DOJ Halts Arizona's Execution of Donald Beaty On Unsafe Drug Argument, So Arizona Goes Forward with Pentobarbital. That's Apparently Fine.

Now, not only is the U.S. Department of Justice going state-by-state and scooping up any remaining supplies of sodium thiopental (see our earlier post for details), it has informed the State of Arizona that Arizona cannot legally use its sodium thiopental supply because it is the opinion of the Justice Department that Arizona got that drug illegally when it bought some from a British supplier.

Now, this happened within hours of Arizona's scheduled execution of Donald Beaty.  Not that Beaty or his lawyers were surprised at this position -- this is EXACTLY what they were arguing all along.

However, this wasn't akin to a stay by the governor.  The Arizona Supreme Court just held up things for a bit and then the execution was back on schedule -- yesterday, at 7:30 p.m., Donald Beaty died.  

How could they go ahead?  Well, they used the lethal injection method with pentobarbital in the stead of the British-bought sodium thiopental.

That's right.  Arizona cannot legally use sodium thiopental bought in England, but it can use a drug never tested on humans for this purpose and never okayed for executions by the U.S. Supreme Court (or medical researchers). 

Pentobarbital: the drug that vets use to put pets down.  That's assumedly okay with the Justice Department. 

New Hampshire Expanding Death Penalty to Make It Available for Killings During Home Invasions

Most of the states in this country today are either concerned about how they are going to execute the inmates they already have on Death Row, what with the lack of drugs for their lethal injection process, or they are debating getting rid of capital punishment if for no other reason than cost. 

Then there's New Hampshire.

New Hampshire has a bill that's already passed the House and is expected to pass the Senate that not only approves of capital punishment, but extends the application of the death penalty to killings that occur during a home invasion - sometimes called a "burglary killing." 

There are other states that already consider a killing that occurs during the commission of a burglary to be felony murder.  However, burglary must be listed alongside serious crimes like rape, armed robbery, etc. before the homicide can be held at the felony murder standard.  The state legislature must approve that the particular killing is a crime for which the state can seek death as a punishment.

For example, Florida law already provides for killings during home invasions or any other type of burglary to be capital murders, punishable by death.  Florida Statutes 782.04.  

Why is New Hampshire Expanding the Death Penalty?

What New Hampshire is doing is not so strange in that it is adding home invasion killings to its felony murder litany as the fact that it is doing so in a decade where the economy alone is forcing states to reconsider the viability of the death penalty. 

Lawmakers in New Hampshire are promoting this change in the law primarily because of one case: the 2009 machete killing of Kimberly Cates during a home invasion.  Public outcry over this particular crime - and the fact that the defendants would not face the death penalty at trial - has fueled the proposed change in New Hampshire law.

The change is expected to pass and become law.  The defendants in the Cates case are both serving sentences of life without parole, it will not apply to them. 

Of interest:  New Hampshire has not executed anyone since 1939

Univ of Miami Law Prof. Winick's 2009 Predictions on U.S. Supreme Court and Mentally Ill Death Penalty Cases

In 2002, the United States Supreme Court handed down Atkins v. Virginia - that's less than ten years ago.  Hard to believe, in many ways.

In 2009, Bruce Winick, Professor of Law and Professor of Psychiatry & Behavioral Sciences, and Director, Therapeutic Jurisprudence Center, University of Miami, Coral Gables, Florida, published an article in the Boston College Law Review entitled, "The Supreme Court's Evolving Death Penalty Jurisprudence: Severe Mental Illness as the Next Frontier."

You can read the full article online here in a downloadable format.. Citation for the article: Bruce J. Winick, The Supreme Court's Evolving Death Penalty Jurisprudence: Severe Mental Illness as the
Next Frontier, 50 B.C.L. Rev. 785 (2009),

What does Professor Winick suggest?

First, Professor Winick opines that the decision on whether or not the Eighth Amendment should apply in a case of mental illness should be done on an individual case bases, because not all mental illnesses can impact responsibility to the degree necessary for the Cruel and Unusual standards to come into play.  He gives personality disorders and voluntary intoxication as examples.

He believes that the decision is one to be made pretrial, through a combination of factual evidence and expert opinion by the trial judge.  It's really not something for a jury.

Lastly, he delves into what will be happening -- and what is happening now, really, with things like QEEG - when scientific understanding of the brain and human behavior moves forward to a point where we can concretely understand more of the "why" of things. 

Add to this the technological impact of DNA testing and the increasing number of exonerations based upon DNA evidence. 

Will the High Court be moved by the scientific realities or will it be swayed more by society's norms of the time?

In June 2009, Bobby v. Bies reversed the 6th Circuit and returned the defendant to the Ohio state courts for evidentiary hearings on his mental incapacity. 

Professor Winick's article is a good read if you like to ponder and predict.  And, hats off to the Boston Law Review for releasing the article on the web with access to all. 



DEA is Grabbing Up All the Sodium Thiopental? No Wonder Pentobarbital Is Popular in Executions

As we discussed before, there has been a challenge to the use of drugs purchased overseas in executions undertaken by various states.  (Specifically, the use of sodium thiopental purchased by Georgia from a questionable British supplier.)

However, news this week has it that in response, the federal government has been going around and grabbing up all the sodium thiopental in the country.  Apparently, the DEA is going state to state and confiscating any sodium thiopental in their inventories.  Wow.

According to Fox News, this has been going on for the past 60 days or so - and it's leaving states with the option of putting a hold on executions or opting for alternative drugs.  Like pentobarbital, which we've discussed before is the same drug used by vets to euthanize pets.

Fox New reports that the DEA began in Georgia, in March.  Next up: Tennessee and Kentucky.  The Wall Street Journal reveals that Alabama turned theirs over to the DEA in the last week of April. 

Now, the DEA (Drug Enforcement Agency) is part of the U.S. Department of Justice, helmed by Attorney General Eric Holder.  The number one prosecutor for the federal government. 

So, a prosecutor is pulling sodium thiopental from execution facilities and leaving the executioners to their own devices - find other ways to carry out the death sentence or freeze the execution schedule. 

It gets even more bizarre. 

As Human Events points out, the DEA is going around grabbing up a drug approved by the FDA to be used in a procedure sanctioned by the U.S. Supreme Court. 

Here's a question:  When is someone in the federal government going to do something about the growing use of pentobarbital in executions? 

Pentobarbital, which hasn't been vetted for use on humans. Pentobarbital, which has been okayed for use on humans by the Supreme Court. 

Guest Post by Nancy Farrell of Criminal Justice Degrees: The Role of a Paralegal Serving on a Capital Defense Team

As part of our invitation to other bloggers to guest here on the Death Penalty Blog, Terry and I are happy to publish the following article sent to us by Nancy Farrell, who writes for the career-advice website, Criminal Justice Degrees Guide.  Here, without edit or change, is Nancy's article for your consideration.  Thanks, Nancy!  -- Reba Kennedy, Esq.


In any case dealing with capital punishment, indicted persons require a strong capital defense team to represent them in court. Those accused of offenses, punishable by death, are provided with up to two attorneys, and both must be well-versed in the laws relating to the particular case. According to judicial conference policy, council "should have distinguished prior experience in the trial, appeal, or post-conviction review of federal death penalty cases, or distinguished prior experience in state death penalty trials, appeals, or post-conviction review that, in combination with co-counsel, will assure high quality representation.” What about essential capital defense personnel assisting the attorneys with the case, such as paralegals? How experienced should they be? What are the educational and experience requirements for paralegals working on capital defense cases?

Educational Requirements

Paralegals in the US are generally required to complete at least an associate's degree, although sometimes corporations and firms allow relevant experience to override a candidate's lack of higher education. There are many programs directly related to paralegal work, and some paralegals have majored in pre-law or obtained associate degrees in paralegal studies. Courses topics for both degree programs include: civil procedure, criminal law and procedure, ethics, law office administration and management, legal research and writing, and litigation. In addition to an associate's or bachelor's degree, some firms ask paralegals to obtain paralegal certification before their start date. This certification is not mandatory for legal assistants, but some employers view it as a commitment to the paralegal profession. Many paralegals working in the area of capital defense have prior experience, knowledge, in addition to certification in the field.

Experience Requirements

The Federal Defender's Office usually directly assigns paralegals and attorneys to indicted persons in capital punishment cases. Paralegals are required to locate witnesses, family members, and other personnel involved in the case. Additionally, they are required to put together records and other potential evidence that could be used in the case. Some paralegals must visit the crime scene in order to assist attorneys in any way that may be required of them. After looking through and analyzing comprehensive records and laws, they may be asked to write briefs on issues relating to the case. When the Federal Defenders Office hires paralegals to work on capital defense cases, it usually asks for candidates with three or more years of criminal investigation experience, in addition to great communication and writing skills. Although the office prefers those with paralegal training and certification, sometimes experience can be substituted for actual training.

Paralegals are valuable assets to capital defense teams, and attorneys frequently rely on them for finding relevant information for the case. If you are interested in the death penalty and cases relating to capital punishment, life as a paralegal can be a promising, exciting career path for you!


Guest Blogger:  Nancy Farrell is a freelance writer and blogger. She regularly contributes to the website Criminal Justice Degrees Guide which provides (1) resource information for those interested in careers in criminal justice as well as (2) a blog posting related issues, including child abuse, human rights, divorce, and crime related articles. 

 If you are interested in providing an article for publication here on the blog, please review our prior post that gives all the details - and feel free to email me for more information.

- Reba

Oregon Death Row's Haugen Waives Appeals, Wants to Be Executed. Why?

Oregon's Death Row only has around 35 inmates, a very small number when compared to neighboring California with its Death Row population of 719 people.   We don't hear much about the death penalty in Oregon -- after all Oregon hasn't executed anyone since 1997. 

Gary Haugen is changing all that.  As an Oregon Death Row inmate, Haugen has been writing letter after letter to court officials, explaining that he wants to waive any remaining appeals that he may have, and go forward with his execution.  

Why?  According to Haugen, he's doing this to shine a light on a "costly broken system."

Haugen has been writing these letters since 2008; tomorrow, there will be hearing held at the state attorney's request for a death warrant

Gary Haugen could be executed by the State of Oregon this summer.  At the hearing, prosecutors will ask for an execution date of July 28, 2011. 

Will this be granted?  Maybe.  The judge must decide if Haugen is competent to waive his appellate rights.  

And, if the judge grants the state's request - will the State of Oregon be prepared.  Oh, yes.  The Oregon Department of Corrections has already informed the media that pentobarbital will be replacing sodium thiopental in their three-drug lethal injection cocktail.  They're ready to go.

Here's the thing:  will this execution ready accomplish what Haugen is writing is his reason for asking to die now?  Is this going to shed a spotlight on the "broken system" in Oregon or elsewhere?  And, is this a good enough reason for a judge to okay the state to execute someone? 

Is this a man tired of living on Death Row, or is this a man seeking a higher good with his life?  Where is justice here?

Here's One Way to Stop the Death Penalty: Have the Prosecutor Take It Off the Table

Over in Arizona, there is a big, bad murder case moving through the system. 

Seems that a man named  Jonathan Edward Vandergriff, along with Staci Lynn Barbosa, his co-defendant, were facing murder charges as well as child abuse by domestic violence, sexual assault of a minor under the age of 15, and sexual conduct with a minor under the age of 15. 

The woman wasn't facing a death penalty; the prosecution was seeking life in prison without parole (at least for the first 35 years) for her.  Vandergriff, however, they wanted to kill. 

The underlying crime was horrible. 

According to media reports, last June 15th, Ms. Barbosa took her infant son to a local hospital, where she was arrested.  Vandergriff turned himself in later that afternoon.

Seems doctors found that her baby, Matthew, was not only bruised, dehydrated, and malnourished (signs of neglect), but he was also suffering from broken ribs and a broken leg (femur).  His eyes were swollen, too, and he had signs not only of being sexually abused but he had symptoms of shaken baby syndrome.  

Matthew was moved to another facility as soon as possible, but it was too late.  The baby died that next day.

Given these facts, it's no surprise that the state attorney sought the death penalty here - against at least one of the defendants.  However, here's another surprise for you:  he's just taken it off the table.

State Attorney Changes His Mind - It's Not a Capital Case After All

That's right:  the Arizona trial will not include the death penalty.  The death-qualified attorney appointed to the case (at a rate of $100/hour and $900/month for travel expenses) has been given his hat.

Seems that last month, the prosecutor -- Deputy Mohave County Attorney Greg McPhillips -- announced that the State of Arizona would not seek the death penalty for Vandergriff, arguing instead for life in prison with or without the chance of parole after 35 years -- the same punishment that they are asking from Matthew's mother (and Vandergriff's co-defendant).

This led to the County Manager terminating the contract that funded the defense attorney, Tucson attorney Creighton Cornell.  The County is cutting its costs on the case as soon as it can - having paid defense costs of around $50,000 with an estimated cost of $200,000 for trial of a death case (it goes up if there are post-conviction costs).

Interesting aside:  brother Cornell had filed not only a motion to withdraw the public defender’s office from representing Vandergriff, he had also filed a motion to allege prosecution misconduct -- and both these motions had yet to be heard. 


California 700+ Death Row Gets Good News: 2006 Moratorium on Death Penalty Will Continue For Now

Right now, the State of California has over 700 people living on its Death Row.  According to the California Department of Corrections and Rehabilitation, 260 are white; 255 are African American; 158 are Hispanic American; and 38 are not categorized. 

You can read the complete California Death Row Inmate list here, which as of April 13, 2011, totals 713 with 19 women included in the tally.  

As we've discussed earlier, no one has been executed in California for several years -- not since 2006, when Clarence Ray Allen was executed at the age of 76.  Then in 2010, there was a push to resume executions again in the State of California.  Executions were scheduled.  Defense attorneys went to work.

Today, it's been announced that no one will die at the hands of the California executioner anytime soon.  The California moritorium on executions continues -- the reason? 

Some of those defense lawyers - and state prosecutors - jointly posited to the federal judge in the pending federal challenge to California's lethal injection procedure, U.S. District Judge Jeremy Fogel, that they won't be ready before the end of the year to proceed with their cases. 

The biggest reason for delay? 

It appears that the warden at San Quentin (where the executions would take place) is still getting his executors hired, and the new execution team won't be hired and on the job before Fall 2011. 

Betcha you thought it was going to be the lack of sodium thiopental, right?  Or maybe that California cannot afford the death penalty anymore? 

Update of Florida Court Overhaul: Amendment Passed That Kills the Deal

Yesterday, the Florida Senate passed an amendment to HJR 7111 -- an amendment co-sponsored by 10 Republican Senators - which served to remove by amendment the earlier bill which split the Florida Supreme Court and created a new Florida high court for criminal matters (as described in our post last week). Read the amendment here.

 According to Floridians for Fair and Impartial Courts, the Florida House of Representatives is in agreement here and the House will vote approval of this amendment later this week.  Katherine Betta, speaking for Speaker of the House Dean Cannon, has been quoted in the media as believing that the amendment will be summarily accepted by the Florida House. 

What happened?

According to news reports, the Florida Senate heard much debate where things like the Federalist Papers were discussed -- you know, constitutional arguments about things like a balance of power between executive, legislative, and judicial branches, etc. -- and the result was that the senators went back and revised the language, amending it, and then sending this amendment back to the House so the House can vote on the new version. 

What's next? 

You'll still see this on your November 2012 ballot:  these are still changes that need to be approved by 60% of Florida's votes before they become law, since they require changing the Florida Constitution to be effective.

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