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Death Penalty 2008 Reports

March 2010

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."

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 between sentencing and execution, many cases are reversed because they were not conducted properly in the first place.  About half of the state's cases considered by federal judges since 2000 have been sent back to the state court for new trials.  First Assistant District Attorney Cynthia Killingsworth of Calcasieu Parish said that her office has sought fewer capital charges over years, partially because of the burden it can put on victims' families when a case is reversed and needs to be retried.

OHIO  

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

By Stephen Koff, Cleveland Plain Dealer

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

Editorials: "Death Penalty System 'Irretrievably Broken'"

Death Penalty Information Center

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

CALIFORNIA

California proposes new lethal injection procedures

The changes mark a first step toward resuming executions after a four-year moratorium. A federal judge had deemed the previous three-drug method unconstitutional.

By Carol J. Williams, The Los Angeles Times

01-06-10 -- State corrections officials Tuesday proposed new lethal injection procedures, a first step toward resuming executions in California after a four-year halt. . . . The proposals involve only minor changes to the three-drug method used on 11 of the 13 men put to death in the state since capital punishment was reinstated in 1976. . . . But the revisions appear to address the concerns of a federal judge who deemed the previous lethal injection practices unconstitutional for their risk of inflicting cruel and unusual punishment. . . . The California Department of Corrections and Rehabilitation issued the proposed changes in a 25-page draft and announced a 15-day period for public comment. Once any additional revisions are made and the new protocols adopted, the execution procedures must pass judicial review for their conformance with state law and the U.S. Constitution. . . . California has the nation's largest death row, with 697 inmates sentenced to die. The last execution was in January 2006, when convicted killer Clarence Allen was put to death by lethal injection at San Quentin State Prison.

NEVADA

Appeals court bars death penalty for Las Vegas killer

By Cy Ryan, The Las Vegas Sun

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

You can access the ruling at this link.

December 2009

TENNESSEE

Arbitrariness: Different Outcomes in Similar Murder Cases in Tennessee

Death Penalty Information Center

12-31-09 -- Gaile Owens (pictured) and Mary Winkler are two women who committed similar crimes under similar circumstances in Tennessee. Both women suffered from abuse from the spouses they killed, and both were examined by the same psychologist, twenty years apart.  The psychologist said both women suffered from battered woman's syndrome. Mary Winkler confronted her husband with a shotgun and shot him in the back in 2006. Gaile Owens hired a stranger to kill her husband.  Winkler was indicted for first-degree murder, convicted of voluntary manslaughter and served about two months in a mental health facility. She is now free and has custody of her children. Owens is on death row, awaiting execution by lethal injection. . . . According to an article by John Seigenthaler in the Tennessean, "The dramatic difference in the sentences received by Winkler and Owens relates directly to the manner in which the two cases were tried, how their separate teams of lawyers handled their cases and how two different judges dealt with their 'battered woman' defenses."  Winkler testified on her own behalf regarding the abuse she suffered, while Owens did not take the stand in order to protect her children from hearing the details of her abuse. Winkler was represented by experienced criminal lawyers, whose expenses were paid by her friends. Owens, on the other hand, had trouble finding legal representation. Her first lawyer withdrew from the case because she could not pay him. Perhaps the starkest difference between the two cases were the women's pleas.

Studies: Researchers Find

"No Empirical Support" for Deterrence Theory

12-31-09 -- Researchers from the University of Texas at Dallas recently published a study on whether executions deter homicides using state panel date and employing well-known econometric procedures for panel analysis. The authors found "no empirical support for the argument that the existence or application of the death penalty deters prospective offenders from committing homicide."  The study was published in the journal of Criminology and Public Policy and authored by Tomislav V. Kovandzic, Lynne M. Vieraitis and Denise Paquette Boots, all professors of criminology.  The study concluded, "In sum, our finding of no deterrent effect of the DP (death penalty) on homicide suggests the risk of execution does not enhance the level of deterrence. Therefore, we conclude that although policy makers and the public may continue to support the use of the death penalty based on retribution, religious grounds, or other justifications, defending its use based on deterrence is inconsistent with our findings. At a minimum, policy makers should refrain from justifying its use by claiming that it is a deterrent to homicide and explore less costly, more effective ways of addressing crime."

NORTH CAROLINA

Studies: Death Penalty Costs
North Carolina Nearly $11 Million a Year

Death Penalty Information Center

12-30-09 -- A recent study published by a Duke University economist revealed North Carolina could save $11 million annually if it dropped the death penalty. Philip J. Cook, a professor at Duke University's Sanford School of Public Policy, calculated the extra state costs of the death penalty during fiscal years 2005 and 2006.  He calculated over $21 million worth of expenses that would have been saved if the death penalty had been repealed. The total included extra defense costs for capital cases in the trial phase, extra payments to jurors, post-conviction costs, resentencing hearings, and the extra costs to the prison system. This conservative estimate did not include resources that would have been freed up in the Office of the Appellate Defender and the North Carolina Supreme Court, the extra time spent by prosecutors in capital cases, and the costs to taxpayers for federal appeals.  Cook concluded that costs are not the only concern, but relevant to the discussion of whether the death penalty should be retained, "The bottom line is that the death penalty is a financial burden on the state and a resource-absorbing burden on the trial courts. That conclusion is relevant to the debate over whether preserving the death penalty is in the public interest…." He also commented, "It's not an ideal use of resources to have so much time devoted to such a small number of cases if your goal is to reduce crime rates."

3rd Circuit Upholds Ruling Overturning Death Sentence for Failure to Disclose Evidence

Shannon P. Duffy, The Legal Intelligencer

12-28-09 -- Persuading the federal courts to overturn a murder conviction is no simple matter, but lawyers for Zachary Wilson have now done it twice -- in two unrelated murder cases -- and the latest decision also throws out a death sentence. . . . Both rulings are victories for defense teams led by Assistant Federal Defender Michael Wiseman, who successfully argued Wilson's habeas petition before U.S. District Judge John R. Padova and then defended Padova's rulings in appeals to the 3rd U.S. Circuit Court of Appeals. . . . In the first case, Wiseman argued that prosecutors improperly struck blacks from the jury when Wilson was tried for the February 1982 shooting of David Smith following a dispute over a game of craps.

Costs: Death Penalty Costs in Texas Outweigh Life Imprisonment

Death Penalty Information Center

12-23-09 -- County estimates in Texas indicate that the death penalty system is much more expensive than sentencing inmates to life imprisonment. Gray County spent nearly $1 million seeking the death penalty against Levi King, even though he pleaded guilty to murder.  Moreover, these costs do not include the cost of appeals, which will further increase the cost of the capital case, nor the costs of cases in which the death penalty is sought but not given.  By comparison, a non-death penalty murder case in nearby Lubbock County typically costs  about $3,000, court officials estimate.  The average cost to house an inmate in Texas prisons is $47.50 per day, according to Michelle Lyons, spokeswoman for the Texas Department of Criminal Justice.  Thus it would cost about $17,340 to house an inmate for a year and $693,500 for 40 years, far less than even part of the death penalty costs.  The regional public defender's office estimates that just the legal costs for a death penalty case from indictment to execution are $1.2 million.  Lubbock County Criminal District Attorney Matt Powell said, “I don’t dispute that it’s more expensive,” but said he never takes cost into account when deciding whether to seek the death penalty.

New Evidence in Troy Davis Case

Death Penalty Information Center

12-22-09 -- New evidence in the Troy Davis case in Georgia has recently emerged, further implicating another suspect in the murder of off-duty police officer Mark Allen MacPhail. In 1991, Davis was sentenced to death for officer MacPhail's murder. Davis became the primary suspect after Sylvester "Redd" Coles told the police about Davis's presence at the crime scene. During his 1991 trial, nine prosecution eyewitnesses testified against Davis. All but two of the witnesses (one of whom is Coles) have recanted their testimony.  The new testimony was provided by Quiana Glover, who was at a friend's house when she said Coles admitted to killing MacPhail. The Atlanta Journal-Constitution quoted her affidavit as stating that Coles knew the murder was being falsely attributed to Davis instead of himself.  In August 2009, the U.S. Supreme Court issued an historic order, continuing Davis's stay of execution and instructing a federal District Court judge in Savannah to hold an evidentiary hearing to decide whether Davis's new evidence clearly establishes his innocence.

Editorial: "There is No 'Humane' Execution"

Death Penalty Information Center

12-21-09 -- A recent New York Times editorial commented on the new one-drug lethal injection protocol used in Ohio for the first time on December 8, but concluded that "the execution only reinforced that any form of capital punishment is legally suspect and morally wrong."  The Times agreed with the late Justice Harry Blackmun who called such manipulations “tinker[ing] with the machinery of death.”  The editorial also noted the risks of exeucting the innocent: "It has also become clear — particularly since DNA evidence has become more common — how unreliable the system is. Since 1973, 139 people have been released from death row because of evidence that they were innocent, according to the Death Penalty Information Center."  The editors ended by saying that repealing the death penalty "is the way to eliminate the inevitable problems with executions."  Read the full editorial below. Read more

GEORGIA  

Troy Davis case raising novel legal issues

By Bill Rankin, The Atlanta Journal-Constitution 

12-20-09 -- Condemned inmate Troy Anthony Davis filed the legal equivalent of a Hail Mary when he petitioned the U.S. Supreme Court for a hearing on his innocence claims. . . . But in August, for the first time in nearly half a century, the nation’s highest court took a case filed directly to its docket that had not come up from a lower court on appeal. Once again, Davis, who sits on death row for killing an off-duty Savannah police officer in 1989, was spared execution. And since the reprieve, Davis’ lawyers say a new witness has come forward on his behalf. . . . “It was just stunning,” said U.S. Supreme Court historian Lucas A. “Scot” Powe, a professor of law and government at the University of Texas at Austin. “But I understand why the court did it. It was Davis’ last chance. He had exhausted all other possible appeals.”

DPIC's 2009 Year End Report Released

Death Penalty Information Center

12-18-09 -- The Death Penalty Information Center released the “The Death Penalty in 2009: Year End Report” on December 18, noting that the country is expected to finish 2009 with the fewest death sentences since the U.S. Supreme Court reinstated the death penalty in 1976. Eleven states considered abolishing the death penalty this year, a significant increase in legislative activity from previous years, as the high costs and lack of measurable benefits associated with this punishment troubled lawmakers. . . . “The annual number of death sentences in the U.S. has dropped for seven straight years and is 60% less than in the 1990s,” said Richard Dieter, the report’s author and DPIC’s executive director. “In the last two years, three states have abolished capital punishment and a growing number of states are asking whether it's worth keeping.  This entire decade has been marked by a declining use of the death penalty."  There were 106 death sentences in 2009 compared with a high of 328 in 1994. . . . New Mexico became the 15th state to abolish the death penalty, and 9 men who were sentenced to death were exonerated in 2009, the second highest number of exonerations since the death penalty was reinstated.  The total number of exonerations since 1973 has now reached 139. . . . (Read “The Death Penalty in 2009: Year End Report” here, Dec. 18, 2009.  DPIC's press release may be read here.  See also previous DPIC Reports. Read more

International: UN High Commissioner for Human Rights Calls for an End to the Death Penalty

Death Penalty Information Center

12-17-09 -- On December 15 the United Nations High Commissioner for Human Rights marked the 20th anniversary of an international death penalty treaty by calling for the universal abolition of capital punishment.  Navi Pillay, the top UN human rights official, urged all states to adopt the Optional Protocol to the International Covenant on Civil and Political Rights.  The protocol, which bars the death penalty, was introduced in 1989.  “Abolishing the death penalty is a difficult process for many societies," she said.  "[A]nd ratification of the Optional Protocol can often only come about after a period of national debate. Until they reach that point, I urge those States still employing the death penalty to place a formal moratorium on its use, with the aim of ultimately ratifying the Optional Protocol and abolishing the punishment altogether everywhere.” In her statement, she enumerated a number of issues with the death penalty, including "the fundamental nature of the right to life; the unacceptable risk of executing innocent people by mistake; the absence of proof that the death penalty serves as a deterrent; and what is, to my mind, the inappropriately vengeful character of the sentence."  To date, 140 countries no longer carry out the death penalty, and 72 countries have ratified the Optional Protocol on ending the death penalty.  Read the full statement below. . . . Read more

Death Sentences Dropped, but Executions Rose in ’09

By John Schwartz, The New York Times 

12-17-09 -- More death row convicts were executed in the United States this year than last, but juries continue to grow more wary of capital punishment, according to a new report. . . . Death sentences handed down by judges and juries in 2009 continued a trend of decline for seven years in a row, with 106 projected for the year. That level is down two-thirds from a peak of 328 in 1994, according to the report being released Friday by the Death Penalty Information Center, a research organization that opposes capital punishment. . . . “This entire decade has been marked by a declining use of the death penalty,” said Richard Dieter, the executive director of the group. . . . The sentencing drop was most striking in Texas, which averaged 34 death sentences a year in the 1990s and had 9 this year. Vic Wisner, a former assistant district attorney in Houston, said a “constant media drumbeat” about suspect convictions and exonerations “has really changed the attitude of jurors.”

Editorials: Is An Execution Worth the Price?

Death Penalty Information Center

12-16-09 -- A recent editorial in the Virginian-Pilot called for eliminating the death penalty as a good way to address the $3.5 billion gap in the state's budget.  "Doing away with the option of a death sentence makes sense on several levels," the editors wrote.  "It would save the state from having to pay fees associated with lengthy trials and years of appeals. It would end the agony of repeated court hearings for the families of victims. It would eliminate the four perpetually understaffed capital defender's offices, whose attorneys handle appeals automatically generated when people are sentenced to death row."  The paper suggests that the $2 million spent per execution could be better put toward education, public safety and crime prevention efforts.  "Is the cost of an execution really worth it when, for less than half the price, we could put a killer in a prison cell, locked away from society for life?"  Read the full editorial below. . . .  Read more

Costs: Indiana Death Penalty Cases Can Cost $1 Million

Death Penalty Information Center

12-15-09 -- A single death penalty case in Indiana can cost taxpayers as much as $1 million. In Marion County, the costs of preparation for three potential death penalty trials have reached $659,000 this year alone, according to the Public Defender Agency. A high-profile death penalty case in the same county has cost nearly $850,000 and not all the bills are in. Pursuing a life sentence costs less than the death penalty, even considering the expense of a convict's longer incarceration, according to Indiana studies. Representation is more expensive for death penalty defendants because each must have two qualified attorneys. "Every dollar we spend attempting to do this, that's money we could have spent elsewhere," said Chief Public Defender Robert Hill. "(But) we have a constitutional mandate to defend our clients." Since 2000, Hill's agency reports, defense bills in Marion County death penalty cases have totaled $3.9 million. Statewide, costs to taxpayers for the defense in trials and appeals have been nearly $20 million since 1990, according to the Indiana Public Defender Commission.

New Voices: Veterans and the Death Penalty

Death Penalty Information Center

12-14-09 -- Two former military servicemen raised concerns about the use of the death penalty for war veterans who have endured traumatic experiences while serving in the United States military. Karl Keys, a former Marine, and Bill Pelke, a former sergeant in the First Air Cavalry, cited the examples of James Floyd Davis and Manny Babbitt, veterans who received Purple Hearts for their service in the Vietnam War but were sentenced to death nevertheless. Davis and Babbitt were both suffering from post-traumatic stress disorder when they committed the crimes that resulted in their death sentences. Babbitt was executed in 1999 in California shortly after he received his Purple Heart.  Davis currently resides on North Carolina's death row.  Keys and Pelke wrote, "Soldiers are coming home traumatized by the carnage they've seen. As veterans, we believe those who commit crimes due to severe mental problems should be treated, not killed." They go on to say, "Capital punishment's costs to states drain our tax dollars away from smarter and more effective approaches to law enforcement and crime prevention and from additional quality, affordable mental health services."  Read the entire article: Read more

CALIFORNIA  

When California denies a murderer parole, should it need a reason?

Eligible prisoners can't be refused early release just because of the gravity of their crimes -- 'some evidence' has to show the inmate would pose a threat to public safety, some judges have ruled.

By Carol J. Williams, The Los Angeles Times  

12-13-09 -- Reporting from Vacaville, Calif. - During the 26 years that James Alexander has spent in prison for killing a fellow drug dealer, he has maintained a spotless behavior record and devoted himself to helping other inmates shake addictions. . . . He's been such a model prisoner that state parole commissioners -- on three occasions -- recommended that he be released. All three times, Gov. Arnold Schwarzenegger overruled them. . . . Alexander, 47, is among the hundreds of so-called lifers whom state parole boards have deemed rehabilitated and ready to rejoin society, but who sit behind bars because their crime was murder. In recent years, some judges have sided with lifers, ruling that the state can't deny an inmate parole solely because of the gravity of his original offense but rather must provide "some evidence" that he would pose a threat to public safety if released.

Books: Angel of Death Row

Death Penalty Information Center

12-11-09 -- Renowned death penalty defense attorney Andrea Lyon's forthcoming book, Angel of Death Row: My Life as a Death Penalty Defense Lawyer, chronicles her 30 years of experience representing clients in capital murder cases.  In all of the 19 cases where she represented defendants who were found guilty of capital murder, jurors spared her clients’ lives.   Lyon, who was featured in the PBS documentary Race to Execution and was called the "angel of death row" by the Chicago Tribune, gives readers an inside look at what motivates her during these difficult cases and offers behind-the-scene glimpses into many dramatic courtroom battles. Lyon is the founder of the Center for Justice in Capital Cases based in Illinois and a professor of law at DePaul University College of Law.  The book includes a foreword by Alan Dershowitz, who calls Lyon "a storyteller par excellence." 

CALIFORNIA  

Death Row Inmate Sues Prosecutor, Seeks DNA Test

Mary Alice Robbins, Texas Lawyer

12-10-09 -- A Texas death row inmate facing execution next year has sued a Panhandle prosecutor, alleging she is denying him access to DNA evidence that has never been tested and could prove he is innocent of murdering three people in 1993. . . . Henry Watkins Skinner alleges in his original complaint in Skinner v. Switzer that the refusal by Lynn Switzer, district attorney for the 31st and 223rd Judicial Districts, to release the biological evidence for testing violates Skinner's 14th Amendment right to due process and his Eighth Amendment right to be free from cruel and unusual punishment. Skinner sued Switzer on Nov. 27 in the U.S. District Court for the Northern District of Texas in Amarillo. . . . In the complaint, Skinner asks the court to declare that continued withholding of the DNA evidence violates his constitutional rights. He seeks an injunction requiring Switzer to release certain biological evidence to him -- including vaginal swabs and fingernail clippings from the female victim, any biological material on two knives found at the murder scene, and blood and hairs on a jacket found next to the female victim's body -- so Skinner can test it at his own expense.

Court Tosses Death Sentence in Tarzana Double Murder

By Steven M. Ellis, Metropolitan News-Enterprise Staff Writer

12-10-09 -- The Ninth U.S. Circuit Court of Appeals yesterday threw out the death sentence of a former Van Nuys resident who killed two men with a knife during the botched burglary of a Tarzana home in 1982. . . . The court, sitting en banc, voted 8-3 to affirm a district court’s ruling granting Scott Lynn Pinholster habeas relief due to ineffective assistance of counsel at the penalty phase of his 1984 trial and remanded for a new penalty trial. . . . U.S. District Judge Gary L. Taylor of the Central District of California ruled in 2003 that Pinholster received ineffective assistance from appointed trial lawyers Harry Brainard and Wilbur Dettmar, both now deceased, but a divided Ninth Circuit panel reinstated the death penalty in July 2008. . . .  The panel ruled that while Dettmar and Brainard might have conducted an inadequate investigation and failed to present available mitigating evidence, a better defense would probably not have resulted in a lesser sentence. . . . Judge Milan D. Smith Jr., however, wrote yesterday that the California Supreme Court was objectively unreasonable when it concluded that not a single juror would have voted against the death penalty if counsel had investigated and introduced readily available mitigating evidence other than “inaccurate, damaging” testimony from Pinholster’s mother.

OHIO  

Judge seeks opinions on 2nd execution attempt

He says old method no longer an issue

By John Futty, The Columbus Dispatch

12-10-09 -- A federal judge in Columbus wants lawyers to provide written opinions about whether the state can try a second time to execute a convicted killer. . . . U.S. District Judge Gregory L. Frost made it clear in a hearing yesterday that his decision in the case of 53-year-old Romell Broom won't be based on the change in the way the state carries out lethal injections. . . . He said a ruling Monday by the 6th U.S. Circuit Court of Appeals that upheld the new method makes questions about the old way -- used unsuccessfully on Broom in September -- irrelevant. . . . "It seems to me that all that's left is a legal argument as to whether the state can attempt to execute Mr. Broom twice," Frost told attorneys for the state and Broom, who was in court wearing an orange prison jumpsuit and shackles on his wrists and ankles. . . . Broom's attorneys had suggested calling witnesses to testify about the suffering he endured in the first attempt, but Frost decided that written statements will be sufficient.

UNITED STATES SUPREME COURT

Supreme Court rules against Philly killer, who might now face death sentence

By Kitty Caparella, Philadelphia Daily News

12-09-09 -- Joseph Kindler, a notorious Northeast Philadelphia man convicted of kidnapping and bashing an accomplice with a baseball bat and drowning him in 1982, may die by injection after all. . . . Yesterday, the U.S. Supreme Court overturned a lower-court ruling that had thrown out the death sentence for Kindler, who escaped from the Philadelphia Detention Center in 1984, was caught in Quebec, and while awaiting extradition, escaped again from a Montreal prison a year later. . . . On Sept. 6, 1988, Kindler, then 30, was captured in St. John, New Brunswick, three days after he was featured on "America's Most Wanted." . . . At issue before the high court was whether a federal appellate judge could disregard state procedural rules in a review of the case. Attorneys general in Pennsylvania and 25 other states joined the lawsuit.

NEW HAMPSHIRE

New Hampshire Commission Studies Cost of the Death Penalty

Death Penalty Information Center

12-08-09 -- On December 4, the New Hampshire Commission to Study the Death Penalty held a hearing in Concord to examine the cost of the death penaty in the state. The twenty-two member Commission, led by retired Judge Walter Murphy, has been charged with considering several issues, including whether the death penalty is a deterrent, if it is arbitrarily applied, and if it covers the appropriate crimes.  The Commission is considering alternatives to capital punishment and the related question of whether the state spends more on a death penalty case than on a first-degree homicide case resulting in a life sentence.  The state spent more than $5.3 million on two capital cases last year, and has not had an execution since 1939.  Deputy Attorney General Orville Fitch told the committee that his office spent $1.6 million while prosecuting Michael Addison, who was ultimately sentenced to death. The state spent an additional $1.2 million for the public defender who represented Addison, a large sum when compared to the $70,000-$100,000 it costs to defend a typical first-degree case. Fitch also testified that his office spent $2.4 million prosecuting another defendant in a murder-for-hire case, in which a life sentence was returned.

OHIO

Killer Biros executed; says 'peace be with you'

Ohio first to use 1-drug method; 'no problems' reported

By Alan Johnson, The Columbus Dispatch

12-08-09 -- Trumbull County killer Kenneth Biros this morning became the first person in the United States to be executed using a one-drug lethal injection protocol. . . . With his victim's family looking on, Biros, 51, died at 11:47 a.m. in the Death House at the Southern Ohio Correctional Facility near Lucasville following the intravenous injection of single, large dose of thiopental sodium, a powerful anesthetic. . . . "Now I am paroled to my Father in heaven, and I will spend all my holidays with my Lord and Savior," Biros said. "Peace be with you." . . . He said he was "sorry from the bottom of my heart."

Legal Scholar Calls Withdrawal of Model Penal Code a

"Quiet Blockbuster"

Death Penalty Information Center

12-08-09 -- Franklin E. Zimring is a distinguished professor of law and scholar at the Berkeley School of Law who has followed the development of the modern death penalty over many decades.  Writing recently in the National Law Journal, Prof. Zimring said the recent action by the American Law Institute to withdraw the death penalty provisions  from its Model Penal Code deprives the punishment of any legal legitimacy.  "[T]he institute has pulled the intellectual rug out from under the current system of deciding between life and death," he wrote. Recalling that when the Supreme Court stopped the death penalty in Furman v. Georgia in 1972, he noted many states turned to the Model Penal Code to fashion new death penalty laws that the Court would accept.  But that model has now been discredited.  "Now that the creators of the modern system of death penalty sentencing have disowned that system, there is no support for distinguishing the current death penalty lottery from the lawless system that Furman condemned. The apparatus that the Supreme Court rushed to embrace in 1976 has been exposed as a conspicuous failure."

UNITED STATES SUPREME COURT

A veteran's legal battle

The Supreme Court reverses a war hero's death sentence.

Washington Post Editorial 

12-07-09 -- INMATES COMMONLY challenge convictions or sentences based on claims that they were saddled with bad lawyers. Just as common are decisions by judges to deny such claims. So it is extraordinary that last week a unanimous Supreme Court tossed out a death sentence against a Florida inmate who made such an argument. And no wonder. . . . George Porter Jr., a Korean War veteran with two Purple Hearts, pleaded guilty to the murder of a former girlfriend and her new boyfriend and was sentenced to death in 1988. . . . The justices did not overturn the convictions but lambasted the defense lawyer's failure to introduce mitigating evidence -- including military service and possible post-traumatic stress -- that could have led to a reduced sentence. . . . Had Mr. Porter's counsel been "effective," the justices wrote in the unsigned Nov. 30 opinion, the trial judge and jury would have learned about the kind of "troubled history" that the court has "declared relevant to assessing a defendant's moral culpability. . . . They would have heard about (1) Porter's heroic military service in two of the most critical -- and horrific -- battles of the Korean War, (2) his struggles to regain normality upon his return from war, (3) his childhood history of physical abuse, and (4) his brain abnormality, difficulty reading and writing, and limited schooling."

UNITED STATES SUPREME COURT

Justices Thomas, Stevens Clash Over Death Row Appeal

Marcia Coyle, The National Law Journal

12-3-09 -- In the wake of the Supreme Court's refusal early Wednesday morning to hear the last-minute appeal of a Tennessee death row inmate, two justices clashed -- one with some bite -- over whether execution after lengthy delay is cruel and unusual punishment under the Eighth Amendment. . . . Tennessee executed Cecil Johnson at 1:34 a.m. Wednesday. Johnson had spent nearly 29 years on death row for three murders committed during a robbery of a Nashville convenience store. He was convicted in 1981. . . . A high court majority rejected his application for a stay of execution and his petition for review in which he raised the Eighth Amendment challenge. . . . Justice John Paul Stevens, joined by Justice Stephen Breyer, dissented (pdf), saying Johnson's situation was "as compelling a case" as he had encountered raising the constitutional concerns that Stevens himself raised in a 1995 dissent from another denial of certiorari: Lackey v. Texas.

ILLINOIS  

Dugan jury originally opted for life sentence

Art Barnum, Chicago Tribune

12-2-09 -- The original discarded verdict form signed by a 12-person DuPage County jury called for Brian Dugan to be sentenced to life imprisonment, not the death sentence he ultimately received. . . . DuPage Judge George Bakalis told Dugan's defense attorneys today that he had the original verdict form in his possession and would give it to Illinois Supreme Court during the mandated appeal of Dugan's death sentence if asked for it. . . . Dugan defense attorney Steven Greenberg said the original verdict form could form the basis for an appeal, and that the issue will probably be brought up again when Dugan is formally sentenced Dec. 16. . . . Last month's sentencing hearing was thrown into some confusion when it was announced that jurors had reached a decision. But the jury then restarted deliberations and ultimately came back with a sentence of death. . . . Bakalis' disclosure about the original signed form came in response to questions from Greenberg, who filed a motion seeking clarification as to what occurred after it was announced the evening of Nov. 10 that the jury had reached a verdict after six weeks of testimony.

TEXAS

Jurors, Lawyer Still Believe Executed Texas Dad Guilty Despite Report Questioning Arson Probe

Jeff Carlton, The Associated Press, Law.com

12-2-09 -- David Martin is sickened by the suggestion that Texas executed an innocent man when Cameron Todd Willingham was put to death for setting a fire that killed his three children. . . . The veteran defense attorney represented Willingham at trial. He looked at all the evidence. And he has no doubt that his client deserved to die. . . . "I never think about him, but I do think about those year-old babies crawling around in an inferno with their flesh melting off their bodies," Martin said. "I think that he was guilty, that he deserved death and that he got death." . . . The 2004 execution, however, didn't end questions about the case. Fire investigator experts hired first by The Innocence Project and later by the Texas Forensic Science Commission concluded the original finding of arson was seriously flawed.

A Second Late Appeal Puts Death Penalty Lawyer on the Hot Seat

By Debra Cassens Weiss, ABA Journal

12-2-09 -- The chief judge of the Texas Court of Criminal Appeals faced mounting criticism and ethics charges over her refusal to accept a late emergency death-penalty appeal two years ago. Now the lawyer who wanted to keep the courthouse open to file the documents is facing scrutiny for a second late appeal. . . . Lawyer David Dow criticized the chief judge, Sharon Keller, in an op-ed written two years ago. Keller’s decision was “typical of the arbitrariness and brazen disregard for legal principle that characterizes most death penalty cases,” he wrote. Keller is facing ethics charges as a result of her refusal to accept the filing. . . . Now Dow is in the news for a late filing in a different case, Texas Lawyer reports. He was ordered to appear today with co-counsel Katherine Black to explain an “untimely filing.” Dow and Black work for the Texas Defender Service.

TEXAS  

'Equal justice under the law’ just a dream in Texas

By Cory D. Session Sr., Opinion Special to the Star-Telegram

12-1-09 -- One of the most infamous days in the history of the Texas judicial system occurred 10 years ago today. Timothy Cole died an innocent man in a Texas prison cell. . . . An Army veteran and college student who was pursuing the American dream ended up living — and dying — an American nightmare. . . . This year, he became the first person to be posthumously exonerated, thanks to state District Judge Charlie Baird. . . . In many of the letters Tim wrote from prison after being convicted of a rape he didn’t commit, he mentioned three things that he longed for — vindication, exoneration and a full pardon from the governor. . . . The quest for the pardon continues. . . . On July 1, 2009, Tim’s 49th birthday, Gov. Rick Perry said that he does not have the power to pardon the dead. Perry said he needed a constitutional amendment because of a several-decades-old opinion from former state Attorney General Waggoner Carr that prevents him from doing so. We await a modern opinion from the current attorney general, Greg Abbott.

November 2009

UNITED STATES SUPREME COURT

Supreme Court Sides With Florida Inmate on Ineffective Assistance

Tony Mauro, The National Law Journal

11-30-09 -- Returning from its Thanksgiving break, the Supreme Court on Monday issued a powerful unsigned "per curiam" opinion agreeing that the ineffective assistance of counsel for Florida death row inmate George Porter Jr. prejudiced the sentence he received after his murder trial in 1988. He was convicted in the murder of a former girlfriend and her boyfriend. The Florida Supreme Court and the 11th U.S. Circuit Court of Appeals previously rejected his ineffective assistance claim. . . . Ruling in Porter v. McCollum, available here, the Court extensively detailed Porter's "horrible family life" and his trying Korean War experiences that earned him two Purple Hearts and other decorations -- none of which was told to the trial court as mitigating evidence during sentencing. The trial lawyer's failure to introduce the evidence "did not reflect reasonable professional judgment" and could well have affected the outcome of the case, the Court said.

Repeat Offender Judges

By Karen Lee Torre, Connecticut Law Tribune

11-30-09 -- Last week, the U.S. Supreme Court issued a notable opinion in Wong v. Belmontes, summarily reversing a divided panel of (big surprise) the Ninth Circuit. . . . It’s notable for the sole reason that this was the third time the Supreme Court had to take up this case. Belmontes brutally bludgeoned a woman to death. His reason? To steal and sell her stereo for the $100 he needed for beer and drugs that night. . . . Justly sentenced to death, Belmontes has been continually mollycoddled by “arch activist” Judge Stephen Reinhardt. . . . Remarkably, Belmontes had coldly killed before, and bragged about it. This third trip to the Supreme Court had to do with his counsel’s successful efforts to keep that history from the jury, and Reinhardt’s decision to recast the lawyer (for the first time on a second remand), as somehow fatally ineffective for his success. . . . Another case of an overturned judge conjuring into being a new basis on remand to achieve his desired outcome. What do you do with such a judge? Let him have his way lest he consume an unfair share of your working life? Thankfully, the justices are unwilling to allow that. Good for them. . . . The court rejected Reinhardt’s latest freshly conceived and ridiculous basis for granting Belmontes habeas relief—that trial counsel could have done more to “humanize” that animal.

Studies: A Review of the Florida Death Penalty

Death Penalty Information Org.

11-27-09 -- Christopher Slobogin, Professor of Law and Psychiatry at Vanderbilt University, has written an evaluation of Florida's death penalty to be published in a forthcoming edition of the Elon University Law Review.  The evaluation is based on a study by an assessment team sponsored by the American Bar Association. Florida is one of the leading states in sentencing people to death, but it also has the most death row exonerations of any state in the country.  Florida was chosen by the ABA to be one of eight death penalty states reviewed under its Death Penalty Moratorium Implementation Project. The purpose of this project was to allow states to identity and eliminate flaws in their death penalty system. The Florida Assessment Team was led by Prof. Slobogin and was instructed to investigate the following aspects of death penalty administration: "police investigation procedures; the use of DNA evidence; crime laboratories and medical examiners; prosecutorial discretion; defense services; jury instructions; the judicial role; the direct appeal process; state post-conviction and federal habeas proceedings; clemency proceedings; the treatment of racial and ethnic minorities; and the treatment of people with mental illness and mental retardation."

FEDERAL COURTS

Way cleared for man's execution by new method

6th Circuit Court of Appeals

By Alan Johnson, The Columbus Dispatch

11-26-09 -- Kenneth Biros, who could become the first person in the United States put to death using an untested lethal-injection method, should not be subjected to state "experimentation," his attorney says. . . . But the 6th U.S. Circuit Court of Appeals yesterday cleared the way for his execution at 10 a.m. Dec. 8 in the Southern Ohio Correctional Facility near Lucasville. . . . Biros, 51, of Trumbull County, would be the first person put to death under a new procedure using a single, large dose of thiopental sodium, a powerful anesthetic. The successor to the old three-drug protocol was announced Nov. 13 by Terry Collins, director of the Ohio Department of Rehabilitation and Correction. . . . The one-drug procedure is similar to the method used in euthanizing animals. . . . Timothy Sweeney, Biros' Cleveland attorney, told The Dispatch that the state should not make his client a guinea pig." . . . "There are concerns," Sweeney said. "The protocol is new. It is completely untested. It does not address … in any satisfactory way the issues that arose during Romell Broom's execution using intravenous needles. That hasn't changed.

KENTUCKY  

High court rules regulation needed for lethal injection

By Tom Loftus • courier-journal.com

11-25-09 -- In a decision that puts executions on hold, the Kentucky Supreme Court ruled Wednesday that the state’s lethal injection procedure must be spelled out in a regulation. . . . Among other things, that process requires public comment. . . . The high court, in a 4-3 decision, held that that in certain instances — including the protocol for the death penalty — a state agency must issue a regulation in implementing a new law. . . . “This court cannot ignore the publication and public hearing requirements set forth in Kentucky statutes,” the majority opinion said. . . . The decision, authored by Justice Lisabeth Hughes Abramson, directed the Kentucky Department of Corrections “to adopt as an administrative regulation all portions of the protocol implementing the lethal injection statute. ...”

New Voices: Kentucky Public Defenders Call for Moratorium on Executions

Death Penalty Information Org.

11-24-09 -- On November 23, Kentucky Public Advocate Ed Monahan and Louisville Metro Chief Public Defender Dan Goyette called on the governor and the state's Attorney General to stay all executions until an assessment team formed by the American Bar Association can objectively review the state's death penalty. Monahan and Goyette wrote letters asking Attorney General Jack Conway not to request any further execution warrants and asking Governor Steven Beshear not to sign execution warrants until the ABA Assessment Team has concluded its study and issued a final report. . . . “There are serious and disturbing questions about the convictions of a number of inmates facing execution, particularly in those cases that were tried years ago by unqualified lawyers lacking adequate resources,” Dan Goyette said. “We should not proceed with executions until this independent evaluation is completed and we are assured that due process has been fully and properly provided in each and every case. To do otherwise would cast significant doubt on the fairness and propriety of imposing the ultimate punishment. We all have a fundamental responsibility to avoid at all costs the possibility of making an unjust and irreversible mistake.”

Subject of Famous Supreme Court Decision Has Made a New Life

Death Penalty Information Org.

11-23-09 -- James Tyrone Woodson's death sentence was overturned by the U.S. Supreme Court in 1976 because the jury had not been allowed to consider any mitigating factors in his life or about his peripheral role in the crime.  The Court not only rejected Woodson's death sentence, but held that a mandatory death penalty system was unconstitutional.  Woodson had been convicted in 1974 of first-degree murder, which was automatically punishable by the death penalty under North Carolina law. Woodson had been in a car during the robbery and murder, and he maintained that he was threatened to assist with the robbery.  Woodson and 120  other death row inmates' lives were spared because of the Supreme Court ruling.  He eventually became eligible for parole and was released in 1993.  Since his release, Woodson has led a crime-free life. He used to be the kitchen manager at the Raleigh Rescue Mission. He now has a job in Raleigh and preaches at Wake Correctional Center.  "You have to want to change. Nobody can make you change," he said recently about his work helping others. He continued, "There's a choice in the matter in life itself.  Do you want to live? Do you want to be helpful to another individual because you've been helped?"

Books: The Last Lawyer--The Fight to Save Death Row Inmates

Death Penalty Information Org.

11-20-09 -- The Last Lawyer: The Fight to Save Death Row Inmates is a book by John Temple about the courageous work of a death penalty defense attorney in the south.  Ken Rose is an attorney at the Center for Death Penalty Litigation in North Carolina.  He has handled many capital cases, but the focus of this book is his defense of Bo Jones, a mentally handicapped farmhand convicted of a murder that occurred in 1987 and sentenced to death. The case highlights issues such as inadequate defense, mental retardation, mental illness and witness testimony. Based on over four years of behind-the-scenes reporting, The Last Lawyer tells the story of how Rose's work eventually led to the dismissal of all charges against Jones in 2008.

VIRGINIA

Death Sentences Have Become Rare in Virginia

Death Penalty Information Org.

11-19-09 -- Virginia has not had a death verdict from a jury since March 2008, the longest stretch of time without a death verdict since the death penalty was reinstated in the 1970s.  Nationally, there has also been a decline in death sentences:  according to the Bureau of Justice Statistics, there were 115 death sentences in 2007, 65% less than the 326 that were handed down in 1995. In Virginia, part of this decline might be attributed to a change in state law made effective in 1995 that eliminated the possibility of parole with a life sentence.  Scott Sunby, professor of law at Washington and Lee University, said he believes that this decline can also be attributed to the rising cost of winning death sentences, more effective defense lawyers, and a dwindling public desire for capital punishment. (There are currently 14 prisoners on Virginia's death row; in 1995 there were 55 inmates on the row.  Virginia is second to Texas in the number of executions carried out since 1976.)

TEXAS

Death Sentences Declining in Texas

Death Penalty Information Org.

11-18-09 -- Death sentences have dropped significantly over the last few years in Texas according to a study by the Fort Worth Star-Telegram. The number of death sentences is at a 35-year low as prosecutors have pushed for fewer death sentences and juries have become less willing to impose them. Since 2005, defendants may receive a sentence of life without parole instead of the death penalty. Before this change, the only alternative to the death penalty in Texas was a life sentence with eligiblity for parole after 40 years, or even less in earlier years. Since the introduction of life without parole, death sentences in Texas have dropped 40 percent compared with the four years prior. Texas had 13 death sentences in 2008, and 9 so far this year. Ten years ago, Texas sentenced 47 defendants to death. . . . "With life without parole being a viable option now, [juries] feel a lot more comfortable that that person is not going to be let out back into society," said Tarrant County District Attorney Joe Shannon. "We are probably waiving the death penalty more times than we used to because we’re trying to forecast the outcome of the case. . . .It doesn’t translate to dollar bills. It translates into uses of limited resources."

U.S. SUPREME COURT

Supreme Court Decides One Capital Case and Agrees to Hear Another

Death Penalty Information Org.

11-17-09 -- On November 16, the United States Supreme Court accepted for review and handed down a per curiam decision in Wong v. Belmontes (No. 08-1263). The Court reinstated Fernando Belmontes' death sentence and overturned the decision of the Ninth Circuit granting relief because of ineffectiveness of counsel. Belmontes was sentenced to death for murdering a woman during a robbery in 1981 in California. The appeals court ruled in 2008 that Belmontes' lawyer had represented him incompetently by neglecting to introduce evidence of family strife and depression that would have likely led to a different sentence. The Supreme Court assumed that the attorney should have presented more evidence but concluded it would not have made any difference in sentencing.  Justice Stevens issued a concurring opinion stating that he believed the Supreme Court had erred in a previous consideration of this same case.

             On the same day, the Court agreed to hear Magwood v. Culliver (No. 09-158).  Billy Joe Magwood received a death sentence for killing a sheriff in 1979 in Alabama.  At the time, Alabama law required two conditions before the state could sentence a defendant to death, only one of which was satisfied by Magwood's crime.  Magwood's death sentence was overturned on other grounds in 1985, and he was resentenced to death the next year.  However, it was not until 1997 that Magwood's lawyers challenged whether his crime was death-eligible under Alabama law.  Alabama claims Magwood took too long to raise this argument and his appeal is barred by the Anti-terrorism and Effective Death Penalty Act, which imposes strict limits on successive federal habeas corpus petitions. The Eleventh Circuit agreed.  Magwood claims that he is bringing his claim under his new death sentence and therefore is not barred by AEDPA.

TEXAS

Texas Death Row Inmate Gets Last Minute Reprieve

Associated Press, FOXNews  

11-17-09 -- A condemned killer who prosecutors said had been faking mental illness to avoid execution won a reprieve from a federal judge less than two hours before he could have been taken to the Texas death chamber Tuesday evening. . . . Gerald Eldridge, 45, was condemned for the fatal shooting of his ex-girlfriend and her daughter nearly 17 years ago in Houston. Attorneys contended he was too mentally ill to receive lethal injection and made those arguments in an appeal to the courts. . . . U.S. District Judge Lee Rosenthal in Houston agreed to delay the scheduled punishment for 90 days after the Texas Court of Criminal Appeals had rejected the appeal Monday. . . . Rosenthal said Eldridge's lawyers made a "substantial threshold showing of insanity" and should be given a hearing. The Supreme Court has ruled in previous cases that mentally ill prisoners may be executed if they are aware of why they are facing the punishment.

UNITED STATES SUPREME COURT

Supreme Court restores, for the third time, death sentence for California murderer

The justices reverse an appeals court ruling, saying jurists wouldn't have been swayed by Fernando Belmontes' tough childhood. Belmontes beat a woman to death with a dumbbell to steal her stereo.

By David G. Savage, Los Angeles Times

11-16-09 -- Reporting from Washington - The Supreme Court today for the third time reversed the U.S. 9th Circuit Court of Appeals and restored a death sentence for a California murderer who bludgeoned and killed a young woman in 1981 to steal a stereo from her house. . . . In a unanimous opinion, the justices rejected the notion that the defendant's rights were violated by his lawyer's "ineffective assistance of counsel." The appeals court ruled that the lawyer had failed to stress that Fernando Belmontes had had a very difficult childhood. . . . However, the justices said such testimony would not likely have swayed the jury to spare Belmontes. They also said they "simply cannot comprehend the assertion by the Court of Appeals that this case did not involve 'needless suffering.' " The victim, Steacy McConnell, had "her skull crushed by 15 to 20 blows from a steel dumbbell bar" at the hands of Fernando Belmontes, the defendant. She fought "a desperate struggle for life" but died hours later, the court said.

The flaws of lethal injection

It's a preferred method of executing inmates, but so much can -- and has -- gone wrong that states need to take a hard look at their procedures.

By Miriam Aroni Krinsky, Los Angeles Times Opinion  

11-16-09 -- It has been a year and a half since the Supreme Court ended the nationwide moratorium on lethal injections, finding that Kentucky's three-drug protocol had adequate safeguards to protect inmates from "cruel and unusual" punishment. But in California, executions remain on hold, as they have been for more than three years. Some have urged the governor and others to move things along. They point to executions without incident, like Tuesday's of John Allen Muhammad in Virginia. But other recent executions compel a contrary conclusion: We still haven't found a way to get it right. . . . . The latest debacle came in September, when Ohio botched its third lethal injection execution in as many years. The saga began when corrections officials could not find a vein during the execution of Romell Broom. They tried for two hours, sticking Broom at least 18 times. The process got more macabre when the condemned man tried to help his executioners, pumping his arm and pointing out potential veins. The team of corrections officials finally gave up, and Broom returned to death row.

WASHINGTON

New Voices: Washington State Law Enforcement Officials Express Doubts About Death Penalty

Death Penalty Information Org.

11-16-09 -- Walla Walla County (Washington) Sheriff Mike Humphreys said the death penalty does not deter homicides, and it may be time for the public to reconsider the law: "At the time, (perpetrators do not) think about [the death penalty]. They don't believe they're going to get caught. And if they do get caught, there are a lot of court proceedings making it likely (execution is) not going to happen. . . . It's costing us this much money. Let the people make that decision," he said. Humphreys agreed with a recent (Death Penalty Information Center) survey of police chiefs who rated reducing drug abuse as a better way of reducing crime. "If we're going to reduce the drug abuse, we're going to reduce all crimes. From theft to murder," he said.  Police Chief Chuck Fulton agreed with Humphreys that the death penalty is not a deterrent and would prefer to see the practice abolished through legislation. Fulton said the death penalty creates more victims and the system results in a "'carnival atmosphere' that adversely affects penitentiary workers, law enforcement officers responsible for maintaining security, and every one else involved." He said he understands the anger toward those who commit murder but doubts that the death penalty is the answer for society.

Sept. 11 Mastermind, Four Other Detainees to Face Death Penalty in New York Trial

Devlin Barrett, The Associated Press, Law.com

11-13-09 -- Self-proclaimed Sept. 11 mastermind Khalid Sheikh Mohammed and four other Guantanamo Bay detainees will be brought to trial in a civilian U.S. courthouse in New York, near the site of the devastating 2001 terror attacks. Prosecutors expect to seek the death penalty. . . . Attorney General Eric Holder announced the long-awaited and politically fraught decision at a news conference Friday. He also said five other Guantanamo detainees, including a major suspect in the bombing of the USS Cole, Abd al-Rahim al-Nashiri, will be tried through the military commission process. . . . Holder said the Sept. 11 defendants should be tried where their crimes occurred. Nearly 3,000 people died when the World Trade Center towers were brought down by two hijacked jetliners, another hijacked jet hit the Pentagon and a fourth crashed in the state of Pennsylvania.

OHIO

Ohio Proposes Major Change to Its Execution Process

Death Penalty Information Org.

11-13-09 -- On November 13, Ohio announced that it was adopting a single-drug protocol for lethal injection, making it the first state to embrace this change.  Ohio will inject inmates with a large dose of an anesthetic, thiopental sodium, which is supposed to both render the inmate unconscious and eventually cause death. The state also said it will employ a back-up method of execution involving the injection of two anesthetic drugs into the muscle of the defendant.  In September, Ohio failed in its execution of Romell Broom, halting the process after two hours when guards could not find a suitable vein for the injection. Subsequent executions were placed on hold as state officials sought more effective ways of administering lethal injection. The state had been having a hard time finding medical personnel to consult with about lethal injection procedures because of professional and ethical rules that generally prohibit doctors, nurses and others from being involved in capital punishment. Read the Associated Press article about this development here: Read more

KENTUCKY

Former Kentucky Officials Rethinking the Wisdom of High Death Penalty Expenditures

Death Penalty Information Org.

11-12-09 -- The former director of Kentucky's courts recently recommended that the state stop wasting money on the death penalty and direct those resources where they are needed more.  "We've got a system in Kentucky where there's not enough money for public advocates, for prosecutors, for drug courts, family courts, for juvenile services, for rehabilitation programs, and we're using the money we have in a way I think is unwise," said Jason Nemes, former director of the state Administrative Office of the Courts. "Every dollar that goes to our ineffective capital punishment system is a dollar taken away from other needs. . . The benefit to public safety is low. Are we really protecting the public?" he asked. . . . In over 30 years, Kentucky has carried out three executions. The state spends about $8 million a year prosecuting, defending and incarcerating death row inmates, according to an estimate by the state Department of Public Advocacy. Critics of the death penalty question whether this ineffective system is one the state can afford, especially as state-ordered budget cuts are already affecting many aspects of its judicial branch. Former Kentucky Supreme Court Chief Justice Joseph Lambert agreed that death-penalty cases often become "legal monsters," and that "it's impossible to streamline death-penalty litigation to justify the cost, because doing so would dramatically increase the risk of wrongful executions."

UNITED STATES SUPREME COURT

A Justice's Curious Comment About ABA Guidelines for Death Penalty Lawyers

Marcia Coyle, The National Law Journal

11-11-09 -- The Supreme Court this week, in an unsigned opinion, reversed relief granted by the 6th U.S. Circuit Court of Appeals to a death row inmate because of his lawyer's ineffective assistance. But Justice Samuel Alito wrote separately -- and curiously -- to emphasize his view that no "special relevance" should be given to the American Bar Association's guidelines on the appointment and performance of defense counsel in death penalty cases. . . . In Bobby v. Van Hook, the justices found that, among the 6th Circuit panel's errors, was its reliance on ABA guidelines announced 18 years after Robert Van Hook went to trial. . . . The per curiam opinion said the Sixth Amendment entitled defendants to representation that does not fall below an "objective standard of reasonableness." Restatements of professional standards, the Court added, can be useful guides as to what reasonableness entails, "but only to the extent they describe the professional norms prevailing when the representation took place."

GEORGIA  

Case could decide whether Georgia can afford the death penalty

By Bill Rankin, The Atlanta Journal-Constitution

11-11-09 -- An accused killer from Pike County has sat in jail for nearly four years without a trial -- not because of any problems with the evidence but because the state is seeking the death penalty and cannot pay for the man's defense. . . . The case, argued Tuesday before the Georgia Supreme Court, could determine whether Georgia can afford the death penalty. . . . Jamie Ryan Weis, charged with killing a Pike County woman during a 2006 house burglary, did not have lawyers to defend him for more than two years because of money woes plaguing the state public defender system.

MISSOURI  

Appeals court rejects MO death row inmates’ appeal

By Robert Patrick, St. Louis Post-Dispatch 

11-10-09 -- A federal appeals court on Tuesday rejected another challenge to Missouri’s execution procedures. . . . The challenge was filed by eight death row inmates who accused the state of having a “well-documented history of employing incompetent and unqualified personnel” overseeing executions and insufficiently anesthetizing inmates before their executions. The inmates claimed that Missouri’s history would likely continue in the future. . . . U.S. District Court Judge Fernando J. Gaitan Jr. granted Missouri’s motion for summary judgment in the case in July of 2008. The prisoners appealed. . . . On Tuesday a three-judge panel of the 8th U.S. Court of Appeals said that Gaitan’s ruling was correct.

You can access the ruling at this link.

VIRGINIA

Sniper Who Killed 10 Is Executed in Virginia

By Ian Urbina, The New York Times

11-10-09 -- John A. Muhammad, whose murderous shooting spree in the fall of 2002 left at least 10 dead, was executed at a Virginia state prison on Tuesday night. . . . The execution closed a case that fixated the region ever since local residents were gunned down while doing the most mundane tasks, like shopping or pumping gas. . . . Mr. Muhammad, 48, was executed at the Greensville Correctional Center. He offered no final words as he entered the death chamber, and Larry Traylor, a prison official, said the process had gone smoothly. Mr. Muhammad’s retained a calm demeanor throughout, and once he was strapped to a gurney to receive a lethal injection, he closed his eyes, Mr. Taylor said. He was pronounced dead at 9:11 pm. . . . On Monday, the Supreme Court refused to intervene in the case of Mr. Muhammad, 48, who was sentenced to die for the killing of Dean H. Meyers, an engineer who was shot in the head at a gasoline station in Manassas, Va.

WASHINGTON

The Death Penalty in the State of Washington

Death Penalty Information Org.

11-10-09 -- The Walla-Walla Union Bulletin is focusing on the state's death penalty in a 4-part series entitled, "Executing Justice." The series examines issues such as the costs of the death penalty, arbitrariness, and the appeals process. Washington currently has eight men on death row, and has not had an execution since 2001. In almost 30 years, there has been only one non-consensual execution.  Four defendants have been executed since the death penalty was reinstated in 1981, but three of the four defendants waived their appeals.  The paper cites a Washington State Bar Association report noting that of the 270 convictions for aggravated murder since 1981, the death penalty was sought 79 times, resulting in 30 death sentences. The majority of those cases were overturned on appeal, and most of those reversals resulted in life without parole sentences.  The Bar Association estimates that a death penalty case costs $754,000 more than other murder cases, not including the $100,000 associated with preparing for an execution.

UNITED STATES SUPREME COURT

Supreme court denies request to stay D.C. sniper's execution

By Robert Barnes, Washington Post Staff Writer

11-9-09 -- The Supreme Court Monday denied John Allen Muhammad's request to stay his execution, clearing the way for Virginia to put to death the man who terrorized the Washington region as the Beltway Sniper. . . . Justices John Paul Stevens, Ruth Bader Ginsburg and Sonia Sotomayor objected to the court's haste, saying it "highlights once again the perversity of executing inmates before their appeals process have been fully concluded." . . . Stevens, writing for the three, said Virginia had short-circuited the process by scheduling Muhammad's execution for Tuesday night, earlier than the court would normally have reviewed his petition for the court to take his case. . . . "By denying Muhammad's stay application, we have allowed Virginia to truncate our deliberative process on a matter -- involving a death row inmate -- that demands the most careful attention," Stevens wrote.

Supreme Court Says ABA Counsel Guidelines Can’t Help Ohio Death Row Inmate

By Debra Cassens Weiss, ABA Journal

11-9-09 -- In a summary disposition, the U.S. Supreme Court has ruled a federal appeals court should not have judged a murder defendant’s representation based on ABA standards enacted 18 years after his trial. . . . The U.S. Supreme Court ruled in the case of Robert Van Hook, convicted of finding his murder victim at a Cincinnati bar catering to gay men. Prosecutors had accused Van Hook of luring the victim to his home, then strangling him and killing him with a kitchen knife. Van Hook was convicted and sentenced to death. . . . The Cincinnati-based 6th U.S. Circuit Court of Appeals had ruled that Van Hook’s lawyers were ineffective in their investigation and presentation of mitigation evidence during the sentencing phase of his trial. The 6th Circuit relied on ABA guidelines for capital cases passed in 2003 that expanded on 1980 standards broadly outlining defense counsel’s duties in all criminal cases.

KENTUCKY  

Kentucky's troubled death-penalty system lets cases languish for decades

By R. G. Dunlop • The Louisville Courier-Journal

11-7-09 -- Kentucky is spending millions of dollars each year on a capital-punishment system so ineffective that more death-row inmates are dying of natural causes than are being executed. . . . Since the death penalty was reinstated nationwide in 1976, Kentucky's trial courts have sentenced 92 defendants to death. Only three have been executed, compared to the five inmates who have died while their cases were being appealed. . . . In fact, because of Kentucky's ponderous system, more than one-third of the state's 36 current death-row inmates — 13 in all — have been there at least two decades. That's a higher percentage than in every other state except Tennessee, Nevada and Idaho, according to an analysis of information compiled by the federal Bureau of Justice Statistics.

Studies: Disparate Administration of the Military Death Penalty

Death Penalty Information Org.

11-6-09 -- A recent study of the military death penalty by Professor David Baldus revealed disparities depending on whether the victim in the underlying crime was also a member of the military or was a civilian.  The paper was co-authored by Professors Catherine Grosso and George Woodworth and was published by the Michigan State University College of Law.  The authors note that despite a 1984 executive order that "defined death eligible murder in the armed forces principally in terms of civilian murder modeled after state law systems," the military death penalty has been implemented in such a way that shows a large disparity between military murder and civilian murder. The study concluded that soldiers who are accused of civilian murder were less likely to face a capital court martial, to receive a capital conviction, and to be sentenced to death than soldiers who were accused of a military murder (murder of a commissioned or non-commissioned officer). "In this process," the report said, "the military death penalty has come to be used almost exclusively as a disciplinary vehicle to protect the authority and effectiveness of military command."

TENNESSEE

Law Reviews: The Past, Present, and Future of the Death Penalty

Death Penalty Information Org.

11-5-09 -- The Tennessee Law Review recently published a compilation of articles and essays from its colloquium, "The Past, Present, and Future of the Death Penalty," held in February 2009. Contributors focused on issues that have influenced capital punishment throughout the course of history. An article by Hugo Adam Bedau, a prominent death penalty scholar, addresses the issues of innocence and racial bias in the application of the death penalty.  Lyn Entzeroth focuses on whether mentally ill defendants should be excluded from the death penalty, and asks whether states should be allowed to forcibly medicate mentally ill defendants in order to make them competent for execution. The colloquium included a keynote address by Stephen Bright of the Southern Center for Human Rights on representation, and papers by Dwight Aarons, David Baldus, Julie Brain, Neil Weiner, George Woodworth, John Blume, Sheri Lynn Johnson, Christopher Seeds, Bradley MacLean, Judge Gilbert Merritt, Penny White, and Pamela Wilkins.

MISSISSIPPI

Editorials: "Death penalty just too costly"

Death Penalty Information Org.

11-4-09 -- A recent opinion piece by the Editorial Director of the Clarion-Ledger in Mississippi points to the high costs of the death penalty as a way in which arbitrariness enters into the application of capital punishment: “When is a crime a crime deserving of death?," David Hampton asks.  "When the county can afford it, of course.” The paper supports the death penalty but the Editorial Director offered the example of Hinds County District Attorney Robert Shuler Smith, who said his county cannot afford to prosecute death penalty cases. The author noted, “It's a matter of how much ‘justice‘ the county can afford. But if one county can ‘afford‘ to send someone to death row and another can't, isn't that another example of how inequitable the death penalty can be?“ Hampton also cited geographical location as contributing to the death penalty’s arbitrary nature. “Ironically, it is very difficult to get a death penalty jury sentence in Hinds County anyway. Prosecutors have avoided seeking death for that reason. Yet, another jury in a different county with a different racial or gender makeup might not hesitate." The author concludes: "The death penalty costs too much, literally and in many, many other ways."  Read in full by clicking here: Read more

GEORGIA

Georgia Supreme Court to Consider Effects of Delayed and Unfunded Representation in Death Penalty Case

Death Penalty Information Org.

11-3-09 -- On November 10, the Georgia Supreme Court will hear arguments from attorneys for a capital defendant, Jamie Weis, and from the state concerning a three-and-a-half year delay in bringing his case to trial.  For two years of that delay, the Weis defense team had no funding, and for 14 months he was completely without representation.  During this entire time, the state was staffed and funded to prepare its prosecution of Weis.  The Court will decide whether Weis's constitutional right to a speedy trial was violated and whether that requires a dismissal of charges, or at least prevents the state from seeking the death penalty.  Weis was arrested and charged with murder in 2006.  He was assigned two attorneys, but because of a crisis in the state's indigent defense system, they were forced to resign and were not reassigned with pay until close to the trial date.  Weis suffers from psychosis, depression and anxiety, and has been detained in a county jail.  He has attempted suicide three times while awaiting trial.

October 2009

Law Review: Death Penalty Stories

Death Penalty Information Org.

10-23-09 -- The University of Missouri-Kansas City Law Review recently published a symposium issue of Death Penalty Stories, highlighting the role of the narrative in the defense of death penalty cases. The compilation includes contributions from litigators who have used persuasive narrative in support of a life sentence. Russell Stetler’s The Unknown Story of a Motherless Child chronicles the case of Edgar H., who was convicted of killing four men in California. Edgar’s traumatic childhood was influential in negotiating a sentence of life instead of death. Dr. Craig Haney’s article, On Mitigation as Counter-Narrative: A Case Study of the Hidden Context of Prison Violence, introduces the concept of the "master narrative," the official story--often laden with inflammatory rhetoric--that public officials supply to the media and that sets the stage for a capital trial ending in a death sentence. Haney argues that “more accurate information about the role of adverse social histories and powerful social conditions" might lead to more informed public debate over the utility of capital punishment.

ARIZONA

Court Pressure in Arizona Leads to Settlements in Death Cases

Death Penalty Information Org.

10-22-09 -- A growing backlog of death penalty cases and delays in starting trials in Arizona’s Maricopa County has forced Superior Court judges to apply pressure on both sides by refusing to postpone trial dates and demanding that attorneys discuss settlements. The backlog came as a result of County Attorney Andrew Thomas’s aggressive pursuit of death sentences in more than 120 cases since taking office in 2005. The number of death penalty defendants grew faster than the courts could handle them. Over 100 death penalty defendants are still awaiting trial in Maricopa County, most of whom are beyond the 18-month time period in which they are supposed to be tried.  “I think firm trial dates settle cases,” said Presiding Criminal Judge Gary Donahoe.  The pressure is apparently working. This year, Thomas has allowed 27 defendants who faced the death penalty to plead to life sentences or less – nearly twice as many as last year, and eight times as many as in the year Thomas first took office. There is a schedule to try to settle more than 20 cases before the end of 2009. Thomas has also filed fewer notices of intent to seek the death penalty.

TEXAS

Former Texas Governor Now Expresses Doubts About Death Penalty

Death Penalty Information Org.

10-21-09 -- Mark White, a former governor of Texas and strong supporter of the death penalty, recently expressed serious reservations about the practice in Texas.  "There is a very strong case to be made for a review of our death penalty statutes and even look at the possibility of having life without parole so we don’t look up one day and determine that we as the State of Texas have executed someone who is in fact innocent," he said.  White was responding to concerns about the case of Cameron Willingham who was executed in Texas in 2004 despite new evidence indicating that the arson investigation that led to his conviction was flawed. Texas' present governor, Rick Perry, recently dismissed the chair and two members of a State Forensic Science Commission that was scheduled to hear evidence regarding the case. Former governor White said the case is one example “of why I think the system is so unreliable.”

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TEXAS

Studies: Disparities in Legal Representation in Harris County, Texas

Death Penalty Information Org.

10-20-09 -- Scott Phillips, a professor in the Department of Sociology and Criminology at the University of Denver, recently published a study that revealed disparities in who receives the death penalty inTexas. Phillips studied the 504 death penalty cases that occurred between 1992 and 1999 in Harris County (Houston and surrounding areas). Harris County is the largest jurisdiction in the United States to use a court-appointment system for selecting lawyers to defend indigent defendants. Phillips’s research showed stark differences between the defendants who were represented by hired counsel and those who were not, regardless of their socio-economic status.  His study revealed that “those who can hire counsel for the entire case, or even a portion of the case, appear to be treated in a fundamentally different manner than those who cannot.” For the 504 death penalty cases examined, hiring counsel for the entire case eliminated the chance of a death sentence and resulted in more acquittals, and hiring counsel for at least a portion of the case substantially reduced the chance of a death sentence.

ALABAMA

Death sentence for killer ‘freakish’

By Bill Rankin, The Atlanta Journal-Constitution  

10-19-09 -- In 1994, Mark McClain shot and killed the manager of a Domino’s Pizza outlet in Augusta in a 2 a.m. robbery that yielded little more than $100. . . . The next year, McClain was one of 55 people convicted in Georgia of committing a murder during an armed robbery. . . . Prosecutors sought the death penalty against 16 of those 55 killers and declined to seek it against the rest. McClain was the only one sentenced to die. Friday, the state Board of Pardons and Parole denied McClain clemency, and he is scheduled for execution at 7 p.m. Tuesday. . . . In their final appeals, McClain’s lawyers contend the condemned inmate’s sentence was out of line when compared with those in similar armed-robbery murders. . . . “Since Mr. McClain’s death sentence was imposed, literally hundreds of defendants in similar cases — and for the most part cases involving far more horrendous facts — have escaped even the prospect of being sentenced to death because prosecutors don’t seek it,” said Brian Kammer, one of McClain’s lawyers.

TEXAS

Review death penalty law, ex-governor urges

White worries about execution of the innocent

By R.G. Ratcliffe, Austin Bureau

10-18-09 -- Former Gov. Mark White, who was involved in the executions of 20 condemned criminals, says it may be time for Texas to do away with the death penalty. . . . The death penalty is no longer a deterrent to murder, and long stays for the condemned on death row shows justice is not swift, White said. . . . More than anything, he said, he has grown concerned that the system is not administered fairly and that there are too many risks of executing innocent people. . . . White said the state needs to take a serious look at replacing the death penalty with life without parole. . . . “There is a very strong case to be made for a review of our death penalty statutes and even look at the possibility of having life without parole so we don't look up one day and determined that we as the state of Texas have executed someone who is in fact innocent,” said White.

Perry uses clemency sparingly on death row

Governor has never called off an execution on a claim of innocence

By Lise Olsen, Houston Chronicle

10-18-09 -- In nearly nine years as Texas governor, Rick Perry has never spared a life based on a claim of innocence and only once delayed an execution in such a case, according to a Chronicle review of public records, clemency statistics and information from the governor's office. . . . During that same period, officials in other death penalty states granted clemency for humanitarian reasons at least 200 times — 171 based on questions of innocence in Illinois alone. . . . Texas has executed 200 convicts under Perry's watch, but he has spared just one condemned man's life in a case in which he was not compelled to do so by the U.S. Supreme Court. In that case, the inmate Perry saved in 2007 was not a killer but the admitted driver of a getaway car, condemned alongside the triggerman in a joint trial under Texas' tough “law of parties.”

ARIZONA

Woman on Death Row May Get New Trial

By The Associated Press, New York Times 

10-17-09 -- Debra Jean Milke has been sitting on Arizona’s death row for nearly 20 years, largely because a police detective said she confessed to plotting her 4-year-old son’s murder. . . . Now Ms. Milke could get a new trial, and even her freedom, because the detective skipped one of the most basic steps when officers interview suspects — getting them to sign a Miranda waiver, giving up their right to remain silent. . . . “You know, I have never seen a case where there has been no signed Miranda waiver,” said Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit, in San Francisco, at a hearing on the case in August 2008.

Judge Says Death Penalty
"too fraught with variables to survive"

Death Penalty Information Org.

10-16-09 -- Retired Federal Appeals Court Judge H. Lee Sarokin recently offered a harsh critique of the death penalty, especially challenging the botched execution attempt of Romell Broom in Ohio in September. Citing morality, arbitrariness, and the dim prospects of closure for the murder victims’ families, Judge Sarokin called the imposition of the death penalty an erratic and flawed process that should not be permitted to continue. “The system is too fraught with variables to survive. Whether or not one receives the death penalty depends upon the discretion of the prosecutor who initiates the proceeding, the competence of counsel who represents the defendant, the race of the victim, the race of the defendant, the make-up of the jury, the attitude of the judge, and the attitude and make-up of the appellate courts that review the verdict.“ . . . Regarding Ohio's lethal injection process, Judge Sarokin said it would be unconstitutional to subject the defendant to a second execution attempt: “It is impossible to imagine what it must be like to know that you are going to be put to death, have numerous efforts fail, and then have to face the prospect again at a later date! If that isn't cruel and unusual punishment, I do not know what is!“ He continued, “Double jeopardy prohibits a person from being tried twice for the same crime. Should it not protect a person from being subjected to execution twice for the same crime?“ . . .  Click to read the entire article: Read more

Gallup Poll: Support for Death Penalty Remains
Near 25-Year Low

Death Penalty Information Org.

10-15-09 -- The latest Gallup Poll on the death penalty shows 65% of Americans support the death penalty, significantly lower than the 80% support recorded in 1994 and near the lowest support of 64% in the past 25 years recorded last year.  Only 57% believe the death penalty is fairly applied, and 59% of Americans believe that an innocent person has been executed in the last five years.  Gallup reported that support for the death penalty is lower if Americans are offered an explicit alternative, such as life imprisonment with absolutely no possibility of parole.  The last time that Gallup offered such alternatives in 2006, only 47% preferred the death penalty, while 48% supported life imprisonment with no parole.

UNITED STATES SUPREME COURT

Mumia Abu-Jamal's Life May Hinge on Case of
Neo-Nazi Triple Murderer

Shannon P. Duffy, The Legal Intelligencer

10-14-09 -- In a bizarre twist of fate, Mumia Abu-Jamal -- the convicted cop killer whose quarter century on death row in Pennsylvania has made him internationally famous -- may find that his very life hinges on the outcome of a U.S. Supreme Court argument on Tuesday in the case of a neo-Nazi triple murderer who wore a Hitler mustache at trial as he testified proudly about his desire to kill blacks, Jews and gays. . . . For Abu-Jamal, the stakes couldn't be higher. And the worst-case scenario is that the decision in the Ohio case, Smith v. Spisak, could directly lead to a reinstatement of Abu-Jamal's death sentence. . . . But the justices may never reach the legal issues that Abu-Jamal shares with Frank Spisak, the neo-Nazi convicted in that case. That could happen if the high court instead focuses entirely on issues relating to whether Spisak's defense lawyer at trial did such a poor job in delivering his closing argument in the death penalty phase that his death sentence cannot stand.

Supreme Court to Review Effect of "Gross Negligence"
by Death Penalty Attorney

Death Penalty Information Org.

10-14-09 -- On October 13, the U.S. Supreme Court agreed to hear Holland v. Florida, a case raising the question of "whether 'gross negligence' by a state-appointed defense attorney in a death penalty case provides a basis for extending the time to file a federal habeas challenge, in a case where the habeas plea was filed late despite repeated instructions from the client." (scotusblog.com).  In his petition for certiorari to the Court, the defendant stated, "Despite the State of Florida's promise to Petitioner that he have counsel to competently and effectively represent him in both his state and federal postconviction litigation, a promise that would be purportedly enforced by judicial monitoring, Petitioner's state collateral attorney, Mr. Collins, failed to timely file a (habeas corpus) §2254 petition on behalf of Petitioner."  The defendant then filed his own petition for habeas corpus and, while admitting it was filed late, asked that the deadline be extended because of the serious error by his appointed attorney.

UNITED STATES SUPREME COURT

Ohio Death Penalty Case Might Determine Abu-Jamal's Fate

Shannon P. Duffy, The Legal Intelligencer

10-12-09 -- Lawyers for convicted cop-killer Mumia Abu-Jamal will be watching closely on Tuesday when the U.S. Supreme Court takes up an Ohio death penalty case because its outcome may very well decide whether Abu-Jamal's death sentence will be reinstated. . . . In April, Abu-Jamal lost his final appeal seeking a new trial for the December 1981 murder of Philadelphia Police Officer Daniel Faulkner when the justices refused to take up the issue of whether blacks were unfairly excluded from the jury. . . . But, at the time, the justices took no action on a companion petition filed by the Philadelphia district attorney's office demanding reinstatement of Abu-Jamal's death sentence despite having discussed it weeks before. . . . Now it appears certain that the high court has decided to hold the Philadelphia prosecutors' petition in abeyance pending the outcome of Smith v. Spisak -- an Ohio case that raises strikingly similar issues to those in Abu-Jamal's case.

ARIZONA  

Questions of justice in court changes

Death-penalty-case backlog spurs hastening of process

by Michael Kiefer The Arizona Republic

10-11-09 -- Since Maricopa County Attorney Andrew Thomas took office in 2005, he has asked for death sentences in murder cases more than 120 times - more than any other top prosecutor in Arizona history. . . . His support of the death penalty is unwavering: He has run for election and re-election on the pledge he will continue to seek capital sentences. . . . Consequently, the number of death-penalty defendants swelled faster than the court system could handle. There just weren't enough judges, prosecutors and qualified defense attorneys available. . . . At the beginning of 2009, there were 129 defendants awaiting trial in capital cases in Maricopa County, most of them years beyond the 18-month time period in which, under court rules, they are supposed to be tried. . . . But now, the number of capital cases is being whittled down rapidly.

FLORIDA

Opinion: Florida’s Death Penalty System Still
‘Fraught with Problems’

Death Penalty Information Org.

10-7-09 -- A recent op-ed in the Florida Times-Union pointed to continuing problems in Florida’s death penalty system despite prior recommendations for change in an American Bar Association report three years ago. The article was written by Raoul Cantero III, a former Florida Supreme Court justice appointed by Gov. Jeb Bush, and Mark Schlakman, a senior program director for Florida State University's Center for the Advancement of Human Rights.  The authors state that little has been done by either the state government or the Florida Bar Association in response to the ABA's findings. The ABA report addressed the often abysmal legal representation of defendants in post-conviction proceedings, socioeconomic and geographic bias in seeking the death penalty versus a life sentence, and lack of fairness and accuracy in the system. The authors note that these problems remain, but there is a chance that new political leaders could still bring about change: "The challenge for those who hold and aspire to elected office is to ensure that personal perspectives pertaining to capital punishment, and the public outrage arising out of heinous crimes, do not overshadow the fact that Florida's death penalty process is fraught with problems.  Floridians expect a system of justice that engenders confidence based upon fairness and accuracy. With regard to the state's death penalty process, in many respects that standard has proven to be elusive."

OHIO

Ohio Executions Put on Hold; Governor Concurs

Death Penalty Information Org.

10-5-09 -- Lawrence Reynolds, who was scheduled to be executed on October 8 in Ohio, received a stay today (Oct. 5) from the U.S. Court of Appeals for the Sixth Circuit.  The court's stay was based on unresolved issues in Ohio's lethal injection protocol that were brought to the surface by the unsuccessful execution of Romell Broom on September 15.  The majority wrote: "These disturbing issues give rise to at least two questions: first, whether Ohio is fully and competently adhering to the Ohio lethal injection protocol given (a) their failure to have a contingency plan in place should peripheral vein access be impossible, (b) issues related to the competence of the lethal injection team, and (c) other potential deficiencies; and second, whether these instances present sufficient new, additional factors to revive Reynolds’ Eighth Amendment claims otherwise extinguished by Cooey II (an earlier lethal injection challenge).”

Ohio presses on for execution of inmate from Cuyahoga Falls

By Phil Trexler, Beacon Journal staff writer

10-5-09 -- The Ohio Attorney General's Office will ask the U.S. Supreme Court to overturn today's appellate court ruling that placed a stay on Thursday's scheduled execution of Lawrence Reynolds. . . . The Cincinnati-based 6th U.S. Circuit Court of Appeals, in a 2-1 decision, ordered the stay while citing last month's aborted execution of an inmate from Cleveland. . . . Reynolds, from Cuyahoga Falls, was sentenced to die for the 1994 robbery and strangulation death of his neighbor, Loretta Mae Foster, 67. . . . His attorneys had filed appeals in recent weeks, arguing that Ohio's lethal injection process is flawed.

TEXAS

Texas Governor Replaces Members of Commission Examining Possible Wrongful Execution

Death Penalty Information Org.

10-1-09 -- On September 30, Texas Governor Rick Perry replaced the chairman and two members of a state commission that is investigating whether inaccurate evidence of arson was presented at the trial of Cameron Todd Willingham,  who was executed in 2004. The state’s Forensic Science Commission was scheduled to conduct a public hearing in two days and receive testimony from Craig Beyler, a nationally known expert who called the Willingham investigation “slipshod,” and concluded that “almost all of the evidence presented [w]as based on junk science.” Beyler's report for the Commission concluded that “no credible evidence existed to believe that the fire, that killed three children, was caused by arson.”

September 2009

New Resources: Death Row Database Now Available

Death Penalty Information Org.

9-30-09 -- A new database of death row prisoners in the U.S. is now available on DPIC's Web site. The database contains current sortable and searchable information on death row inmates in each state, including their name, race, county, and date of birth. The information in the database is also editable, meaning that individuals with knowledge of death row inmates may change or add new information. This new database may be a useful tool in exploring how the death penalty is applied. Click here to access the database.

INDIANA

'Zachary's Law' Case Settles with a Life Sentence; Victim's Family Given Finality

Posted: September 29, 2009

9-29-09 -- Todd Snider, the father of Zachary Snider, who was killed at age 10 by Christopher Stevens in Indiana, accepted final resolution of the case against Stevens when a settlement was reached for a sentence of life without parole. “Our family has suffered enough and would like for this to be resolved once and for all," Mr. Snider said about the life sentence. "This will give our family finality. Chris Stevens will die in prison and will never have the opportunity to destroy people's lives again."  The 1993 murder led to the passage of Zachary’s Law, creating Indiana's sex offender registry.  Stevens was originally sentenced to death, but the sentence was overturned in 2007 because Stevens' attorneys had not adequately presented evidence of the defendant's mental illness.  Putnam County Prosecutor Tim Bookwalter said he “believe[s] it was probable that another jury would have given Mr. Stevens the death penalty, but it would have caused the Sniders to go through a lengthy jury trial, and then if convicted, a new set of appeals could have gone on another 10 years. With the plea, this case is over. There are no more appeals and the Sniders should never have to deal with Stevens again." .

Editorials: "High Cost of Death Row"

Death Penalty Information Org.

9-28-09 -- In an editorial on September 28 in the New York Times, the paper called the death penalty "an economic drain on governments with already badly depleted budgets."  Citing figures from the Death Penalty Information Center, the Times noted that "States waste millions of dollars on winning death penalty verdicts, which require an expensive second trial, new witnesses and long jury selections. Death rows require extra security and maintenance costs." The editors remarked that some states have begun reconsidering whether the death penalty is worth its exorbitant costs, especially since the money spent could be used instead on “police officers, courts, public defenders, legal service agencies and prison cells.” The editorial was discussed on Daily Kos. The entire editorial can be read below:

INTERNATIONAL

Use of Death Penalty May Sharply Decline in Japan

Death Penalty Information Org.

9-27-09 -- Japan, the only other industrialized democracy apart from the United States that still practices the death penalty, may see a halt to executions with the recent appointment of Keiko Chiba as justice minister. Chiba, a lawyer and active death penalty abolitionist for the past 20 years, would have to provide the final signature for an execution to occur.

CALIFORNIA

Opinion: San Francisco Chronicle Addresses
"The High Cost of Vengeance"

Death Penalty Information Org.

9-25-09 -- John Diaz, the editorial page editor of the San Francisco Chronicle, recently questioned the wisdom of spending hundreds of millions of dollars on the death penalty in California. Diaz pointed to the enormous expense of maintaining capital punishment in the state: "Today, California has nearly 700 inmates on death row, more than any other state, with their cases in varying levels of appeal. The housing of an inmate on death row is more than triple the $40,000 annual cost of incarcerating others. This state is contemplating a new, $400 million death row. And none of this includes the legal bills for the trials and appeals that are - by constitutional right - more exhaustive in capital cases."  He called for an open debate, “At some point, California needs to have a forthright debate about the cost and efficacy of the death penalty. That moment,” he wrote alluding to upcoming elections, “maybe coming in 2010.” He noted that executions are too rare in California to be a plausible deterrent.  The percentage of Californians who believe the death penalty is a deterrent has dropped from 79% to 44% in the last twenty years.

NEW MEXICO

Republican Gubernatorial Candidate Ready to Close Door on New Mexico's Death Penalty

Death Penalty Information Org.

9-23-09 -- In March of this year, New Mexico repealed the death penalty, becoming the fifteenth state to abolish the practice. The law, however, is not retroactive, and does not affect two inmates currently on death row as well as any defendant sentenced to death for crimes committed before the law was to take effect in July 2009. One of the legislators who voted to end the death penalty, partly because of its high costs, was Republican gubernatorial candidate Rep. Janice Arnold-Jones, who also voted to repeal the death penalty in 2007.  Arnold-Jones recently said she “would consider commuting sentences of the two men on death row and any others who may join them.” She continued, “[T]he biggest reason that I couldn't sustain the death penalty any longer is it's not working. It is fraught with so many issues, so much cost and it bogs down our system. It's just not working.“ 

OHIO  

Is a second execution attempt cruel and unusual?

A lethal-injection team tried for about two hours to find a usable vein, then gave up. Romell Broom, a convicted rapist-murderer, says another try would be unconstitutional.

By Carol J. Williams, Los Angeles Times

9-19-09 -- As executioners poked his limbs with an IV needle, Romell Broom initially tried to speed along his own demise, flexing his arm and tugging on a rubber tourniquet to better expose a vein on the inside of his elbow. . . . But as prison workers repeatedly failed to find a vein strong enough to take the lethal injections, the convicted rapist-murderer began to despair over his protracted end. Witnesses and the execution-team log from Tuesday describe how the 53-year-old winced and cried as a shunt inserted in his leg also failed to open a pathway for the fatal drugs. . . . Two hours and 23 minutes after it started, Ohio Gov. Ted Strickland halted the execution and scheduled a second attempt for a week later. . . . The aborted execution has renewed concerns about lethal injection, and raises the question of whether a second execution attempt would violate the 8th Amendment prohibition of cruel and unusual punishment.

TEXAS  

Woman on Texas death row loses federal appeal

Inmate who killed Houston mom, kidnapped baby may turn to Supreme Court

By Peggy O'Hare, Houston Chronicle

9-18-09 -- A federal appellate court has rejected condemned inmate Linda Anita Carty's bid for a new trial, keeping her on Texas' death row for killing a Houston mother and kidnapping the slain woman's 4-day-old baby. . . . The 5th U.S. Circuit Court of Appeals ruled late Thursday that a district court did not err in denying a new trial for Carty, a 50-year-old grandmother and a native of the British Virgin Islands. . . . Carty's attorneys, who handled her appeal for free at the request of the British government, argued her former lawyers provided ineffective counsel at her trial and said the Harris County jury that convicted her might have sentenced her to life in prison had they been given a more complete portrait of her character. . . . The Texas Attorney General's Office disagreed. A Harris County prosecutor applauded the higher court's decision.

OHIO

Chronology of A Failed Execution
Death Penalty Information Org.

9-17-09 -- In The partial timeline below of the attempted execution of Romell Broom in Ohio on Sept. 15 was compiled by the Cleveland Plain Dealer, Sept. 17, 2009; reporter Peter Krouse.  The entire timeline can found by clicking here.

CALIFORNIA  

Retired attorney uses "pamphlet power" to fight death penalty

By Gus Thomson, Journal Staff Writer

9-16-09 -- Newcastle’s Paul Comiskey is hoping a small pamphlet will have a big impact on people’s views regarding the death penalty. . . . The retired defense attorney and former Jesuit priest authored “A Taxpayers Guide to the California Death Penalty” and has co-published an initial print run of 10,000 copies. . . . Comiskey has been handing the pamphlets out over the summer and encouraging people to read them. . . . Sometimes, he noted, they hand them back. . . . Comiskey is an unabashed death penalty opponent – something he says he has been since he was old enough to formulate an opinion on capital punishment. It’s expensive for taxpayers during a time when government spending is being questioned, it hurts rather than helps the families of victims and it perpetuates prejudices against blacks, he said.

OHIO

New Revelations of Inmate's Struggles During Ohio Execution Attempt
Death Penalty Information Org.

9-16-09 -- More information is being reported about the botched execution-attempt of Romell Broom yesterday (Sept. 15) in Ohio.  According to the Associated Press, the correctional officers encountered so much difficulty in finding a suitable vein for the lethal injection that, after an hour, Broom attempted to assist them by moving on his side, sliding the rubber tubing up and down his arm, and flexing his fingers.   A vein was found, but it collapsed as the technicians inserted a saline solution.  Broom’s assistance did not help, and he turned on his back and covered his face with both hands.  He appeared to be in distress and wiped his eyes.  One of the execution team handed him a roll of toilet paper, which he used.  The executioners attempted to use the veins in his legs and he grimaced.  One of the team patted him on his back.  Finally, the executions gave up their attempts, indicating they needed a break.

OHIO

Can Ohio Execute the Same Man Twice?

Posted by Andrew Cohen, CBS News 

9-16-09 -- For two hours Tuesday afternoon at a prison in Lucasville, Ohio, while the rest of us were at work or school or home, Romell Broom's team of executioners worked to find a usable vein which would deliver the lethal injections designed to stop his heart and end his life. First they tried his arms. Then they tried his legs. Broom himself, a convicted rapist and murderer, even tried to help at one point, flexing his hand and fingers while lying on his side. He grimaced. He wiped his brow. Nothing worked. His veins simply wouldn't hold up. . . . Eventually, long after Broom was supposed to be dead, the prison director and execution team gave up. They called the governor and asked for a reprieve. The governor relented and now Broom sits in legal limbo, waiting evidently not just for some medical procedure that would free him up to be put to death but also for some guidance from the state and federal courts about whether it now would amount to "cruel and unusual" punishment to execute him at all under Ohio's evolving (but clearly still troubled) lethal injection protocols. . . . The grisly details surrounding Broom's failed execution—which read like an outtake from the movie "The Green Mile" or a transcript from a torture probe-- remind us that the United States Supreme Court did not come remotely close last year to fixing the many problems that still surround lethal injection in America. It's true that the Justices upheld Kentucky's lethal injection procedures. But those measures are different from the procedures in place in Ohio, a state that consistently has had problems over the past few years ensuring that its executions are swift and humane.

TEXAS  

No new trial for Texas death row inmate despite Collin County prosecutor's affair with judge

By Diane Jennings / The Dallas Morning News

9-16-09 -- The question of whether a romantic relationship between a judge and prosecutor is unfair won’t be decided by the Texas Court of Criminal Appeals. . . . The issue in the capital case of Charles Dean Hood roiled the legal community last summer, but the Court ruled Wednesday it would not consider the issue because defense attorneys did not raise it initially. . . . Defense attorney David Dow called the decision by Texas’ highest criminal court “gutless.” . . . “The question of whether there is a fundamental taint to this trial is, at this point, going to be decided by a federal court — if it’s going to be decided by any court at all — because what the state court has said is, ‘We don’t care,’” said Dow, litigation director for the Texas Defender Service.

CALIFORNIA  

Prosecutor Decries Judge Overturning Deadhead Murder Conviction

KTVU.com and Bay City News 

9-15-09 -- A former prosecutor said Tuesday that a federal judge's decision to overturn the conviction and death penalty of a man who was found guilty of murdering two followers of the Grateful Dead band at a homeless encampment in Berkeley in 1985 was "an abuse of judicial discretion." . . . Former Alameda County Assistant District Attorney James Anderson, who prosecuted Ralph International Thomas in 1986 for the August 1985 murders of Mary Gioia, 22, and Greg Kniffin, 18, said the Sept. 9 ruling by U.S. District Court Judge Marilyn Patel was "an outrageous bit of judicial jokery." . . . But Thomas's appellate lawyer, A. J. Kutchins, said, "It is wonderful that after all of these years, the court has recognized that Mr. Thomas did not get a fair trial." . . . Patel ruled that Thomas was denied a fair trial because his defense lawyer was incompetent and failed to locate witnesses who would have pointed to another resident of the encampment as a possible suspect.

NORTH CAROLINA

Vietnam Vet on Death Row Receives His Medals and Waits for Execution

Death Penalty Information Org.

9-9-09 --A recent article in the Fayetteville Observer in North Carolina captures the poignant story of one man's life on death row.  James Floyd Davis is a Vietnam veteran who lashed out with a burst of violence fourteen years ago, killing three people including his boss who had fired him a few days before.  He suffers from mental illness and post-traumatic stress disorder.  Through the intervention of a therapist who also served in Vietnam, it was learned that Davis was entitled to a Purple Heart and other medals earned during his service.  The army agreed to award him the medals and the prison eventually agreed to let him receive them.  The reporter, Chick Jacobs, sums up the story this way: "This is a story of how one veteran, wounded in body and spirit, reached into the demon-filled darkness of a fellow veteran who lost his way long ago. It's the unlikely tale of how a medal earned in one horror helped bring a touch of humanity to another."

TEXAS

Arson Cases in Texas Under Broader Review

Death Penalty Information Org.

9-8-09 -- In 2004 Cameron Todd Willingham was executed in Texas for murdering his children by arson.  Since then, numerous forensic fire experts have concluded that the evidence of arson presented at Willingham's trial could not support the conclusion that he caused the fire.  That same year, Ernest Willis was freed from death row in Texas after the prosecution concluded that his conviction and death sentence for arson were mistaken.  Texas has 742 offenders in state prisons for arson, and about 275 more defendants are convicted of the crime each year.  Sen. Rodney Ellis, D-Houston, who has pushed to create a commission in Texas to explore questionable convictions, noted,  "As scientific methods improve," he said, "it's a distinct possibility that we're going to find more problems in the criminal justice system."  One of the experts who examined the evidence in the Willingham case and disputes the claims of arson is Gerald Hurst, a Cambridge-educated chemist, who said, "Accidental fires being turned into arsons is going on all the time."  He believes the core of the problem is that investigators – most of whom began as police officers and firefighters – have no science background.

Books: No Human Way to Kill

Death Penalty Information Org.

9-4-09 -- Acclaimed artist Robert Priseman has assembled some of his drawings of execution chambers with essays on the death penalty into a new book entitled "No Human Way to Kill."  The essays include the story of a mother whose daughter was murdered, a death row inmate's diary, and an interview with Jim Willett, former warden of the prison where Texas executions are held.  Death penalty attorney Clive Stafford Smith writes in review, "The etchings and accounts offer up a strange and original contemplation on a subject which stretches back far, far too long."

TEXAS  

Texas Inmate Freed From Death Row With Charges Dismissed

Death Penalty Information Org.

9-3-09 -- Former death row inmate Michael Toney was freed from prison in Texas on September 2 after the state's Attorney General asked that his death sentence and criminal charges be dismissed.  Toney was sentenced to death for a fatal bombing in 1985 that occurred at a trailer park in Lake Worth.  He has always maintained his innocence, and there was no physical evidence leading to his conviction.  His conviction and death sentence were overturned by the Texas Court of Criminal Appeals nine months ago after it was revealed that the state had withheld critical evidence that might have led the jury to a different conclusion at his trial in 1999.  The attorney general took over the case after the Tarrant County district attorney's office recused itself in January because of the withheld evidence.

Reaction to Execution of a Probably Innocent Man Grows

Death Penalty Information Org.

9-3-09 -- Recent scientific reports indicating that Texas likely executed an innocent man have spurred wide coverage and commentary. Cameron Todd Willingham was executed in 2004 for the arson murder of his three children.  Fire experts now say the blaze was likely an accident. Excerpts from coverage: . . . New York Times Editorial, August 31, 2009, "Questions About an Execution": . . . People should have no illusions about the brutal injustice of the death penalty after all of the exonerations in recent years from DNA evidence, but the case of Cameron Todd Willingham is still shocking. . . . Mr. Willingham was executed for setting a fire that killed his 2-year-old daughter and 1-year-old twins, but a fire expert hired by the State of Texas has issued a report casting enormous doubt on whether the fire was arson at all. The Willingham investigation, which is continuing, is further evidence that the criminal justice system is far too flawed to justify imposing a death penalty. . . . . . .The commission is to be commended for conducting this inquiry, but it is outrageous that Texas is conducting its careful, highly skilled investigation after Mr. Willingham has been executed, rather than before.

CALIFORNIA

Californians' support for death penalty waning

A survey shows public support has dropped from 79% to 66%, as fears of executing the wrongly convicted escalate.

By Carol J. Williams, The Los Angeles Times

9-2-09 -- A majority of Californians still favor the death penalty, but their support has waned from 79% to 66% over the last two decades as fears of executing the wrongly convicted escalate, a researcher reported Tuesday. . . . The survey conducted by Craig Haney, a UC Santa Cruz psychology professor and lawyer, also showed that most Californians erroneously believe that it costs taxpayers less to execute condemned prisoners than to keep them locked up for life. . . . In California, it costs $138,000 a year to incarcerate each of San Quentin State Prison's 685 death row inmates, nearly three times the non-capital inmate cost, according to the state Department of Corrections and Rehabilitation. The average stay on death row is 25 years and growing as legal challenges have kept executions on hold for 3 1/2 years and limited the number to 13 since capital punishment was restored in 1976. . . . "My sense is that the whole issue of the death penalty is much more unsettled now than it has been in the past 20 or so years," said Haney, citing growing public discomfort with incidents in which innocent prisoners have been spared at the last minute -- or not at all.

August 2009

TEXAS  

Innocence: "Trial by Fire: Did Texas Execute an Innocent Man?"

Death Penalty Information Org.

8-31-09 -- In a thorough and penetrating article published in The New Yorker on August 31, David Grann offers further evidence that Texas probably executed an innocent man in 2004. Grann carefully examines all the evidence that was used in the two-day trial in 1992 to convict Cameron Todd Willingham of murder by arson of his three young children.  It is now well established through a series of investigations by other fire experts that the forensic evidence of arson presented at trial had no scientific basis and should not have led to Willingham's conviction.  Another piece of evidence used at trial was the testimony of a jailhouse informant who said that Willingham had confessed to the crime, despite the fact that he had always maintained his innocence and even refused a plea bargain to avoid the death penalty.  The informer eventually received early release, tried to recant his testimony, and is now no longer sure what he heard.  He also suffers from mental disorders.  Willingham's lawyers thought he was 100% guilty and offered no rebuttal expert to question the finding of arson.  At the sentencing hearing, the prosecution put on a psychiatrist, Dr. James Grigson, who made a living helping to send defendants to death row by testifying to their future dangerousness without even interviewing them.  Dr. Grigson said that Willingham was an "extremely severe sociopath," words similar to those he used to describe Randall Dale Adams, who was eventually exonerated following an investigation by documentary filmmaker Errol Morris, portrayed in the film "A Thin Blue Line."

MISSISSIPPI  

Analysis: Mississippi lawyer's death-row work criticized

Attorney failed to represent properly

By Jack Elliott Jr., Associated Press, DeSoto Appeal 

8-31-09 -- In granting a death row inmate a second mental disability hearing, the Mississippi Supreme Court made clear that it thought the inmate's former attorney failed to provide proper representation. . . . In 2003, Howard Dean Goodin persuaded the Supreme Court that his mental disability claims and his attorney's failure to pursue competency issues justified further judicial review. . . . Circuit Judge Marcus Gordon, after a hearing in Newton County, denied Goodin's post-conviction petition. . . . In a post-conviction petition, an inmate argues he has found new evidence -- or a possible constitutional issue -- that could persuade a court to order a new trial. . . . Goodin was being represented by the Mississippi Office of Capital Post-Conviction Counsel and its director, Robert Ryan. Between the time Gordon heard the mental disability arguments and the case got back to the Supreme Court, Ryan was gone, the Office of Capital Post-Conviction Counsel had reorganized and Goodin had a new lawyer.

Resources:
Legacy of Watt Espy's Research Lives on After His Death

Death Penalty Information Org.

8-28-09 -- Probably the most complete collection of information on executions carried out in the United States from colonial times to the modern era was assembled by Watt Espy of Headland, Alabama.  Espy died on August 13, 2009 at age 76, but his files and catalog of executions was preserved and transformed over the years into a searchable database by friends and scholars who appreciated his work.  Much of his archive is now located at the State University of New York at Albany. DPIC has information from this database on our Espy File page.  In addition to a downloadable Excel file of Espy's catalog of executions, DPIC offers three pdf files that can be viewed online, containing information on over 15,000 executions sorted by date of execution, state, and alphabetically by defendant's name.

New Resources: State Instructions for Juries Regarding Life Without Parole Sentences in Capital Cases

Death Penalty Information Org.

8-26-09 -- In all states that use the death penalty, there are provisions for sentencing inmates to the alternative sentence of life without parole (LWOP).  Prior to the U.S. Supreme Court's ruling in Simmons v. South Carolina (1994), some states with LWOP did not inform the jury of this alternative even when so requested by the defense.  Today, states apply a variety of conditions and use differing instructions to inform the jury about this alternative sentence.  Opinion polls and surveys of capital jurors have shown how important this alternative is in death penalty cases.  Thanks to the research of Emma Reynolds of Drexel Law School and Intern at the Philadelphia Federal Defender, Capital Habeas Unit, we are able to offer a summary of how states handle this key issue.  Her paper, "Survey of Life Without Parole Instructions in Death Penalty States," provides the relevant statute and information about jury instructions in each death penalty state.  As with any legal research, it would be important to research any changes in the law before using this information (e.g., New Mexico has now abolished the death penalty and replaced the sentence with LWOP). The table of statutes and instructions is provided in both pdf and Excel format:

Survey of Life Without Parole Instructions in Death Penalty States (pdf)

Survey of Life Without Parole Instructions in Death Penalty States (Excel).

Read more

Ongoing Investigation of Texas Execution Throws New Doubt on Defendant's Guilt

Death Penalty Information Org.

8-25-09 -- According to the Chicago Tribune, the Texas Forensic Science Commission has received a report from a nationally known fire scientist that casts doubt on the guilt of Cameron Todd Willingham (pictured) who was executed in Texas in February 2004.  Craig Beyler of Hughes Associates conducted a review for the Commission of the evidence used to convict Willingham of murder by arson, which led to his death sentence.  Beyler concluded the Texas fire investigators had no basis to rule that a deadly house fire that killed Willingham's children was an arson.  His report mirrors what other renowned experts have found over the past several years and is one step in a more thorough review being conducted by the Science Commission. Experts for the Chicago Tribune and the Innocence Project in New York have similarly concluded that the original investigators relied on outdated theories in calling the fire an arson.

New Voices: Former Death Row Warden Discusses the Impact of Executions on Correctional Officers

Death Penalty Information Org.

8-19-09 -- Dr. Allen Ault was the warden at the maximum security prison in Georgia where executions were carried out.  He also served as Commissioner of Corrections during a lifetime career in the field.  He is currently the Dean of the College of Justice & Safety at Eastern Kentucky University.  In the video accompanying this note, Dean Ault discusses the tremendous drain that carrying out executions had, and continues to have, on his life.  He added, "I know I'm not the only one who has administered executions that felt the way I do.  They all have shed a lot of tears."  He questions the value of the death penalty, and recognizes the difficulty that many politicians have in challenging this punishment, despite its obvious flaws.  With respect to deterrence, he said, "I have a hard time believing that using pre-meditated murder and violence (executions), is a way to model behavior that would deter somebody else from doing it."  The video was made at the end of a six-week course on the death penalty at EKU and contains answers to questions that the students raised.  To view the video (21 minutes), click here.

Books: A Life for a Life--The American Debate Over the Death Penalty

Death Penalty Information Org.

8-18-09 -- In the book, A Life for a Life: The American Debate Over the Death Penalty, author Michael Dow Burkhead, a psychologist who has worked with criminal offenders for 25 years, explores the various trends in public opinion that influence crime prevention efforts, create public policy, and reform criminal law. He examines eight core issues about the use of executions: cruel and unusual punishment, discrimination, deterrence, due process, culpability, scripture, innocence, and justice.  The book provides a brief history of capital punishment in the United States from the earliest known execution in1608 to the present time. Additional topics include the regionalization of capital punishment sentences, the spiritual and scriptural debate over the death penalty, the role of DNA evidence in modern death sentences, and the ongoing effects recent court rulings.  The appendix includes recent state commission reports on the death penalty from Maryland, California, New Jersey, and Tennessee.

UNITED STATES SUPREME COURT

U.S. Supreme Court Orders Historic Hearing on Innocence Claim in Troy Davis Case

Death Penalty Information Org.

8-17-09 -- On August 17 the United States Supreme Court ordered a new evidentiary hearing for Georgia death row inmate Troy Davis, whose case has drawn worldwide attention because of new evidence of his possible innocence. For the first time in nearly 50 years, the Court has favorably responded to a petition directed to them, rather than as an appeal from other courts.  With only two Justices writing in dissent, the Court ordered the lower federal court to hear Davis' evidence: "The District Court should receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner’s innocence."  . . . Since Davis' initial conviction in 1991, seven of nine eyewitnesses against him have recanted their testimony. Justice Stevens, concurring with Justices Breyer and Ginsburg, wrote, "The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing."  He further responded to Justice Scalia's dissent, which would have denied Davis' request on narrow legal grounds, by strongly rejecting the notion that the law allows the execution of an innocent person: "[I]magine a petitioner in Davis’s situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man. The dissent’s reasoning would allow such a petitioner to be put to death nonetheless. The Court correctly refuses to endorse such reasoning."  An amicus brief had been filed on behalf of Davis by former members of the judiciary and law enforcement officials, including former Georgia Congressman Bob Barr and the former director of the FBI William S. Sessions.

Supreme Court Orders Hearing on Death-Row Inmate’s Innocence Claim

By Debra Cassens Weiss, ABA Journal

8-17-09 -- A death-row inmate who claims the Eighth Amendment bars his execution because he is innocent of the crime will get a hearing before a federal district judge, thanks to intervention by the U.S. Supreme Court. . . . In an unusual order issued today, the U.S. Supreme Court told a Georgia federal judge to hear the claim of actual innocence by Troy Anthony Davis, SCOTUSblog reports. The U.S. Supreme Court had denied cert in Davis’ case in October. Seven of nine witnesses at Davis’ trial for killing a police officer have recanted their testimony, and the case has attracted international attention. . . . Justices Antonin Scalia and John Paul Stevens issued dueling opinions on the propriety of the order, the Atlanta Journal-Constitution reports. Scalia, joined by Justice Clarence Thomas, argued in a dissent that the federal judge won’t be able to grant relief under a 1996 law restricting habeas review of state convictions.

CALIFORNIA

Judges’ Dissents for Death Row Inmates Are Rising

By John Schwartz, The New York Times

8-13-09 -- It took just 80 words for a federal appeals court to deny Kevin Cooper’s most recent plea to avoid execution. But attached to that order was a forceful 101-page dissent by a judge, all but pleading to spare Mr. Cooper’s life. . . . The State of California may be about to execute an innocent man,” it began. . . . The judge who wrote the dissent, William A. Fletcher of the United States Court of Appeals for the Ninth Circuit, in San Francisco, argued that the police and prosecutors had withheld and tampered with evidence in the case for decades; Judge Fletcher even accused the district court of having sabotaged the case. . . . Compared with the dry, mannerly prose found in many opinions, Judge Fletcher’s passion in Cooper v. Brown is startling. But these kinds of fervent, lonely dissents, urging that a prisoner’s life be spared, have noticeably increased in the last decade, compared with previous years, according to a review of death penalty opinions by The New York Times, as confirmed by experts in the field.

NORTH CAROLINA

Gov. Perdue Signs North Carolina's Racial Justice Act--NAACP Commends Passage

Death Penalty Information Org.

8-11-09 -- Governor Beverly Purdue of North Carolina signed the state's Racial Justice Act into law on August 11, concluding a long period of legislative action surrounding this death penalty statute.  Gov. Purdue said in a news release, "I have always been a supporter of death penalty, but I have always believed it must be carried out fairly.  The Racial Justice Act ensures that when North Carolina hands down our state’s harshest punishment to our most heinous criminals – the decision is based on the facts and the law, not racial prejudice.”  The law allows pre-trial defendants and death-row inmates to challenge racial bias in the death penalty system through the use of statistical studies.  Prosecutors would then have the opportunity to rebut the claim that the statistical disparities indicate racial bias.  If proven, a judge could overturn the death sentence or prevent prosecutors from seeking the death penalty. . . . The state conference of the NAACP issued a statement, commending the sponsors of the bill and the governor.  They cautioned, "This law does not assure racial justice, but it can help bring it about. The law is one of the most powerful legitimate weapons we can use to rid our state of the criminal justice practice of racial bias.  It does not address the roots of the problem – stereotypes, fear and even racism – but it is a start."

OHIO

Executions are coming too fast, Ohio Public Defender Tim Young says

Posted by Reginald Fields / Plain Dealer Bureau Chief

8-10-09 -The state of Ohio is lining up death-row inmates for execution at a feverish pace not seen here since capital punishment was reinstated a decade ago. . . . Having already carried out three executions since June, the state has scheduled at least one lethal injection every month through the end of the year. . . . That could mean that by year's end, Ohio will have executed eight men in the final seven months of 2009. The previous high was seven in all of 2004. . . . They are coming too fast, argues Ohio Public Defender Tim Young, who worries that the burdens on state officials to carry out the tasks in rapid-fire succession could lead to careless mistakes.

NEW JERSEY

Murders Drop in New Jersey Following Moratorium and Abolition of Death Penalty

Death Penalty Information Org.

8-5-09 -- The number of murders in New Jersey declined 24% in the first six months of 2009 compared to the same period last year.  Murders declined in 2008, the year after the state abolished the death penalty, marking the first time since 1999 that New Jersey has seen a drop in murders for two consecutive years.  Murders dropped 11% in 2007, the year following a state-imposed moratorium on executions, which was instituted in 2006. Governor Jon Corzine, who signed the bill abolishing the death penalty, was encouraged by the statistics and attributed the decline to aggressive crime-fighting measures: "The release of these crime report statistics shows that we are winning important battles in the war against violent criminals and gangs," said the Governor. "Thanks to the efforts of Attorney General Milgram and the New Jersey law enforcement community, county task forces, police departments, and partner agencies, more than  4,200 offenders have been arrested for crimes including murder, assault with a firearm, armed robbery, and gun and drug trafficking. We know more work remains.  Even one act of violence against a New Jersey citizen is one too many." Read more

July 2009

RACE: Research Experts Say Racial Bias Still Exists in Death Penalty

Death Penalty Information Org.

7-31-09 -- Renowned researchers David Baldus, Professor of Law at the University of Iowa, and George Woodworth, a fellow of the American Statistical Association, recently wrote about the ongoing problem of racial disparities in capital cases.  Professors Baldus and Woodworth were responsible for the acclaimed study on race and the death penalty in Georgia that was brought before the U.S. Supreme Court in 1987 in McCleskey v. Kemp.  In response to claims that North Carolina does not need to pass the Racial Justice Act, the researchers pointed to "several studies, including one done at UNC-Chapel Hill several years ago, that found that a defendant's odds of getting the death penalty in North Carolina increased by 3.5 times if the victim is white."  They wrote further: "Our published review of all studies completed up to 2003 reaches the same conclusion. No one who has read the research literature could claim that white-victim cases more frequently result in death sentences because they are more heinous and aggravated than black-victim cases. Studies that provide the strongest evidence that those who murder whites are substantially more likely to receive death sentences than those who murder blacks use well-accepted statistical tools to filter out the effects of these various non-racial factors."  Their entire op-ed may be read below: Read more

TEXAS

Recent Legislation: Texas to Open First Capital Defense Office for Death Penalty Appeals

Death Penalty Info Org

7-28-09 -- Following recently passed legislation, Texas will open an office with nine attorneys to manage post-conviction appeals in death penalty cases.  In the past, appointed attorneys sometimes missed filing deadlines or filed inadequate briefs, thereby jeopardizing their clients' cases.  The Office of Capital Writs will be funded by redirecting money already in the state budget: $500,000 formerly used to pay private attorneys for appeals and $494,520 from the state's Fair Defense account.  The office will oversee the part of the appeals process known as state habeas corpus where constitutional issues outside the trial can be raised.  This important phase can address issues such as new evidence of innocence, prosecutorial misconduct, and inadequate representation.  Eventually, this office will handle most state habeas appeals, which currently number about 10 a year.  "I think that everyone agrees (death row inmates) deserve one fair shot at presenting their issues," said Andrea Marsh, executive director of the Texas Fair Defense Project. "We saw too many cases where poor state habeas representation forced people to lose appeals."

GEORGIA

Decision to Seek the Death Penalty in One Case Costs Georgia More Than $3 Million

Death Penalty Information Org.

7-27-09 -- There never was any question that Brian Nichols was guilty of the courthouse shooting of a judge and three other victims in 2005.  He had offered to plead guilty if the death penalty was not pursued, but the state insisted on a full death penalty trial that ended up being the most expensive capital case in Georgia's history.  In 2008, the case concluded with Nichols being sentenced to life without parole.  Recently, the defense costs were revealed to be more than $3 million, with the state paying $2.3 million, and Fulton County paying about $625,000.  The costs of the prosecution and other trial-related expenses have not been revealed, though state officials estimated it cost an additional $300,000 for state-supplied staff and other expenses. Read more

PENNSYLVANIA

Reality Check: Death Penalty in Pennsylvania Most Often Results in Life Sentences

Death Penalty Information Org.

7-27-09 -- In Pennsylvania, the state goes through the expensive and time-consuming process of trying many death penalty cases and fighting appeals, but almost all cases end with a life sentence.  According to a recent Associated Press study of what happens in capital cases in the state, 124 death sentences have been overturned and resentenced.  When these cases went through the justice system a second time with the original errors corrected, 95% (118) resulted in life sentences or less.  Only 6 inmates were resentenced to death.  Pennsylvania has the fourth largest death row in the country, but the only people who have been executed were three inmates who waived their appeals.  The last execution in a fully contested case was 47 years ago. Twenty-one inmates on death row have died of natural causes or suicide since 1983.  Six inmates have been exonerated when their convictions were reversed and they were freed following acquittals or dismissal of all charges. Read more

OHIO

Ohio Parole Board Recommends Clemency for Death Row Inmate

Death Penalty Information Org.

7-21-09 -- The Ohio Parole Board made a rare recommendation of clemency on July 17, voting 5-2 that Jason Getsy's death sentence should be reduced to life without parole.  Getsy is scheduled to be executed on August 18 for the murder of Ann Serafino in 1995.  A co-defendant who initiated and organized the crime received a lesser sentence of 35 years to life.   "In imposing a death sentence, it is imperative that we have consistency and similar penalties imposed upon similarly situated co-defendants," the Parole Board said.  Since Ohio resumed executions in 1999, the Parole Board has only recommended clemency two other times, and in both cases the governor followed the recommendations.

New Voices: Former State Department Official Urges President to Implement Ruling of World Court

Death Penalty Information Org.

7-20-09 -- John Bellinger, who served as legal adviser to the State Department from 2005 to 2009, has called on President Obama to assist in the review of the death penalty cases of foreign nationals who were denied rights under the Vienna Convention on Consular Relations.  The U.S. has ratified the Vienna Convention and the Protocol that provides for resolution of disputes in the International Court of Justice in the Hague (ICJ).  Mexico brought a suit to this court on behalf of its citizens on death row in various states because the U.S. had not provided the defendants with access to their consulates at the time of their arrest.  The ICJ held that the cases of the Mexican nationals should be reviewed before any executions went forward.  President George W. Bush ordered state courts  to review the cases, but this order was ultimately blocked in the U.S. Supreme Court.  Mr. Bellinger said that President Obama could comply with our obligations under the treaty through legislation: "The Obama administration's best option would be to seek narrowly tailored legislation that would authorize the president to order review of these cases and override, if necessary, any state criminal laws limiting further appeals, in order to comply with the United Nations Charter," he wrote recently in the N.Y. Times.

WASHINGTON   

Judge affirms Wash. lethal injection method

Attorney General Rob McKenna will ask the Washington state Supreme Court to lift the stay of execution of a death row inmate after a judge ruled Friday that the state's lethal injection procedures were constitutional.

By Rachel La Corte, Associated Press Writer, Seattle Times

7-10-09 -- Attorney General Rob McKenna will ask the Washington state Supreme Court to lift the stay of execution of a death row inmate after a judge ruled Friday that the state's lethal injection procedures were constitutional. . . . Assistant Attorney General John Samson said that they will file a motion with the court next week to vacate the stay of execution of Cal Coburn Brown after Friday morning's ruling by Thurston County Superior Court Judge Chris Wickham. . . . Brown was one of three death-row inmates who argued that Washington's preferred method of execution needed a major overhaul to satisfy constitutional bans on cruel punishment. . . . But Wickham ruled that the inmates presented no evidence that the state "intended to impose punishment that was 'cruel.'" He said the method was constitutional under both the state and U.S. Constitutions.

LOUISIANA   

Death row inmate, ACLU win fight to have Catholic Masses shown in cells

by Gwen Filosa, The Times-Picayune

7-6-09 -- Many convicted killers seek solace in the Lord in their final days, and Donald Lee Leger is among them. Further, he insists on the Catholic interpretation -- not a Baptist version that blared on the TV sets for all death-row prisoners at the Louisiana State Penitentiary at Angola. . . . So he sought help from the American Civil Liberties Union. Though the ACLU has fought for separation of church and state in the public square -- Nativity scenes, Ten Commandments, crosses -- in Leger's case it defended a particular brand of worship in a taxpayer-financed cage for the state's most evil men. . . . "If you are behind bars and you have limited contact with the outside world, the only thing you have is your spirituality, " said Katie Schwartzmann, an attorney for the ACLU, which sued on behalf of Leger. "Baptists had access to services that Catholic prisoners didn't have." . . . The prison relented in a settlement effective this month. So Leger -- awaiting death for murdering a stranger in St. Mary Parish while chasing his girlfriend, who escaped his kidnapping attempt -- will now have viewings of Catholic Mass and have private confessions with a priest. He will also receive the Holy Eucharist.

TENNESSEE  

Tennessee Wins Ruling on Execution

By John Schwartz, New York Times

7-2-09 -- A federal appeals court on Thursday overturned a lower court’s finding that Tennessee’s lethal injection procedure is unconstitutional. . . . The case concerns Edward J. Harbison, who was sentenced to death for the 1983 murder of an elderly woman. . . . In 2007, as a result of Mr. Harbison’s appeals, the Federal District Court in Nashville found that Tennessee’s procedures for execution were unconstitutional, in part because of the potential that the process would cause unnecessary pain to the condemned. . . . After that decision, however, the Supreme Court issued an opinion that largely supported lethal injection. The opinion, written by Chief Justice John G. Roberts Jr., was one of several in a fractured decision and approved Kentucky’s process, which uses a sequence of three drugs. The opinion said a state with procedures “substantially similar to the protocol we uphold today” would pass muster.

June 2009

VIRGINIA  

Va. Bar Wants AG to Stop Sending Cautionary Letter to Death Penalty Jurors

By Molly McDonough, ABA Journal

6-22-09 -- For years, the state attorney general's office in Virginia has distributed letters to former jurors in capital cases, cautioning them against talking to defense lawyers working on appeals. . . . And the Virginia State Bar wants to put a stop to the letters. . . . The form letter, which is supplied to local prosecutors, advises jurors that they may be contacted by someone representing the convicted killer who "may try to give the false impression that they are working on behalf" of the prosecution or the courts, the Washington Post reports. . . . The state bar, which considers the letter to be "offensive," has launched disciplinary proceedings to stop the state from sending out the letter. This is the second such attempt since the letter first became public in 2004.

TEXAS  

Hearing on judge in death row case to be held in S.A.

By Craig Kapitan - San Antonio Express-News

6-19-09 -- A hearing to decide the fate of one of Texas' highest judges accused of judicial misconduct is now scheduled to be in a San Antonio courtroom in August. . . . The State Commission on Judicial Conduct is accusing Court of Criminal Appeals Presiding Judge Sharon Keller of discrediting the judiciary after she refused to accept a last-minute appeal from death row inmate Michael Wayne Richard on the day of his execution Sept. 25, 2007. . . . Keller's hearing was expected to be in Austin, but the judge whom the Texas Supreme Court appointed as special master in the case ordered it be held in his newly renovated courtroom in San Antonio. . . . State District Judge David Berchelmann Jr. is tasked with determining if any disciplinary action is necessary against Keller. He'll submit a report of his findings to the Judicial Conduct Commission, which will then have the option of dismissing the case, issuing a public censure or recommending that Keller be removed from office.

BOOKS--The Ride: A Shocking Murder and a Bereaved Father’s Journey from Rage to Redemption

6-1-09 --The Ride: A Shocking Murder and a Bereaved Father’s Journey from Rage to Redemption is a new book by Brian MacQuarrie that explores a parent's grief and subsequent transformation through the story of Robert Curley in Massachusetts.  Curley's 10-year-old son, Jeffrey, was a victim of abduction and murder in 1997.  The murder shocked and outraged the community of East Cambridge outside of Boston.  MacQuarrie explores the father's evolution “from grief to anger to activism against predators,” and from being an outraged father demanding the death penalty for his son’s murderer to an outspoken critic of capital punishment.  Delving deeper into the issue, the author looks at the struggle of Massachusetts residents as they decide whether to reinstate capital punishment.  Senator John Kerry calls the book, a “compelling and deeply moving…story of Bob Curley’s journey to hell and back.”  Sister Helen Prejean said "Robert Curley's radical transformation is a lesson for us all."

Experts In Study Say Death Penalty Is No Deterrent

By:Ted Gest at Criminal Justice Journalists

6-17-09 -- Eighty-eight percent of the country's top criminologists do not believe the death penalty acts as a deterrent to homicide, according to a study published in Northwestern University School of Law's Journal of Criminal Law and Criminology. The authors say the study, "Do Executions Lower Homicide Rates? The Views of Leading Criminologists," undermines the idea of deterrence as a rationale for maintaining the punishment.

The study was written by Michael Radelet, sociology department chair at the University of Colorado-Boulder, and Traci Lacock, an attorney and sociology graduate student in Boulder. They said 87 percent of the expert criminologists believe that abolition of the death penalty would not have any significant effect on murder rates. In addition, 75 percent of the respondents agree that "debates about the death penalty distract Congress and state legislatures from focusing on real solutions to crime problems." (The weblink below connects to a pdf version of the study.) / Crime & Justice News

GEORGIA  

Death penalty reinstated in beating death

Construction worker robbed, killed boss in 1985.

By Bill Rankin, The Atlanta Journal-Constitution

6-13-09 -- The federal appeals court on Friday reinstated the death sentence against a Marietta man for beating his supervisor to death with a tree trunk near Lake Allatoona in 1985. . . . In a 2-1 decision, the 11th U.S. Circuit Court of Appeals in Atlanta overturned a federal judge’s ruling that found Lawrence Joseph Jefferson’s lawyers provided ineffective legal assistance at trial. . . . In 1986, a Cobb County jury sentenced Jefferson to death for killing and robbing 37-year-old Edward Taulbee, his drinking buddy and his boss at a construction site. After bludgeoning Taulbee to death, Jefferson took his wallet and car. . . . Ed Carnes, an 11th Circuit judge, issued a strong dissent in a rare vote to overturn a death sentence. He wrote that Jefferson’s lawyers should have had their client examined for neurological damage that occurred when Jefferson’s head was run over by a car when he was 2 years old.

ALABAMA  

Death Penalty Case Reveals Failings in Alabama

Sidebar, By Adam Liptak, New York Times

6-8-09 -- Kenneth B. Trotter had been practicing law for less than a year when an Alabama judge appointed him to assist two more seasoned lawyers in defending Holly Wood, who was facing the death penalty. . . . After Mr. Wood was convicted in 1994 of murdering his former girlfriend, Mr. Trotter led the effort to persuade the jury to spare his life. The young lawyer came up just short: the jury recommended death by a vote of 10-to-2, the minimum allowed under Alabama law. . . . Mr. Trotter failed to pursue or present evidence that his client was mentally retarded, though he had a competency report in hand that said as much. In September, a divided three-judge panel of the federal appeals court in Atlanta ruled that he had made a strategic decision, not a grave error. . . . Judge Rosemary Barkett, the dissenting judge, saw it differently. . . . “An inexperienced and overwhelmed attorney,” Judge Barkett wrote of Mr. Trotter, “realized too late what any reasonably prepared attorney would have known: that evidence of Wood’s mental impairments could have served as mitigating evidence and deserved investigation so that it could properly be presented before sentencing.” . . . “An inexperienced and overwhelmed attorney,” Judge Barkett wrote of Mr. Trotter, “realized too late what any reasonably prepared attorney would have known: that evidence of Wood’s mental impairments could have served as mitigating evidence and deserved investigation so that it could properly be presented before sentencing.”

CALIFORNIA  

Death Sentence Affirmed for Polly Klaas' Killer

Mike McKee, The Recorder

6-2-09 -- Richard Allen Davis, who made national news in 1993 for murdering 12-year-old Polly Klaas, got no sympathy from the California Supreme Court on Monday. . . . By a unanimous vote, the court upheld the death sentence Davis got from San Jose jurors in 1996. The court shot down all of the reviled inmate's arguments, including that Davis didn't get a fair trial because he was tried in the Bay Area's hostile media market. . . . Davis' lawyer, Visalia, Calif., solo Phillip Cherney, had argued his client didn't get a true venue change because the trial was only moved from Sonoma County at the far northern end of the Bay Area to Santa Clara County at the southern end. . . . The Supreme Court rejected that plea, noting that at the time of trial Santa Clara County was the fifth largest in the state with more than 1.6 million residents.

May 2009

Death Penalty Disgrace

By Bob Barr, The New York Times Op-Ed Contributor

5-31-09 -- THERE is no abuse of government power more egregious than executing an innocent man. But that is exactly what may happen if the United States Supreme Court fails to intervene on behalf of Troy Davis. . . . Mr. Davis is facing execution for the 1989 murder of an off-duty police officer in Savannah, Ga., even though seven of the nine witnesses have recanted their testimony against him. Many of these witnesses now say they were pressured into testifying falsely against him by police officers who were understandably eager to convict someone for killing a comrade. No court has ever heard the evidence of Mr. Davis’s innocence. . . . After the United States Court of Appeals for the 11th Circuit barred Mr. Davis from raising his claims of innocence, his attorneys last month petitioned the Supreme Court for an original writ of habeas corpus. This would be an extraordinary procedure — provided for by the Constitution but granted only a handful of times since 1900. However, absent this, Mr. Davis faces an extraordinary and obviously final injustice. . . . This threat of injustice has come about because the lower courts have misread the Anti-Terrorism and Effective Death Penalty Act of 1996, a law I helped write when I was in Congress. As a member of the House Judiciary Committee in the 1990s, I wanted to stop the unfounded and abusive delays in capital cases that tend to undermine our criminal justice system.

UNITED STATES SUPREME COURT

Former judges push for hearing on Troy Davis innocence claim

Group asks Supreme Court to send death row case back to federal court

By Bill Rankin, The Atlanta Journal-Constitution

5-20-09 -- Twenty-seven former judges, justices and prosecutors are asking the U.S. Supreme Court to allow death-row inmate Troy Davis’ innocence claims to be heard in federal court. . . . The filing comes a day after Davis’ lawyers filed their final legal bid. They are asking the nation’s highest court to send Davis’ case back so a judge can consider the recantation testimony of a number of key witnesses who testified for the state at the 1991 trial. . . . Davis sits on death row for the killing of off-duty Savannah Police Officer Mark Allen MacPhail in 1989. MacPhail, a 27-year-old father of two and former U.S. Army ranger, was shot before he could draw his weapon. . . . Davis can make “an extraordinary showing through new, never reviewed evidence that strongly points to his innocence,” the judges’ and prosecutors’ filing said. To allow Davis’ execution without appropriate legal review is “a plain constitutional injustice,” the filing said.

Death Row Foes See Newsroom Cuts as Blow

By Tim Arango, New York Times

5-20-09 -- Opponents of the death penalty looking to exonerate wrongly accused prisoners say their efforts have been hobbled by the dwindling size of America’s newsrooms, and particularly the disappearance of investigative reporting at many regional papers. . . . In the past, lawyers opposed to the death penalty often provided the broad outlines of cases to reporters, who then pursued witnesses and unearthed evidence. . . . Now, the lawyers complain, they have to do more of the work themselves and that means it often doesn’t get done. They say many fewer cases are being pursued by journalists, after a spate of exonerations several years ago based on the work of reporters. . . . The decline in newsroom resources has also hampered efforts by death-penalty opponents to search for irrefutable DNA evidence that an innocent person has been executed in America. . . . Because judges and prosecutors are usually reluctant to reopen

GEORGIA

Death row's revolving door

Post-trial evidence in Ga. case resonates

By Kevin Johnson, USA TODAY 

5-18-09 -- The timeline of Troy Davis' 18 years on death row reads like most other condemned prisoners' slow shuffle to the execution chamber. . . . His appeals chart a legal marathon from a courtroom in Savannah, Ga., to the U.S. Supreme Court. The execution date for Davis, convicted of killing a police officer, has been set three times — and three times the courts or Georgia officials have granted extensions. . . . What doesn't exist in the docket entries or trial transcripts is a formal airing of evidence discovered after Davis' conviction that, his lawyers say, could win his freedom. Seven of nine prosecution witnesses have recanted their testimony implicating him since his 1991 trial. . . . Davis' attorneys and advocates for the wrongfully convicted say his case, set for another U.S. Supreme Court appeal this week, represents one of possibly dozens in which courts are reluctant to consider evidence discovered after conviction that might exonerate inmates on death row.

MISSOURI

Executions Debated as Missouri Plans One

By Monica Davey, The New York Times

5-18-09 -- Officials in this state are preparing to execute a prisoner for the first time since 2005, when criticisms about the state’s lethal injection method emerged and one doctor who carried out executions acknowledged being dyslexic and sometimes “improvising” when it came to the amounts of chemicals he administered. . . . That doctor will no longer take part, and a United States Supreme Court ruling last year upheld a lethal injection procedure similar to the one Missouri will use, but some lawmakers, including some prominent Republicans, say they have lingering questions about the state’s system of capital punishment. . . . The focus of those questions has shifted some, no longer centering on the method of execution but turning toward which prisoners are condemned and which are not, and whether those choices make sense.

NORTH CAROLINA  

Ruling backs death penalty

Inmates' lawsuit was also undercut in Senate

By James Romoser | Winston-Salem Journal Reporter

5-15-09 -- North Carolina's procedure for lethal injections was approved through the proper channels, according to a judge's ruling released yesterday. . . . The ruling is the second court decision this month that upholds the death penalty in the state, and it came on the same day that state legislators, in a separate action, voted to amend state law to try to clear the way for executions to resume in North Carolina. . . . For nearly three years, several lawsuits have created a de facto moratorium on the death penalty in the state, but the recent developments show that both the judiciary and the legislature are trying to resolve the legal uncertainty after a long standstill. . . . "There's a lot of things that have been gumming up the works," said Mark Kleinschmidt, the executive director of the Fair Trial Initiative in Durham. . . . In his decision yesterday, Judge Donald Stephens of Wake Superior Court ruled that a court did not have to review the Council of State's decision in February 2007 to approve a new procedure for how North Carolina carries out lethal injections. Five death-row prisoners argued last October that a court review was required, and that the council should have heard from inmates before issuing its approval. . . . A state administrative-law judge ordered the council last year to revise the protocol, saying that the method for executing prisoners doesn't ensure that they won't feel pain. The council, made up of the governor and nine other statewide elected officials, declined.

NEW JERSEY  

Court applies updated law to'94 murder

By Mary Fuchs, Statehouse Bureau

5-13-09 -- The state Supreme Court ruled yesterday that a murderer whose case was proceeding as New Jersey abolished the death penalty can be sentenced to life without parole, even though the state had no such punishment when he was convicted. . . . A jury will now decide the punishment for Steven Fortin, a Carteret handyman who was convicted in 2007 of raping and murdering a Woodbridge woman and was sentenced to death. . . . Before New Jersey abolished capital punishment in January 2008, convicted murderers who were not sentenced to death were automatically sentenced to 30 years in prison before being eligible for parole. The law that revoked the death penalty, however, toughened the prison term to life without parole. . . . But the law did not explain what to do with someone like Fortin, who committed his crime in 1994, while the old law was in effect, and was still going through the trial process when it was changed. At least 22 such cases were ongoing when the death penalty was repealed.

CALIFORNIA

Court denies rehearing for killer

By Richard K. De Atley, The Press-Enterprise

5-11-09 -- Condemned prisoner Kevin Cooper was denied a rehearing Monday by a federal appellate panel in a 114-page order that bristled with dissents, one of them claiming that "the state of California may be about to execute an innocent man." . . . Another judge defended the decision, saying evidence and post-conviction forensic tests only point to Cooper, now 51, as the 1983 knife-and-hatchet slayer of three family members and a houseguest in a Chino Hills home. . . . With the denial of an "en banc" rehearing before an 11-judge judicial panel of the 9th U.S. Circuit Court of Appeals, Cooper has 90 days to ask the United States Supreme Court to review his case, the first step toward getting an appeal. . . . He has applied for relief nine times previously to the nation's high court. . . . Up to 28 of the 9th Circuit's judges can vote on an en banc hearing application. Published dissents indicate at least 11 were in favor of rehearing the case. One judge said the vote was closer than that.

The new case against the death penalty

The bittersweet reality is that money, rather than morality, has become the tipping point for abolishing it.

By Corinna Barrett Lain, Christian Science Monitor Editorial

5-11-09 -- This year, state budgetary crises have given death penalty opponents their most successful argument yet – money. . . .Just two states have abolished the death penalty in the past 40 years, New Jersey in 2007 and New Mexico in March. The cost of capital punishment played a key role in both decisions, and is driving current legislative attempts to repeal the death penalty in a number of other states. . . . The bittersweet reality is that money, rather than morality, has become the tipping point for saving lives. Why? . . . Administering the death penalty is breathtakingly expensive. Contrary to popular opinion, it costs substantially more to execute people than to send them to prison for the rest of their lives. . . . In California, which houses the nation's largest death row, it costs about $137 million annually to maintain the state's death penalty system. The state has conducted only 11 executions since reinstating the death penalty in 1978, bringing the average cost per execution to $250 million. That's right – a quarter of a billion dollars per execution. . . . California's estimated cost of administering a system without capital punishment (imposing instead a maximum sentence of life without the possibility of parole) is $11 million annually, which means the state could save $126 million per year if it rescinded a penalty that it almost never uses. That's big money – money that could be allocated to healthcare and to education, money that could put more police officers on the streets and take more killers off them.

ALABAMA

Alabama Murderer's Death Row Sentence Overturned

Associated Press, FOXNews

5-10-09 -- The death row sentence for a man convicted of the 1984 murder of an elderly woman has been overturned after he was ruled mentally retarded. . . . Limestone County District Attorney Kristi Valls says Kenneth Glen Thomas will head to court May 27 to be re-sentenced to life in prison without parole. He has been on death row since his 1986 murder conviction. . . . Authorities say Thomas killed 82-year-old Flossie McLemore, his neighbor, and then tried to conceal the murder by setting McLemore's house on fire.

TEXAS  

Not The End Of The Affair

CourtWatch: Capital Case In Texas Marred By Romantic Relationship Between Judge And Prosecutor

by Andrew Cohen CBS News

5-3-09 -- The last time we checked in on law a