the United States of America ... and replace it with life in prison without the possibility of parole." Among the stated rationales for the resolution, the society noted that "Numerous reports document pernicious and recurring errors and other fallibilities associated with the judicial process of capital punishment as currently imposed that include flawed testimony provided by medical scientists." The Society also pointed to the fact that New Jersey had recently abolished the death penalty.  Currently, the American Medical Association Code of Medical Ethics states: "A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution."  The New Jersey delegation is scheduled to speak for the resolution at the AMA's annual meeting in June 2010.

TEXAS

Prosecutors in Texas Cite High Costs and Uncertainty as Reasons for Less Use of Death Penalty

Death Penalty Information Center

02-03-10 -- More prosecutors in Texas are opting not to seek the death penalty, according to Randall County District Attorney James Farren, a trend that has been evident over the last decade and will likely continue.  Many prosecutors weigh the uncertainty in securing a death sentence against the high litigation costs as reasons for opting for other alternative sentences even when the death penalty is available.  "The facts of the case are a tremendous factor in the decision on whether to pursue a death penalty or not," said District Attorney Randall Sims of the 47th judicial district.  "You need to have a dead-bang cinch guilt-innocence case and one that you'll prove very easily the person on trial is the person who did it." . . . Farren points to the case of Levi King as the "quintessential example" of why district attorneys do not seek the death penalty in some cases. District Attorney Lynn Switzer of the 31st judicial district opted to pursue a death sentence against King, who was accused of killing three people in 2005. Even though he pleaded guilty to the crimes, the jury did not impose the death penalty. Switzer's office spent over $750,000 to bring King to trial, about 10% of the county's annual budget. The cost of the trial was a reason why county commissioners were forced to raise taxes and withhold employee raises last year.

January 2010

Parade Magazine: The Cost of Capital Punishment

Death Penalty Information Center

01-29-10 -- A recent article in Parade magazine looked at the cost of the death penalty, especially in light of the budgetary crises confronting most states in today's economy. New Mexico and New Jersey recently abolished the death penalty, and costs played a significant role in their decisions. New Mexico State Rep. Gail Chasey (D., Albuquerque) noted, “We can put that money toward enhancing law enforcement, public works, you name it." In New Jersey a commission found that using the alternative sentence of life without parole would save the state $1.3 million per inmate in incarceration costs alone because a death row facility requires more personnel to operate. Finally, a recent study in North Carolina found that the state could save at least $11 million a year by repealing the death penalty. . . . In 2009, 52 prisoners (out of the total 3,279 on death row across the country) were executed. “People tend to think, ‘Oh, you get the death penalty, then there’s an execution,’” said Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C. “But more often than not, the death penalty turns out to be a very expensive form of life imprisonment."  Read full text below. Read more

Books: "Capital Punishment On Trial"

Death Penalty Information Center

01-28-10 -- A new book by David Oshinsky entitled "Capital Punishment on Trial: Furman v. Georgia and the Death Penalty in Modern America" takes a closer look at the groundbreaking Supreme Court case that stopped the death penalty in 1972. The author, a Pulitzer Prize-winning historian who is the holder of the Jack S. Blanton Chair at the University of Texas and a visiting professor at New York University, discusses the debates and controversy surrounding the case of Furman v. Georgia, including a focus on the issues of racial prejudice and arbitrariness. Austin Sarat called the book "A meticulously researched and elegantly written account by a masterful storyteller.... Filled with striking insights."  The book will be published by University Press of Kansas on April 14, 2010.

NORTH CAROLINA

Declining Use of Death Penalty in North Carolina Challenges Wisdom of Retaining Costly Practice

Death Penalty Information Center

01-27-10 -- In an opinion piece in the News & Observer, Professor Frank Baumgartner of the University of North Carolina-Chapel Hill, recently wrote that the declining use and high costs of the death penalty in the state put into question the wisdom of retaining the punishment in North Carolina. Baumgartner noted that while murder rates in the state have remained relatively unchanged, the number of capital punishment trials and death sentences have declined sharply. Prosecutors formerly sought the death penalty in 10%-12% of all murders but now seek it in less than 2% of the cases. Juries have likewise moved away from imposing death sentences. In 1996, 57% of all death penalty trials ended with the death penalty, a stark difference from the 8% in 2008. . . . Baumgartner cited a recent report by Duke University economist Philip Cook that estimated a statewide savings of $11 million annually if North Carolina abolished the death penalty. Baumgartner wrote, "Considering that prosecutors have been requesting death less and less, and that juries have been even more sparing in their willingness to impose it, Cook's estimate takes on additional meaning. If we can save that much money by making such a small change from current practices, why not?"  Read full text below. Read more

New Voices: Conservative Leaders Call for End to Death Penalty

Death Penalty Information Center

01-26-10 -- Roy Brown, state senator and 2008 Republican nominee for governor of Montana, said that opposition to capital punishment aligns well with his conservative ideology. He is reaching out to social and fiscal conservatives, hoping to create a bipartisan movement against capital punishment. Brown noted, "I believe that life is precious from the womb to a natural death." He continued, "Criminals should be prosecuted. I want it to be life without parole. In the long run, that's much cheaper."  Richard Viguerie, a fundraiser and activist considered by some to be the father of the modern conservative movement, recently wrote an article for Sojourners magazine noting that flaws in the criminal justice system show the risk that an innocent person has been put to death. He said, "[D]eath row inmates have been exonerated by DNA evidence, raising the prospect that prosecutors and juries made mistakes in cases without scientific evidence and in cases that predate the science."

INDIANA

New Voices: Indiana Prosecutors Seeking Death Penalty Less

Death Penalty Information Center

01-25-10 -- Higher costs, the exoneration of innocent death row inmates and jurors’ expectation of DNA proof are all being cited as reasons for prosecutors deciding not to seek the death penalty in Indiana.  Recently, a high profile death penalty case cost the state $800,000 before it dropped the death penalty in exchange for a guilty plea and life-without-parole sentence. "It's the taxpayer dollars, stupid, when it comes to the death penalty," said Indiana defense attorney Bob Hammerle.  "We've got a governor who says we don't have enough money to pay for higher education. What sense does it make to spend millions of dollars trying to execute someone when it's cheaper to keep someone in jail for the rest of their life?"  Adding to the decline in the use of the death penalty, Steve Johnson, Executive Director of the Indiana Prosecuting Attorney’s Council, pointed to jurors’ reluctance to hand down death sentences. "I think there's a greater hesitancy to pursue it and file it by prosecutors," said Johnson. "I think among our group we talk about the CSI effect and if we don't have the DNA--if we don't have the physical evidence--I think juries tend to think that given the higher standard of proof that may apply anyway, that maybe this isn't the strongest case of the death penalty."  See video below. Read more

PENNSYLVANIA  

Death row inmates stay indefinitely

No one has been executed in Pennsylvania since 1999

By Torsten Ove, Pittsburgh Post-Gazette

01-25-10 -- Richard Baumhammers and Ronald Taylor have a lot in common. . . . Both are racially motivated mass killers who slaughtered innocents within a month of each other a decade ago, Mr. Baumhammers targeting minorities and Mr. Taylor targeting whites. . . . Both are on death row. . . . And neither is likely to be executed for many years, if ever. . . . Gov. Ed Rendell signed a death warrant for Mr. Baumhammers, 44, last week, but he admitted the execution isn't likely to happen on March 18, the scheduled date for lethal injection. . . . That's because the state has what the governor calls a "de facto" moratorium on executions.

Supreme Court Upholds Death Sentence Despite Unexplored Evidence of Mental Retardation

Death Penalty Information Center

01-22-10 -- On January 20, the U.S. Supreme Court affirmed the death sentence for Holly Wood for the 1993 shooting of his former girlfriend in Alabama, despite the fact that the attorney working on the penalty phase of the case failed to investigate or tell the jury about Wood's borderline mental retardation. A federal District Court had overturned his death sentence because of the inadequate performance of the inexperienced lawyer, although other lawyers working on the case had seen a report on Wood's mental status and did not use it. There was ample other evidence indicating Wood had an IQ of less than 70 and had been classified as mentally retarded that was not pursued by any of the attorneys.  The Supreme Court opinion, written by Justice Sonia Sotomayor, agreed with the U.S. Court of Appeals for the Eleventh Circuit that Wood failed to show that the lawyers were constitutionally ineffective. The Court stated, "[T]he state court’s conclusion that Wood’s counsel made a strategic decision not to pursue or present evidence of his mental deficiencies was not an unreasonable determination of the facts."  Justice John Paul Stevens, in a dissenting opinion joined by Justice Anthony Kennedy, noted, "There is a world of difference between a decision not to introduce evidence at the guilt phase of a trial and a failure to investigate mitigating evidence that might be admissible at the penalty phase… the only reasonable factual conclusion I can draw from this record is that counsel’s decision to do so was the result of inattention and neglect."

Supreme Court Underscores the Need for "Dignity and Respect" in Capital Cases--Reverses Judgment

Death Penalty Information Center

01-21-10 -- On January 19, the U.S. Supreme Court granted certiorari and reversed the U.S. Court of Appeals for the Eleventh Circuit in Wellons v. Hall, ordering the lower court to re-examine the appeal of Marcus Wellons, who received the death penalty for a 1989 rape and murder in Georgia. The Court's per curiam opinion described "unusual events going on behind the scenes" at Wellons' trial, including contacts outside the courtroom between the jury and the judge, and the fact that some jury members gave the trial judge and bailiff provocative gifts. The Supreme Court rejected the 11th Circuit's opinion that Wellons's claims of misconduct were merely speculation.  The Court's opinion stated, "From beginning to end, judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect. The disturbing facts of this case raise serious questions concerning the conduct of the trial, and this petition raises a serious question about whether the Court of Appeals carefully reviewed those facts before addressing petitioner’s constitutional claims." (emphasis added).

FLORIDA

After Almost 30 Years, Florida Supreme Court Overturns Death Sentence in Case "Rife with Misconduct"

Death Penalty Information Center

01-20-10 -- On January 14, and almost 30 years after the crime, the Florida Supreme Court criticized the state for "lawless conduct" and vacated the death sentence of Paul Beasley Johnson because "the record here is so rife with evidence of previously undisclosed prosecutorial misconduct that we have no choice but to grant relief."  Because of popular sentiment and the notoriety of the crime, Governor Charlie Crist signed a death warrant for Johnson in 2009 even though Johnson's legal issues were still pending on appeal.  The Florida Court said that the governor's action put them in a difficult position. Johnson was found guilty of the murder of a Polk County sheriff's deputy and two others in January of 1981. The state induced Johnson to make incriminating statements to a jailhouse informant, then used the testimony at his trial, even though they knew it was inadmissible. Former assistant state attorney Hardy Pickard, who was the original prosecutor in Johnson's case, was aware that the informant was acting on behalf of the sheriff's investigator despite the claim that the informant acted on his own. Even though the informant's testimony was initially suppressed, Pickard used false testimony and misleading argument to allow the informant to testify.  Commenting on the state's behavior, the Florida Court wrote, "It must be emphasized that in our American legal system there is no room for such misconduct, no matter how disturbing a crime may be or how unsympathetic a defendant is. Lawlessness by a defendant never justifies lawless conduct at trial."

Defense attorney's death penalty book a compelling read for opponents and supporters

Diane Jennings/Reporter   

01-19-10 -- I've never met David Dow, a University of Houston law professor who serves as litigation director for the Texas Defender Service. But I've known him as a voice on the phone for more than a decade, listening to him talk passionately about the death penalty in Texas. . . . In February everyone will have a chance to know him through his intensely personal memoir, The Autobiography of an Execution. . . . Dow has written books about capital punishment before but his previous efforts were clinical. The Autobiography of an Execution, published by Twelve Books to be in bookstores next month, is startlingly revealing, offering insight how the legal system works, and into the personal toll it takes to represent the worst of the worst. . . . For instance, Dow writes about missing Halloween with his young son one year because an execution was delayed. How do you tell your son he missed going to the haunted house in his Thomas the Tank costume because you were trying to stop a lethal injection?

TEXAS

Editorials: A Decade of Progress on Death Penalty Justice

Death Penalty Information Center

01-18-10 -- A recent editorial in the Dallas Morning News recalled that the paper had reversed its position in support of  the death penalty in April 2007.  Since then, the editorial noted, Texas has accounted for an even larger percentage of the country's executions, but also that there are signs the use of the death penalty is declining even in Texas.  The paper highlighted the 55 exonerations from death row in this decade as a 25% increase from last decade, and the sharp decline in the number of death sentences compared to ten years ago.  "These are all signs that courts, prosecutors, politicians and the public are recognizing the problems in our imperfect system of justice," the editorial states. "This newspaper feels more strongly than ever that those flaws are sufficiently widespread that the justice system cannot be trusted to impose irreversible sentences of death."  Read the full editorial: Read more

CALIFORNIA

The Next Phase in California's Lethal Injection Protocol Review

Death Penalty Information Center

01-15-10 -- California recently released its revised lethal injection guidelines, following a June public hearing on the protocol.  The 25-page document indicates small revisions, outlining such items as to when the curtains remain open in the execution chamber to definitions of the term “chaplain” and “lethal injection room.”  Natasha Minsker, the Death Penalty Policy Director of the ACLU of Northern California called the revisions superficial.  Minsker added, "In the current state of the state, we are still wasting money tinkering with the death penalty system."  Minsker suggested that by turning death sentences to life in prison without parole, the state could save $1 billion over five years.  Terry Thorton, a California Department of Corrections and Rehabilitation spokesperson, explained that the public review process of the protocol still has several more steps before actually being adopted. "If during the next comment period it requires more changes, we have to put it out again," she said.  The public has until January 20, 2010 to comment on the changes, and the state has until May 1, 2010, to complete its public review process. For links to the revisions and full text of the protocol, see below. Read more

FLORIDA  

Court vacates Polk killer's death sentences due to prosecutor's misconduct

By Colleen Jenkins, Tampabay.com Staff Writer

01-15-10 -- Citing a prosecutor's misconduct, the Florida Supreme Court took the unusual step Thursday of vacating the death sentences of a triple murderer whose death warrant Gov. Charlie Crist signed last year. . . . Two separate juries found Paul Beasley Johnson guilty of gunning down a Polk County sheriff's deputy and two other people during a drug-fueled crime rampage in January 1981. . . . But in a harshly worded opinion, the court's 4-1 majority ordered a new penalty phase, finding that "the record here is so rife with evidence of previously undisclosed prosecutorial misconduct that we have no choice but to grant relief." . . . Justices ruled that the state induced Johnson to make incriminating statements to a jailhouse informant in violation of his right to counsel, then used that testimony at his trial despite knowing it was inadmissible.

New Resources: Bureau of Justice Statistics Releases Capital Punishment, 2008

Death Penalty Information Center

01-14-10 -- The Bureau of Justice Statistics released the 2008 version of its annual report on the death penalty in the U.S. in December 2009.  Information drawn from the report includes: / The number of people on death row declined from 3,215 in 2007 to 3,207 in 2008. / 50% of those on death row had not graduated from high school; only 9% had any college education. / 91% of those on death row had no prior homicide conviction. / 13.2% of those on death row at the end of 2008 were Hispanic. / 22% of those on death row were married. / 1,122 of those on death row were under the age of 25 at the time of their arrest. / The average time between sentencing and execution for all those executed in 2008 was 11.75 years. 

GENERAL

U.S. Supreme Court: Smith v. Spisak

Death Penalty Information Center

01-13-10 -- On January 12, the U.S. Supreme Court reversed the U.S. Court of Appeals for the Sixth Circuit in Smith v. Spisak. After Frank Spisak was sentenced to death in Ohio and his initial appeals were denied, he filed a habeas corpus petition claiming that: 1) the jury instructions and verdict forms used at his trial unconstitutionally required the jury to be unanimous in choosing any mitigating factors; and 2) his attorney's closing argument was so inadequate as to deprive him of effective assistance of counsel.  The Sixth Circuit had granted him relief.  In reversing this decision, the Supreme Court held that there was no "reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  Justice John Paul Stevens, who concurred in the outcome of the case, nevertheless wrote separately, criticizing the "catastrophe of [defense] counsel's failed strategy." He added, "Indeed, the argument was so outrageous that it would have rightly subjected a prosecutor to charges of misconduct."  Justice Stevens, however, agreed that the defendant would probably still have been sentenced to death.

LOUISIANA

Death Penalty Use in Louisiana Has Sharply Declined

Death Penalty Information Center

01-12-10 -- Louisiana has seen a steep decline in executions compared to previous decades, with only three executions in the last ten years. This is in stark contrast to the eight men who were electrocuted within the span of 11 weeks in 1987, and it follows a nationwide trend of declining executions and imposition of death sentences. The state's most recent execution was on January 7, the first since since 2002. The execution occurred only because the defendant, Gerard Bordelon, waived appeals that may have taken many more years to complete.  Although there are concerns in the state over the time between sentencing and execution, many cases are reversed because they were not conducted properly in the first place.  About half of the state's cases considered by federal judges since 2000 have been sent back to the state court for new trials.  First Assistant District Attorney Cynthia Killingsworth of Calcasieu Parish said that her office has sought fewer capital charges over years, partially because of the burden it can put on victims' families when a case is reversed and needs to be retried.

OHIO  

Execution for Nazi-loving Cleveland murderer can move forward, despite his lawyer's 'outrageous' representation

By Stephen Koff, Cleveland Plain Dealer

01-12-10 -- U.S. Supreme Court justices made clear Tuesday that they unanimously agree with the collective judgment of the Cleveland community: Frank Spisak, the Hitler-loving triple murderer who terrorized Cleveland State University, was one demented guy -- one whose attempted legal defenses have finally failed. . . . The high court overruled appellate judges who had saved Spisak, a former cross-dresser who fashioned himself as a modern-day Nazi, from death for his 1982 killing spree. The Cuyahoga County prosecutor's office says it will soon ask Ohio to impose the capital sentence that has been delayed by appeals ever since a Cleveland jury recommended it in 1983.

Editorials: "Death Penalty System 'Irretrievably Broken'"

Death Penalty Information Center

01-11-10 -- A recent editorial in the Charlotte Observer in North Carolina cited the American Law Institute's decision in 2009 to separate itself from the death penalty system as another reason for the state to abolish the practice. The ALI, whose model death penalty standards were instrumental in the U.S. Supreme Court's decision to allow the reinstatement of capital punishment in 1976, has recently disavowed its own recommendations because the many problems of the system had rendered it unworkable.  The editorial also cited a recently published study by Duke University Professor Philip Cook that concluded North Carolina could save $11 million annually over the costs of life imprisonment if it abolished the death penalty. In concluding that the time had come to end the death penalty, the paper stated, "We now know more about human fallibility and the justice system's ability to charge, try and convict the wrong person while allowing the real criminal to go free. The number of inmates convicted of murder but later exonerated increases every year, revealing capital punishment as a system incapable of being administered in accord with the U.S. Constitution." Read full editorial below.  Read more

NEVADA

Appeals court bars death penalty for Las Vegas killer

By Cy Ryan, The Las Vegas Sun

01-05-10 -- In a 2-1 decision, a federal appeals court has ruled that Las Vegas killer James Harrison cannot receive the death penalty as punishment for his fatal 2002 stabbing of a Las Vegas driving instructor. . . . Harrison was convicted of first-degree murder in the death of Daniel Miller, 58, who owned American Driver Education in Las Vegas at the time of his death. . . . Harrison stabbed Miller 128 times and carved a swastika into his back. The prosecution sought the death penalty but the jury could not reach a decision on the penalty. . . . Defense lawyers asked District Judge Valerie Adair to question the jury to determine if the members had decided whether aggravating factors outweighed the mitigating material. . . . To merit the death penalty the aggravators must outweigh the mitigators. . . . Adair refused to allow the questions and declared a mistrial.

You can access the ruling at this link.