Kentucky Just Stopped Executing People Today - But It's Temporary

Today, the Kentucky Supreme Court issued a ruling that no one is going to be executed in the State of Kentucky until things are done by the book regarding the lethal injection killing method.  The high court set no deadline on when capital punishment might resume in Kentucky, either.  Its formal opinion is already published online at the court's official web site.

The story starts with Ralph Baze

Ralph Baze sits on Kentucky's Death Row after being convicted and sentenced to death by lethal injection for the murder of Sheriff Steve Bennett and Deputy Arthur Briscoe of Powell County, Kentucky, back in 1992 while the lawmen were trying to arrest him.  (Baze unsuccessfully urged self-defense.)   After his conviction, Baze joined with fellow Death Row inmate Thomas Clyde Bowling, Jr. in a constitutional fight.

Baze and Bowling both argued by appeal that execution of someone with the three drug "cocktail" established by Kentucky law (and used here in Florida, as described in our earlier series) constitutes cruel and unusual punishment and is therefore unconstitutional under the 8th Amendment. 

Baze v. Rees (Baze's appeal) was heard by the United States Supreme Court, and in April 2008, that court ruled that the three drug cocktail did not violate the constitution.  Ginsburg and Souter dissented.

Baze did not stop there.  He then urged a state appeal (joining with Bowling) challenging state procedure, and the Kentucky Supreme Court has heard him. 

What the Kentucky Supreme Court Ruled Today

In today's opinion, the state high court has found that the legal steps that are taken when Kentucky puts a condemned man (or woman) to death through the use of its three drug cocktail have to be specified -- spelled out -- in a state regulation.  

Writing for the majority, Justice Abramson states, ""[t]his court cannot ignore the publication and public hearing requirements set forth in Kentucky statutes."  The opinion then orders the Kentucky Department of Corrections " adopt as an administrative regulation all portions of the protocol implementing the lethal injection statute...." 

This will take time.  An adminstrative regulation doesn't just get voted upon by some group -- due process requires much more than that.  What the Kentucky Supreme Court has done is to require the agency to write a regulation and then formally debut it as proposed law.  Then, the public gets a say in the matter as there is a set amount of time for public contributions on the language of the proposed regulation.  Things are discussed, edits may happen.  And only then is the proposal taken to Kentucky's Administrative Regulation Review Subcommittee, an arm of the state legislature that votes to adopt/reject the proposal.

AEDPA, the Power of Judicial Dissents, and the Reality of Troy Davis

This week, the New York Times reports that dissents are increasing in federal cases, based in large part upon judicial frustration with the Antiterrorism and Effective Death Penalty Act of 1996.   According to their investigation and research, this single statute has been the basis of 6 -24 dissents per year in federal death penalty appeals. 

What is the Antiterrorism and Effective Death Penalty Act of 1996?

The Antiterrorism and Effective Death Penalty Act of 1996 is a federal law that was passed by Congress in response to concerns that Death Row inmates were taking advantage of loopholes in the appeals process.  What AEDPA does to correct this concern is to put boundaries on what the federal appellate court justices can take into consideration when called upon to review a death penalty appeal.  The federal appellate courts must limit their review in state court cases where the death penalty has been imposed to certain specific areas. 

Specifically, AEDPA allows federal judges to grant relief in a death penalty case only if  the state court decision is found to be:

  1. contrary to, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States; or

  2. based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

AEDPA does other things as well.  It bars certain habeas corpus petitions.  It cuts off the power of the U.S. Supreme Court from reviewing lower  federal court decisions denying an inmate permission to file a habeas corpus petition in certain circumstances.  It establishes specific review provisions in death penalty cases arising out of states that have set standards for performance (e.g., "death penalty qualified") on attorneys involved in representations at the penalty phase of a death case (the sentencing trial).   These are a few examples of the powerful impact AEDPA imposes upon capital punishment review nationally.

What's the Impact of All These Judicial Dissents?

Dissenting opinions ("Dissents") from justices of the U.S. Supreme Court are commonplace today -- sometimes short, sometimes long, they're always there to give further explanation as to the reasoning of the particular justice.  We've come to expect them, particularly on the big issues. 

Justice William O. Douglas loved dissenting opinions, for example, and wrote 486 of them (he also dissenting in another 309 cases, but didn't bother to write an opinion for them).  And, of particular import here, Justices Thurgood Marshall and William Brennan, Jr. became famous for their dissenting opinions in death penalty cases.   Both were adamently opposed to capital punishment, and used the opportunity offered by the dissenting opinion to offer eloquent and persuasive arguments against its legality.

And it's true that dissents can be used to persuade others.  Marshall and Brennan saw the power in dissenting, and the New York Times article points to the power of the growing number of federal appellate judges who are opposing the AEDPA via the tool of a dissenting opinion.  

Dissents are power, they give judicial voice to perceive injustice and persuade an alternative viewpoint, sometimes offering a solution or optional outcome. 

Bringing the Case Home -- This is Life or Death For Troy Davis

Earlier, we posted about Troy Davis and how Mr. Davis may well be an innocent man executed by the State of Georgia.  Right now, a second habeaspetition sits before the United States Supreme Court -- with an Eleventh Circuit Opinion denying Mr. Davis's requests and amici curaie supporting him growing by the day as well as a swelling public outcry by the likes of Pope Benedict, Georgia Governor Sonny Perdue, Rev. Al Sharpton, and former U.S. President Jimmy Carter.  

Dissent in Davis's case before the 11th Circuit

The Eleventh Circuit voted against Davis 2-1.  The majority opinion is based upon two AEDPA requirements, which were found not to be met by Davis.  Since Davis failed to meet these "gatekeeping requirements," his petition was rejected, preventing Troy Davis from getting that new trial. 

Rosemary Barkett filed a dissent.  In her opinion, Judge Barkett wrote:

 "[t]he majority takes the position that we cannot permit Davis to bring his evidence before the district court because our discretion to do so is constrained by AEDPA.  But AEDPA cannot possibly be applied when to do so would offend the Constitution and the fundamental concept of justice that an innocent man should not be executed."

The U.S. Supreme Court Has Davis's Life and the future of the AEDPA in its hands

How the U.S. Supreme Court decides to handle AEDPA in Mr. Davis's situation will determine whether or not Troy Davis dies.    Surely Judge Rosemary Barkett felt the importance of her words as she wrote her dissenting opinion -- but we don't know yet how persuasive Judge Barkett has been. 

The Supreme Court may well choose form over substance and let Troy Davis die rather than upset the apple cart of the AEDPA.  And, no matter how powerful a dissent from a United States Supreme Court Justice may be, it will be of cold comfort to Davis's family and friends if the High Court fails to grant Davis' request in its majority opinion.

Today John Marek Appeals to US Supreme Court, Scheduled to Die in 12 Days

John Marek's attorneys are fighting hard to stop the State of Florida  from killing their client.

Today, they filed an appeal with the highest court in the land, the United States Supreme Court, to try and stop the execution of John Richard Marek.  With the Florida Supreme Court ruling that it will not hear anything further in this case, Marek is left with only the U.S. Supreme Court and the Governor of Florida between him and an otherwise certain execution.  (Read docket notice of Marek's Motion to Stay Execution here -- Justice Thomas is assigned to this request. )

What arguments can Marek possibly make to the U.S. Supreme Court now -- over 25 years after the crime occurred for which he was convicted, and within two weeks of his scheduled execution?  Lots of people don't understand the importance of the appellate process in death penalty matters, but Marek's case gives us some idea of how vital appeals can be.  When the government is about to kill one of its own citizens, then the courts must insure that the government is not violating any legal rights in doing so. 

And it appears that Marek has some valid legal arguments to make, such as:   

Evidence that Marek Was Not the Killer

It is not contested at this point that Marek was present at the scene where Adella Simmons was murdered one night on Dania Beach, back in 1983.  However, there is evidence that Marek did not kill the woman that he and his buddy, Ray Wigley, picked up on the Turnpike where her car had broken down. 

The evidence comes from Wigley himself.  Seems he admitted to killing the woman to several folk while he was incarcerated.  Those inmates have come forward with testimony that Ray Wigley -- who was not sentenced to death, as Marek was -- told people on several occasions that he murdered Ms. Simmons, not his pal Marek.  Wigley himself cannot testify.  Wigley is dead.

Past Appellate Arguments Regarding Recusal of Trial Court Judge 

Part of Marek's earlier arguments have been based upon the issue of when a judge should recuse himself.  (For those interested, the Reply Brief filed by Marek's counsel before the Florida Supreme Court is online for viewing.)  This is an issue recently addressed by the US Supreme Court. 

In a far-reaching decision released this past March,  Caperton v. A.T. Massey Coal Co. [08-22] (5-4 opinion),  the high court recognizes that due process is violated when someone is before a trial court judge has "...had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent...." and that judge does not recuse himself (withdraw from presiding over the matter).  Caperton has been criticized for not giving enough direction on when a trial judge should and should not recuse himself (as the dissents themselves discuss), therefore judicial recusal is a topic in Marek's appeal which may be of interest to the Justices. 

What is Before the US Supreme Court Right Now Regarding John Marek

First things first.  Justice Thomas is overseeing the Motion to Stay Execution.  Of course, halting the killing scheduled in 12 days is the first priority.  Afterwards, the Petition for Writ of Certiorari and Motion for Leave to Proceed In Forma Pauperis will be heard.  The deadline for the State of Florida to respond is September 7, 2009.   As of this posting, briefing was not available for review.

Innocent Man May Be Executed in Georgia - The Troy Davis Case

Around twenty years ago, a cop was gunned down in Savannah and Troy Davis was caught and convicted for the crime. Nineteen years old at the time, he was sentenced to die, and he has watched all this time pass - 1989 to today - from a small, bleak Death Row cell over in Georgia.

Teen Sent to Die Without Any Physical Evidence

Davis has consistently maintained he is innocent of this crime. Over the years, the evidence used against him has slipped away: 7 of the 9 witnesses who testified Davis did it have changed their minds and recanted their testimony. Oh, and there never was any physical evidence linking Troy Davis to the crime. It's all eyewitness testimony.

No gun. No bullets. No blood or bone or anything else to use DNA testing on - like they seem to always have in CSI or NCIS.

One of Two Remaining Un-recanting Witnesses Is Rumored to be the Real Killer

Meanwhile, there has been some witness identification of another man as being the shooter - a man who is still free, and has been free all the while that Troy Davis has lived his life behind bars. And, rumors have it that this shooter just happens to be one of the two remaining witnesses that pointed their fingers at Troy Davis and didn't recant later. Wow.

Why the Troy Davis Case?

We're visiting the Troy Davis case this week, because the U.S. Supreme Court isn't. The high court has just taken off on its summer vacation, and before they hung up their "gone fishing" sign, a clerk took the time to notify Davis's attorney that they'll get around to deciding his case when they come back to work in September.

Which means that Troy Davis, who has been through the wringer more than once already (he was two hours away from being executed in September 2008 when the U.S. Supreme Court stayed the killing), must wait some more.

The U.S. Supreme Court has Waffled

Last September, the U.S. Supreme Court halted Troy's execution. Then - less than two weeks later - the Supremes decided they wouldn't intervene, and released the hounds as it were for Georgia to proceed with the execution. The cavalry appeared in the form of a federal appeals court in Georgia, which granted a temporary stay of execution and let Davis have the chance to continue his appellate fight.

By its decision, the U.S. Supreme Court last fall was telling Georgia that it would not consider the legal issue of whether or not it is unconstitutional to impose the death penalty when new evidence has been brought forth that shows the inmate's innocence. (This doesn't seem like a hard question to answer, but they refused it anyway.)

With Troy Davis back before them, Georgia considered the possibility that there might be evidence that proved Davis to be innocent, and then denied his request for a new trial - but was nice enough to hold off on capital punishment to let Troy Davis return to the U.S. Supreme Court.

Oh. The Georgia Pardons and Parole Board held hearings, too, and even interviewed Davis and the witnesses all over again ...and then denied clemency. Don't know much about this Board, and apparently no one else does either. No records are made; their hearings aren't open to the public.

Davis is black, the cop was white - and Davis is asking for a new trial, not a free pass

Did I fail to mention before this that Davis is black, the cop was white? Well, some folk think this fact is important.

Did I fail to point out that all Troy Davis is asking for is just the chance to have a trial where this exculpatory evidence can be brought before a factfinder? He's not asking for mercy, he's asking for justice.

Troy Davis has some very big supporters in his corner. Like the Pope.

And lots of people think that Troy Davis deserves another trial, to have a chance to bring forth this new evidence. Over 60,000 U.S. citizens have signed a petition asking for just that ... and there's been a lot of public outcry as well, from some people that you may recognize, like:

1. The Pope. Yes, Pope Benedict XVI knows about Troy Davis's case.
2. The European Union. Yes, all 27 countries have cohesively offered their support.
3. Desmond Tutu of South Africa, winner of the Nobel Peace Prize.
4. Former U.S. President Jimmy Carter.

Laura Moye of Amnesty International has been quoted as saying that this "gone fishing" delay of the U.S. Supreme Court is good, because it gives Troy Davis and his supporters more time to get publicity for his plight: to let people know that an innocent man is facing execution over in Georgia if nothing happens to stop it.

So, here's my little bit of publicity for Troy Davis. Please, spread the word.

For more information, please visit: Take Action for Troy

In-Depth Look at the Law: Does the Florida Death Penalty by Lethal Injection Violate the Constitution? (Part 3)

Today, in the final part of our three part series: the record of errors in Florida's use of lethal injection as a method of execution is discussed. Again, much of the language used here can be seen in any number of defensive motions filed in capital punishment matters across the state today.

Lethal Injection is the Most Commonly Botched Method of Execution

The history of execution by lethal injection in the United States is a miserable one. It has been characterized as the most commonly botched method of execution in the United States. Sims v. State, 754 So. 2d 657, 667, n.19 (Fla. 2000) (quoting the expert testimony of Professor Michael Radelet).[6]

Since 1985, there have been at least twenty-one executions by lethal execution that were botched. Marion J. Borg and Michael Radelet, On Botched Executions in Capital Punishment: Strategies for Abolition 143-168 (Peter Hodgkinson and William Schabas eds., 2001). Lethal injection, meant to be the neat and modern execution method, [has been] plagued with problems, or execution glitches, as they are also referred to in the business. Stephen Trombley, THE EXECUTION PROTOCOL: INSIDE AMERICA'S CAPITAL PUNISHMENT INDUSTRY 14 (1992).

Some of The Horrific Examples of Botched Executions Using Lethal Injection

Texas, Oklahoma, Arkansas, Missouri, and Illinois have reported bungled attempts to dispatch prisoners by lethal injection. These mistakes include blow-outs, improperly inserted catheters (no doubt attributable to the fact that, for ethical reasons, physicians are not involved in the process), and the improper mixture of the lethal solution. Id. A few notable examples follow. [7]

Stephen Morin, in Texas, lay on the gurney for 45 minutes while technicians punctured him repeatedly in an attempt to find a vein suitable for injection. Denno, supra at 111.

In April, 1998, the needle popped out during Joseph Cannon's execution, also in Texas. Seeing this, Cannon lay back, closed his eyes, and exclaimed to the witnesses, It's come undone. Officials then pulled a curtain to block the view of witnesses, reopening it fifteen minutes later when a weeping Cannon made a second final statement and the execution process resumed. Borg & Radelet, supra at 143-168.

In Louisiana, witnesses to the April, 1997, execution of John Ashley Brown saw Brown go into violent convulsions after he was administered the drugs.

In May 1997, Oklahoma inmate Scott Dawn Carpenter shook uncontrollably, emitted guttural sounds and gasped for breath until his body stopped moving. Borg & Radelet, supra at 143- 168.

An attorney who witnessed the June, 2000, execution of Bert Leroy Hunter reported that Hunter had violent convulsions. His head and chest jerked rapidly upward as far as the gurney restraints would allow, and then he fell quickly down upon the gurney. His body convulsed back and forth repeatedly. Id.

Perhaps the most grotesque of all was the blow-out during the Texas execution of Raymond Landry on December 13, 1988. Two minutes into the execution, the syringe came out of Landry's vein, spraying the deadly chemicals across the room toward witnesses. . . . The tube had to be reinserted while Landry was half-dead. It took twenty-four minutes for him to die. Trombley, supra at 14 - 15.

These Horrors Were Foreseeable - Look at Angola and Auschewitz's Earlier Examples

Plainly, this is a disturbing history and there can be no principled argument that similar problems with lethal injections were not foreseeable.

But then instead of doing it for medical purposes, it was for killing . . . . It was very much like a medical ceremony . . . . They were so careful to keep the full precision of a medical process but with the aim of killing. - Auschwitz prisoner doctor, quoted in The Nazi Doctors, Lifton, R. (Basic Books, Inc., p. 254)

The executions which occur at F Camp at Angola have much in common with those which occurred during one of the darkest moments of the 20th Century--in the hospitals at the Nazi concentration camp at Auschwitz. Both involved the use of injections via a hypodermic syringe with many of the trappings of a legitimate medical procedure.

The major difference is that the Auschwitz executions were carried out by physicians or their assistants: AA patient was brought to a treatment room and there administered a drug by a physician or (in most cases) his assistant, who wore a white coat and used a syringe and needle for the injection. Lifton, supra, at 254. For ethical reasons, physicians are not involved in lethal injections at Angola, which presents serious problems for condemned prisoners. Much is unknown about the execution process at Angola, but it is clear that no physicians are involved.

Florida Executions Have No Medical Standards and No Physician Attends to the Lethal Injection For Ethical Reasons

A serious problem with is that Florida regulations is that they fail to provide any semblance of the medical standards that should attend an injection execution. Absent such standards, the defendant is not guaranteed that his execution will be carried out under procedures which minimize the risk of needless pain, suffering and the risk of lingering death.

In particular, the regulations do not address the following matters:

  • a. How are the lethal drugs labeled, stored and distinguished before and during the execution?

  • b. What are the percentage concentrations of the solutions of lethal drugs determined, and by whom are they determined?

  • c. What are the volumes of each of the lethal drugs used, and by whom are they determined?

  • d. What level of pressure is applied to each of the injections by the executioner(s)?

  • e. What period of time is prescribed for the initial "Normal Saline" drip before injection of the first lethal chemical?

  • f. What period of time is prescribed to administer each injection of lethal chemical and each intervening "flush" injection of "Normal Saline" solution?

  • g. What volume of "Normal Saline" solution is prescribed for the initial "Normal Saline" drip and for each intervening "flush" injection of "Normal Saline" solution?

  • h. How many executioner(s) are present during the procedure?

  • i. What activity does each of the executioner(s) perform?

  • j. What procedure is prescribed if two of the lethal chemicals mix together and solidify (precipitate) during the lethal injection procedure?

  • k. What is the medical training and expertise of the executioner(s) which establish that the executioner(s) is/are qualified to insert I. V.'s and perform I. V. cutdown[8] as needed and to inject chemicals in an sequence and a percentage concentration and flow of pressure to prevent unnecessary pain, torture or lingering death.

As described earlier, in the second part of this three part series, the injection of pancuronium bromide and potassium chloride are guaranteed to produce a horrifying and agonizing death unless the prisoner is fully anaesthetized and remains anaesthetized throughout. This, in turn, depends wholly and solely upon the non-medical personnel accurately measuring out and then successfully administering an adequate dose of sodium Pentothal.

Even a slight error in dosage or administration can leave a prisoner conscious but paralyzed while dying, a sentient witness of his or her own slow, lingering asphyxiation. Chaney v. Heckler, 718 F.2d 1174, 1191 (D.C. Cir. 1983), rev'd on other grounds, 470 U.S. 821, 837-38 (1985).

Common Medical Errors During an Execution by Lethal Injection Without Proper Medical Standards

As an expert anesthesiologist explains, the common errors that bedevil such a process include:

  • infiltration (the failure to correctly insert an IV line in a vein);

  • retrograde injections (the improper dilution of the lethal drugs with saline solution in the IV bag);

  • IV tubing leakage (caused by the need to join lengths of IV tube together to reach behind the executioner=s curtain); and,

  • incorrect dosages (the failure to administer a sufficient dosage given the individual differences from one person to another, including matters as diverse as body mass and drug use history).

See Affidavit of Dr. Mark Heath, M..D. && 27-35, on file in State v. Stephen Howard Oken, Ct.of App. of Md., No. 143 and Misc. No. 31 September Term 2003 (Motion for Stay of Execution and Supporting Exhibits, Exhibit 9, Appendix B, filed June 1, 2004, motion denied, State v. Oken, 851 A.2d 538 (Md. Ct. App. 2004)).

Over 50% of the Prisoners Are Aware - Not Unconscious As Assumed by the Use of an Anesthetic - As They Die

As a result of these common errors, prisoners executed by lethal injection suffer an unacceptable risk of being conscious during the administration of the pancuronium bromide and the potassium chloride. It has now been discovered that post-mortem blood levels of the anesthetic thiopental from prisoners executed by lethal injection show that in many cases there is a more than 50% likelihood that the prisoner was conscious as he died and in some cases, such as the execution of Desmond Carter in 2002, there was no more than a trace of the anesthetic left in the prisoner's system, guaranteeing consciousness. Id. at & 37.

Secret Execution Process in Lethal Injection - Unlike Electrocution - Guarantees No One Knows For Sure What Is Happening Here

Unlike execution by electrocution, fundamental stages of the process of execution by lethal injection are conducted in secret, out of view of counsel or the general public. For the reasons detailed below, such secrecy is constitutionally intolerable.  The regulations provide that the curtains to the witness chamber are closed for large portions of the procedure, including during the placement of the IV lines into the individual being executed and the adjustment of those lines.

Witnesses and, indeed, counsel for the condemned, view only a portion of the entire process that constitutes the execution. Certainly, witnesses are permitted to view the inmate during the period of time when the poison solution is flowing throughout his veins. But the execution proper begins when the needle breaks the skin. Significant problems are frequently encountered in this stage of the process. See Denno, supra at 95-128; Borg & Radelet, supra at 143-169; Trombley, supra at 14-15, 76; and other authorities cited in n. 5, supra. However, the regulations provide that this process is carried out in secret, out of the presence of counsel, the public and the media.

This Method of Execution - and the Secrecy Surrounding It - Is Unconstitutional

In a free and democratic society, and one which cherishes both the vigilant eye of the media and the presence of counsel, such secrecy cannot be countenanced. The execution of a sentence of death must be viewed as a critical stage of the criminal process, at which counsel may be present. Without the presence of counsel during this critical stage of the execution, the condemned is robbed of an advocate who could, in an appropriate manner, request that a bungled execution be halted.

[6] Cited in Denno, supra, at 111 n. 336. Professor Denno also independently canvases the protocols employed by all the states that employ lethal injection, and describes in detail, and with reference to the possible failures of the drugs used to do as they were expected, the federally administered execution of Oklahoma City bomber Timothy McVeigh. Denno, supra, at 117-128. Her survey exposes numerous instances in addition to the examples recounted in this motion.
[7] Borg & Radelet, supra and Trombley, supra catalogue dozens of events similar to those listed here. Press reports on specific executions also report horrific incidents throughout the country and across the years. See, e.g. Scott Fornek and Alex Rodriguez, Gacy Lawyers Blast Method: Lethal Injections Under Fire After Equipment Malfunction, CHICAGO SUN-TIMES, May 11, 1994, at 5; Rich Chapman, Witnesses Describe Killer's 'Macabre' Final Few Minutes, CHICAGO SUN-TIMES, May 11, 1994, at 5; Rob Karwath & Susan Kuczka, Gacy Execution Delay Blamed on Clogged IV Tube, CHICAGO TRIB., May 11, 1994; Witnesses to a Botched Execution, ST. LOUIS POST- DISPATCH, May 8, 1995, at 6B. 34; Tim O'Neil, Too-Tight Strap Hampered Execution, ST. LOUIS POST-DISPATCH, May 5, 1995, at B1; Jim Slater, Execution Procedure Questioned, KANSAS CITY STAR, May 4, 1995, at C8. 35; Sherri Edwards & Suzanne McBride, Doctor's Aid in Injection Violated Ethics Rule: Physician Helped Insert the Lethal Tube in a Breach of AMA's Policy Forbidding Active Role in Execution, INDIANAPOLIS STAR, July 19, 1996, at A1; Suzanne McBride, Problem With Vein Delays Execution, INDIANAPOLIS NEWS, July 18, 1996, at 1; Rhonda Cook, Gang Leader Executed by Injection Death Comes 25 Years after Boy, 11, Slain, ATLANTA JOURNAL CONSTITUTION, Nov. 7, 2001, p. B1; Store Clerk's Killer Executed in Virginia, N.Y. TIMES, Jan. 25, 1996, at A19; Killer Helps Officials Find A Vein At His Execution, CHATTANOOGA FREE PRESS, June 13, 1997, at A7; Michael Graczyk, Reputed Marijuana Smuggler Executed for 1988 Dallas Slaying, ASSOCIATED PRESS, August 27, 1998; Sean Whaley, Nevada Executes Killer, LAS VEGAS REVIEW- JOURNAL, Oct. 5, 1998, at 1A; Ron Moore, AAt Last I can be with my Babies," SCOTTISH DAILY RECORD, May 4, 2000, at 24; Rick Bragg, Florida Inmate Claims Abuse in Execution, N.Y. TIMES, June 9, 2000, at A14; Sarah Rimber, Working
[8] A "cutdown" (not referred to in the regulations) is a practice common in injection jurisdictions that involves a surgical intervention to insert the catheter. In non-medical terms, the prisoner's arm is cut with a knife to introduce the catheter. No local anesthetic is applied. The Supreme Court has noted that cutdowns have been described as Adangerous and antiquated medical procedure[s].@ Nelson v. Campbell, 541 U.S. 637, 125 S.C. 2117, 2122,158 LED. 2d 924 (2004).

US Supreme Court Finds Prosecution Intentionally Violated Due Process in 20 Yr Old Death Penalty Case

Monday, the Supreme Court heard argument in the Bies case (see 04/27/09 post), and the very next day issued its opinion in Cone v. Bell, 555 U.S. ___ (2009), both capital punishment cases where the defendant argued a diminished capacity of some sort. In today's case, there was an intentional hiding of the ball by the State and a definite due process problem.

Gary Cone was a known drug addict who murdered two people.

It is undisputed that Gary Cone was a Vietnam veteran who returned home to Memphis, Tennessee, and failed to cope well with civilian life. One Saturday morning in 1980, Gary Cone robbed a jewelry store - obviously, not very well - and was promptly pursued by local police in what turned into a high speed chase.

Veering into a residential neighborhood, Cone abandoned his car and shot both a police officer and a Good Samaritan who tried to stop him as Cone fled on foot. On the hunt for another getaway car, Cone tried to carjack someone and when they refused to give them the keys, he tried to shoot them, too, only to find he was out of bullets. By this time, helicopters were flying overhead and the scene was escalating to a frantic pace. (You've seen the reality TV shows like COPS, you can visualize these events.)

Somehow that Saturday afternoon, Cone got away. No one could find him. However, early the next morning, Gary Cone was still in the neighborhood - knocking on the door of an elderly couple, Shipley and Cleopatra Todd. He asked to use their phone; Cleo Todd refused and slammed the door on Cone. Cleo called the cops, and still Cone could not be found.

The tragedy occurred later that same day. Cone returned to the Todd home, forced himself into their house, and beat the two senior citizens to death before tearing their house apart. He shaved there, got himself to the Memphis airport, and was busted while robbing a drug store in Pompano Beach, Florida a couple of days later.

Vietnam Vet Cone Asserted an Insanity Defense - He Didn't Contest His Actions

Vietnam vet Gary Cone was arrested, tried, and convicted of the Todds' murder. He never challenged evidence that showed he committed these horrific acts. What he asserted as his defense was his mental illness: Cone's defense team brought forth evidence to show that Cone suffered from chronic amphetamine psychosis, a mental disorder caused by excessive drug abuse.

Experts testified that the drug use began while Cone was serving in Vietnam, where he was using "horrific" quantities of drugs while dealing with the bodies of dead soldiers. The mental illness caused by this drug use created a level of paranoia and a disorder including hallucinations that would keep Cone from understanding or being able to conform to everyday life and the boundaries imposed by Tennessee law.

In sum, the entirety of Cone's defense was mental illness. He was legally insane when the crimes were committed.

Prosecution Hid Reports from Cops on the Scene that Cone was "Wild-Eyed" and looked frenzied, and was acting crazy and weird

Who knows why the prosecution did such a blatantly wrong thing, but they did. They decided NOT to turn over witness statements and police reports from cops on the scene that obviously supported the lunacy of Gary Cone.

And these eyewitness accounts from police on the scene back in 1980 that fateful weekend in Memphis were crucial to the mental insanity arguments made by Gary Cone. They said things like Cone was "acting weird" and looked like he "was drunk or high." A cop reported that Cone was looking around in "a frenzied manner," and walking around in "an agitated manner." (For all the details, check out the Supreme Court opinion.)

These witness statements and police reports were withheld in direct contravention of the due process guarantees provided by the United States Constitution as well as the directives of the U.S. Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963). Brady holds that when a State suppresses evidence favorable to an accused that is material either to the finding of guilt or to the assessment of punishment, the State violates the defendant's right to due process, "irrespective of the good faith or bad faith of the prosecution." Id., at 87.

However, the Cone case is particularly egregious because the prosecution made no mistake here - they intentionally kept this evidence back. Those present at the oral argument in the Cone case report that the Justices were particularly upset about this fact and showed their displeasure in their questioning of the attorneys arguing on behalf of the prosecution. Imagine that - now that is real courtroom drama.

Supreme Court Sends the Case Back - Sentencing Phase Due Process Was Thwarted

The written opinion came down yesterday. Justice John Paul Stevens, writing for the majority, explained that information in the documents that were withheld by Tennessee prosecutors would not have sustained Cone's insanity defense - the police reports and witness statements were not enough to clear him of the crimes - but they were extremely relevant to his sentencing and whether or not the death penalty should be imposed:

"[b]ecause the suppressed evidence might have been material to the jury's assessment of the proper punishment, a full review of that evidence and its effect on the sentencing verdict is warranted."
Now, a federal judge will decide whether Gary Cone should remain on Death Row.

Here's another example of why criminal defense attorneys are committed to their work.

And for those of you wondering why people like me do what we do, well here is one prime example.

Due process is the only thing that protects the individual in this society when those in authority don't do the right thing. And it's through criminal defense attorneys at the trial and appellate levels that bring these cases through the review process, so that justice can be served and the backdoor maneuvers of overzealous prosecutors can be brought into the light of day.

News sources:

All Headline News
The Tennessean

23 Years After Being Sentenced to Die, 55 Year Old Nathan Fields Finally Exonerated

Last week, over in a Chicago courtroom, Nathan Fields stood to hear Circuit Judge Vincent Gardenia find him not guilty of murder. Nathan Fields is 55 years old, and he's finally been cleared 23 years after he was sentenced to death by a notoriously corrupt Illinois judge.

What happened in Nathan Fields' case?

The truth has come to light, and it has been shown that the trial court judge in Fields' initial trial accepted a $10,000 bribe in the case. Judge Tom Mahoney actually took the money to find Fields and his codefendant not guilty, but apparently Mahoney got nervous that he was about to be caught. So, he returned the bribe to its source, went ahead and found both men guilty of a double murder, and sentenced them both to death.

Nathan Fields Spent 7 Years on Death Row and Awaited Retrial for 11 Years

Nathan Fields was granted a new trial in 1998, and he was released pending retrial in 2003 when a fellow Death Row inmate put up his bail. That Death Row inmate who put up the money for Fields to walk free pending full exoneration is a man named Aaron Patterson. He's still on Death Row.

Patterson's generosity allowed Fields to be free in Chicago, with his family, after serving seven years on Illinois' Death Row. Still, it was over ten years before Fields' case came before another judge and his name was cleared of the murder charge.

What are his plans now?

Nathan Fields plans on taking a vacation with his family - he's never seen the ocean or the mountains, he's told reporters. He also plans on opening a construction company with his friend Aaron Patterson - although right now, Aaron Patterson remains behind bars.

Judge Tom Mahoney Fixed Murder Trials for Money

These are all facts that have been established. Judge Mahoney was caught for his evildoing, tried, and found guilty of conspiracy, racketeering, extortion, and obstructing justice in April 1993. Thomas Mahoney spent over 12 years behind bars before he died at the age of 83.

The U.S. Supreme Court's Perspective on Judge Mahoney's Actions

Mahoney's actions made their way to the United States Supreme Court, where his activities were scrutinized in the case of Bracy v. Gramley, 520 U.S. 899, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). There, a unanimous court heard the case where a criminal defendant argued that Judge Mahoney's taking in bribes other than the instant case nevertheless impacted his due process because Mahoney's criminality may well have influenced the judge's decisions in his case.

There, the petitioner argued he was "deprived of his right to a fair trial" because "[t]here is cause to believe that Judge Maloney's discretionary rulings in this case may have been influenced by a desire on his part to allay suspicion of his pattern of corruption and dishonesty." In Bracy, noting that only three judges in the totality of American jurisprudence had been found guilty of fixing a murder trial, with Mahoney being the sole jurist to do so in cases involving capital punishment, the court stated in an opinion written by Chief Justice Reinquist:

A judge who accepts bribes from a criminal defendant to fix that defendant's case is "'biased" in the most basic sense of that word, but his bias is directed against the State, not the defendant.

Brady, 117 S.Ct. at 1797.

And, once again, the point is made. The focus is not upon the particular defendant but upon the system itself.

It is a serious and blatant harm to the rights we all share in this country when due process of law is disregarded and disrespected by those in positions of authority. This is particularly and shamefully true when they are judges presiding over criminal matters.

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