Supreme Court Confirmation Hearings for Kagan Begin - Where Does Elena Kagan Stand on Death Penalty?

Yesterday, former Harvard Law School dean Elena Kagan began answering questions from members of the Senate Judiciary Committee as confirmation hearings started on her nomination to the United States Supreme Court. 

Elena Kagan is young at 50 years old and her presence on the High Court could impact the law of the land for several decades.  Already, there's rumblings about Kagan never having served as a judge on any court, her scant past experience arguing before an appellate court  -- and many are wondering exactly what her stand is on several social issues.  Like the death penalty.

Where does Elena Kagan stand on capital punishment?

Supreme Court justices only have a single vote each - but they can be eloquent and powerful even when outnumbered in the voting.  Interestingly, Elena Kagan once clerked for Justice Thurgood Marshall. 

You'll remember that Justice Marshall, together with fellow Justice William Brennan, concluded in Furman v. Georgia that the death penalty was unconstitutional -- and afterwards, the two men teamed to dissent (one joining the other) in every single death penalty case that came before the U.S. Supreme Court after Furman, Gregg v. Georgia notwithstanding (in Gregg, the majority held that capital punishment was constitutional). 

Thurgood Marshall Questioning of Kagan Begins on the First Day of Confirmation Hearings

It's no surprise, then, that Elena Kagan is being grilled on her past history with Justice Thurgood Marshall -- nor that she got hit with this questioning right out of the gate.  Betcha Kagan wasn't surprised either.

However, what we're all still wondering:  what exactly does Elena Kagan think of the death penalty?  Will she take up the reins of Marshall and Brennan? 

The Texas Moratorium Network has collected statements made by Elena Kagan on the subject of capital punishment.  Read them here

Meanwhile, questioning of Judge Kagan continues the rest of this week. You can watch them live, and online, at Rod 2.0. 

Georgia Death Row's Troy Davis Evidentiary Hearing Concludes - What Next?

Troy Davis may well be an innocent man setting on Georgia's Death Row, and things came closer to Davis proving his innocence as U.S. District Court Judge William T. Moore heard two days of evidence this week. 

Judge Moore did so because the United States Supreme Court mandated that the district judge had to hold an evidentiary hearing.   That's not something that happens every day. 

Background of the Troy Davis Case

Troy Davis has consistently maintained his innocence (more background here), and at trial, there was no physical evidence connecting him to the murder.  Nine of the ten witnesses who pointed the finger at Mr. Davis have recanted, and over 60,000 people signed a petition demanding that Davis get a new trial.  Among them, the Pope, Desmond Tutu, and former President Jimmy Carter. 

Nineteen at the time of the crime, Troy Davis is now 41 years old.  His entire adult life has been focused on a fight to prove his innocence and avoid the penalty of death by lethal injection that has been imposed upon him.

The Two Day Hearing This Week: What Happened June 23 - 24, 2010

Judge Moore skipped opening statements, and went directly to presentation of evidence.  Troy Davis's defense attorneys faced a high burden: pursuant to the Supreme Court's dictate, they had to legally show - "clearly establish" - that Mr. Davis was innocent of the August 19, 1989, shooting of Savannah police officer Mark MacPhail. 

Key to their arguments: the appellate reviews of the first trial consistently dealt with legal technicalities, but never considered evidence that simply was not available at that trial.  They are fierce in their position that this new evidence, once considered, inevitably leads to a determination of innocence.  The State of Georgia, of course, maintains that the new evidence doesn't change a thing.

If you're thinking that this seems a bit hinky, the defense having to prove innocence, you're right.  Usually, defense counsel works in an arena where someone is innocent until proven guilty.  Apparently the Supreme Court was swayed enough to allow Troy Davis a chance to present evidence, but did not go so far as provide him a true, 100% new trial of the matter. 

What Was Presented This Week

The defense team prepared 14 witnesses for testimony, among them several of the first trial's eyewitnesses who have changed their testimony, blaming coercion by the police for first pointing the finger at Troy Davis.  Davis' attorneys also presented 24 documentary exhibits to substantiate their argument that this was a case of mistaken identity - the police got the wrong guy at the get-go, mistaking Troy Davis for the true killer. 

Judge Moore did not allow those witnesses prepared to testify that Sylvester "Redd" Coles had confessed to them that he was the man who killed MacPhail. 

The strongest piece of evidence brought by the State?  Among 61 pieces of evidence, documents regarding a pair of black shorts taken from Troy Davis' mother's dryer on August 19th, purportedly spotted with human blood. This evidence didn't make it into the first trial, because the trial judge ruled that the police didn't have a proper warrant when they searched the dryer. 

Judge Moore did allow closing arguments, although he skipped opening.  Defense attorneys summed up their rush to judgment analysis of the Troy Davis trial long ago.  Prosecutors stuck by their story that there wasn't enough evidence to change anything.  Troy Davis, they argued, should still die as punishment for the shooting because he had not met the evidentiary burden otherwise. 

What's Next?  Legal Briefs and a Ruling

This fact-finding phase of this new hearing took two days, but that is not the end of things.  Judge Moore has given each side until July 7, 2010, to file their legal briefs with him.  He promise to rule as soon as possible thereafter. 

Of course, Judge Moore's determination is probably months and months down the road.  After that, little is left for Troy Davis: he could be found innocent, or he could face execution for the 4th time.

Let us keep watch and pray. 

Will U.S. Supreme Court Reinstate Death Penalty for California's Scott Pinholster?

Last week, the U.S. Supreme Court announced that it will hear Cullen v. Pinholster (09-1088), reviewing California’s federal Court of Appeals for the Ninth Circuit on whether or not the death penalty should be reinstated for convicted murderer Scott Pinholster

Importance of mitigating factor was the key to Ninth Circuit's decision.

The Ninth Circuit nixed capital punishment for Pinholster, opining that Pinholster’s attorney failed to give crucial evidence of mental illness during the penalty phase of Pinholser’s trial for killing two men during a burglary. (Read the Ninth Circuit opinion here.) 

The Ninth Circuit's reasoning?  If the jury had the chance to hear this mitigating factor, then Pinholser might not have been sentenced to death in the first place. 

Now, the U.S. Supreme Court may reverse the federal appeals court.  

Officially, the High Court will be deciding this single legal issue: [w]hether it is appropriate under 28 USC §2254 for a federal court to conclude that a state court’s rejection of a claim was unreasonable in light of facts that an applicant could have but never alleged in state court; and (2) what standard of review is applicable to claims of ineffective assistance of counsel.

Unofficially, Scott Pinholster may still be punished with death, despite unfairness during his trial that a federal appellate court and countless others see as serious procedural harm.  

Form over Substance?

Mentally ill people have already been protected by the U.S. Supreme Court from the death penalty as being cruel and unusual punishment. Now, will that same High Court allow mental illness bar to be circumvented by a form over substance situation?

It’s a sign that this may well happen – since the High Court has decided to hear the case. Scary, isn’t it?

Ronnie Lee Gardner Execution - Terry Lenamon Interview by U.K. TalkRadio's Mike Graham

Last night, Ronnie Lee Gardner died by firing squad.  He was pronounced dead shortly after midnight, but the sound of those four rifle shots are being heard worldwide. (The firing squad was made up of four expert police officers who each shot bullets from a 30 caliber rifle; three of the bullets were metal, one of them was wax.)

In fact, tomorrow at 7:00 EST, I'll be interviewed by Mike Graham, who hosts the main news and current affairs spot on England's national talk radio.  If you're interested, those of us on this side of the pond can listen via the web at


Will Utah Put Ronnie Lee Gardner to Death by Firing Squad This Friday?

Today, the Board of Pardons and Parole for the State of Utah denied Ronnie Lee Gardner’s Commutation Petition (opinion here). 

Which means that one more door has closed on Mr. Gardner’s attempts to avoid the execution currently scheduled to take place this Friday, June 18, 2010, at midnight. 

Appeal Still Pending Before the Utah Supreme Court

The process of trying to stop Friday’s execution of Ronnie Lee Gardner by the State of Utah continues, of course – we’ve been following the case for awhile now. Right now, he still has an appeal pending before the Supreme Court of Utah regarding his sentencing hearing and that Court has yet to rule. 

June 18, 2010: Death by Firing Squad Still Scheduled

Ronnie Lee Gardner’s decision to die by firing squad – an execution method offered to him under the laws of the State of Utah – has brought his case to national media scrutiny. 


Barring a last minute stay of execution, Mr. Gardner has opted to be shot by a squad of men who will aim at a target placed over his heart. This has proven shocking to many, and his choice is bringing lots of attention to the state of capital punishment in the United States today.


For example, CBS News reports on the Gardner case under the headline, “Slow Death of the Death Penalty?” – giving statistics that include over 60% of Americans still support capital punishment even though overall, the death penalty has been declining in use over the past few decades.


As Friday approaches, the impending execution of Ronnie Lee Gardner should be receiving more and more media attention – as well it should. 


Let us all keep watch and pray.

Michigan Jurors May Impose First Death Penalty Sentence in 72 Years

The State of Michigan does not approve of the death penalty; capital punishment was removed from the state statutes as a sentencing option in 1847. 

In fact, Michigan was the first state in the union to abolish the death penalty -- and Michigan has stood fast on its position against killing as punishment for 163 years now.

Michigan Abolished Death Penalty 163 Years Ago, but Michigan Jurors May Still Sentence Timothy O’Reilly to Death

The federal system, however, still holds to death as the ultimate punishment for a crime. Defendant Timothy O’Reilly is being tried in a federal, not state, court in Detroit, Michigan on federal charges. Trial started this week as the process of selecting jurors began.  

O’Reilly is being charged with a federal capital crime, and the jury will decide his fate in a federal courtroom, the United States District Court for the Eastern District of Michigan. Under federal law, if he is found guilty, a second trial with a second jury will then decide his sentence, and whether he will die for his crime.

Timothy O’Reilly Allegedly Shot a Guard during a Bank Robbery: It’s a Federal Crime

Indicted in 2005, Timothy O’Reilly and his pal Norman Duncan (he’s being tried separately) allegedly worked together for Guardian Armored Security Services. According to the indictment, the two men used job skills learned during this employment to plan a robbery of an armored car in December 2001. 

As the robbery commenced, and the armored car was delivering money to the Dearborn Federal Credit Union in Dearborn, Michigan, armored car driver Norman “Anthony” Stephens, 30, was shot and killed. The bandits escaped with $200,000 and no one was arrested for the bank robbery for three years. 

Jailhouse Recordings Being Used to Support Federal Death Penalty in Michigan Case

In 2004, Timothy O’Reilly was arrested for the Dearborn bank heist, along with his pal Norman Duncan and two other men. After O’Reilly was incarcerated, an inmate at the jail wrote the FBI wanting to negotiate a deal in exchange for ratting out Tim O’Reilly. Soon, the inmate was recording conversations with O’Reilly from the jail, without O’Reilly’s knowledge. 

These conversations have been the basis of the prosecution’s argument that the death penalty is appropriate in the O’Reilly case. They argue that the tape recordings reveal that he showed a "complete lack of remorse" and that O’Reilly also said he would kill again.  

Defense Argues Against Capital Punishment Applicability

Defense lawyers, however, argue that aside from the jailhouse blustering caught on tape, there is absolutely no other evidence that this was an execution-style killing, and that this case does not fit into federal death sentence guidelines.

Watch for an appeal on this one, folks.

Richard Nields Will Not be Executed - Clemency by Ohio Governor Strickland

Jeff Gamso alerted us to Richard Nields being granted clemency, when he commented to the Execution List for the remainder of 2010:  Nields' name needs to be removed.  Wow.  Great news, right?

Instead of being killed by the State of Ohio on Thursday, June 10, 2010, Richard Nields will remain alive to serve a life sentence without parole. 

The Controversy

There's no controversy that Richard Nields killed his girlfriend.  Nields has admitted to doing this. The controversy surrounds a prosecutorial expert with questionable credentials who provided testimony that was refuted -- and established an argument that Nields' case was never one intended to be subject to possible capital punishment. 

The Legal Arguments

For all the details on the legal arguments surrounding Richard Nields' case, check out the great posts over at Gamso for the Defense.  (More than one post, you can't get better than Gamso.)

The Governor's Statement and the Prosecutor's Reaction

To read Ohio Governor Ted Strickland's Statement on Parole Board Recommendation Regarding Richard Nields, check out the Governor's web site. (No real details, just a summary of everything that was reviewed - U.S. Court of Appeals for the Sixth Circuit, etc.)

Learn the reaction of the prosecutor in the case by reading his comments to the news media.  (He's not pleased.)

Media Reaction

Digest the reaction of the main stream media to the Clemency decision (first by the parole board, then by the governor):

Guess they're not seeing mercy all that often these days.  Right? 

Mercy By Any Motivation Still Means a Life is Spared

Perhaps we should all think about that -- and maybe governors with budgets filled with red ink will be more inclined to follow the merciful example set by Governor Strickland this week.  Mercy motivated by money still saves a life. 

Hint, hint.

Thanks to Gamso.  

Mitigation Specialists Play a Vital Role In Death Penalty Defense

Failure to include a "mitigation specialist" in a death penalty case is arguably per se ineffective assistance of counsel, violating the defendant’s rights under both the Sixth and Eighth Constitution according to the United States Supreme Court. See Strickland v. Washington, 466 U.S. 668 (1984); Ake v. Oklahoma, 470 U.S. 68 (1985); Wiggins v. Smith, 539 U.S. 510 (2003); and Rompilla v. Beard, 125 S. Ct. 2456 (2005).  

Furthermore, the American Bar Association [ABA] Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (Rev. Ed. Feb. 2003), is of the opinion that a mitigation specialist (if not more than one) is a mandatory part of the defense in any capital case. See, ABA Guideline 10.4 (C)(2)(a). In fact, the ABA Guidelines require every criminal defense team facing a capital punishment sentence have at the minimum two attorneys, a private investigator, and a mitigation specialist. See ABA Guideline 1.1, 4.1, and Commentary

Therefore, part of the expense of today’s indigent defense in a death penalty case mandates the expenditure of hiring a competent and capable mitigation specialist. It’s the law – a mandatory component in capital defense. However, there are many that are unaware of this career path, and the level of expertise, intelligence, and savvy that is required for the job.

The Defense Professional: Mitigation Specialist in Capital Punishment Cases

Today, the National Legal Aid and Defender Association (NLADA) has a section devoted to the profession of mitigation specialist, the National Alliance of Sentencing Advocates and Mitigation Specialists (NASAMS). In doing so, NLADA has provided nationally accepted criteria to be met for those professionals seeking to work within this specialized area. NLADA also maintains a national database of recognized mitigation specialists available for death penalty trials across the country.

Working together with the rest of the defense team, the mitigation specialist works to find and fully understand the factual circumstances of the defendant’s life that allow the mitigation factors (“mitigators”) under state or federal law to apply in the case. In doing so, the importance of the mitigation specialist cannot be underestimated. 

Who are the Mitigation Specialists?

Mitigation specialists usually have advanced education in the form of graduate degrees in a form of social work or psychology as well as a background in criminal justice, particularly capital defense matters. Within their personal characteristics and talents are an ability to organize and an eye for detail.  Mitigation specialists have the ability to gather and analyze voluminous amounts of psychological, psychiatric, and other mental health documentation and records, as well as police records, school records, and family histories.

They are also expert at dealing with people in a non-confrontational manner.  Mitigation specialists have an almost uncanny level of social skills, as they must discuss oftentimes extremely emotional and sensitive issues with any number of individuals.  They interview and discuss the defendant with his family, friends, former employers, teachers, physicians, counselors, and psychiatrists. Their ability to work with people in difficult situations and in discussing often painful or embarrassing situations requires a particular finesse.

Invaluable Part of the Death Penalty Defense Team

The reality of today's defense of someone facing the death penalty isn't just the need for competent legal counsel and adequate defense funding.  It's the need for a competent, dedicated mitigation specialist to join him (or her) in the fight to save their life. 

For more on the Mitigation Specialist and the formidable job they undertake, or if you are interested in pursuing this as your chosen career path, please read my article “What is a Mitigation Specialist in a Death Penalty case?”

US Death Penalty Execution Schedule June - December 2010

With thanks to the recordkeeping of NCADP, here is a list of those doomed to die at the hands of the State between now and the end of this year.  Notice how many are set in Texas - and Ohio:

Jun 2: George Jones, TX  

Jun 9: Melbert Ford, GA    


Jun 10: Richard Nields, OH 


Jun 10: John Forrest Parker, AL  

Jun 15: David Lee Powell, TX   

Jun 17: Jeffrey Matthews, OK   

Jun 18: Ronnie Lee Gardner, UT   

Jun 30: Jonathan Green, TX 

Jul 1: Michael Perry, TX   

Jul 13: William Garner, OH  

Jul 20: Derrick Jackson, TX   

Aug 10: Roderick Davie, OH   

Aug 17: Peter Cantu, TX   

Sep 15: Kevin Keith, OH   

Sep 28: Gaile Owens, TN   

Oct 6: Michael Benge, OH   

Nov 16: Sidney Cornwell, OH   

Update:  Richard Nields (June 10) granted clemency by Ohio governor; now serving LWOP

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