Colorado Trial of James Holmes Enters Sentencing Phase

This week, the State of Colorado proceeds in its case against James Holmes, the young man convicted last week of several counts of murder in the shooting of 12 people inside a movie theater in Aurora, Colorado.

Specifically, Holmes was found guilty of 24 counts of first-degree murder for which he now faces the possibility of death.  (That was in addition to 134 counts of first-degree attempted murder, and 6 counts of attempted second-degree murder, which do not carry the death penalty.)

It's a case that has had lots of media attention; you probably remember that eerie photo of James Holmes with his "Joker-like" hair and strange staring eyes.

Colorado Theater Shooting Case: Sentencing Phase Begins

What happens now is the part of a death penalty case that Terence Lenamon is all too familiar: the sentence phase.  As in Florida, the Colorado prosecutors -- who are asking for death in the case -- will provide evidence in the form of documents and testimony of the "aggravating factors" they argue support capital punishment for James Holmes.

After the state finishes putting on that evidence, the defense team will present evidence of "mitigating factors" which argue against the death penalty for James Holmes. 

Read the Colorado Aggravating Factors and Mitigating Factors as they are defined by Colorado law here.  (Terry has collected these statutes for all the death penalty states as well as those that apply in federal court and military tribunals.)

Holmes' Schizophrenia isn't in dispute.

One key factor here:  the mental illness of the defendant and whether or not his insanity will block capital punishment here.  There is no controversy that James Holmes is mentally ill; he is diagnosed as schizophrenic.

The state is arguing that despite that diagnosis, Holmes was legally sane when he killed those people at the movie theater and should get the death penalty in order for justice to be served.

The defense is arguing that it would be cruel and unusual to do so.  Holmes' behavior in prison -- licking the walls, smearing feces on the walls, believing Barack Omaha speaks to him through the television, etc. -- leaves little doubt that he is very ill. 

Once again, the law's definition of "insanity" is tested against the reality of the defendant.  This part of the trial, with the same jury that found Holmes guilty, should take about a month to complete. 

 

Two States May Bring Back the Death Penalty

With all the fires being flamed over capital punishment in the United States and lots of discussion about ending the death penalty, it’s interesting to note that in many parts of the U.S.A., the death penalty remains viable and there are those who are working hard for executions by the state in their part of the country.

1. In Pennsylvania, Attorney General Files Motion to End Moratorium


Last week, the Pennsylvania Attorney General, Kathleen Kane, officially challenged the moratorium against the death penalty that has been put in place by Governor Tom Wolf.  Kane wants the moratorium lifted so the state can proceed with the death sentence given to Hubert Michael for the rape and murder of 16 year old Trista Eng in 1993. 

Kane is proceeding on behalf of the Eng family.  She argues that capital punishment is the sentence that was given and that the law should be carried out.  She has filed her request with the Pennsylvania Supreme Court, arguing that the Governor's moratorium is unconstitutional. 


2. In Nebraska, Petition to Get Death Penalty on 2016 Election Ballot 

In May, the state legislature in Nebraska passed a bill and then overrode the Governor’s veto to make it become state law.  In it, the death penalty was repealed for Nebraska.

However, it’s not just Governor Pete Ricketts that wanted to keep capital punishment in Nebraska.  There is a large number of people that want the death penalty to remain in the state, and they’ve formed the group Nebraskans For the Death Penalty.

The goal of their group is to get enough signatures for a referendum, which would allow for the issue to be placed on the 2016 election ballot for all citizens of the state to vote.   They’ve got a deadline of August 27, 2015, to get enough people to sign up.  Both the state’s governor and its attorney general are actively supporting the group’s efforts. 

Meanwhile, over in Nevada....

In Nevada, the death penalty is on the books.  And the State of Nevada is spending lots of money for a brand new death chamber even though they don't have any executions on the schedule just now. 

 

What About Those Other 2015 Death Penalty Cases Before SCOTUS?

With all the talk about the Supreme Court of the United States okaying the State of Oklahoma’s lethal injection method of execution (see Glossip v. Gross), there hasn’t been much discussion about two other capital punishment cases that were pending before the High Court.

 

As we posted about a few months back, in addition to Glossip, SCOTUS had two other big death penalty cases to decide: Brumfield and Hurst.  


1.  Brumfield v. Cain

Out of Louisiana, the issue here is if the procedure that state has set up to decide if someone is mentally disabled, and therefore protected by this Eighth Amendment bar from being executed, past constitutional muster.  Here’s our post with details on the case.


Result:  on June 18, 2015, the High Court reversed the lower court’s decision and remanded the case back for a trial on the merits regarding the inmate’s intellectual disability and whether under Atkins v. Virginia he can or cannot be executed.

Read the SCOTUS Opinion in Brumfield (with Dissents) here.

  
For lots of analysis, check out SCOTUSBlog on the Brumfield opinion (and dissents, it was 5-4).



2. Hurst v. Florida

Coming from Florida, the only issue being decided by SCOTUS is if Florida's death penalty sentencing scheme violates either the Sixth Amendment or the  Eighth Amendment in light of Ring v. Arizona, 536 U. S. 584 (2002).  Here’s our post with details on this important Florida death penalty case.


Result: Pending.  Amici briefs were still being filed in June 2015; no oral argument has been scheduled yet.

Follow the SCOTUS Docket for Hurst v Florida here.


Follow the Hurst case via SCOTUSBlog here.

Oklahoma Lethal Injection Method Approved by SCOTUS

This week, the Supreme Court of the United States issued its ruling in Glossip v. Gross .  Many  thought that the possibilities ranged from (1) outlawing the use of the single drug midazolam; (2) outlawing the lethal injection method of execution in all forms; or (3) reconsidering capital punishment entirely. 

 

Few were ready for what resulted here:  Oklahoma won on all points. 

Glossip: Oklahoma Can use Midazolam

Not only is the death penalty alive and well in this country today, so is lethal injection as a form of execution and the use of midazolam in a lethal injection as was used by the State of Oklahoma in the horrific execution of Clayton Lockett last year.

Wow.

Read the opinion and all its dissents here.

Read the past coverage we've had here on the blog regarding lethal injections here (list of our 101 posts and counting).

Terry Lenamon: "It's a Wake Up Call."

And for Terence Lenamon's take on things, check out his interview here in "Supreme Court Kills Anti-death Penalty Argument – or Does It?" by Zosha Millman on the LexBlog network's online publication. 

Do You Know About Reprive, the U.K. Organization Fighting the Death Penalty Worldwide?

Clive Stafford Smith, the Director of Reprive in Great Britain, has been corresponding with Terry about Pakistan’s death penalty and the case of Shafqat Hussain.
 
Reprive has been working hard to help the man who was only 14 years old when he was sentenced to death.  Reprive has been fighting to save him from execution by the Pakistani government, and recently Mr. Stafford Smith was able to report to Terry that they had got Shafqat his 4th stay of execution (in 2015 alone) within 24 hours of the scheduled execution.  At that time, the state officials said that they would have a real inquiry into Shafqat’s age at the time of sentencing.

For more on the case of Shafqat Hussain, check out Reprive’s web page with his story.


Reprive works diligently in fighting for justice in capital punishment cases around the world. 

In another story coming out of Pakistan, for example, Reprive has been championing a man who has lived the past 22 years on the Pakistani Death Row after being sentenced to death at the age of 15 years. 

Even though Aftab Bahadur’s co-defendant has given sworn testimony that Aftab was not involved in the crime for which he has been sentenced to death, and the prosecution’s eyewitness has recanted, admitting now that Aftab was not seen at the scene of the crime, Aftab’s execution remained on schedule.

Sadly, Aftab Bahadur was executed on June 10, 2015.  For more on Aftab’s story, check out his case study on the Reprive web site.


Do You Know about Reprive?

Reprive is an important organization for justice — but maybe not as well known here in the United States as it should be.  Do you know about Reprive and the work of people like its director, Clive Stafford Smith?

If not, check out Clive Stafford Smith giving a TED Talk here, explaining how he came to found Reprive — and how in all his years in representing clients facing the death penalty, Clive has never been paid one penny in legal fees for his work.  
 

Read This Miami Herald Opinion Piece on SCOTUS and Death Penalty

Leonard Pitts. Jr., wrote an opinion piece on the death penalty that was published in the Miami Herald on June 13, 2015. 

Pitts' op-ed has been circulating around the web in circles where capital punishment is a concern.  It's also been read by those who are watching Washington, D.C. to learn what the Supreme Court will do with the death penalty cases pending before it. 

If you haven't seen it, maybe you will find it worth your time to read.  Pitts speaks to the Supreme Court, and to Justice Scalia directly, regarding the High Court's stance on the death penalty :

"What do you think of the Death Penalty now, Justice Scalia?"

Guest Post: When Will Tsarnaev be Executed: Longest Death Row Appeals

 

When convicted Boston Marathon Bomber, Dzhokhar Tsarnaev, was condemned to die recently, he learned that his new address would be federal death row in Terre Haute, Indiana. Because of the lengthy appeals process, it may be decades before he’s executed. Despite 74 people having been sentenced to death in federal cases since the 1988 reinstatement of the federal death penalty, only three — Timothy McVeigh, Juan Raul Garza and Louis Jones — have been executed. Prior to McVeigh’s 2001 execution, the federal government had not put anyone to death since 1963.

Many people lobbied for Tsarnaev to be spared death and instead sentenced to life imprisonment without the possibility of parole. With the speed that the wheels of American justice turn, it may turn out that in the end his sentence will amount to life in prison.

Due primarily to appeals, the length of time an inmate is on death row has increased. The period of time prisoners spend on death row before their executions have emerged as a subject of debate surrounding capital punishment.  The discussion began in earnest in 1976 when the U.S. Supreme Court reinstated the death penalty as an option to life imprisonment.

The debate got louder when Connecticut death row inmate Michael Ross was executed after having spent 17 years waiting for his sentence to be carried out. It’s a discourse that still continues.

In the US, death row inmates typically spend over ten years waiting for execution. Some prisoners have been waiting for rover 20 years.

In 1984, the average time between sentencing and execution was 74 months. By 2012 that gap had widened to 190 months according to the Bureau of Justice Statistics.

Judicial Paradox

The US Supreme Court has yet to accept any case based on the length of time an inmate is held on death row. Justices Breyer and Stevens though have questioned the constitutionality of the long delays.

Writing in a 1995 case, Stevens was the first to broach the subject. In writing the minority opinion in Lackey v. Texas, Stevens urged lower courts to act as a laboratory of sorts for examining whether executing inmates after long periods on death row may violate the Eighth Amendment, which prohibits cruel and unusual punishment

While some justices argued the other side, Breyer stood firm and wrote that the “astonishingly long delays” which the inmates experienced were not the result of frivolous appeals on their part, but instead they were because of “constitutionally defective death penalty procedures.”

In 2009, the Court declined to intervene in Thompson v. McNeil. Three justices issued strong statements about the legal issue of time spent on death row. 

Thompson had been on Florida’s death row for 32 years and claimed the excessive amount of time spent on death row was cruel and unusual punishment and violated his constitutional rights.

In 2011, Manual Valle was executed by Florida after spending 33 years on death row. When Valle’s lawyers appealed to the Supreme Court on the issue of Valle’s length of stay prior to execution, the Court allowed the execution to move forward. Breyer, who again dissented from the decision, wrote, “I have little doubt about the severity of so long a period of imprisonment under penalty of death.”

Currently there is a challenge of reconciling the imposition of the death penalty with procedures necessary to make sure the wrong person is not executed.

Why Does It Take So Long?

The first appeal is typically about the case and verdict itself. During this petition, questions are raised about the conclusions and rulings delivered by the trial judge.

The appeals court rarely endorses every ruling the trial judge made, but only infrequently decides that the ruling amounts to reversible error. Most errors recognized by the appeals court are considered “harmless errors,” meaning that a different decision would still have given way to the same result.

Most jurisdictions — state and federal level — have multiple tiers, or levels, of appellate courts. If the appeal doesn’t end in a reversal at one level, the defense tries again at a different level.

If all the appeals fail, then the offender may seek to get an appeals court to rule that his trial attorney was incompetent. Undoubtedly, the convicted would need to get another attorney for this, but the levels of appellate courts are equal and the process begins all over.

Another tactic the converted my try is to obtain a ruling that he has been mistreated while on death row.

Longest on Death Row

It’s not possible to point to a specific individual with certainty and say that they are the one who has spent the most time going through the appeals process. A good indicator though, would be to look at the length of time someone has been on death row. As a person isn’t executed before their appeals run out, a safe assumption is that several individuals had a lengthy appeals process before being executed. Complete records are not easily obtainable, however some information can be pulled from the Bureau of Justice reports.

Among individuals serving the longest time on death row before being executed, are:

Ronald Arthur Gray 26 years (longest on the military’s death row)

David Carpenter, 30 years on death row
Albert Greenwood Brown, 33 years
Lawrence Bittaker, 34 years
Johnny Paul Penry, 35 years

Exonerated

Even individuals who were innocent have spent decades on death row before being found innocent, or not guilty, and released. The year in which they were convicted is shown and each of the individuals listed were set free in 2014:

Kwame Ajamu (formerly Ronnie Bridgeman), 1975
Reginald Griffin, 1983
Joe D’Ambrosio, 1984
Glenn Ford, 1984
Henry Lee McCollum, 1984
Leon Brown, 1984

Maybe the world record holder for time spent incarcerated for murder, and later set free, is Steven Truscott, a Canadian. Truscot was convicted of murder, and sentenced to die, in 1959. On January 22, 1960 his death sentence was commuted to life imprisonment. Eventually released on parole, Truscott’s conviction was overturned in 2007.

______________________________

This article was written by New York-based criminal attorney Arkady Bukh, a frequent media contributor and published author.  

Mr. Bukh served as defense counsel for Azamat Tazhayakov of Boston Bomber Marathon case. 

His article has been published here as provided by attorney Bukh without change.

 

 

SCOTUS on Death Penalty: Do The Justices Read Time Magazine?

Recently, TIME Magazine had a cover story regarding the Death Penalty in this country.  Included in its coverage of capital punishment in the United States was an opinion piece by sports legend Kareem Abdul-Jabbar.  
 
Mr. Abdul-Jabbar writes about his arguments for abolishing the Death Penalty.  You can read it here.
 
 
This is another example of the growing media coverage of the Death Penalty and the debate over whether or not there should be executions in the United States today.
 
If you read some of these articles, you may get the idea that the Supreme Court of the United States has the issue of outlawing executions before it.  
 
 
The widest reading of things before SCOTUS today would be a wide interpretation of the lethal injection method of execution as those issues have been presented in an Oklahoma case, Glossip v. Gross.  It's debatable if that case is really arguing against lethal injections as a method of execution or it is is targeting the use of a particular chemical in an execution using the lethal injection method.
 
And remember, there are several alternative methods of execution with SCOTUS approval already in place if the lethal injection method of execution were to be ruled unconstitutional. 

Lethal Injection: Who Gives the Shot?

Executions need executioners. One of the challenges to the lethal injection method of execution in the United States involves the drugs used in the process, and we post about those controversies (and the arguments being made in various courts) regularly.

However, another serious concern regarding injecting drugs into a human being in order to carry out a sentence of death involves who acts as executioner.

Doctors and Pharmacists

Doctors take an oath dedicating themselves to saving lives, not ending them. Physicians are vocal about their opposition to participating in executions involving lethal injections.

Which means it has been difficult finding people to do the job, and in some executions pharmacists have been the solution to the problem of finding an execution to inject the drug cocktail (or the single drug) used for capital punishment in that state.

Recently, the national organization that represents pharmacists came out officially against participating in executions involving lethal injections.

It doesn't stop an individual pharmacist from participating, but it sure does discourage it. 

Their press release:

APhA House of Delegates Adopts Policy Discouraging Pharmacist Participation in Execution
 

March 30, 2015


"The American Pharmacists Association discourages pharmacist participation in executions on the basis that such activities are fundamentally contrary to the role of pharmacists as providers of health care.”

WASHINGTON, DC – The American Pharmacists Association (APhA) House of Delegates today voted to adopt a policy discouraging pharmacist participation in executions. The House of  Delegates met as part of the 2015 APhA Annual Meeting & Exposition, APhA2015, in San Diego.

The policy states: “The American Pharmacists Association discourages pharmacist participation in executions on the basis that such activities are fundamentally contrary to the role of pharmacists as providers of health care.”

APhA Executive Vice President and CEO, Thomas E. Menighan, BSPharm, MBA, ScD (Hon), FAPhA, stated, “Pharmacists are health care providers and pharmacist participation in executions conflicts with the profession’s role on the patient health care team. This new policy aligns APhA with the execution policies of other major health care associations including the American Medical Association, the American Nurses Association and the American Board of Anesthesiology.
 

This new policy statement joins two policies previously adopted by the APhA House of Delegates:

Pharmacist Involvement in Execution by Lethal Injection (2004, 1985)

1. APhA opposes the use of the term "drug" for chemicals when used in lethal injections.
2. APhA opposes laws and regulations which mandate or prohibit the participation of pharmacists in the process of execution by lethal injection.

DPIC Launches New Series: "50 Facts About the Death Penalty"

 

For more information, go to the DPIC website.  

Death Penalty and the Supreme Court: What Will SCOTUS Do?

 Right now, the Supreme Court of the United States is considering several cases dealing with capital punishment and how the death penalty is to be carried out in this country.

It's getting to the end of the 2015 Term for the High Court, which means that we may expect some opinions to come down before the Justices leave for their summer vacations.  

The pending death penalty cases on the 2015 SCOTUS calendar include:

1.  Brumfield v. Cain

This is a case dealing with whether or not the means that the State of Louisiana has in place to determine whether or not the person is mentally disabled, and therefore protected by this Eighth Amendment bar, past constitutional muster.

2. Hurst v. Florida

Here, the sole question presented to the High Court for decision is whether or not Florida's death sentencing scheme violates the Sixth Amendment or the  Eighth Amendment in light of this Court's decision in Ring v. Arizona, 536 U. S. 584 (2002). 

3. Glossop v. Gross

The High Court is considering this case out of Oklahoma and while there are some that suggest this case may result in the entire lethal injection method of execution being held unconstitutional as cruel and unusual, there are others that see the case as being narrowly based, and dealing only with the issue of devation from Baze v. Rees, 553 U.S. 35 (2008) insofar as substituting the drug 

midazolam as its three-drug lethal injection cocktail, a drug not approved by the FDA for use as general anesthesia and never used as the sole anesthetic for painful surgical procedures.

4.  Supreme Court Allowed Two Death Penalty Executions Already This Year

Of note, Texas got the green light to execute Robert Ladd this year and Georgia also went ahead with the execution of Warren Hill in 2015 after SCOTUS declined to grant writ in that case.

_______________

NOTE:  There is in-depth discussion of the lethal injection method of execution which focuses in part upon the botched execution of Clayton Lockett by the State of Oklahoma that was published today in the Atlantic.

(Hat tip to Sydney Simon for sending Terry Lenamon advance notice of the cover story here.)

Entitled, "Cruel and Unusual:The botched execution of Clayton Lockett—and how capital punishment became so surreal," and written by Jeffrey E. Stern, it's a good read for those following what's happening up in Washington right now.  

More on Lethal Injection Executions as Unconstitutional

Two quick things as we await the Supreme Court decision in Glossop:
 
1.  Read this Article
 
Last week, law professor Paul Litton shared an article with Terry Lenamon that he has coauthored with Harvard professor David B.Waisel.  It  discusses last week's SCOTUS arguments and the overall issue of whether or not the current lethal injection method of execution is unconstitutional.
 

It's a good read.

2. Watch this Video

Another good exploration of the issue -- this video from the Death Penalty Information Center:

Is Death Penalty by Lethal Injection Unconstitutional?

Tomorrow morning, the Supreme Court of the United States will hear oral arguments in a case where many believe the entire question of whether or not the lethal injection method of execution is cruel and unusual punishment will be decided.
 
 
Be Ready at 9:45 AM Tomorrow for Lethal Injection Method Arguments
 
SCOTUS blog will begin live blogging tomorrow's oral arguments at 9:45 AM EST.  If you want to be notified by email when the live blogging is about to start, then they'll send you a reminder email upon request.  
 
Glossop v. Gross Background Briefs and More
 
For details on the arguments being made and the background of the case, Glossop v. Gross, read the details provided by the SCOTUS blog.  These include briefs by the parties as well as amicus curaie filings in the case.   
 
Why Follow the Live Blogging?  
 
The Supreme Court provides audio as well as transcripts of each week's oral arguments online on a weekly basis.  So, if you want to follow things as they are happening, the live blogging allows you to do so.  There aren't cameras in the Supreme Court for a live feed (yet).  
 

Boston Marathon Bomber Death Penalty Trial - Penalty Phase

 This week, the Massachusetts trial of Boston Marathon Bomber Dzhokhar Tsarnaev continues in much the same way that a death penalty trial would in Florida or Texas.  

The Two Parts of a Death Penalty Trial

In the Boston Marathon Bomber's case, just like a Florida death penalty trial or a Texas case seeking the execution of the defendant:

  • The jury has decided that the defendant is guilty.  
  • The jury verdict includes a crime for which state law provides the death penalty.  
  • The prosecution has sought capital punishment in the case - something that was noticed and known to both the state's attorneys and the criminal defense team from very early on in the process.
  • Now, the Boston Marathon Bomber's courtroom trial proceeds into the part of the case where Terence Lenamon takes the lead for his defendants: that is, the penalty phase of the capital case.  
  • The prosecution will be arguing for death and citing "aggravating factors" that the jury should consider in its deliberations.
  • The defense will be urging "mitigating factors" that should be balanced against the death penalty in the jury's decision-making.

Federal Law Controls Death Penalty Decision by Jury

This case, however, is controlled by federal law.  Specifically, 18 USC Section 3592, the federal statute for "Mitigating and aggravating factors to be considered in determining whether a sentence of death is justified." 

Here is Terence Lenamon's complete list of federal aggravating factors and the defense's mitigating factors if you want to compare them to what the Boston trial is presenting.

The prosecutors only need to prove ONE aggravating factor to the jury in order to support their demand for the death penalty as a sentence.  Given the death of a small boy at the scene, reportedly near the site where the bomb was placed and within view of the defendant at the time that the bomb was left there, there are facts which may be sufficient on this one circumstance to meet this legal burden under the federal statute.

The defense, looking at mitigating factors, may well point to the young age of the defendant and an argument that he was unduly influenced by his older brother - the other bomber who died during the arrest.  Some may expect to see evidence presented that survivors of the blast are opposed to the death penalty (but the state may argue against its admission).  

Other psychological evidence may be presented, and the defense only has to meet a "preponderance of the evidence" standard (something akin to 51%) to prove the mitigation arguments.  That's a lower burden than the prosecutor must meet.

Will the jury sentence this man to death?  Would you?   

 

Death Row in Florida and the USA: The New Stats

We're getting information now about how the death penalty and capital punishment fared in 2014.   The first quarterly report from the NAACP's Legal Defense Fund has been released.

 

 

image: Cell on Florida's Death Row

U.S. Death Row Populations: Most in California, 43% White

From it, we now have statistical confirmation that there were less people on death row last year.  Across the nation, the death row population decreased by 12%.  There were around 3000 people on Death Row at the end of 2014, around 450 less than the previous year.

The report shows that of these Death Row inmates, 43% are white; 42% are black; and 13% are Latino/Latina.  

Florida continues to have the largest Death Row population in the country, second only to California, with 403 inmates (California has 743).  Texas is third with 276 people living on its Death Row.  

To read the entire report, go here.  

Death Row and Executions

One thing to point out here:  in the top three listed above, both Florida and Texas are high with the number of Death Row inmates and both these states are active in executing people and carrying out capital punishment sentences.  

Not so, California.

One reason that California is number one in Death Row population statistics is that California isn't executing people like Florida, Texas, Georgia, Oklahoma, etc.  Instead, the population on the California Death Row grows.

So much so, in fact, that the state has run out of room.  To keep doing what its doing, California will have to spend cash to expand its Death Row facilities.  See the recent Los Angeles Times story for details, "California's death row, with no executions in sight, runs out of room."

 

 
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