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August 2010

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.

TEXAS

US Supreme Court upholds Texas death convictions

By Michael Graczyk, Associated Press Writer, Houston Chronicle

06-28-10 -- The U.S. Supreme Court on Monday upheld death sentences for two Texas inmates, including a man accused of leading a gang responsible for several murders, and refused to reconsider the case of a British grandmother condemned for killing a woman and kidnapping her newborn son. . . . Dexter Darnell Johnson, 22, was convicted of the June 2006 shooting deaths of a young couple during a carjacking. Investigators said the Houston man was the ringleader of a group responsible for dozens of robberies and at least four homicides. . . . The justices also upheld the conviction of Max Soffar, 54, for a shooting rampage at a bowling alley that killed three people in 1980. . . . The court also refused to rehear its rejection of an appeal from Linda Carty, a 51-year-old British grandmother convicted of murdering her neighbor and taking the victim's 4-day-old son in 2001. Carty maintains her innocence, but prosecutors said she was desperate to have child after a miscarriage. The infant was found unharmed. . . . Carty is among 10 women on death row in Texas, the nation's busiest death penalty state. Thirteen lethal injections have been carried out this year and two more are scheduled for this week.

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."

GEORGIA

Troy Davis heads back to court in Savannah

Federal judge to find whether evidence 'clearly establishes' Davis' innocence

By Jan Skutch, Savannah Morning News 

06-23-10 -- Troy Anthony Davis today returns to a Savannah courtroom to try to disprove his 1991 murder conviction. . . . U.S. District Judge William T. Moore Jr. will take testimony - without opening statements - to determine whether Davis' defense team can "clearly establish" his innocence in the Aug. 19, 1989, slaying of off-duty Savannah police officer Mark Allen MacPhail. . . . Attorneys for Davis, 41, contend the state and federal appellate reviews have focused on "technicalities" while depriving him of a hearing on evidence not available at the first trial that would have led to a different verdict. . . . Attorneys with the state attorney general's office contend the evidence simply rehashes that already dismissed by earlier court reviews.

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). /

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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."

FLORIDA

Fla. justices reverse death sentence, order life

The Associated Press, MiamiHerald.com 

05-20-10 -- The state Supreme Court has overturned the death sentence of a crack-bingeing killer who beat his girlfriend to death with a baseball bat in the Florida Panhandle. . . . The justices, in a 5-2 opinion Thursday, ordered a life sentence for Kirk Douglas Williams for the 2006 murder of Susan Littrell Dykes in Walton County.

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.

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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.

GEORGIA

Troy Davis hearing set for June 30

Federal judge directs both sides to provide witness lists, evidence by June 11

By Jan Skutch, Savannah Morning News

04-28-10 -- A June 30 hearing was scheduled Tuesday for convicted murderer Troy Anthony Davis to present his innocence claims in the 1989 slaying of off-duty Savannah police officer Mark Allen MacPhail. . . . Chief U.S. District Judge William T. Moore Jr. also ordered attorneys for Davis and the state to file their lists of all witnesses, affidavits and other evidence by June 11. . . . Davis, 40, remains on death row at the Georgia Diagnostic and Classification Prison at Jackson for his 1991 conviction and death sentence in the MacPhail case. . . . The U.S. Supreme Court in August sent the case to federal court with instructions for the court to take testimony and determine whether evidence not available at the original trial "clearly establishes (Davis') innocence."

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.

TEXAS  

Judge declares death penalty unconstitutional

© 2010 The Associated Press, Houston Chronicle 

03-04-10 -- A state district judge in Houston has granted a pretrial motion declaring the death penalty unconstitutional, a decision that the Texas attorney general called "an act of unabashed judicial activism." . . . The motion was one of many submitted by defense attorneys Bob Loper and Casey Keirnan arguing Texas' death penalty is unconstitutional for their client, John Edward Green Jr., the Houston Chronicle reported Thursday. . . . State District Judge Kevin Fine said in his ruling that it is safe to assume innocent people have been executed. . . . "Are you willing to have your brother, your father, your mother be the sacrificial lamb, to be the innocent person executed so that we can have a death penalty so that we can execute those who are deserving of the death penalty?" he said. "I don't think society's mindset is that way now."

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.

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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.”

FLORIDA  

Did Broward judge let emotions outweigh justice?

Lebow loses sight of big picture by tossing murder charge after evidence mix-up

Michael Mayo Sun-Sentinel News Columnist 

02-08-10 -- After reading the transcript of last week's courtroom folly that led to a first-degree murder case getting tossed by Broward Circuit Judge Susan Lebow, two things seem clear: . . . There were some heated exchanges between Lebow and homicide prosecutor Gregg Rossman. . . . Lebow lost sight of the bigger picture when she refused to grant a one-day delay because of a snag with evidence in the case. Whatever her frustrations with Rossman for his refusals to give an opening statement or call a witness, and whatever scheduling issues she had, throwing out the case seemed an abuse of her discretion. . . . "It's not like this was a robbery," juror Mary Beth Albritton said Monday. "This was a death-penalty murder case. I don't understand why we couldn't have waited one more day. If it meant having to come in an extra day, or coming back this week, I would have gladly done it." . . . Even though defendant Jason Stone remains behind bars, possibly for life for violating probation in a previous case, there was no justice for victim Sheila Nieves' family. Nieves was killed and her boyfriend was wounded in 2007, in what prosecutors say was a marijuana deal gone bad. . . . "The judge was totally unreasonable," said Lydia Rodriguez, Nieves' aunt. "We've been waiting three years for justice for my niece's death, and this is the way she gets treated?" . . . How did Lebow let an ancillary clash — whether procedural or personal — override a murder case that already had a mistrial last year? It's hard to know Lebow's thinking because she can't discuss cases outside court. . . . The State Attorney's Office has appealed Lebow's ruling.

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.”

CALIFORNIA  

Federal judge breathes new life into 30-year-old death penalty case from San Jose

By Howard Mintz, mercurynews.com 

02-07-10 -- Few of the nearly 700 inmates on California's death row have awaited execution longer than Santa Clara County's Marvin Pete Walker Jr. . . . But as he approaches three decades inside San Quentin, Walker's long journey through the legal system has just taken one more turn that could breathe new life into his effort to overturn his death sentence and certainly prolong his legal battle. . . . Last week, a federal judge ordered new hearings into Walker's case, concluding that he has raised enough doubt about the effectiveness of the lawyer who defended him in his 1980 trial that there must be a thorough inquiry into whether his murder conviction and death sentence were tainted. . . . Although state prosecutors insist Walker received a fair trial, Oakland-based U.S. District Judge Saundra Brown Armstrong's 17-page ruling could send the case back to square one if she concludes the defense lawyer's performance fell below constitutional standards.

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

UTAH

House committee passes bill that would limit death-row appeals

By Pamela Manson, The Salt Lake Tribune

01-27-10 -- A proposed change in state law designed to reduce appeals in criminal cases, especially those filed by death-row inmates, got a favorable recommendation Wednesday by the House Law Enforcement and Criminal Justice Committee. . . . The 10-0 vote moves the measure to the full House. . . . House Bill 19 tweaks the Post-Conviction Remedies Act, which limits the claims that defendants can raise after they have been convicted and lost an initial appeal. . . . The bill would allow a state court judge to dismiss a petition for post-conviction relief on a procedural basis, such as missing a filing deadline, without assessing the merits of the appeal. Both the act and the bill's proposed change allow an exemption for defendants claiming their lawyers provided ineffective assistance.

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."

UNITED STATES SUPREME COURT

High court ruling in Mumia case

By Michael Hinkelman, Philadelphia Daily News

01-20-10 -- The U.S. Supreme Court yesterday tossed out a 2008 ruling by the U.S. Third Circuit Court of Appeals that death-row inmate Mumia Abu-Jamal deserved a new sentencing hearing. . . . Abu-Jamal, 55, has been on Pennsylvania's death row since his 1982 conviction in the killing of Philadelphia Police Officer Daniel Faulkner on Dec. 9, 1981. . . . The high court said in a one-paragraph order that they were sending the case back to the appeals court "for further consideration" in light of a ruling last week in an Ohio death-penalty case. . . . That case - which involved convicted murderer and neo-Nazi Frank Spisak - raised similar sentencing issues that were cited by the appeals court in the Abu-Jamal case in 2008.

ALABAMA  

Court upholds death sentence for Ala. man

The Associated Press, Atlanta Journal Constitution  

01-20-10 -- The Supreme Court on Wednesday upheld the death sentence of a mentally impaired Alabama man who killed his former lover. . . . The court, in a 7-2 vote, refused to overturn the death sentence of Holly Wood, who was convicted in the shooting death of his former girlfriend, Ruby Lois Gosha, in 1993. She was killed by a shotgun blast to her head as she slept in her home in Troy, Ala. . . . A federal judge had tossed out the death sentence on the basis of the poor performance of Wood's lawyer in the sentencing phase of his trial. The lawyer, described in court papers as lacking criminal law experience, failed to tell jurors that Wood had an IQ of less than 70 and had been classified as mentally retarded.

ARKANSAS  

Judge overturns death penalty of man in Jonesboro

By Keith Inman, Pine Bluff Commercial 

01-20-10 -- A Craighead County Circuit Court judge has overturned the death penalty of a man convicted of killing his ex-girlfriend in Jonesboro and sentenced him to life in prison. . . . Judge David Burnett ruled that Robert Robbins' request for post-conviction relief was without merit but indicated is own misgivings about the sentence. . . . Robbins, now 30, was 18 when he received the death sentence. . . . "However, the court is persuaded that the interest of justice would warrant a reduction of the death sentence to a sentence of life without the possibility of parole due to the age of the defendant and the lack of mitigation in the sentencing phase of the trial," Burnett wrote in his order. . . . Burnett said there was no doubt that Robbins was guilty of the murder.

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?

NEVADA  

Federal judge grants stay of execution of Nevada inmate who also was spared in 2005

Ken Ritter Associated Press Writer, Los Angeles Times  

01-18-10 -- The upcoming execution of a condemned Nevada inmate has been stayed for a second time while he appeals to a federal court to overturn state rulings in his case. . . . Robert Lee McConnell, 37, had been scheduled to die Feb. 1 after pleading guilty in Washoe County District Court to the 2002 murder of Brian Pierce, 25, his ex-girlfriend's fiance. . . . McConnell's appeal was expected after he was moved recently from the state's maximum-security prison in Ely to death row at the Nevada State Prison in Carson City, state corrections chief Howard Skolnik said Monday. . . . McConnell came within 34 minutes of being executed in 2005 after declaring he was ready to die then filing an appeal that won him an immediate stay.

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

Common distrust of judiciary should end death penalty

Opinion of Pastor Roger Ray, News-Leader.com

01-13-10 -- Can conservatives and liberals agree on anything? The track record in recent history is pretty bleak but there may be a way to move the conversation onto some mutually agreeable territory. Imagine a meeting hall filled with equal parts of conservatives and liberals and the speaker simply asks the gathered assembly, "Do you trust the government?" The rafters might shake from the unison shout of "No way!" . . . Conservatives don't trust the government to run health care and liberals don't trust the government to run warrantless wiretaps or grant military contracts. But neither conservatives nor liberals trust the judiciary. I'm not quite ready to sign on with the cynic who says that it is 99 percent of lawyers who give the rest of them a bad name but I am willing to assert that our judicial system favors the wealthy and, I believe, it shows outrageous deference to other members of the legal community. The "good ol' boy" system in the courthouse has never been more alive and well. . . . Liberals and conservatives should be able to come to easy agreement on the fact that you cannot rely on the judicial system to render a fair and balanced decision in 100 percent of their cases. When it comes to making the decision to send a convicted murderer to his or her death, is anything less than near 100 percent accuracy acceptable? If one in 10 of the executed were innocent, is that acceptable to our society? Do you really believe that our court system is right more than 90 percent of the time?

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 bet