Arizona Uses Foreign Drug in Execution of Jeffrey Landrigan With U.S. Supreme Court Okay

Two nights ago (on Tuesday), Arizona executed Jeffrey Landrigan by lethal injection after the United States Supreme Court (5-4) okayed going forward, even though there is a national shortage of sodium thiopental, one of the three drugs used in the lethal injection "cocktail" that is used to kill the condemned man. 

Sodium thiopental works as an anesthetic, preventing pain and inducing sleep.  Legally, that's important because the federal constitution prohibits cruel and unusual punishment, right?

Problem is, as we've written about before, there's a shortage of sodium thiopental in this country - and some states are stopping their executions because they don't have the drug to use.  Arizona's answer to the shortage?  Buy overseas.

Jeff Landrigan's lawyers sought relief from the U.S. Supreme Court under the argument that the foreign source meant that the drug might or might not meet American drug standards and therefore, only domestic or federally approved drugs should be used in executions. 

The High Court disagreed, opining that "...[t]here is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe ... speculation cannot substitute for evidence that the use of the drug is 'sure or very likely to cause serious illness and needless suffering.'"  (Read the Order here.)

So, Arizona apparently used a British drug to execute Jeffrey Landrigan on Tuesday.  This would be the first execution on American soil using a foreign drug as a means of execution. 

What happens next?  Texas crosses to a border town for a quick batch of knock-out drugs when it runs out of sodium thiopental in a couple of months?   

John Grisham's The Confession: New Grisham Novel Continues His Campaign Against the Death Penalty

The latest John Grisham novel has just been published.  Entitled The Confession, it is Grisham's second work that fights against the death penalty - Grisham already became a vital and vocal opponent of capital punishment with his non-fiction best seller, The Innocent Man: Murder and Injustice in a Small Town.

The Innocent Man came out four years ago as John Grisham's first non-fiction endeavor.  In it, Grisham takes his extensive research and writes about Ron Williamson, a local baseball hero from a small Oklahoma town who was tried, convicted, and sentenced to death for a rape and murder that he did not commit.  The Innocent Man allowed Grisham to tour the country, simultaneously promoting his book while educating people on the realities of capital punishment and life on Death Row today.

It's a good read, not the Truman Capote nonfiction novel type of story, but more of a forthright, almost newspaper-like piece.  And, now it has a companion work - a matching bookend, if you will, in The Confession.

The Confession - Buy It for the Read, and In Support of John Grisham's Dedication

The Confession was officially released today by Doubleday, and hopefully it will garner lots of media coverage and favorable reviews.  Because once again, Grisham takes his considerable talent and parlays it into a legal thriller that provides much-needed education for those members of the public that may not know or understand some of the realities of the American death penalty in the criminal justice system today. 

What is The Confession about?  From Doubleday:

For every innocent man sent to prison, there is a guilty one left on the outside. He doesn’t understand how the police and prosecutors got the wrong man, and he certainly doesn’t care. He just can’t believe his good luck. Time passes and he realizes that the mistake will not be corrected: the authorities believe in their case and are determined to get a conviction. He may even watch the trial of the person wrongly accused of his crime. He is relieved when the verdict is guilty. He laughs when the police and prosecutors congratulate themselves. He is content to allow an innocent person to go to prison, to serve hard time, even to be executed.

Travis Boyette is such a man. In 1998, in the small East Texas city of Sloan, he abducted, raped, and strangled a popular high school cheerleader. He buried her body so that it would never be found, then watched in amazement as police and prosecutors arrested and convicted Donté Drumm, a local football star, and marched him off to death row.

Now nine years have passed. Travis has just been paroled in Kansas for a different crime; Donté is four days away from his execution. Travis suffers from an inoperable brain tumor. For the first time in his miserable life, he decides to do what’s right and confess

But how can a guilty man convince lawyers, judges, and politicians that they’re about to execute an innocent man?


Cheshire Connecticut Home Invasion Trial Brings More Focus to Death Penalty - is there a Political Twist to This?

As the defense team continues to put on its case for mercy during the penalty phase of Steven J. Hayes' trial for the murders of Jennifer Hawke-Petit and her two daughters, Michaela and Hayley, more and more media coverage is bringing the aspects of capital punishment advocacy to the public's attention.  Which is good. 

However, the power of this case isn't just in educating folk on the death penalty - it's also become a major player in the political scene. 

Today's New York Times writes (in an article entitled, "Murder Trial Puts Death Penalty in Spotlight in Connecticut Campaigns") on the intense national coverage brought to the Connecticut courthouse as the defense's ten (10) days of mitigating evidence and argument is presented: but this isn't a piece focusing on the intricacies of mercy.  No, the Times focuses upon the political aspects of the Hayes trial -- and how it may impact the upcoming November 2010 elections. 

This, of course, is true. 

It is conceivable that this trial may be concluded very, very close to election day -- it's already overlapping absentee voting.  And it's something that may well decide who is the next governor of Connecticut. 

After all, Dannel Malloy is running for Governor of the State of Connecticut as a Democrat who is opposed to the death penalty.  This, on the heels of the Republican sitting as Governor, M. Jodi Rell, who vetoed the abolishing of the death penalty in that state cited only one reason for her decision: the Cheshire Home Invasion case. 

Another aspect of trial by media to consider:  not only can intense media coverage impact the jury that is empaneled and the verdict (and sentence) that is reached, it can also reach much further -- to the determination of who sits in the highest offices in our country ....

Cheshire Connecticut Home Invasion Trial Penalty Phase - Demonstration of How Mitigation Factors Play Out Under Connecticut Law

Coming as no surprise to anyone following this case, Steven J. Hayes has been found guilty of capital murder in the Cheshire Connecticut home invasion case where Jennifer Hawke-Petit and her two daughters, Michaela and Hayley, died leaving only surviving spouse and father Dr. William Petit to testify. 

(For details on this particular case, check out our post on the trial itself as well as the early media coverage which began long before jury selection.)

Whether or Not Steven Hayes Will Be Given the Death Penalty is Now the Issue

The job of the criminal defense team setting at Mr. Hayes' table at this point is to fight against the death penatly.  To do that, they must present admissible evidence in support of one or more of the mitigating factors as they are defined by the Connecticut Legislature.  The New York Times reports that defense counsel are expected to take around 10 days to present their arguments during this second phase of the capital murder trial.

In the penalty phase, the state is allowed to present its case for capital punishment first.  In this well-known case of a Cheshire suburbian home invasion gone very wrong, the prosecutors put on only one witness - relying on the evidence already presented during the guilt phase for the majority of their arguments that they had met their burden (see the list of the aggravating factors under Connecticut law, below). 

The New York Times and the Hartford Courant are both following the trial, presumably each bit of the second phase of the trial will also be tweeted, and each day there are media reports summarizing the defense team's work - witnesses presented, arguments made. 

Defense Strategy Slowly Being Revealed as Penalty Phase Progresses

It has already become apparent that part of the fight will be to explain Hayes as the bumbling follower of his co-defendant, who defense witnesses - including law enforcement officials - describe as controlling and indeed, the evil mastermind of the tragedy.  For instance, just this morning Judge Jon C. Blue granted the defense request to admit into evidence (over the state's objection) both (1) diary excerpts and (2) certain statements made by Joshua Komisarjevsky which will support the defense's contention, as they build their case for life and not death in the sentencing of Steven Hayes. 

Connecticut Law Controls Evidence Presented by State and by the Defense

The defense attorneys are controlled not only by evidence law - what will, and what won't, be presented to the jury, but also by the specific, defined arguments allowed by state law to be urged in a fight against the imposition of the death penalty.  In Connecticut, the mitigation factors control the defense's presentation just as the defined aggravating circumstances (below) controlled the state's case. After the evidence is presented by both sides, the case will then go to the jury for consideration.Here are the mitigating and aggravating factors that control the case under Connecticut law:

Continue Reading...

TV and the Death Penalty: This Week, Watch FRONTLINE's Death by Fire and NatGeo's Death Row Texas

After posting on's interview of Texas Death Row's Hank Skinner earlier this week, readers wrote to let us know about more television coverage of Death Row and Death Penalty issues this fall.  Which is great news.  The more public awareness is brought to these issues the better,right?

After all, that's the main purpose of this blog: to shed light in dark corners, making the public aware of things like the indigent defense financial crisis, the complexity of mitigation, the importance of mercy. 

1.  FRONTLINE'S "Death by Fire" and "The Confessions" (10/18/2010 and 11/09/2010)

Jessica Smith, marketing communications manager for the national television series FRONTLINE (see it Tuesday nights on your local PBS station) wrote with two premieres on PBS:  FRONTLINE's season premiere “Death by Fire,” (see it October 19, 2010) and its report entitled “The Confessions” (mark your calendars for November 9, 2010).

Both FRONTLINE pieces, explains Jessica, "...examine cases at the center of ongoing national debates over the death penalty, the ability of the convicted to access and present new scientific evidence that might prove their innocence, and the issue of false confessions - including how high pressure tactics and the threat of the death penalty can be used to force a confession."

Watch a sneak peak of The Confessions here.  (Couldn't find an excerpt so you'll have to jump to their site to see the video; ditto for the link below.)

Watch an excerpt from the first episode of Death by Fire here, which delves into the case of Cameron Todd Willingham who may well have been an innocent man executed for the arson deaths of his young children by the State of Texas. 

2.  Death Row Texas on National Geographic Explorer (this week -- check local listings)

Another reader (anonymous) also recommended the recent documentary "Death Row Texas" on National Geographic Explorer.  From the show's webpage, there has been one episode televised thus far (and it can be seen now at the NGE website), and presumably there are more episodes to come. 

Death Row Texas is a documentary where 3 Texas Death Row inmates whose execution dates are close at hand are interviewed on video from the Walls Unit in Huntsville, Texas.  This is a British production, and it provides the caveat that both sides of the capital punishment debate are presented in the show -- promising that even the residents of Huntsville, where the Death House is located, will be interviewed for their perspective. 
NGE does provide a short video excerpt, here's a short take on their documentary series:

Hank Skinner Interview by CNN: Listen to a Man Fight for His Innocence

We've posted about the case of Texas Death Row Hank Skinner before: his case is now before the United States Supreme Court, where the High Court is considering if Skinner has a legal right to pursue a case in the civil system, in order to test evidence that was not tested at his criminal trial. 

Hank Skinner asserts that DNA evidence left in unknown person's blood stains on a jacket left at the murder scene, as well as on a kitchen knife, has never been tested -- and that since he is innocent, that untested blood should substantiate his continued assertion that he is innocent of the murders for which the State of Texas wants him executed. 

However, it's not often that members of the public get a chance to hear and watch a person living on any Death Row.  These folk are segregated from the public early on - probably soon after their arrest - and it's easy to turn them into two-dimensional villians on paper. 

Hank Skinner is a real, living person who has spent the last 17 years behind bars, proclaiming his innocence. Hank Skinner is a human being asking for lab tests to be done.  Period.  Is he so unreasonable in this request? 

Here, from CNN.Com:

Another Example of the Florida Indigent Defense Budget Crisis: Robert Dunn Discovery Needs

Over in Lee County, Robert Dunn has been arrested for the crime of shooting and killing his wife,  Christine Lozier-Dunn, inside of a Cape Coral, Florida, daycare center, Bobbie Noonan's Child Care, on January 25, 2008. He's facing trial for first-degree murder, first-degree armed burglary, and child abuse, and since Mr. Dunn couldn't afford an attorney he's been appointed counsel.

Robert Dunn Is Indigent; the Court Has Appointed Dunn's Defense Counsel

As guaranteed under the federal constitution, Robert Dunn has a legal right to effective counsel, and the State of Florida is legally required to provide him with representation once he's established himself to be indigent.  (Here's the hitch: Florida has to pay for this.)

Robert Dunn Faces the Death Penalty - Which Makes for a More Complicated Defense

If Robert Dunn is found guilty of the crime for which he is charged, he could be sentenced to death.  This is a death penalty case, and with it (as we've written about previously), a lot more responsibility is placed upon the defense team.  Mitigation specialists, additional investigation, preparation for both a guilt phase and a penalty phase in the trial -- Mr. Dunn's trial team has a huge legal duty here.

New Defense Lawyer David Brener Argues For Need to Re-Do Past Attorney's Work

Yesterday, Mr. Dunn's new trial attorney, Fort Myers' David Brener, appeared before Lee Circuit Judge Margaret Steinbeck to argue that he needs the court's help in order to fulfill that duty.  Brener is fierce about the lack of effective representation that Robert Dunn has received thus far -- and he can tie it directly to state budget concerns.  Once again, it's all about the money. 

As part of his argument, Mr. Brener called to the witness stand Mr. Dunn's prior defense counsel, Ita Neymotin, as the duly authorized representative of the five-county Regional Conflict Counsel office (Neymotin ran that shop until just last week).  The RCC is a state agency, and its funding comes from the State of Florida. 

Past Defense Lawyer Testifies to Cost-Cutting Deciding Scope and Length of Depositions

Ms. Neymotin testified under oath that during the Regional Conflict Counsel's representation of Mr. Dunn from May 2009 until April 2010 (when Brener took over), money talked and because of cost considerations, some witness depositions simply weren't taken and the length of other witness depositions were set by how much they cost rather than what testimony was needed to be obtained.

Twenty-one depositions are at stake.  The testimony of 21 witnesses is a huge amount of evidence in any trial, but can literally mean the difference between life and death in a capital case. 

21 Depositions at Issue: A Clear Example of Florida's Indigent Defense Budget Crisis

David Brener has asked Judge Steinbeck to let him retake 21 depositions that were controlled by money, and not by legal concerns.  Brener argues that an effective defense requires that some witnesses be questioned again, because prior defense counsel failed to ask key questions during the prior depositions. 

Answers to these questions are critical to Dunn's defense.  It's imperative that the witnesses give those answers, under oath, to give the defense these facts in form that can be used at trial, i.e., as authenticated, admissible evidence.

Right now, the hearing has been continued and we don't know what Judge Steinbeck will decide.  And her decision is important for us all -- since when does a bean counter in a state agency's bookkeeping department decide what witnesses are important to a case, or how long an attorney can ask questions of a witness (in deposition or at trial)? 

This is a clear example of how injustice has permeated our criminal defense system in this state, and in this country -- all because of blind budget concerns.  Something needs to change.   

What Now for the Indigent Defense Crisis? US Supreme Court Denies Weis Petition Without Comment

Yesterday, without comment, the United States Supreme Court denied the petition filed by Georgia Death Row inmate Jamie Ryan Weis

This is shocking. 

This is very bad news.  We've written about the Weis case before, including links to the amicus brief filed by a stellar list of Georgia legal scholars, fighting for justice in the indigent defense crisis facing Georgia (and the country) today - and the spotlight that coverage by the New York Times' Adam Liptak was providing

A Missed Opportunity or a Dodge?

Bottom line, the Weis petition offered the United States Supreme Court an opportunity to address the basic problem facing states today:  where is justice when there is no money in the coffers to pay for the effective assistance of counsel that is constitutionally required - particularly in a death penalty case?

For Jamie Weis, not only was his constitutional right to a competent defense denied him, but also his constitutional right to a speedy trial -- all because Georgia didn't have the money to pay for what was legally mandated.   Legally mandated by the constitutional precedent established by the United States Supreme Court. 

Georgia's Mr. Weis, Death Row inmates, and defendants facing the possibility of Capital Punishment across the country, are having rights denied them because of budgets without cash flow.  We can only wonder why the High Court has denied them even an explanation for why the Weis Petition was not considered worthy of review. 

The Mentally Ill Are Executed in the United States - 1: Who is Legally Insane Under The Law?

Many people believe that if someone is mentally ill, then they cannot be executed for their crimes.  This is not true; an individual suffering from a mental illness can be sentenced to death in the United States.  In fact, the protections against someone being executed due to their psychological impairments is rather limited: many seriously mentally ill individuals set on Death Row in this country today.  

What is "legal insanity" under the law?  It depends upon which jurisdiction applies.

The reality is that a defendant's mental capacity becomes an issue as early as the initial investigation by law enforcement into the crime, however, it is clearly a major component of any criminal trial of that individual, first addressed in the guilt phase of a capital case.  Legal insanity is an affirmative defense to a crime: it is proven by the defense in the guilt phase of the case where the state is seeking the death penalty, not the penalty phase.

There are two prevailing legal tests to determine whether or not a defendant is legally insane (again, as a defense to be pled and proven by defense counsel at trial).  The first, and most popular, is the “M’Naghten test.”   See, Clark v. Arizona, 548 U.S. 735 (2006).

M'Naghten Test

Under M'Naghten, the determining factor is whether or not the defendant was (1) able to understand what he (or she) was doing at the time of the crime due to some “defect of reason or disease of the mind" or, (2) if he (or she) was aware of what they were doing, that he (or she) nevertheless failed to comprehend or understand that what they were doing was wrong.

ALI - Model Penal Code Test

The alternative test for legal insanity has been provided by the American Law Institute in the Model Penal Code.  Under the ALI test, the key is if  the defendant lacked the substantial capacity, as a result of a mental disease or defect either (1) to appreciate the criminality of his conduct or  (2) to conform his conduct to the requirements of law. 

M'Naghten is considered a much stricter standard than the ALI test.  Under M'Naghten, the two defendants made popular by Truman Capote in the nonfiction novel In Cold Blood were found to be legally sane, convicted of capital murder, and after being sentenced to death, each was hanged by the State of Kansas. 

Using the ALI/Model Penal Code test, John Hinckley was found to be legally insane, therefore not legally culpable for his attempted assassination of President Ronald Reagan, and not subject to capital punishment.  Public outrage at the Hinckley result has forced many jurisdictions to return to the harsher M'Naghten standard.

Next in the series: Mental Illness as a Mitigating Factor


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