Note: This infographic comes from Daily Kos using data they found at the Death Penalty Information Center web site.
Note: This infographic comes from Daily Kos using data they found at the Death Penalty Information Center web site.
Regardless of the protections intended by Atkins v. Virginia, executions continue to proceed in this country of Death Row inmates with significant mental challenges. It’s something that Terry Lenamon is dedicated to fighting as part of his work in defending individuals facing capital punishment in the death penalty phases of their criminal trials.
The Death Penalty Information Center has published its year-end report regarding the Death Penalty in the United States. Florida (and Texas) figure prominently in the study.
Last month, the Department of Justice released a report from the Inspector General's Office about the work of the FBI in death penalty cases. It's shocking.
READ THE REPORT ONLINE HERE, "An Assessment of the 1996 Department of Justice Task Force Review of the FBI Laboratory."
Specifically, the Inspector General compiled a report on how the Federal Bureau of Investigation FAILED to give proper notice to Death Row inmates that their cases were being reviewed as possibly having had FBI experts giving bad, wrong, "inaccurate" testimony at their criminal trial.
That's right: the FBI crime lab testimony was wrong in cases where people were facing the death penalty.
From the Inspector General:
"[T]he FBI did not take sufficient steps to ensure that the capital cases were the Task Force’s top priority. We found that it took the FBI almost 5 years to identify the 64 defendants on death row whose cases involved analyses or testimony by 1 or more of the 13 examiners.
The Department did not notify state authorities that convictions of capital defendants could be affected by involvement of any of the 13 criticized examiners. Therefore, state authorities had no basis to consider delaying scheduled executions."
How bad is this? We know of THREE PEOPLE who were executed before the FBI let them or their lawyers know that this review of FBI testimony was underway.
There may be more.
The Inspector General is recommending that all physical evidence in a Death Penalty case be re-tested for 24 another Death Row inmates who either died while awaiting execution or who have already been executed.
Maybe you've read some of Carl Hiassen's thrillers over the years - or maybe your kids have read some of Carl Hiassen's children's books (like Flush, Chomp, or Scat).
If you haven't, then you just might like to check out (and have a great laugh or two) how Florida is portrayed in Sick Puppy, Skinny Dip, or Bad Monkey.
Then there's Carl Hiassen's column published by the Miami Herald. Maybe that's how you recognize his name.
The big thing this week, however, isn't his regular piece in the paper, or any of his books -- it is Carl Hiassen's op-ed piece on capital punishment in this country, particularly in the State of Florida.
It's online to read for free, entitled "Let's put an end to the executions" and it's worth your time.
And if HIassen's words leaving you wanting more, there's a good summary of where we are with all those drugs being used in the Lethal Injection cocktails in the Tampa Tribune, written by James Rosica, entitled "Secrecy shrouds state's lethal injection drugs."
Scary stuff, what is happening in lethal injection executions in this country today. Very, very scary.
Up in Washington, there isn't going to be any executions for awhile because the current governor, Governor Jay Inslee, has announced that he's against the death penalty and he's going to use his power to issue reprieves to stop executions in that state.
This means that defendants can still face the death penalty in trials, and capital punishment can still be assessed -- but if there is an execution set up, then the state governor in Washington is going to block it.
Why? From Gov. Jay Inslee (click the link to read the full release):
“Equal justice under the law is the state’s primary responsibility. And in death penalty cases, I’m not convinced equal justice is being served. The use of the death penalty in this state is unequally applied, sometimes dependent on the budget of the county where the crime occurred.”
“In death penalty cases, I’m not convinced equal justice is being served,.... The use of the death penalty is unequally applied, sometimes dependent on the budget of the county where the crime is committed.”
Image: Terence Lenamon in foreground, with client Andrew Castor and Terry's co-defense counsel, LenamonLaw's Melissa Ortiz, during trial. Photo by Marisa Kendall / The News-Press
Pictured above is Terry Lenamon at work during the recent trial of Andrew Castor over in Cape Coral, Florida. The death penalty was taken off the table early on in the case; the jury came back with a guilty verdict last week.
For Terry, this latest trial is just one more in his list of criminal cases going back many years. He's adept at trying cases, and he has built a practice out of defending people facing the death penalty - particularly, those facing capital punishment in the State of Florida.
Florida is about as well known as Texas for executing people and sentencing folk to death. Needless to say, Terry is a busy man.
However, what lawyers in Texas and lots of other attorneys and members of the general public may not know is that Florida gives Terry an even bigger burden than his colleagues in other states might face.
What's the big deal about Florida death penalty defense? Well, it's the juries. In Florida, it is not necessary to have 100% agreement of all the jurors in order for someone to be sentenced to death. Nope.
Florida does not require the entire jury to support the death penalty for the death penalty to be sentenced in a case.
This summer, Florida State Senator Thad Altman proposed legislation to the Florida Legislature that, if passed, would have required Florida juries to be unanimous before the death penalty could be imposed. Altman's bill never made it out of committee.
Which means, for Terence Lenamon and others in the position of setting at a Florida defense table, as he's doing in this photo, the defense has the job of convincing most of those jurors, not just one or two (like in Texas where an unanimous agreement among jurors for death penalty is required).
We acknowledge that, as we explained in Lightbourne, if the inmate is not fully unconscious when the second and third drugs, vecuronium bromide and potassium chloride, are dministered, the inmate will suffer pain. See Lightbourne, 969 So. 2d at 351. However, we agree with the circuit court that Muhammad has not demonstrated that the conditions presenting this risk are "sure or very likely" to cause serious illness or needless suffering and give rise to "sufficiently imminent dangers" under the standard set forth in Baze. Thus, we reject his constitutional challenge to the use of midazolam hydrochloride in the lethal injection procedure.
Documentary film maker Andrea (Andy) Scott has a new documentary coming out that may be interesting to those following death penalty issues .... It's a film covering a local community in Arizona that has an economy revolving around 9 different incarceration spots, be they prisons, jails or immigration detention centers.
The town is Florence, Arizona, and for those interested in learning more about the town or the film, or both, check out Scott's kickstarter campaign online here.
Here's the status of the pending challenge to the Timely Justice Act as passed by the Florida Legislature and signed into law by Florida Governor Rick Scott, as of July 25:
1. On July 16, 2013, the Florida Supreme Court granted the Motion for Leave to File Amicus Curiae Brief filed by the Florida State Committee of the American College Trial Lawyers but struck its accompanying brief because the two documents were filed together as one, single filing. The movants were directed to re-file their brief as a separate document on or before July 19.
2. This was done on July 16.
3. On July 18, The Attorney General for the State of Florida, Pam Bondi, filed the State's Response to the Emergency Petition to Invoke all Writs Jurisdiction, to Declare Unconstitutional Provisions of the Timely Justice Act of 2013, and for Immediate Temporary Injunctive Relief.
Bondi is arguing that there is a lack of jurisdiction and that the arguments advanced in the Emergency Petition are "meritless," with lots of argument based upon the separation of powers doctrine (no surprise there).
4. On July 19, 2013, the pro se motion of Charles Finney to Join the Emergency Petition was granted. Read his motion online here.
Here's the status of the pending challenge to the Timely Justice Act as passed by the Florida Legislature and signed into law by Florida Governor Rick Scott, as of July 25:
1. On July 16, 2013, the Florida Supreme Court granted the Motion for Leave to File Amicus Curiae Brief filed by the Florida State Committee of the American College Trial Lawyers but struck its accompanying brief because the two documents were filed together as one, single filing. The movants were directed to re-file their brief as a separate document on or before July 19.
2. This was done on July 16. Read the Amicus brief filed by the ACTL here.
3. On July 18, The Attorney General for the State of Florida, Pam Bondi, filed the State's Response to the Emergency Petition to Invoke all Writs Jurisdiction, to Declare Unconstitutional Provisions of the Timely Justice Act of 2013, and for Immediate Temporary Injunctive Relief.
Bondi is arguing that there is a lack of jurisdiction and that the arguments advanced in the Emergency Petition are "meritless," with lots of argument based upon the separation of powers doctrine (no surprise there).
4. On July 19, 2013, the pro se motion of Charles Finney to Join the Emergency Petition was granted. Read his motion online here.
Last week, the Governor of the State of Maryland signed a bill presented to him by the Maryland legislature and with his signature, the death penalty was abolished in Maryland.
In doing so, Gov. Martin O'Malley brought Maryland into the history books as the sixth state in as many years to do away with capital punishment. If you're keeping score, these six states are shown below in dark purple (thanks to the National Coalition to Abolish the Death Penalty for this great infographic).
Now, Maryland becomes the 18th state to abolish the death penalty. As for the five people who set on Maryland's Death Row, unfortunately the new law does not automatically alter their sentencing - but Governor O'Malley has stated on the record that he will be reviewing their cases, one by one, as he considers using his power to commute their death sentences.
Meanwhile, as we posted earlier and as FoxNews points out this week, at the same time that Maryland abolished capital punishment, the Florida legislature has decided to speed up executions in the Sunshine State.
Embedded from CA Innocence Project
Up in Maryland, there are some folk who are fierce in their efforts to get the Maryland death penalty statute overturned this year. Today, news reports out of Baltimore are that their efforts have brought things down to one, single vote needed to get their proposal through the state senate.
Then, things will move to a floor vote. What if the law passes?
Well, Maryland Governor Martin O'Malley is ready for it. He's been against capital punishment for a long time, and he's been a force in getting things to this juncture.
If the state legislature opts to repeal the Maryland death penalty statute, this is one governor who will not do anything to keep that repeal from going forward. He'll celebrate it as a victory.
To some extent, apparently. Whatever the reasons, odds are high that capital punishment will soon be no more in the State of Maryland.
Iowa hasn't had a death penalty in over 50 years but public outrage over the deaths of two girls has spurred a new effort to re-institute capital punishment in Iowa.
The governor is fine with it, but it's a state senator named Kent Sorenson that is spearheading the effort to get a capital punishment statute back on the books. There's a lot of emotion driving this issue up in Iowa after the bodies of cousins Elizabeth Collins ( 8 years old ) and Lyric Cook-Morrissey (10 years old), missing since July 2012, were recently found.
Hunters discovered their remains this week in a wooded area near Evansdale, Iowa. No arrests have been made, no persons of interest identified. Currently, a reward for information is being offered in the amount of $150,000.00.
Sorenson plans on introducing the bill in January 2013. Whether or not he has the votes to get it out of the statehouse and to the governor's desk for signature is not so clear: the chair of the Senate Judiciary Committee doesn't think Sorenson can get those votes.
The West Memphis Three were freed a little over a year ago after lots of support and efforts to make the public aware of what was happening to these three men. Major public figures from Johnny Depp to Oliver Stone to Ozzy Osborne all worked to bring justice in this case (details and background here).
Now, a documentary based on the story of the West Memphis Three is being released, entitled "West of Memphis," opening on December 25, 2012, in both Los Angeles and New York City.
Terry Lenamon has been invited to special screenings of Peter Jackson's film, co-produced by Fran Walsh and Damiel Echols, at the New York Law School on November 17, where the documentary will be shown as well as a panel discussion involving those involved in the film as well as the lawyers in the underlying case. It's being presented as part of the New York Law School's Program in Law and Journalism as a program entitled "Justice Lost: the Fight to Free Damien Echols."
Terry extends his thanks to Stacey Berkowitz Ranere, Vice President of Rubenstein Associates, Inc. for the invitation and he also wants to help promote this new documentary to those interested in capital punishment and death penalty issues, both here and aboard.
Please click on the image for details about the film from IMDb:
Capital punishment is making lots of news these days, as sending defendants to their death as punishment for their crimes seems to be a hot topic across the country. Consider the following:
1. California will vote on whether or not to abolish the death penalty in November 2012 as Proposition 34 is on the ballot.
It seems money is a big factor in this vote. Of note, the series of opinion editorials published by the Sacremento Bee, arguing against the death penalty and for the passage of Proposition 34 point by point.
2. Montana may end the death penalty as punishment too.
There's a move in Montana to end the death penalty now that the statute has been found in violation of the state constitution by a Montana State District Judge. One group, the Conservatives Concerned About the Death Penalty, appears to be both vocal and powerful - they've got a website if you want to learn more.
3. Pennsylvania, meanwhile, is still among the states that are executing people. Pennsylvania has an execution scheduled for the first time in 13 years.
The execution of Terrance Williams will happen now in all likelihood, since clemency has just been denied by the Board of Pardons. It was a 3 to 2 vote and an unianimous decision is needed to stop things.
However, there is still some hope that there will be mercy over judgment - a hearing has been granted for defense attorneys to argue that evidence was withheld at trial regarding a history of Williams being a victim of sexual abuse as a child which might have been mitigating in his sentencing at the time.
4. Missouri is reconsidering the death penalty sentence of Reginald "Reggie" Clemons even though many in that state consider him worthy of death after conviction for the rape and murder of two sisters in St. Louis, who were pushed to their deaths from the Chain of Rocks Bridge into the Mississippi River.
Reggie Clemons is one of four men who were found guilty of killing two young girls, sisters Robin and Julie Kerry, back in 1991. Clemons has consistently claimed his innocence in this case and his defense attorneys are optimistic after the Missouri Supreme Court appointed a judge to preside over a hearing to look into prosecutorial misconduct, racial bias, and other misdeeds.
5. Connecticut's Death Penalty Statute is being challenged by those setting on Connecticut's Death Row who still face execution even though the statute itself was repealed.
In Connecticut, the death penalty statute was repealed back in April 2012, but that didn't grandfather in the 11 men who are already sentenced to death and awaiting execution. These men have grouped together in a joint effort to fight against their ironic situation, and a hearing has been held this month on whether or not they should have their sentences revisited.
As for Florida and Texas? Stay tuned.
From Terry --
If you have a chance please listen to the BBC Radio Documentary done by Liz Green on the death penalty in Florida. Pay special attention to the State Attorney Angela Corey’s (Jacksonville) statements regarding the death penalty.
Here's the link: https://www.dropbox.com/sh/c1k871gz10nt5pg/QkEGyMys5t?m
It's a MP3 file, lasts 58 minutes.
What you're find: this is a British documentary made by the BBC about Death Row, and of the BBC Radio hosts, Liz Green who came to Florida with two other reporters to check out the Death Row here and learn about our death penalty process.
Terry Lenamon knows what he's doing in a courtroom, and here - from the opinion that just came down from the Florida Supreme Court, reversing the death sentence of Wadada Delhall which is making the national news along with international media coverage -- is a great example of Terence Lenamon's expertise at work.
It's more than education or past experience. Lawyers in trial have to be focused, have to be alert, especially in criminal trials and even more especially, in death penalty cases. It's not a job just anyone can do.
So, picture Terry Lenamon (with the responsibilities of running an office, working with his non-profit Federal Capital Resource Center, his duties to other clients, his commitment to his home and family) as he listens carefully to the questioning taking place during trial and makes an objection that the trial court judge does not sustain but which the appellate court determines was not only a valid objection but one that results in reversible error.
This all happened in less time that it took you to read this post, what Terry did. Congrats to Terry!!!!
From the opinion in Wadada DelHall v. State of Florida, No. SC09-87, Supreme Court of Florida per curiam July 12 2012 (Lenamon's words highlighted):
"Q. You couldn‟t find Conroy Turner so you killed Richie B [Bennett] his best friend unless Richie told you where Conroy was to be found?
MR. LENAMON [DEFENSE COUNSEL]: Objection, sidebar.
A. No, sir. Who Richie B?
Q. Richie B‟s best friend was Conroy Turner. Conroy Turner ripped you guys off for some dope and your brother agreed to kill Richie B because Richie B wouldn‟t say where Conroy Turner could be found so that Conroy Turner could pay you back for the dope that he ripped off.
A. I don‟t know who that was Conroy Turner.
Q. You know who Richie B was?
A. After they start showing me pictures of the dude.
Q. After your brother took the contract to kill him and after your brother killed him?
Q. Your brother killed him right in that auto shop right there that day with his shirt off showing his tattoos, something you don‟t have, right.That‟s why they knew it was your brother and not you?
Q. You don‟t have those kind of tattoos that your brother has?
Q. He has tattoos all over his back, doesn‟t he?
Q. Across his back?
A. He has one tattoo from what I remember.
Q. An[d] once, once you found out and your brother found out that he was wanted by the police in Miami Dade County and there was a warrant for his arrest for the murder of Richie B, someone actually cared that Richie B was killed, you didn‟t figure on that did you, Mr. Delhall?
A. I don‟t know nothing about what you talking about.
MR. LENAMON [defense counsel]: Objection, I have a motion to make.
THE COURT: Do you. Come sidebar.
[Thereupon, counsel for the respective parties approached the Bench and conferred with the Court outside the hearing of the jury and the following proceeding was held:]
THE COURT: What‟s the motion?
MR. LENAMON: Judge I‟m moving for a mistrial. Miss Levine is indicating my client was involved in another homicide.
THE COURT: She never said that.
MR. LENAMON: I think she did.
THE COURT: She did not.
MR. LENAMON: I believe she did.
THE COURT: I believe she didn‟t. Is that the motion?
MR. LENAMON: That‟s the motion. I‟m going to have a continuing objection to anything about my client having any involvement in any other homicide.
THE COURT: Okay motion is denied.
... (emphasis added). After failing to recognize that the prosecutor had, in fact, stated that Delhall was involved in the Bennett murder, the trial court denied the motion for mistrial. Where, as here, counsel simultaneously objects to an improper comment and moves for mistrial without obtaining a ruling on the objection, the standard of review of denial of the mistrial is abuse of discretion. Poole v. State, 997 So. 2d 382, 391 n.3 (Fla. 2008) (citing Dessaure v. State, 891 So. 2d 455, 464-65 n.5 (Fla. 2004)). “A motion for mistrial should be granted only when the error is deemed so prejudicial that it vitiates the entire trial, depriving the defendant of a fair proceeding.” Wade v. State, 41 So. 3d 857, 872 (Fla. 2010) (quoting Floyd v. State, 913 So. 2d 564, 576 (Fla. 2005)).
The strong implication during cross-examination that Delhall was involved in Bennett‟s murder was improper."
Congratulations on a job well done, Terry!
Yesterday, the Arkansas Supreme Court issued its opinion that the state law providing for capital punishment in the State of Arkansas is unconstitutional. Which means that the men setting on Arkansas' Death Row must be grateful to the 10 men who filed this appeal and drove this issue to the highest court in that state.
Their winning argument? It's up to the state legislature, not the system of prisons, to decide how executions are carried out. This isn't a ruling that ends the death penalty in Arkansas; instead, it is halting executions because of the manner in which they are being done (another lethal injection issue).
Recently, the Tampa Bay Times published a guest column by former Florida Supreme Court justice Raoul Cantero and Mark Schlakman, senior program director for the Center for the Advancement of Human Rights at Florida State University and board chairman for the Innocence Project of Florida. Schlakman also is a past member of the American Bar Association's Florida Death Penalty Assessment Team.
Cantero and Schlakman periodically publish joint articles regarding Florida's death penalty practice. See our prior posts discussing a few of them, including:
Here's an excerpt, we encourage you to read their latest column in its entirety:
Challenging the status quo to promote fairness and impartiality in our justice system can be a daunting task even for legal practitioners. When Florida's death penalty process is at issue, the task can be further complicated because such efforts are often equated with being soft on crime or insensitive to victims' issues. . ..
More than five years ago, the American Bar Association released a comprehensive report developed by a team of eight Florida-based experts that raised serious concerns about Florida's death penalty process. . . . Few of its recommendations have been implemented.
Terry Lenamon is currently in trial defending another high profile defendant, Joshua Fulgham, who is accused of killing his wife Heather Strong (read the Wikipedia article on her murder here). The trial is taking place in Marion County, Florida.
For blog readers who follow Terry's trial work, here are some links to the day's activities (as this post is being published, they are still in the middle of jury selection).
Joshua Fulgham faces the death penalty for the death of his wife Heather Strong, having been charged with first-degree murder and kidnapping. Fulgham's girlfriend, Emilia Carr, has already been tried and convicted and is now setting on Florida's Death Row.
If you are interested in criminal defense / true crime cases, then you might want to read Terry's memoir or "casebook" that covers almost a dozen of his past defense cases where his clients faced the penalty of death. For more info on the book or to buy it as an ebook or paperback, just click on the link there in the left sidebar.
Florida's Execution Schedule has tomorrow, February 15, 2012, as the day that Robert Brian Waterhouse will die for the murder of Deborah Kammerer back in September 1980. Yes, if you do the math you'll find that it has been over 30 years since Waterhouse was convicted of this crime and this latest execution date.
Will Waterhouse be executed by lethal injection this week?
Right now, as this post is being typed, we can imagine that he is in the process of meeting his fate on that table, after living year after year after year, mostly alone, in a small cell (six by nine) at Starke's Florida State Prison.
He's now 65 years old. Decades, literally, in a room smaller than most of our bathrooms and maybe around the same size as many walk-in closets. Six by nine isn't a big space. So much for all that chatter about the cushy life on a state death row - Florida isn't California.
He's already a footnote in Florida criminal history, since he's been on Florida's Death Row longer than anyone else who has been executed by the state (though there are others who have resided on Death Row longer than Waterhouse).
It's All Up To Governor Scott and Justice Thomas
Last month, Governor Rick Scott signed the death warrant for Robert Brian Waterhouse, setting the execution in motion. Now, a group of Catholic Bishops have written Governor Scott asking for clemency.
It's Tuesday evening and no clemency so far. The execution is scheduled for six o'clock on the evening of February 15, 2012.
The prison already has media updates scheduled for tomorrow afternoon, before and after the execution. It's not looking good.
So far, only one execution has occurred in 2012 in the United States: the January 6, 2012, execution of Gary Welch by a three-drug lethal injection (using phenobarbital) by the State of Oklahoma.
2012 US Execution Schedule
The Death Penalty Information Center updated its 2012 Execution Schedule on January 23, 2012, and it's pretty amazing to see how short that list is, right now:
17 PA Ralph Birdsong - Stayed
18 PA Kenneth Hairston - Stayed
18 OH Charles Lorraine - Stayed
19 KY Michael St. Clair - Stayed
20 DE Robert Gattis - Granted Clemency
26 TX Rodrigo Hernandez
31 GA Nicholas Tate - Voluntarily Waived His Rights to Appeal
1 TX Donald Newbury
15 FL Robert Waterhouse
16 OK Garry Allen
22 OH Michael Webb
28 TX Anthony Bartee
29 TX George Rivas
29 AZ Robert Moormann
6 NE Michael Ryan
7 TX Keith Thurmond
8 AZ Robert Towery
8 PA Dustin Briggs - (Stay Likely)
15 OK Timothy Stemple
18 SD Briley Piper - (Stay Likely)
28 TX Jesse Hernandez
18 OH Mark Wiles
26 TX Beunka Adams
13-19 SD Eric Roberts
12 OH Abdul Awkal
26 OH John Eley
20 OH Donald Palmer
13 OH Brett Hartmann
The Pew Research Center has just released its latest study, and it's making the media rounds today. Seems their study finds that a solid majority of Americans - sixty-two percent (62%) -- are in favor of the death penalty.
Which makes it interesting to consider the opinion voiced by New York Law Professor Cohen over at TIME Magazine this week, where Professor Cohen argues that there is a growing "de facto" abolishing of capital punishment in this country. In his article, "Why the Death Penalty is Slowly Dying," Cohen opines that this is due to three reasons:
Is Cohen Right?
Out of the three reasons listed above, money sure does seem like a motivating factor in states that are broke, like California (as we have posted about before). However, there's a big, big factor in the absence of executions to tally in 2011: lack of supply for one of the needed drugs in the three-drug lethal injection cocktail that had been pretty much accepted procedure in all U.S. Death Chambers.
One has to ask: if states had not lost their steady supply of sodium thiopental, would the execution numbers have gone down?
Fascinating news out of the Death Penalty Information Center: in 2011, there were only 43 executions after 2010's 46 and 78 new death sentences were given to defendants in 2011 after 112 in 2010. That's the big news: 112 down to 78 new sentences of death is record-breaking.
So, what is going on?
The DPIC points out that Gallup Polls have a falling number of Americans that support the death penalty, too. Gallup shows 61% support the death penalty now; that's down from 68% in 2001.
A Fordham law professor opines that media coverage plays a factor here: not only are folk more aware of the reality that innocents do get convicted (and sentenced to death) but that capital cases are much more expensive for state budgets. She also explained to USA Today that the U.S.Supreme Court has issued opinions that have narrowed when the death penalty can be used (i.e., limiting it regarding minors or the mentally challenged).
This is a hot topic and lots of discussion is going to be had on 2011 as the Year We Went Under 100 Death Sentences for a long while. There's obviously a number of factors at play.
One thing that might need to be discussed more: the fact that the states are in a quandary about how to kill, what with all the constitutional issues involved in lethal injection these days and the relunctance to return to old standbys like firing squads or electric chairs.
Florida has exonerated more Death Row Inmates than any other state in the nation - 23 inmates, to date - and that's something we all need to be taking very, very seriously.
Which is exactly what has been happening over in Tallahassee, where a panel made up of respected academics, experts on death penalty legalities, and legislators gathered together to consider how to combat the evident and obvious danger that innocent folk might be executed by the State of Florida.
Seems everyone agrees that there are lots of problems with capital punishment, cost not being the least of them. However, it doesn't appear that the swift and clean answer of abolishing the death penalty in Florida will be happening any time soon.
What was this panel? It was put together by the Florida State University in commemoration of the 5th anniversary of an ABA study of Florida's death penalty procedures - which included recommendations that weren't followed by Florida lawmakers.
For example, Florida still doesn't need an unianimous jury to sentence someone to death. Juries can recommend the death penalty by a majority vote, and the judge imposes the sentence (and he or she usually follows the jury's recommendation). The ABA thought that juries in Florida should at least be required to vote 100% in favor of death before it was recommended. Didn't happen.
What will result from the panel's efforts? Too soon to tell. We should look for new proposed legislation coming from it ... but whether or not those proposals become law in the State of Florida is another ball game.
DNA testing for Death Row inmates gets a lot of attention over in Texas, but it's really a national issue -- and lots of eyes are turned to Austin this week as the Texas Court of Criminal Appeals stayed the November 8, 2011, execution of Hank Skinner. Skinner's fight is far from over: the opinion states that the stay has been granted so the court can " ... take the time to fully review the changes in the statute as they pertain to this case."
Skinner still has not found victory in his fight to get evidence tested for DNA that includes the knives used as murder weapons.
David Protess of the Innocence Project has been following the Hank Skinner story - as well as the importance of DNA testing in death penalty cases - for awhile now. For details on the Skinner case and this latest ruling's impact, read his article at the Huffington Post.
Meanwhile, more and more attention is being given to the actions of a series of prosecutors in the Hank Skinner matter and their apparent blindspot on justice insofar as testing DNA evidence in this case.
What happens to the prosecutors? It's not clear - first things first is getting Skinner's DNA testing requests approved and testing done. Moreover, assuming that Skinner is proven an innocent man it's also not clear what the ramifications of that reality will be on the district attorneys who made decisions in this case.
Perhaps the best news today, other than the stay of execution of course, is the fact that more and more questions are being asked of the propriety of actions and attitudes of the prosecutors in this case (and hopefully, in every death penalty case).
Are they concerned with justice or are they concerned with politics or sadly, building a winning track record at trial?
Over in Ohio, Reginald Brooks and his ace defense team are fighting against an execution date of November 15, 2011, when Brooks is scheduled for capital punishment in the homicides of his three sons, killed long ago while they slept (in 1982).
A federal district judge has failed to find error in the changes that the State of Ohio made in its execution methodology: Judge Gregory Frost then rejected Mr. Brooks' motion that his execution be delayed.
Meanwhile, on the same day, the Ohio Supreme Court issued its determinations that denied several different requests by Mr. Brooks, also declining to delay an execution day that is two weeks away.
Defense attorneys are working very, very hard on this case. Brooks' age has been the basis for requests of mercy and clemency, and arguments have been advanced that he suffers from mental illness.
The Ohio Parole Board came down against clemency in an unanimous vote on Monday. Read their Clemency Report here.
There's not many more tools in the defense team's tool box. Time is running out and no powers that be have seen fit to extend that execution schedule.
Hat's off to that defense team, today and every day through November 15, 2011. Few can understand the emotional, raw, intense efforts those death penalty defense attorneys are experiencing right now.
Perhaps knowing that your work is being acknowledged and appreciated by more folk than you know will be of some help to you. Because it's out here.
The Florida House of Representatives will be addressing the issue of capital punishment, as the memories of Georgia's execution of Troy Davis and Florida's execution of Manuel Valle are still fresh in the minds of legislators and the public at large.
State Representative Michelle Rehwinkel Vasilinda (D-Tallahassee) has introduced HB 4051, which will now proceed through the usual path of all bills in the statehouse: committee consideration, voting, etc. Of note, Representative Rehwinkel Vasilinda introduced the same bill last year, and it never got out of committee.
The bill was introduced in tandem with the execution of Troy Davis and the swirl of media controversy surrounding that event. Balanced against that in the Florida media is the execution of Manuel Valle, labelled with the phrase "cop killer" in most media accounts of his story.
From the Florida House of Representatives website, HB 4051 is described as follows:
Death Penalty: Deletes provisions providing for death penalty for capital felonies; deletes provisions relating to representation in death penalty cases; repeals provisions relating to capital collateral representation, jurors in capital cases, prohibiting imposition of death sentence on defendant with mental retardation, determination of whether to impose sentence of death or life imprisonment for capital felony or capital drug trafficking felony, issuance of warrant of execution, stay of execution of death sentence, proceedings when person under sentence of death appears to be insane, proceedings when person under sentence of death appears to be pregnant, grounds for death warrant, execution of death sentence, prohibition against reduction of death sentence as result of determination that method of execution is unconstitutional, sentencing orders in capital cases, regulation of execution, transfer to state prison for safekeeping before death warrant issued, return of warrant of execution issued by Governor, sentence of death unexecuted for unjustifiable reasons, & return of warrant of execution issued by Supreme Court.
Long ago, just like in the movies, executions were public. Watch a Western, and you'll see the hangings in the public square. Watch a film about the French Revolution, and there are the masses watching executions on the guillotine.
Should there be Public Executions in America?
Today, there is talk of making modern-day executions public again. Of course, this comes with lots of discussion, since many do not agree with the idea of public executions.
Consider the following discussions:
And consider this, there are public executions today. Go to You Tube and you can watch executions in North Korea (hanging) and Iran (hanging, beheading). We're not posting links to them, however.
Last month, as the Casey Anthony trial was underway, a federal district court judge issued an opinion that has longreaching implications (and caused Anthony's defense attorneys to immediately move, albeit unsuccessfully, for a mistrial): the federal judge ruled that Florida's death penalty statute was in violation of the U.S. Constitution.
Federal Judge Finds Florida Death Penalty Statute Violates U.S. Constitution
The case, Evans v. McNeil, involved a petition for writ of habeas corpus, filed as Case No. 08-14402 in the United States District Court for the Southern District of Florida, Miami Division. The full text of the ruling can be downloaded here.
In sum, the court found that the Florida Death Penalty Statute violated Ring v. Arizona, 536 U.S. 584 (2002), and was therefore unconstitutional.
Terry Gives His Opinion to the Media Regarding the Ruling that the Florida Statute Is Unconstitutional
When Terry Lenamon was contacted by the media on this development, he explained to the Miami Herald and others that "If the case survives appeal, the Florida Legislature is going to have to modify the law to allow jurors to explain why someone deserves the death penalty."
As previously discussed here on the blog, the role of the judge vs the jury in Florida during the sentencing phase in a Florida death penalty trial is somewhat different than it may be in other states. The Evans opinion means that jurors would take on a greater responsibility than they currently have under Florida law.
Lenamon Moves for Stay in Joshua Fulgham Case Based on Need for Appeals Court Review
Later, Terry Lenamon made news when he filed a motion on behalf of his client, Joshua Fulgham, who is facing the death penalty as the State pursues its case against Mr. Fulgham for the kidnapping and murder of his estranged wife, Heather Strong.
The motion asked the Florida trial court to stay the case -- put it on hold -- until the federal appeals court grades the papers of the federal judge and either agrees with him, that the Florida death penalty statute is unconstitutional, or that the judge was wrong in his assessment and the law, as written, is legally sound.
"It would be costly and fruitless for us to proceed to trial based on the fact the 11th Circuit has not ruled," Terence Lenamon argued during a status conference before the judge as reported by the Ocala media. "Our position is that we should stay these proceedings until a decision has been made."
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.
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?
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.
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.
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.
One more scholarly effort can be placed onto that ever-growing stack of research studies that find capital punishment is simply untrustworthy, that it is procedurally flawed. Never mind the morality. Or mercy. Or the growing problem of finding drugs for those lethal injections .... The study nixes the death penalty before these issues even arise.
Matthew Robinson of Appalachian State University Releases April 2011 Study of North Carolina Death Penalty
Professor Robinson, at the accompanying press conference, told the media that the procedure of convicting and sentencing an individual to death in North Carolina is faulty. Result? Together with professors from Fayetteville State University and the University of North Carolina (Chapel Hill), Professor Robinson argues that North Carolina should halt executing people for crimes.
Next Step: North Carolina Legislatures Must Consider the Robinson Report
Those seeking to abolish the death penalty in North Carolina are hoping that this new research study will be powerful enough to exert influence over the legislators that are currently dealing with a number of proposals dealing with capital punishment in their state.
Among them: a bill that seeks to repeal the state's Racial Justice Act, which currently provides an avenue for death row inmates to challenge their sentences by presenting post-conviction evidence of racial bias.
[Note: As of the initial publication of this post, we were not able to locate the full text of this report. Upon discovery of the full text of this new death penalty study online, we'll add the link here for your convenience.]
This week, Terry Lenamon was interviewed by Ana M. Valdes of the Palm Beach Post for his expert opinion as a death-qualified criminal defense attorney regarding the Jorge and Carmen Barahona murder trial, now that the prosecution has announced that it will be seeking the death penalty.
In an article entitled, "Barahonas to face death penalty on charges of murdering adopted daughter; trial set for July," Lenamon discussed his views on what the focus of the defense team must be at this juncture, when the case has received such national media coverage and where the investigation has already revealed so much since 10-year-old Nubia's body was discovered, decomposing, in a garbage bag on February 14, 2011.
The defense will have hard facts to face regarding the guilt phase, since the child's body was found in the back of Jorge Barahona's pickup truck on IH 95 - among other things revealed during these few short weeks of investigation. As Terry explained to the Palm Beach Post reporter, it is his opinion that the defense focus will be on mitigation: fighting against the death penalty itself.
What could those mitigating factors be? For one thing, mental illness probably will be a mitigating issue. Jorge Barahona is already being considered as mentally unstable by his jailers, wearing special garb to identify him as being mentally ill when he appeared in court for the arraignment.
Trial is scheduled to begin in July 2011 before Miami-Dade Circuit Court Judge Sarah Zabel of the Eleventh Judicial Circuit of Florida, who along with Terry graduated from the Nova University School of Law (Judge Zabel is a 1993 graduate). Judge Zabel has presided as a Florida Circuit Court Judge since 2003.
Expect the defense to ask for that trial date to be extended. Death penalty defense argubably will need much more than a couple of months to get ready for this case.
The Reverend Carroll Pickett served as the death house chaplain for the State of Texas for many years, and he holds the international record for witnessing the most government executions (95).
Today, Reverend Pickett tours the country on a speaking circuit, voicing his oppostion to the death penalty. (For details, go to the Texas Coalition Against the Death Penalty Speakers' Bureau.) He has also written a book about his experiences and his opinion on capital punishment, available at Amazon, Within These Walls: Memoirs of a Death House Chaplain. The book has received rave reviews from critics and readers alike.
This week, Reverend Pickett was interviewed by the Texas Tribune, and you can watch part of the interview as a video on their site. It's an interesting read - not only because it comes from a man who switched his stance from pro-death penalty to being against it, but for the way he brings us all behind the scenes into the realities of Death Row and what occurs as humans work toward killing another human as part of their job description.
Of particular interest, his description of his role in "seducing" the inmate's emotions; restorative justice; and what that last day is like for the man sentenced to die.
The pressure is building over in Illinois .... Governor Pat Quinn still has not made his decision on whether or not Illinois will abolish the death penalty. Not that he isn't busy enough with massive blizzards, and a budget that's broke, among other things.
Maybe he's distracted, right? Maybe that is why in yesterday's Chicago Sun Times, the state prosecutors have brought their arguments to keep the death penalty on the books to the media.
If Governor Quinn reads the article,"Death penalty a bargaining chip prosecutors aim to keep," he'll find some of the same arguments that state attorneys across the country routinely argue to advance capital punishment, i.e.:
1. the death penalty gives prosecutions a big "bargaining chip" in plea negotiations; with death on the table, they argue that they are able to urge suspects to plead out and take a life sentence rather than risk it. So, without capital punishment, state attorneys are going to have to try more cases.
2. without the Illinois death penalty, Illinois loses the ability to get money from the Capital Litigation Trust Fund which is a fund providing monetary support for trials where death is being sought. End capital punishment, and that fund will not there to pay for expenses in trials - which is a big deal to Illinois, which is broke. (All the fund's money reportedly would be going to helping murder victims and training law enforcement.)
3. Prosecutors also argue that victims' families want the death penalty for closure as well as justice.
There's a lot that criminal defense attorneys can argue in rebuttal to each of these arguments; you probably have your opinion on these points, too. Gotta wonder what Governor Pat Quinn's take is on all this ....
New Hampshire is holding two public hearings today in its House of Representatives (HR 147 at 10 o'clock, HR 162 at one o'clock) on two separate proposals to expand the death penalty. That's right - in the midst of all the challenges across the country to capital punishment (Illinois, for example), there are still jurisdictions that appear to be solidly in support of sentencing defendants to death.
1. New Hampshire proposal to extend the death penalty to home invasion homicides
Today, the Speaker of the House for the State of New Hampshire, William O'Brien, will testify before that legislative body on the reasons why he believes that the bill pending before it should be passed into law, a bill that would extend capital punishment in that state to homicides committed during a home invasion.
He's not a renegade - such Big Kahunas as New Hampshire Governor John Lynch support the proposition that Speaker O'Brien will advance today. What's behind this? Public outrage at the horrific killing of Kimberly Cates, in her bed and in her home, by 2 teenaged home invaders using a machete. Admittedly, a gruesome act.
2. New Hampshire proposal to extend the death penalty to all murders (100%)
Meanwhile, the House will also be hearing HB 162, sponsored by Representative Phil Greazzo, which is paints a much broader brush that Speaker O'Brien's proposal. Under this bill, New Hampshire would be able to sentence defendants to death anytime they were convicted of murder. Any murder. A true eye-for-an-eye approach, it seems.
3. Is This a Clever "Split the Baby" Strategy?
Trial lawyers recognize a savvy approach by many a judge - particularly those with their ears to the political ground - to rule in such a way that each side of an argument gets something. It's called the "split the baby" strategy by some. Like King Solomon when the two mothers appeared before him, remember? He ruled that he would cut the baby in half, and the real mother revealed herself by crying out against it.
Well, reading these two bills going up before the New Hampshire House today one has to wonder if it will be easier to vote for the Home Invasion Bill because there is a harsher alternative on the table.
Politically speaking, is this a legislative split the baby? Give the opponents to the death penalty a nix to the broader bill, and give the proponents a yes to the narrower one? Everyone gets something that way, don't they?
Across the country, a lot of attention has been given to Kevin Fine, a trial court judge setting in Houston over a state criminal court. Texas has lots of criminal courts, and Houston's Harris County has a number of folk presiding over the criminal bench -- but Judge Fine has become somewhat famous from that number because he had the temerity to take on the powers that be when he granted a single defense request for an evidentiary hearing in a pending murder case. (Actually, Judge Fine had first turned heads when he issued a ruling in the Green matter that the death penalty was unconstitutional, but he later nixed that decision and went forward on the hearing request.)
That single order, allowing a hearing to proceed, has been big news for awhile now. Why?
Judge Fine was going to allow the defense attorneys for John E. Green, Jr., to present evidence that capital punishment - as it is applied in Texas today - is unconstitutional. In fact, Judge Fine actually began presiding over that hearing before being stopped in his tracks by a higher court: the Texas Court of Criminal Appeals. Seems that the prosecution had seen fit to request the appellate court's intervention in the proceedings, and the district attorney's request was granted.
For a time, all eyes moved from Houston to Austin, where the highest criminal court in the state would decide on whether or not John Green's challenge to the death penalty request made in his case was constitutionally valid.
It was a big opportunity to address the realities of the death penalty in a state where Cameron Todd Willingham was executed (almost everyone agrees now that this was an innocent man who died) and where more executions occur annually than any other state in the nation. A number of legal notables thought the Green petition provided such a window of opportunity that they filed an amicus brief in support of the state's capital punishment review. People like former Texas governor Mark White and former Indiana governor Joe Kernan.
This month, the Texas Court of Criminal Appeals ruled. In an opinion written by Justice Cathy Cochran, the state's highest criminal court ruled that Judge Fine had no legal right to proceed, and the district attorney's petition was conditionally granted. From the January 12, 2011 opinion(s)(Cause Nos. AP-76,470 & AP-76,471):
Because there is no basis under Texas law to conduct a pretrial evidentiary hearing to determine the “as applied” constitutionality of a state penal or criminal procedural statute, we conclude that the trial judge does not have legal authority to conduct any such pretrial evidentiary hearing and make any such pretrial declaratory judgment. He is acting beyond the scope of his lawful authority. Therefore, the State has demonstrated a clear right to relief. We conditionally grant mandamus and prohibition relief and, if he does not do so himself, will order the trial judge to dismiss Mr. Green’s “Amended Motion to Declare Article 37.071, § 2 of the Texas Code of Criminal Procedure Unconstitutional As Applied” as requesting an unauthorized declaratory judgment.
John Green will now proceed to trial with the possibility of a death sentence.
And, those who are concerned about the justice found in Texas' current system of capital punishment must look for another battlefield. Perhaps that new front lies in appellate review of Mr. Green's case, should he be convicted and sentenced to death: an opportunity that many - including Mr. Green and his defense counsel - hope does not present itself.
One must wonder how the pending appellate challenge to the system that Green's case might provide is impacting the prosecution's strategy right now .... Surely they must be concerned about winning the battle and ultimately losing the war?
We're all still waiting to see whether or not Illinois Governor Pat Quinn will sign into law the proposed legislation on his desk which would abolish capital punishment in that state. You can almost hear the sound of a thousand fingernails drumming impatiently on tabletops across the country ....
Meanwhile, over in Maryland it's a different ballgame. The President of the Maryland Senate, Democrat Thomas V. Mike Miller Jr., has told the media that he's working toward Maryland doing what's necessary regulation-wise so Maryland can start executing again. Right now, the death penalty is sought in Maryland courtrooms, but executions have been halted by the state's high court for over four years now due to concerns over lethal injection procedures.
And in New Jersey -- which abolished the death penalty in 2007 -- there's a continuing movement by some to reverse that decision and reinstitute capital punishment in New Jersey. The latest has been three (3) capital punishment bills proposed by GOP state senators in New Jersey, their position getting further support in the public outrage at the shooting death this month of Lakewood township police officer Christopher Matlosz.
So, Democrats in Maryland's state house and Republicans in New Jersey's legislature are all pushing for capital punishment in their states. What message does this send to Governor Quinn, in politician-speak? We'll find out soon enough.
On Tuesday, the Illinois State Senate sent a bill to the governor's desk which will abolish the death penalty in that state ... if Governor Pat Quinn will sign it.
Problem is, Governor Pat Quinn supports capital punishment. The next day, instead of signing the bill into law, Governor Quinn reported that he would listen to every argument - as well as his own conscience - before deciding what to do.
However, he has acknowledged that Illinois has a history of "serious problems" with the death penalty, and that if efforts had not been undertaken to clear the names of innocents who had been convicted in Illinois courts, that "terrible tragedies" could have occurred.
As we've discussed here often, money seems to be a growing factor in these debates.
Progress Illinois interviewed Rob Warden, the executive director of the Center for Wrongful Convictions at Northwestern University's Law School, reports that over the past decade Illinois has spent $120,000,000 from the Illinois Capital Litigation Trust Fund on a total of 20 capital cases.
Under the proposed legislation, these monies would go towards police training and funds supporting the families of homicide victims. Warden's position to Progress Illinois: "I can't imagine how any fiscally conservative person can favor this system."
Many still want to have capital punishment as an option.
Meanwhile, Chicago Mayor Richard Daley has put his two cents worth into the fray: he's told the press that he's all for the death penalty. The Gallup Poll is being referenced often, with its numbers showing that the majority of Americans approve of the death penalty -- and there's also the point being made that the majority of states do allow for capital punishment (as does the federal system and the U.S. Military).
Some are pushing Illinois as being an example for the country on what to do about the death penalty, suggesting that other states will follow Illinois' lead should Governor Quinn sign this bill into law.
However, this may or may not be the case. Illinois is in dire financial straits, and this week Governor Quinn already okayed a massive increase in state income taxes. You can imagine that the folk of Illinois are none too pleased about this decision - no matter if state legislators believe they had no option what with a budget over $15 billion in the red and bills setting there for six months, unpaid.
Governors are politicians. On the heels of this unpopular tax decision, will Quinn be proactive enough to sign the controversial death penalty bill into law?
We're voting no. The easier road is to keep the status quo, capital punishment-wise, and then hold fast to the moratorium against executions that has been in place for Illinois these many years.
As the first week of 2011 unfolds, the Illinois Legislature is facing a huge budgetary crisis: it is $13 billion in the red, and this includes over $6 million of unpaid bills. If Illinois were a person, it would be getting a lot of bill collector phone calls.
In fact,Illinois is in very, very bad financial straits: its credit rating ties with California as being the lowest in the country, and Moody's Investor Service gives Illinois a negative rating on its financial forecast. Which means things are very bad up Chicago way, and the Illinois Legislature has some very difficult budget decisions to make. Things like cutting child care, increasing tuitions.
Which brings them to the death penalty.
The Illinois House has a bill before it, moving to abolish the death penalty. Of course, there is growing opposition - particularly among prosecutors. They are planning a big press conference this week - and the state attorneys are working hard, drumming up public support for keeping things status quo, capital punishment-wise.
Meanwhile,opponents of capital punishment are telling the media today that they think they have the votes to make the bill into law. There's a window of opportunity for the bill to pass which changes later in the month.
This is politics - and politics in the state where Chicago resides - so only time will tell whether or not abolishing the death penalty will indeed happen in the State of Illinois, no one is considering this as anything but a fight at this juncture.
The Perfect Storm for a Finance Fight
However, given the dire straits that the State of Illinois faces, if there is ever a situation where financial arguments could kill the death penalty, this may be it. The Perfect Storm may exist in Springfield, Illinois, this month.
Currently, there are 10 people on Illinois Death Row. However, the Illinois Governor imposed a moratorium on executions in the state, so executions are not occurring. Prosecutors are free to seek the death penalty in their cases, of course: that hasn't changed.
Let's see what happens.
As the new year approaches, it appears that in 2011 there will be even more focus upon capital punishment in courtrooms, press rooms, and legislatures.
The death penalty is being considered by several states. Whether or not capital punishment should be available under a state's penal code for sentencing in any case is being reviewed, albeit for very different reasons and in very different forums:
Individual defendants with high media notoriety may well have trials of their capital cases in 2011, where the prosecution and many members of the public will be urging a death sentence:
While capital punishment has always had its share of media coverage - murder trials always guarantee some level of public awareness, after all - it appears that 2011 may be a year where the death penalty becomes a focal point for our country, for a variety of reasons.
What this will mean for the future of death as a viable punishment option for our government? Too soon to tell but right now, it's looking like fiscal concerns may well be very, very key to the future of capital punishment in many states.
The Death Penalty Information Center has issued its annual report on the state of capital punishment in this country. According to the DPIC, the forty-six (46) executions that were conducted this year constitute a twelve percent (12%) decrease in the death penalty. (In 2009, there were 52 executions in the United States; in 2000, there were 85.)
Captial punishment therefore declined in the first decade of the 21st Century. However, there are 3261 people still living on American Death Rows today and each of them still faces a sentence of death.
While the decrease in the executions may be good news, it's got to be considered in tandem with the marketplace.
The reality is that due to the scarcity of sodium thiopental many states simply reset execution dates to 2011, since Hospira (the only manufacturer of the drug) promises that supplies will be available for the lethal injection drug early next year. After all, rather than find artful ways of circumventing the standard three-drug lethal injection cocktail (which includes sodium thiopental) like Ohio, Arizona, and Oklahoma (see Tuesday's post), some states just rescheduled their calendars (e.g., Arkansas, California, Kentucky, Tennessee).
Bottom line: if Hospira starts meeting demand for the execution drug, then 2011 may see a rise in the number of executions.
There will be a longer post regarding the Grady Nelson trial that just finished yesterday, when the jury came back to tell us that they were recommending life and not death for Grady Nelson. Shortly thereafter, Judge Hogan-Scola sentenced Nelson to life without parole.
For prior posts regarding Grady Nelson, read our posts dealing with QEEG Brain Mapping Evidence and the importance of Judge Hogan-Scola's ruling along QEEG evidence to be considered during the penalty phase of Grady Nelson's trial.
A lengthy report was issued last month by the Illinois Capital Punishment Reform Study Committee (read it in its entirety here). Several reforms were suggested by the Committee (read them here) - but it doesn't seem that much coverage has been provided the Committee's efforts by the news media.
Or so writes James Warren of the Chicago News Cooperative in a guest piece in the New York Times. According to Mr. Warren, news editors just don't find capital punishment reform all that interesting these days, and the Report hasn't been very popular in the Illinois press.
So, he's written for the New York TImes, which hopefully gives the Report some worthwhile exposure -- as well as one of the points that Mr. Warren makes: and it's about MONEY.
Apparently, indigent defense funding for death penalty matters in the State of Illinois is quite curious. There's no rhyme nor reason, and prosecutors are able to get their maws into the same pot that has funds for defense counsel appointed to represent the poor and meet their constitutional right to counsel in cases where the death penalty is at stake.
According to Mr. Warren's piece, the money is actually an incentive in Illinois to pursue capital punishment by the State (where many counties are broke right now). Gets money into the system, so why not seek capital punishment, the Illnois district attorney is purportedly pondering.
Well, this is yet another spin on the indigent defense crisis in this country. There's not enough money to provide adequate defense for death penalty defendants (as we write about regularly here). Interesting that there apparently isn't enough to prosecute them, either.
This week, the results of the latest Gallup poll regarding capital punishment in the United States were released, and can be read in their entirety over at the Gallup site (which includes nice visuals). Here are some of their 2001 - 2010 findings, in summary:
Asked if they were in favor of the death penalty or opposed capital punishment:
[Note: in 1936, Gallup results showed 59% of Americans supported the death penalty here, and 38% opposed it.]
With the option to sentence someone convicted of murder to "life imprisonment, with absolutely no possibility of parole" instead of the death penalty:
[Note: Gallup found that before 2000, there was a clear majority prefering the death sentence here.]
When considering how often the sentence of death is imposed in the United States, the results of the Gallup Poll reveal:
For more details on the findings and the Gallup Poll methodology, check out the Gallup site.
Whether or not Steven Hayes will be sentenced to death will be decided soon - the case has gone to the jury. Of particular interest, the closing arguments of defense counsel reported in the New York Times as suggesting to the jury that the worst punishment they could give the defendant would be life in prison, not death.
Some might scoff at this - a defense lawyer's trick, just so much balderdash. What could be worse than the death sentence? Lots of folk want Hayes to die for the Petit killings. Death seems the optimal sentence for them.
However, consider what the defense attorney said with knowledge of the realities of living decades behind bars in a maximum security facility (where Hayes would likely reside) perhaps the death sentence does gain a different perspective.
Being confined to a small cell with a severely limited life -- many go mad. Life without parole isn't a reprieve. It is a serious, severe, harsh punishment.
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 ....
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.
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...
After posting on CNN.com'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.
Connecticut is seeking the death penalty of two men who allegedly broke into the Cheshire home of a prominent doctor, Dr. William Petit, severely beating the doctor and killing his wife Jennifer Hawke-Petit, and two daughters, Hayley,17, and Michaela, 11. You've probably read about this case, or heard about it on television.
And this trial will get lots of media time -- bringing lots of attention to the issues surrounding capital punishment in our country today. The two men already offered to pled guilty and avoid a trial, in exchange for a life sentence. The prosecution turned them down -- the state wants a sentence of death in this case, and it's wanting it bad.
And with that guilty plea turned down, and the state's desire for death in this case, all the pros and cons for capital punishment in this country are spotlighted. The Connecticut Home Invasion Case will clarify for us all exactly what the motivations are for the sentence of death in the United States today. For example, read the New Times' piece, opposing the death penalty in Connecticut despite the upcoming Petit Home Invasion trials.
This case is entirely about aggravating circumstances vs mitigating factors.
It's clear now, and has been during the six months that it took to pick a jury, that the Hayes trial (and assumedly the Komisarjevsky trial that follows) is not about guilt vs innocence. No, the crux of this case is all about the penalty phase, where the state will advance its aggravating circumstances in horrific detail, to support its request for death, and where the defense will fight hard to mitigate against it.
The media recognizes it. In fact, it's probably the salient details involved in the sentencing phase of the trial that help keep this case in the national media's attention.
Comparisons to Truman Capote's In Cold Blood are Being Made
The crime was brutal. Brutal and shocking, just like the Clutter family's deaths back in Kansas that were made the subject of Capote's most famous work. No doubt here.
What happened isn't subject to much debate. Two men broke into the Petit home, a nice house in a quiet neighborhood where these sorts of things just don't happen. Steven Hayes and Joshua Komisarjevsky have been charged with breaking into the home, tying up the doctor and the daughters, and taking the wife away, forcing her to take money out of a nearby Bank of America (one of the bank tellers will testify, she called the police).
Perhaps the scariest fact to the community was that Hayes allegedly chose Mrs. Petit at the local grocery, following her and her two daughters home. Hayes then picked up Komisarjevsky and returned to the Petit residence.
There, Hayes is accused of raping and strangling the wife, while Komisarjevsky is accused of raping the younger daughter. Afterwards, the two children purportedly were tied to their beds, and gasoline was poured around them - setting the house on fire, and killing the two girls.
Somehow, the doctor escaped and is now the state's star witness. He is testifying today. The two defendants were captured by police after they crashed the Petit's vehicle into a police car; Hayes was wearing one of the girl's hats at the time of his arrest.
When the two men were arrested, they were on parole for burglary. In fact, each of them had a record of over 20 burglary arrests on their records. It's not up for argument that these were professional thieves.
One of the big mysteries here is how two thieves turned so violent.
Trial started this week for Steven Hayes in a New Haven courtroom. Joshua Komisarjevsky awaits trial, which will not begin until Hayes' trial is completed.
California re-instituted the death penalty in 1978; however, California has not executed anyone since February 2006, when Federal District Judge Jeremy Fogel stayed the execution of Michael Morales based upon Mr. Morales' arguments against lethal injection as cruel and unusual punishment.
Federal Judge Fogel Has a Big Decision to Make
Now, after four years have passed without anyone on Death Row being executed by the state, Attorney General Jerry Brown filed motions before Judge Fogel, fighting for removal of his stay because California "... now has presumptively valid regulations for carrying out lethal injections."
Included in the State's request was the revelation that California planned to proactively file papers for new execution dates be set for Mr. Morales as well as several other men who set on Death Row (and no longer have any appellate options available to them).
Judge Fogel is considering Attorney General Brown's request. Part of his consideration has to be not only the new lethal injection procedures that California has in place, but the new death chamber located at San Quentin facility -- together, do they resolve his prior concerns about the unconstitutionality of the California execution procedure?
State Judge Adams Stands Firm: No Executions Until She Rules
California's Marin County Superior Court Judge Verna Adams has a say here, as well, and she's not dancing with Jerry Brown. Yesterday, Judge Adams affirmed that the Order she issued in 2007, halting executions by lethal injection until new state regulations could be adopted, remains in effect.
She has not changed that 2007 Order, and Judge Adams reaffirms that until she issues another court order, her 2007 Order remains in effect. No executions until she says so.
Attorney General Jerry Brown reports that Governor Arnold Schwarzenegger has asked him to appeal Judge Adams since new regulations became effective on Monday.
Death Warrants Issued Despite State Judge and Federal Judge
Regardless of both a federal judge and a state judge, the State of California has started issuing death warrants. Albert Greenwood Brown was the first Death Row inmate in over four years to get a death warrant, notification that the State has scheduled his execution for September 29, 2010.
The Department of Corrections has told the media that Mr. Morales and five other men should be receiving their death warrants soon.
California Death Row May Prove a Failed Strategy for Many
California has lots of folk sitting on its Death Row right now. In fact, we've written about how some California defendants actually prefer a sentence of death these days, because they live in better conditions on Death Row than they might face with a standard life sentence. Knowing that California was not executing anyone, savvy defendants were asking for capital punishment as a strategic decision on how their future days would be spent.
Billy Joe Johnson's request for a death sentence (which was granted) has made the national news, shining a spotlight upon the advantages of California Death Row. Death Row residents get single cells (they don't have to share a cell); their cells are bigger; they get more phone calls; they get to go outside every day, over the lunch hour; and more.
California Is Broke: Is Money the Elephant in the Room Here?
We've had several guest posts here discussing the California budget crisis and the amount of money that could be saved if California were to take the death penalty off its books. Millions of dollars are at issue here, in a state that is known to be strapped for cash.
Is it a coincidence that suddenly, in an election year, executions are on the fast track in California? Or is money the real reason that after four years, death warrants are suddenly being issued for executions within 30 days time -- curious isn't it?
Once again, we welcome James Clark, Death Penalty Field Organizer for the ACLU of Southern California as we repost his recent article dealing with the financial realties of capital punishment upon a state's budget.
In the past, we've pointed to the obvious money motive for California - and other states - to end the death penalty on merely a bottom line, dollars and cents, approach. (See, e.g., California Could Save $1 Billion By Abolishing Death Penalty. How Bad Will It Get B4 They Do?)
However, today Mr. Clark provides us with the perspective of a Californian, speaking to his neighbors and friends who are living in the beautiful state we all know is facing financial ruin.
Here is James Clark's article (with his approval, of course). It's worth your time to read it:
How Would You Spend $64 Million?
Fri Aug 13, 2010 at 11:32:01 AM PDT
By James Clark, Death Penalty Field Organizer, ACLU of Southern California
Remember that episode of The Simpsons where Homer is so broke he breaks into his daughter's piggy bank, only to find it full of IOUs from himself?
On Wednesday, that scene was reenacted in Sacramento, with Gov. Schwarzenegger playing the role of Homer. The governor announced that he would be "borrowing" $64 million from the General Fund in order to move forward with one of his pet projects, the construction of a new death row facility at San Quentin. And $64 million is just the tip of the iceberg. Altogether, the new facility is expected to total upwards of $400 million. That's half a million dollars per prison cell — roughly the cost of a nice house in California.
Of course, the General Fund is virtually broke already, so our governor is borrowing against nonexistent budget. And didn't Gov. Schwarzenegger threaten that he wouldn't sign a budget at all? Every government agency in the state is in fiscal emergency, our social safety net is in tatters, and the state is weeks away from paying state employees with IOUs.
Which is why building a new death row is exactly what we don't need need right now.
California has by far the largest and most costly death row in the country, with over 700 inmates, nearly double the closest runner-up. All of these inmates live in a prison that predates the CivilContinue Reading...
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?
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 www.talksport.net.
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.
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.
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.
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.)
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.
Thanks to Gamso.
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: 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
After being unable to find a list that provided the full text of each state's statutes defining that state's mitigating circumstances in a death penalty case, there was an obvious need out there.
You can read the complete list of state statutes' mitigating factors (mitigators) on JDSupra (it's too long to list here). And, it's an honor to report that the Death Penalty Information Center has found this listing worthy of placement in their online resources.
It goes without saying that without a cooperative spirit and a sharing of information and resources, indigent defense in death penalty cases would be practically impossible. Thanks to DPIC!
The American Bar Association has announced it will be studying how the state of Missouri implements capital punishment - and the study should be pretty thorough. It's expected that the ABA Committee will delve into DNA evidence issues, indigent defense services, and the like.
The ABA Death Penalty Moratorium Implementation Project
In past years, the ABA has studied how the death penalty is administered in Alabama, Arizona, Florida, Georgia, Indiana, Ohio, Pennsylvania, and Tennessee. It has done so through its Death Penalty Moratorium Implementation - Assessment of Capital Jurisdictions Project (read through the Project's FAQs for details).
The ABA is far from neutral in the death penalty controversy. The American Bar Association is opposed to capital punishment -- and its walked the talk with its Death Penalty Moratorium Implementation Project, "working to obtain a national moratorium on executions."
The ABA's Second Round of State Death Penalty Assessments: Kentucky and Missouri
After completing assessments of the first round of states (listed above), the ABA has determined that its work was so successful, they're gonna go for round two. Missouri is part of this second round. So is Kentucky.
To read a summary of their findings in the first round, you can read the ABA Summary online, where it's provided for free in a .pdf format. Key language from an indigent defense perspective:
Effective capital case representation requires substantial specialized training and experience in the complex laws and procedures that govern a capital case, as well as full and fair compensation to the lawyers who undertake capital cases and resources for investigators and experts. States must address counsel representation issues in a way that will ensure that all capital defendants receive effective representation at all stages of their cases. After examining eight states, the themes that emerged include:
• Many states are failing to provide a statewide indigent capital defense system, providing services instead on a county-by-county basis;
• The judiciary remains primarily responsible for appointing defense counsel;
• Some states are failing to provide for the appointment of counsel in post-conviction proceedings and all states are failing to provide for the appointment of counsel in clemency proceedings;
• Capital indigent defense systems, whether statewide or county-by-county, generally are significantly underfunded;
• Many states are failing to provide for the appointment of two lawyers at all stages of a capital case, nor are they guaranteeing access to investigators and mitigation specialists;
• Many states are requiring only minimal training and experience for attorneys handling death penalty cases; and
• The compensation paid to appointed capital defense attorneys is often woefully inadequate, dipping to well under $50 per hour in some cases.
The ACLU of Northern California released a study that got lots of attention last year, in no small part due to the practicalities it addresses. (The study is entitled Death in Decline'09, and is available for download.)
For example, the study opines that California could save itself One Billion Dollars ($1,000,000,000.00) over a five year period, just by taking capital punishment off the table in pending prosecutions and commuting existing death sentences to life without parole.
2010: Los Angeles Isn't Investigating Homicide Cases Because Police Department Is Broke
This week, the Death Penalty Info Center discussed the recent HOLD placed on homicide investigations in Los Angeles - because of budget constraints. That's right: the cops were told to stop work on murder cases because of a lack of money. They're even sending homicide detectives off on vacation, to cut back on overtime.
DPIC quotes sources as stating that in March 2010, these budget cutbacks were equivalent to cutting 290 cops from the LA police force.
Sounds like a movie, doesn't it? Like some futurist action film where the criminals run free? Except this isn't fantasy, and it's all about the bottom line. California is cutting services all over the place.
How Bad Must It Get Before California Abolishes Capital Punishment as a Budget Cut?
So, here's the question: why is California letting homicides go without investigation, as well as selling public lands and doing other shocking budget cuts (as if the homicide holds weren't shocking enough), and still not addressing capital punishment?
The New York Times is reporting that California devotes around 11% of its annual budget -- which tallies to approximately $8 billion/year, to the state penal system. Looking at that cost outlay, California is implementing a program to release a whole lotta folk -- around 6500 "low-level offenders" will be freed and not required to have much contact with parole officials.
They're reported to be drug offenders and the like - those that aren't as threatening to the citizenry as the more violent inmates might be. To give you an idea of how many people are going to be released, it's akin to the ENTIRE prison population of some states (e.g., Utah, New Mexico, etc.)
One wonders what Governor Schwarzenegger is thinking.
With an exploding budget deficit, our watch of California's treatment of the death penalty continues....
We've been following the melodrama surrounding Sharon Keller, Chief Justice of Texas' highest criminal court since allegations that her acts caused the execution of Michael Richard to go forward back in 2007. For background, here are some of our posts giving the details on this horrifiic story:
Well, yesterday was the deadline for the Examiner (read that, "prosecutor") to file objections to the fact findings that a state district judge (Judge David Berchelmann of San Antonio) issued recently after a week long trial in August. That judge simply didn't find that she did anything that bad - that the public ridicule of Justice Keller was more than enough punishment.
Lots of folk (including us) were SHOCKED at this response. Now, thankfully, a clear and solid voice has come forth in the public record, as the Examiner files its case before the Texas Commission on Judicial Conduct (which has the power to remove her from the bench). The entire filing is important reading, and we're hopeful that you'll take the time to go through the 38 pages that explains everything so well.
And to be fair, Justice Keller has filed her formal response to this filing, and you might want to read that, too. It's the right thing to do, something that you'll recall wasn't allowed to Michael Richard on that fateful day he died at the hands of the State of Texas.
Before he was governor of the Great State of Kansas, Mark Parkinson worked in the state senate as a legislator, helping to draft the current law approving of capital punishment in that state. Kansas' death penalty statute was passed into law back in 1994.
However, it's a new day and last Friday, another piece of legislation started making its way through the Kansas legislature -- a law that would repeal the death penalty, and replace it with a crime of capital murder with aggravation, punishable by life without parole.
Right now, this fledging has jumped its first hurdle. The Kansas Senate's Judiciary Committee endorsed the bill, and now it faces a vote by the entirety of the Kansas Senate. Once that is achieved, it goes before the Kansas House -- and assuming that it meets approval there, too, it goes over to the Governor's desk.
That's right: Mark Parkinson, who helped write the death penalty law that is currently in effect, will have the final say on this recall of capital punishment.
What are its chances? Well, there's some chatter that this proposal won't make it through the House this year, because the Kansas House is dealing with a budget crisis where they're short $400 million - and their new fiscal year starts July 1st.
Here's a question for Kansas: if you're interested in budgeting, then why aren't you connecting the COSTS of the death penalty with your budgetary crisis?
According to the Death Penalty Information Center, a study was done in the early 2000s regarding the cost of the death penalty in Kansas. While it might need to be updated, it's important to note that it's a definite budget issue here -- and since Kansas has not executed anyone since the 1994 re-enactment of its death penalty law, all those appellate costs are ongoing. (Ten men currently sit on Kansas' Death Row.)
... the State of Kansas concluded that capital cases are 70% more expensive than comparable non-death penalty cases. The study counted death penalty case costs through to execution and found that the median death penalty case costs $1.26 million. Non-death penalty cases were counted through to the end of incarceration and were found to have a median cost of $740,000. For death penalty cases, the pre-trial and trial level expenses were the most expensive part, 49% of the total cost. The costs of appeals were 29% of the total expense, and the incarceration and execution costs accounted for the remaining 22%. In comparison to non-death penalty cases.
In fact, costs is one of the main concerns of the state senator that drafted this bill and introduced it to the Kansas Judiciary Committee. State Senator Carolyn McGinn used dollars and cents as one of her major arguments in repeal of the Kansas Death Penalty.
Let's hope the Kansas House isn't too busy panicing over a $400 million budget crisis that they don't stop to consider Senator McGinn's wisdom -- and let's hope that the Governor isn't too set in his ways.
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 first of July of this year. Notice how many are set in Texas - and Ohio:
|Feb 16: Martin Grossman, FL|
|Feb 18: Robert Melson, AL|
|Feb 24: Hank Skinner, TX|
|Mar 2: Michael Sigala, TX|
|Mar 9: Lawrence Reynolds, OH|
|Mar 11: Joshua Maxwell, TX|
|Mar 16: Jack Jones Jr., AL|
|Mar 30: Franklin Alix, TX|
|Apr 20: Daryl Durr, OH|
|Apr 20: Samuel Bustamante, AL|
|May 13: Michael Beuke, OH|
| Jun 10: Richard Nields, OH
|Jun 30: Jonathan Green, TX
The same day that the United States Supreme Court issued a ruling that Richard's attorneys argued should have stayed that execution, but whose motion to stay never made it to the court for consideration because of some logistical problems that afternoon. Logistics that revolved around Justice Keller, who was at home meeting with repairmen that fateful day.
You'll remember -- when the attorneys got to the high court, the doors were locked. It was 20 minutes after 5. When they called the lackey inside, who then called Chief Justice Keller at home for guidance, she said the clerk's office always closes at 5 pm. Nevermind that Justices were on stand-by for this motion. Everyone knew it was coming, including Justice Cheryl Johnson, the justice on call that day for emergency motions.
Michael Richard was executed by lethal injection within hours of Chief Justice Keller's dismissive phone response.
So, a trial was had and a state district judge, David Berchelmann, was assigned to act as fact-finder in the trial of Justice Keller, His findings then go to the state's Judicial Commission for final disposition (removal, etc.).
The fact-finding judge issued his report last week. And he's apparently so sympathetic with the "public humiliation" that the Chief Justice has already experienced that he thinks she's suffered enough. However, if you actually READ his opinion, it's very curious.
Substantively, he's arguing that the Chief Justice didn't violate any rule, and then he explains (on page seven) that the "tradition" or "rule" of having a justice on duty to answer queries like the ones made by Richard's attorneys may have been ignored. Like maybe ignoring having Justice Johnson take the call, having Justice Johnson run with the ball, instead of shutting things down with "the clerk's office closes at five"?
Experienced jurists and experienced criminal defense appellate attorneys know that there are occasions when filings are placed before the court after the standard close of business. Especially on days when the United States Supreme Court makes rulings that impact the possibility of stay in death penalty cases.
This fact finding report is shocking. One can only wonder what the State of Texas will do next.
For other responses to Judge Berchelmann's report:
Houston Chronicle (great headline here, "Keller is lucky judge wasn't just like her.")
Faced with the problem of how to provide legal counsel to those who cannot afford to hire their own attorney after Gideon v. Wainwright, states have found three different approaches to meeting this constitutional mandate: (1) public defender programs (nonprofit organizations with staff attorneys assigned to the indigent); (2) contract counsel (the contracting firm or entity agrees to take all indigent representations for a set time period); and (3) assigned, court-appointed private practice lawyers.
They are not mutually exclusive models; for example, a state can have a public defender system as well as having court appointments of attorneys in private practice. Sometimes, things are so varied within a state that the method of providing lawyers to the indigent will depend upon the county. No one single answer to the problem of providing legal counsel to the poor has proven efficient or cost-effective since Gideon came down.
Indigent Defense in Florida
In Florida, every county with a population of 35,000 or more must have a public defender program. However, as the 2009 Justice Denied report by the Constitution Project revealed, county budgets across Florida have been slashed steadily over the years, and public defender programs have lost millions of dollars in these budget cuts. Some Florida counties today actually charge indigent convicts fees to cover litigation costs. Others are refusing to take on new indigent defense cases, telling the courts that to do so will be unethical (and unconstitutional) as they simply cannot provide effective counsel given their limited resources.
The financial challenges of providing indigent defense have been serious for over a decade. They have only been exacerbated by continuing judicial expansion of the constitutional right to counsel for the indigent defendant, e.g., to include juveniles (In re Gault, 387 U.S. 1, 1967); those charged with misdemeanor crimes that carry jail sentences (Argersinger v. Hamlin, 407 U.S. 25 (1972)); and indigent defendants in misdemeanor cases resulting in suspended or probated sentences ( Alabama v. Shelton, 535 U.S. 654 (2002)).
Combine the expansion of the right with the fact that the right to counsel begins the minute that an individual invokes that right, Edwards v. Arizona, 451 U.S. 477 (1981) (which most criminal defendants know is the wise thing to do before answering any questions from the police), and you have a lot of demand for effective legal counsel without enough supply.
Once again, using the information collected by the Death Penalty Information Center (what a great organization) and our own work here on this blog since March 2009, we know the following:
1. The following states still allow the penalty of death for certain crimes, although New Mexico removed itself from this list in 2009, as it became the 15th state to abolish the death penalty:
Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Idaho, Illinois, Indiana, Georgia, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington and Wyoming.
2. During 2009, some significant steps were taken in ten (10) of the above listed states to end capital punishment: notably, in Connecticut, the state legislature actually passed a law that would have ended the death penalty but the state governor vetoed the bill.
3. Both the federal government and the United States Military still allow the penalty of death for certain crimes.
4. Executions are on hold in California, Maryland, Kentucky, and in the federal justice system because of pending judicial review related to the lethal injection method of executing a human being.
Over 3300 men and women set on Death Row today, awaiting execution. Among them sits Troy Davis, whom many, many, many people believe to be innocent. (We've discussed Mr. Davis' case earlier this year, and we're monitoring his case.) The number of executions annually continues to decline. Media outcry surrounding the executed of an innocent man in 2004 (Cameron Todd Willingham) and the fiscal realities of the expense of pursuing the death penalty in these recessionary times seem to be the two biggest weapons in abolishing the death penalty that we've seen this year.
Progress is being made, thank God. May He have mercy on us all.
Currently, not only the federal government but a majority of states provide for capital punishment (the death penalty) in certain crimes. There are those that argue that true fairness in this country would be an all-or-nothing approach: either every state in the union should impose capital punishment or no state should. Otherwise, two individuals convicted for the same crime may not face the same punishment - death -- depending upon which side of a state boundary they sit. From this perspective, imposition of a true uniform standard in death penalty cases would be to abolish capital punishment in this country.
However valid one may find this argument to be, federalism and the United States Supreme Court allow for this incongruity today.
Given this reality, perhaps the more critical question we can ask right now is what standards are being imposed within those jurisdictions that allow the government to kill people as punishment for crimes. Are there uniform standards in the imposition of the death penalty?
Arbitrary and Unguided Imposition of Death Forbidden by Furman v. Georgia
In 1972, the United States Supreme Court found both the capital punishment laws of Texas and Georgia (and indirectly, every other death penalty statute in the country) unconstitutional because they were allowing arbitrary, unguided imposition of death sentences. Furman v. Georgia, 408 U.S. 238 (1972) was a per curiam opinion with all nine justices writing either concurrences (Douglas, Brennan, Stewart, White, Marshall) or dissents (Burger, Blackmun, Powell, Rehnquist) --- and the case effectively halted capital punishment in this country for a significant period of time. Over thirty state legislatures were forced to enact new death penalty statutes -which then had to undergo judicial scrutiny (e.g., Gregg v. Georgia, 428 U.S. 153 (1976)).
What was the power of Furman? According to this decision, a death sentence in this country cannot be imposed unless the sentencing authority finds at least one statutory aggravating factor and then weighs that aggravating factor against mitigating factors provided by the defense. Before death can be the punishment, the penalty must be based upon a consideration of both the circumstances of the case and the character of the defendant - all shown in a "specific and detailed" way to those responsible for sentencing the individual.
Post-Furman Death Penalty Statutes
In Gregg, the High Court found the newly enacted Georgia death penalty statute constitutional. There, either a Georgia judge or a Georgia jury may act as the sentencing authority. There must be a bifurcated trial. In the sentencing portion of the trial, ten aggravating factors are listed in the statute and one of these must be found to exist beyond a reasonable doubt before death can be imposed. The sentencing authority must also consider mitigating factors presented by the defense, and the sentence (which is subject to automatic judicial review) must identify its basis in the statutorily defined aggravating factors.
That same year, both Texas' statute ( Jurek v. Texas, 428 U.S. 262 (1976)) and Florida's death penalty law (Proffitt v. Florida, 428 U.S. 242 (1976)) were also found compliant with federal constitutional provisions. In Texas, death was limited to five specific situations of capital homicides where the murders were intentional and knowing with a jury as the sentencing authority in a two-phase trial being required to answer three statutorily defined questions "yes," in order to impose death.
In Florida, as in Texas and Georgia, a bifurcated trial was set by the new law. However, sentencing authority involved an advisory jury verdict with a sentencing judge to consider both aggravating factors and mitigating ones, with the findings upon which the death sentence is based to be provided in writing with expedited judicial review.
The Problem of Individualized Sentencing
In Lockett v. Ohio, 438 U.S. 586 (1978), the Ohio death penalty statute was reviewed by the US Supreme Court post-Furman and found lacking. The Ohio death penalty statute provided that upon finding a defendant guilty of "aggravated murder" together with one of the seven (7) statutorily-specified aggravating circumstances, the death penalty must be imposed unless, considering "the nature and circumstances of the offense and the history, character, and condition of the offender," the sentencing judge determined that at least one of the three (3) statutorily defined mitigating circumstances was established by a preponderance of the evidence.
According to the High Court (in a plurality opinion), a capital sentencing scheme must treat each person convicted of a capital offense with that "degree of respect due the uniqueness of the individual." Lockett v. Ohio, 438 U. S. at 605.
And here lies the crux of the problem - how is the state to effectively balance the "uniqueness of the individual" against the consistent, uniform imposition of the death penalty in the various states as well as by the federal government? How can a systemic formula truly impose fairness in any particular circumstance, particularly when death is in the offing?
The Impossible Situation
As Justice Blackmun foresaw so well (dissenting in Callins v. Collins, 510 U.S. 1141 (1994)): "....[t]he basic question -- does the system accurately and consistently determine which defendants "deserve" to die?-- cannot be answered in the affirmative....The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution." Justice Blackmun drew his own line in the sand in that historic dissent, announcing that "...[f]rom this day forward, I no longer shall tinker with the machinery of death," having considered the High Court's "experiment" with the death penalty to be a failure. Id.
Nevertheless, the courts still continue to "tinker with the machinery of death," using Blackmun's terms - and still, that attempt to balance the needs of the system for uniformity and the needs of the individual for unique consideration is sought unsuccessfully.
Do we need uniform standards in the imposition of the death penalty? Yes. Can they be achieved? Many respected legal minds aside from Justice Blackmun suggest not.
For example, Professor Linda Greenhouse recently opined in the New York Times that the U.S. Supreme Court applied "selective empathy" in its consideration of two death penalty cases this fall, where the two defendants shared histories of "similarly horrific" childhoods. The result? One man escaped the death penalty (Porter); the other did not (VanHorn).
Just last month, in considering the "guided discretion approach" originating in the Model Penal Code template, Kentucky Coalition to Abolish the Death Penalty President Don Vish eloquently pointed out in the Louisville Courier Journal that "... competing constitutional values get in the way of one another and, like Virgil's army, crowd the field so totally that none has room to do its work ... [and] justice in death penalty cases is becoming to the Constitution what absolute zero is to the laws of thermodynamics: a place one can progress toward but never reach."
Perhaps the best interests of both our system of justice and the interests of the individual would be best served by what many continue to avoid as this legal tinkering continues: abolishing the death penalty in its totality - not only would this be the most uniform of standards to be implemented, as we all are aware, it would definitely be the cheapest.
With thanks to the Death Penalty Information Center's excellent recordkeeping, here is a list of those who were executed so far this year, in alphabetical order by state. While it is a blessing that capital punishment appears to be on the decline in this country, it will be truly a joyous occasion when this list for a future year will be blank.
Of note: all these executions were by the standard multi-drug lethal injection except for Ohio's Ken Biros, which involved a single drug lethal injection and Virginia's Larry Bill Elliot, who was executed by electrocution (electric chair). The oldest executed was Georgia's 65 year old Robert Newland, and the youngest was Texas' Derrick Johnson, who died at age 28.
Danny Joe Bradley, 49 , by Lethal Injection
James Callahan, 62, by Lethal Injection
Jimmy Lee Dill, 49, by Lethal Injection
Willie McNair, 44, by Lethal Injection
Max Payne, 38, by Lethal Injection
Jack Trawick, 62, by Lethal Injection
John Richard Marek, 45, by Lethal Injection
Wayne Tompkins, 51, by Lethal Injection
Mark McClain, 42, by Lethal Injection
William Mark Mize, 52, by Lethal Injection
Robert Newland, 65, by Lethal Injection
Matthew Eric Wrinkles, 49, by Lethal Injection
Dennis Skillicorn, 49, by Lethal Injection
Kenneth Biros, 51, by Lethal Injection - SINGLE DRUG
John Fautenberry, 46, by Lethal Injection
Jason Getsy, 33, by Lethal Injection
Marvallous Keene, 36, by Lethal Injection
Daniel Wilson, 39, by Lethal Injection
Darwin Brown, 32, by Lethal Injection
Michael DeLozier, 32, by Lethal Injection
Donald Gilson, 48, by Lethal Injection
Thomas Ivey, 34, by Lethal Injection
Luke Williams, 56 , by Lethal Injection
Steve Henley, 55, by Lethal Injection
Cecil Johnson, Jr., 53, by Lethal Injection
Reginald Blanton, 28, by Lethal Injection
Christopher Coleman, 37, by Lethal Injection
Terry Hankins, 34, by Lethal Injection
Derrick Johnson, 28, by Lethal Injection
Johnny Johnson, 51, by Lethal Injection
David Martinez, 36, by Lethal Injection
James Edward Martinez, 34, by Lethal Injection
Virgil Martinez, 41, by Lethal Injection
Stephen Moody, 52, by Lethal Injection
Curtis Moore, 40, byLethal Injection
Frank Moore, 49, by Lethal Injection
Kenneth Morris, 38, by Lethal Injection
Khristian Oliver, 32, by Lethal Injection
Ricardo Ortiz, 46, by Lethal Injection
Reginald Perkins, 53, by Lethal Injection
Willie Pondexter, 34, by Lethal Injection
Michael Lynn Riley, 51, by Lethal Injection
Michael Rosales, 35, by Lethal Injection
Luis Salazar, 38, by Lethal Injection
Dale Scheanette, 35, by Lethal Injection
Danielle Simpson, 30, by Lethal Injection
Robert Thompson, 34, by Lethal Injection
Yosvanis Valle , 34, by Lethal Injection
Bobby Wayne Woods, 44, by Lethal Injection
Edward Bell, 44, by Lethal Injection
Larry Bill Elliot, 60, by Electric Chair
John Allen Muhammad, 48, by Lethal Injection
Earlier this month, the United States Supreme Court heard argument in the case of Beach Renourishment v. Florida (08-1141), a controversy surrounding the application of the Fifth Amendment's prohibition that "...private property [shall not] be taken for public use, without just compensation," otherwise known as the "takings clause." It's an interesting situation because the real issue before the highest court in our land is whether or not the highest court in our state can essentially impose a judicial taking of some beautiful beach property.
It seems that the beautiful beach property was created when the State of Florida literally pumped tons of sand onto existing beaches in an effort to stop erosion and to protect the pretty beachfront vacation homes that dotted the shoreline. The big brouhaha started when that land - the newly created beach formed by the pumped-in sand - was claimed by the State of Florida as Florida land. Voila! A takings clause argument argued by the landowners that's gone all the way to the Supreme Court.
And that's good.
Having the Florida Supreme Court's papers graded by the United States Supreme Court on whether or not federal constitutional provisions are being respected is how our system is supposed to work. Eminent domain cases are expensive to litigate, and they're expensive to appeal - and that makes sense, because usually there is a significant amount in controversy. That strip of Florida beach being fought over in Beach Renourishment isn't cheap, and its impact on neighboring property values isn't cheap, either.
Bottom line, our nation is governed by laws originating from only four different sources: the Constitution; statutes enacted by either the U.S. Congress or the state legislatures; administrative decisions established by agencies within the executive branch; and finally, case law precedent arising out of federal and state courts. It's extremely important to have a hierarchy within this system of laws, as well as within this system of governing - and having the U.S. Supreme Court decide whether or not the Florida Supreme Court is correct regarding the taking of this pumped-in sandy beach under the takings clause of the federal Constitution is right and just and proper.
Which brings us to the question for today: does our nation value the taking of property more than the taking of human life?
In 1972, the United States Supreme Court halted all executions in this country with the case of Furman v. Georgia, 408 U.S. 238 (1972). The High Court ruled that the death penalty was "arbitrary and capricious," violating the Eighth and Fourteenth Amendments to the Constitution because of a variation between state laws and the application of the punishment itself. Four years later, Gregg v. Georgia, 428 U.S. 153 (1976) changed all that; the Supreme Court once again allowed United States citizens (as well as foreign nationals) to be killed by the government as punishment for the commission of certain crimes. The death of the death penalty was short lived.
The Cost of the Death Penalty
On its website, the Florida Bar provides the following as public information:
Florida state courts are in crisis. Two years of budget cuts have undermined adequate and equitable funding of the court system, forcing layoffs and hiring freezes. In addition, by legislative formula, filing fees paid by court users do not directly go to fund the courts. On top of budget cuts and restricted revenue, caseloads have ballooned as the economy faltered.
This week, the Death Penalty Information Center published an opinion piece that initially appeared in the Virginian-Pilot. There, the argument is made that it makes economic sense to end capital punishment in this country, as the authors explain (quoting from the DPIC site):
"Doing away with the option of a death sentence makes sense on several levels....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.... 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?"
Still, within thirty days before the United States Supreme Court heard oral argument in the Florida eminent domain case, it had issued its opinion in Bobby v. VanHook, (09-144, November 9, 2009), finding that there was no legal grounds for stopping the execution of Mr. VanHook although they did stop the execution of an elderly Florida man, 77 year old veteran George Porter in Porter v. McCollum (08-10537, November 30, 2009). While Professor Linda Greenhouse opined in the New York Times, questioning the "selective empathy" of the High Court in the reading of VanHook and Porter side by side, it is clear that the opinions were founded upon the summary conclusion that one man had effective assistance of counsel and the other did not.
When Will the Reality of Money Be Considered in Capital Punishment Cases?
All of which leads us to this: men (and women) die in this country at the hands of state and federal government because the death penalty is recognized as a valid form of punishment. Floridian George Porter can attest that this ultimate punishment in all likelihood depends upon the abilities and efforts of defense counsel at trial. Even the most avid supporter of capital punishment has to acknowledge the financial expense of the death penalty in this country. It is extremely expensive to execute someone in this country, as the Virginian-Pilot estimates $2,000,000/inmate for Virginia. DPIC studies show that this country has spent two billion dollars ($2,000,000,000.00) executing people since 1976. The Palm Beach Post has estimated that Florida has paid $51 million since 1976 for the luxury of having the death penalty.
Still, the crisis in criminal defense of the indigent accused of capital crimes escalates each year. The American Bar Association has an online collection on studies done by the various states on the extent of this crisis going back 15 years.
There is not enough money to properly finance capital defense cases for indigent defense counsel. Yet millions of dollars are spent each year in the prosecution of capital punishment cases - nationally, the total is in the billions. And while the United States Supreme Court sends its message that because of the effectiveness of defense counsel or lack thereof, Porter lives and VanHorn dies, with the Court moving on to decide who gets paid what for some sandy oceanfront beaches, we have to ask -- do we value the taking of property more than human life in this country?
Sadly, it appears that we do.
Death Row inmate Romell Broom was setting in the courtroom this week as his attorneys stood ready for an evidentiary hearing that would take a couple of days in front of Federal District Judge Gregory Frost. Romell Broom sat there, ready to testify. Think of it -- Broom left his small Death Row cell to set in that public courtroom, look out at all those faces and tell about the pain and suffering he experienced on that gurney as his executioners spent over two hours trying to find a vein in which a needle could be inserted. We've posted about this earlier - including the media reports that Broom was "sobbing in pain" that day. The hearing was based upon Broom's motion. Romell Broom is seeking to stop his scheduled execution by Ohio by arguing that it is unconstitutional for the State of Ohio to try and kill him a second time after its horrific failure to execute him earlier this year by lethal injection. Judge Frost doesn't hold a evidentiary hearing Surprising some, Judge Frost took the bench and soon thereafter advised everyone that he wouldn't be hearing testimony in the Broom matter. Nope. According to Judge Frost, he's really able to decide only a narrow question of the law. No fact-finding is needed, so no testimony would be taken. Attorneys were asked to file their arguments addressing the issue, and the Judge would rule based upon the paper. Judge Frost did give everyone a big hint -- he's stated that he doesn't see how Broom can circumvent the decision made by the Sixth Circuit Court of Appeals and denied review by the United States Supreme Court earlier this week in the Biros case. Ken Biros died as a guinea pig to the new Ohio single-drug injection method. What is Judge Frost Going to Decide? All that Judge Frost is going to answer is the limited question of whether or not the State of Ohio, after it has failed to execute an inmate, has the right under law to try again. And while it is critical to consider the pain and suffering that Romell Broom experienced on that gurney that day, Frost is saying that he's not hearing anything on pain because of the federal appellate court ruling Monday in Kenneth Biros's case. On Monday, Biros unsuccessfully argued that the method of execution Ohio would be using hadn't been vetted and Ohio couldn't show that the execution method couldn't cause severe pain. Severe pain during an execution violates the prohibition of cruel and unusual punishment of the U.S. Constitution. The appellate court specifically stated that Biros had provided no evidence on pain. Arguing about the pain that might occur during an untested method of execution seems easily distinguishable from an argument concerning the two bites at the apple situation facing Broom. Yet Judge Frost is moving forward without any evidence on pain -- there was no evidence on pain in the Biros appellate record and he's prohibiting having Romell Broom take the stand in the present case. Given this factual vacuum and the precedent of Louisiana v. Resweber, 329 US 459 (1946), where the failure of an electric chair during an initial execution did not prevent the second execution from proceeding, what Judge Frost is going to rule probably isn't that hard to predict regardless of whether your perspective is based upon double jeopardy, due process, or cruel and unusual punishment.
Last week, the State of Ohio announced that it was changing its method of execution from a lethal injection involving three drugs (sodium thiopental, pancuronium bromide and potassium chloride) to a single injection of the drug sodium thiopental.
Ohio changes to a single-drug form of execution after its failed execution of Romell Broom on September 15, 2009
You'll recall the travesty of Mr. Broom's attempted capital punishment -- as we described here, Romell Broom suffered for two and one-half hours on the gurney that day:
Romell Broom was sentenced to die for the rape and murder of Tryna Middleton by the State of Ohio and last Tuesday, Mr. Broom was strapped to a gurney and his execution by lethal injection began.
The 2+ Hour Failed Execution
Except they couldn't find a vein in which to insert the needle. They tried his arms. They tried his legs. Broom lay there, tied to the table by long leather straps covering the length of his body. Imagine this being done to you.
Broom lay there for OVER TWO HOURS while lab techs tried to kill him. They failed. Broom went back to his Death Row cell, and his execution was "rescheduled." The Governor of the State of Ohio was contacted about the problem and he ordered a one week "postponement."
The Consequences of Ohio's New Single Drug Execution Method
Proponents are arguing that this single, massive dose of sodium thiopental is merciful and that it's going to be the NextBigThing for death penalty proponents, since its success will hamper constitutional arguments against execution by lethal injection under the three-drug approach.
And those are serious and substantive arguments, as we've outlined here in a three-part series of articles. No one can truly say that a paralyzed person, laying on that gurney, isn't suffering because they are incapable of communicating what they are experiencing. The "drug cocktail" is simply horrific.
Ohio is so confident in its new execution method -- the same type of killing method that vets use on dogs and cats -- that it's planning on having the new protocol in place by the end of this month, and there's talk that Ohio will want to try out its new One-Drug Injection procedure on Kenneth Biros, who is scheduled for execution on December 8, 2009, subject to a temporary stay.
What has yet to be determined, however, is how this massive dose of this single drug will truly work on a human being. What works on dogs and cats might not be as merciful, fast, and painfree on humans. We simply don't know, and undoubtedly there will be medical testimony with the appropriate medical experts providing their opinions on this procedure before Ken Bios or anyone else is subject to Ohio's new killing option. Or there should be.
And, what about if the Ohio one drug option doesn't work as swiftly and cleanly as its proponents suggest it will? Well, they've got a backup -- two more drugs that would then be injected into the condemned, there on the gurney: the executor will shoot in massive amounts of hydromorphone and midalzolam.
None of This Makes a Bit of Difference in the Broom Situation
With Ohio's big announcement, death penalty proponents are gleefully rubbing their hands together at the thought that the remaining 35 states using lethal injection as their primary execution method can now circumvent all number of death penalty appeals based upon the cruel and inhuman nature of the three-drug cocktail, just by adopting the Ohio One Drug method.
Well, it's not as simple as that. First, this method needs to be vetted by medical experts before a condemned person is used as a guinea pig here, nevermind those back-up syringes filled with hydromophone and midazolam.
Second, has no one stopped to think that the answer is more complex than this? Romell Broom suffered great agony on September 15th not because of the type of drug used upon him, or the number of drugs selected to be injected into his body, but because they could never find a way to successfully insert the needle.
Two Points to Ponder
So, point one, the Ohio One Drug "innovation" doesn't resolve the Romell Broom travesty and it's fascinating to watch Death Penalty proponents distract themselves from the cruelty of that day in their excitement over this new find.
Point two: is anyone out there thinking that executing men and women in the same way that that vets euthanize animals (even if they are beloved pets) is just plain wrong? When did we forget about human dignity?
Given that today's news has a federal judge ordering the deposition of Romell (thx Jeff!) Broom to testify regarding the botched execution last week (for details, check our post here) ... a great read on all this mess can be found on Gamso - For the Defense, in an article entitled "Because It's Who We Are or Want to Be: The Botched Execution Edition."
Lethal injection should not be a method of execution in this country (see our series) and Jeff Gamso helps us understand why in very blunt terms. It's worth your time.
Apparently, Cy Vance's great article in HuffPo on the tragic story of Cameron Todd Willingham (see last week's post) was just the start. More and more stories are appearing across the country, covering the brutal fact that a man was killed by the State of Texas for the arson murder of his children and only after his death did scientific evidence substantiate what Willingham had been claiming the whole time: it wasn't arson. He didn't commit murder. Specifically, he did not commit filicide.
Several of these writings deserve your time, particularly:
"... The report is devastating, the kind of disclosure that should send a tremor through one's conscience. There was absolutely no scientific basis for determining that the fire was arson, said [arson expert Craig] Beyler. No basis at all...."
The response by editor Michael Landauer in the Dallas Morning News to the statements made by the prosecutor in the Willingham case (who is now a sitting judge in Texas):
"Well, he was a foul-mouthed wife beater. That seems to be the response of the chief prosecutor of the Willingham case...."
And, the long, in-depth investigative piece by in the New Yorker, which goes into great detail and obviously took great effort both in investigation, research, and writing, published this month and written by David Grann, who provides Cameron Todd Williingham's last words:
"...'The only statement I want to make is that I am an innocent man convicted of a crime I did not commit. I have been persecuted for twelve years for something I did not do. From God's dust I came and to dust I will return, so the Earth shall become my throne.' "
This coverage is important and the more discussion is had in this country regarding the tragedy of Cameron Todd Willingham's case, the better. One can only wonder why it took from 2004, when Willingham was executed until now -- five years later -- for this travesty to come into the national spotlight.
Let's all hope that somehow, this brings some peace to the Willingham family. The arson was a terrible accident. Those babies did not die at the hand of their father, and this confirmation should bring some relief to these folk.
The injustice of the execution? Our prayers and our compassion go out to them as they deal with this reality.
The San Antonio Express-News has provided a video containing snippets from the closing arguments in the trial of Sharon Keller, Chief Justice of the Texas Court of Criminal Appeals (the highest criminal court in that state). It bears viewing, and it's only 2:24 minutes long.
Listening to it, you'll hear an attorney's deep voice talking about the death penalty and how capital punishment depends upon a public trust that there will not be a erroneous death sentence.
As you'll recall (we've posted the details of Justice Keller's trial here and the short video gives a synopsis as well), Justice Keller is being challenged for denying the attorneys for Death Row inmate Michael Richard the ability to file a motion to stay execution on the day he was scheduled to die - they were running late, and Justice Keller admits to telling her clerk to respond that "the clerk's office closes at 5." The motion to stay execution didn't get filed on time, and Mr. Richard was executed by lethal injection at 6 pm that day.
Mind you, that same morning -- the very same morning -- the US Supreme Court had granted writ in a Kentucky case which put lethal injection as a method of execution under scrutiny. Keller's supporters point out that six months later, the Supreme Court decided that this method was not "cruel and unusual" and accordingly, Richard would have been executed anyway.
Here's the question that I'm not seeing: what if the US Supreme Court has RULED THE OTHER WAY in the Kentucky case? Then, would we have a very clear example of the erroneous execution that is referenced in the closing arguments of Justice Keller's trial?
Earlier this month, Herman Lindsay was freed from Death Row after the Florida Supreme Court ruled that there just wasn't enough evidence to find Mr. Lindsay guilty of anything -- much less sentence him to death. Herman Lindsay became a free man this month, after being tried and convicted in 2006 for the robbery and murder of a pawn shop owner back in 1994. In an unianimous verdict, the high court found that the trial court judge made a mistake in allowing the conviction to stand.
Meanwhile, over in Orlando, David Johnston is fighting to get off Death Row, as well....
Having decided the fate of Herman Lindsay, the Florida Supreme Court now holds the life of David Eugene Johnston in its hands. Convicted of the 1983 murder of an elderly woman in her Orlando home, Johnston was scheduled to die in May. However, the high court halted the execution in order for more DNA testing to be done. There was a skirmish between prosecution and defense based upon missing DNA samples, and some accusations of mishandling of the DNA itself.
The Florida Supreme Court put a kabash to all this by ordering more testing, and an agreement was reached between counsel for an outside lab, based in North Carolina, to take the remaining samples and test them to see if Johnston's male chromosomes appear in the crime scene evidence.
For David Eugene Johnston, the test results mean everything. If the North Carolina lab returns with results that exonerate him, then he may be joining Mr. Lindsay on the Florida highways and byways. If not, then his execution may well be rescheduled sometime soon.
Another Example of the Power and Importance of the Florida Supreme Court
Within the past sixty days, two men sitting on Death Row -- and their loved ones -- have looked to the justices sitting on the Florida Supreme Court to make decisions that have literal life and death results.
It's important to remember that the appellate process is an important and vital component to justice -- just because there is a trial, that doesn't mean that justice has been found. And just because there is a conviction, it doesn't mean that the fight is over.
To learn more about who sits on the Florida Supreme Court, go here.
The role of state governors cannot be underestimated in any death penalty case: this one man or woman has the ability to save a life by commuting a death sentence to one of life imprisonment. Rick Perry has been known to exercise this power and commute death sentences in the past, but not this week.
Governor Rick Perry Makes U.S. History
This week, Rick Perry far surpasses the infamous 152 executions of Texas Governor George W. Bush with the execution of Terry Lee Hankins on June 2, 2009. In fact, Hankins' death brought Perry's capital punishment total to a record-breaking 200 deaths.
That's right. Two hundred. 200.
With this record, Rick Perry has insured his place in history as the governor who has allowed more executions to take place in his state than any other governor in U.S. history.
A Remarkable Feat, Especially Considering Criminal Justice in Texas Right Now
Amazing as this is, Perry's landmark is even more incredulous given that he is governor of the same state where:
Formal protests against this 200th Execution reached all over Texas and the nation, indeed throughout the world, with groups as far as Leipzig, Germany; Paris, France; Brussels, Belgium; and Montreal, Canada, organizing formal demonstrations against the 200th Texas execution. A website has been created to unify the various protests at www.protest200executions.com.
If you would like to voice your opinion to Governor Perry, please feel free to do so: he can be reached at (512) 463-1782.
There are really two death rows in Florida: one for the men, located at the Florida State Prison and Correctional Institution in Raiford, and a separate facility for the women at the Broward Correctional Facility in Fort Lauderdale. As of today's date, there was one woman on Florida's Death Row and 391 men.
(Who is the only woman on Florida's Death Row? Tiffany Cole, a 27 year old female who was convicted of the kidnapping and murder of a retired Florida couple and sentenced to death for the killing of each victim (receiving two death penalty sentences).)
The Florida Department of Corrections actually provides a virtual tour of a Death Row prison cell, so you can see the tiny area in which these prisoners reside. Measuring 6' (width) x 9'(depth) x 9.5' (height), these cells are where those sentenced to death live - by themselves, they do not share a cell - until it is time for their death sentence to be carried out. Then, they are moved to the Death Watch cell, which is close to the execution site. The Death Watch cell is slightly larger than the Death Row cell.
Those individuals living on Death Row get three meals a day. Breakfast is at 5 a.m., dinner is over by 4:30 p.m. Lunch is somewhere around noon. They can only use spoons to eat their food, which is served to them on cafeteria trays. The food is prepared at the prison cafeteria.Continue Reading...
As stated earlier, a separate multi-step process exists between conviction and the imposition of the death penalty. After a defendant is found guilty of a capital offense subject to the death penalty, the first step is a second trial to determine whether death will be imposed. At this trial, the jury hears evidence concerning aggravators, circumstances that weigh toward death, and mitigators, which weigh in favor of mercy. The trial judge performs the next step by actually determining the sentence. Although the trial judge gives great weight to the jury recommendation, the trial judge is not bound by the jury's recommendation.
A trial judge has more experience in both the criminal process and facts of crimes themselves. What the average person, inexperienced in crimes, thinks is incredibly significant or especially heinous, may not in balance be so significant or heinous. The cool reasoning of a judge also serves to counterbalance any overly inflammatory prosecution.Continue Reading...