There’s a new online resource for those interested in capital punishment and the death penalty here in the United States.  It’s called The Next To Die.

New Death Penalty Online Resource:  The Next to Die

The Next to Die is a site published by The Marshall Project (a non-profit news organization – more about The Marshall Project here) and its partners in the main stream media that include The Tampa Bay Times and the Houston Chronicle. 

What you can find at The Next to Die site:

  1. information about executions that are scheduled with time ticking down;
  2. updates on news coverage for upcoming executions; and
  3. background information on capital punishment (much of it provided by the Death Penalty Resource Center).

Note:  this is NOT a site that takes a position on the death penalty; it is being provided as a news source.  Moral questions aren’t being addressed here.  Its purpose is to “… bring accountability to the death penalty, a punishment that so divides Americans.”

 

Remaining Death Penalty Executions Scheduled for 2015

From the Death Penalty Information Center, here are the remaining executions that are scheduled in the United States for 2015:

 

October

14    TX    Licho Escamilla
21    AR    Bruce Earl Ward
21    AR    Don William Davis
29    FL    Jerry Correll

 

November       
 

3    TX    Julius Murphy
3    AR    Terrick Terrell Nooner
3    AR    Stacey Eugene Johnson
3    MO    Ernest Lee Johnson
10    TX    Gilmar Guevara
18    TX    Raphael Holiday

December      
 

14    AR    Marcel Wayne Williams
14    AR    Jack Harold Jones Jr

This month, the Supreme Court of the United States is going to be hearing oral arguments in the following Death Penalty cases, each asking the High Court to rule on aspects of the Eighth Amendment.

Text of the Eighth Amendment

 First, here’s the Eighth Amendment – that’s right, it’s only 16 words long:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

 

 

Death Penalty Oral Arguments Before U.S. Supreme Court This Month

Now, here are the death penalty cases that will be argued this month before the Supreme Court of the United States, starting next Wednesday (October 7):

1.  Kansas v. Gleason and Kansas v. Carr (two companion death penalty cases)

Oral argument: October 7 2015

Companion cases’ shared question: does a jury in a death penalty case have to be “affirmatively instructed” that mitigating circumstances do not have to proven by the defense lawyers at the beyond a reasonable doubt standard?

Gleason

Or, as stated in briefing (Gleason):

QUESTION PRESENTED:

Whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed that mitigating circumstances "need not be proven beyond a reasonable doubt," as the Kansas Supreme Court held in this case, or instead whether the Eighth Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances?

Carr

Kansas v. Carr has a second question: if multiple defendants are convicted of capital murder and therefore eligible for the death penalty, then should their sentencing trials be separated?

Or, as stated in briefing (Carr):

QUESTIONS PRESENTED:

1. Whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed that mitigating circumstances "need not be proven beyond a reasonable doubt," as the Kansas Supreme Court held here, or instead whether the Eighth Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances?

2. Whether the Confrontation Clause, as interpreted in Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006), applies to the "selection" phase of capital sentencing proceedings, as the Kansas Supreme Court held here, i.e., after a defendant has been convicted of capital murder and proof of eligibility for the death penalty has been presented in the guilt phase subject to full confrontation, or does not apply to such purely sentencing evidence, as at least three Circuits have held?

3. Whether the trial court’s decision not to sever the sentencing phase of the co-defendant brothers’ trial here-a decision that comports with the traditional approach preferring joinder in circumstances like this-violated an Eighth Amendment right to an "individualized sentencing" determination and was not harmless in any event?

Hurst v. Florida

Oral argument: October 13, 2015

This is the Florida case where the current capital punishment statute is being challenged.

Question for SCOTUS: does the Florida death penalty statute, which states that the judge make “independent findings” about aggravating factors if he or she is imposing the death penalty, violate the Eighth Amendment and/or the Sixth Amendment (right to a jury trial)?

Or, as stated in briefing:

QUESTION PRESENTED:

Whether the Florida Supreme Court correctly held that the jury in a death penalty case does not have a constitutional obligation to render a verdict in the penalty phase of whether the defendant is mentally retarded or not when evidence has been presented to support such a conclusion.

Whether the Supreme Court Of Florida has correctly concluded that this court’s decision in Ring v. Arizona, 536 U.S. 584 (2002) (1) has no applicability to Florida’s death sentencing scheme generally, (2)that specifically it does not require the jury’s recommendation of death be unanimous, (3) that the jury’s findings of aggravating factors need not be unanimous, (4) that the jury has no role in determining the factual issue of the defendant’s mental retardation, and (5) that the lack of unanimity does not offend our evolving standards of decency as required by the Eighth Amendment?

LIMITED TO THE FOLLOWING QUESTION: WHETHER FLORIDA’S DEATH SENTENCING SCHEME VIOLATES THE SIXTH AMENDMENT OR THE EIGHTH AMENDMENT IN LIGHT OF THIS COURT’S DECISION IN RING v. ARIZONA, 536 U.S. 584 (2002)

We’ve posted about the case of the man who has been diagnosed as schizophrenic and who sits on Texas’ Death Row awaiting execution. Read the details about the case here (you may recall Scott Panetti as the man who defended himself at his criminal trial, and tried to call as witnesses — among others — the Pope and John F. Kennedy).

Tomorrow at two o’clock in the afternoon, the U.S. Court of Appeals for the Fifth Circuit, in an oral argument set in Dallas and not New Orleans (the “home” of the Fifth Circuit), will consider the motion filed on behalf of Death Row inmate Scott Panetti which seeks to overturn the decision of a federal district court judge regarding adequacy of the legal representation that Panetti had.

The federal appeals court will consider whether or not allow the case to be reconsidered at the trial court level with appointed counsel as well as:

  1. funds for investigative and expert assistance for the appointed defense counsel; and
  2. time allowed for the preparation of a Petition for Writ of Habeas Corpus as a vehicle to challenge the constitutionality of the pending execution of Scott Panetti given his mental illness diagnoses which have spanned a 40 year time period.

For those interested in the mental illness issues of those sitting on Death Row in the United States, the following briefs may be of interest:

Note: As those who follow this blog know, the psychological issues that face many defendants who are either on Death Row or in trial with the state seeking the death penalty are areas in which  Terence Lenamon has extensive knowledge and experience.  Terry often deals with mitigation fights that involve severe mental illness of the person charged with a capital crime.

Investigative journalist M William Phelps just released a book about the Josh Fulgham case — a capital case that Terence Lenamon tried as Fulgham’s criminal defense lawyer in the death penalty case. (We’ve been posting about Terry’s defense in the Fulgham case here.)

Result?  Another victory for Terry over the state’s seeking of capital punishment.  There was no death penalty; Fulgham got a life sentence (two consecutive terms). 

What led the jury to this decision?  Read Terry’s Opening Statement in the Josh Fulgham case here.

New True Crime Book on Florida Capital Murder Case: Check it Out

 

Here’s more about Phelp’s book, “To Love and To Kill”:

The missing-persons case of Heather Strong, a young, beautiful suburban mother, baffled Florida detectives. When the file was handed to a veteran investigator, he knew Heather was dead. The challenge was to find her body—and whoever killed her. Soon, a sordid triangle of sex, jealousy, and rage came to light. The killers were cunning, manipulative, depraved—and they were as close to Heather as a man and a woman could possibly be. Vividly recreated by master investigative journalist M. William Phelps, this riveting account of seething small-town passions is a classic tale of crime and justice.

You should take a look at it.  (Terry’s mentioned in there, it’s a good read.)

More about the author, M. William Phelps, from his author website:

Crime, murder and serial killer expert, creator/producer/writer and former host of the Investigation Discovery series DARK MINDS, acclaimed, award-winning investigative journalist M. William Phelps is the New York Times best-selling author of 30 books and winner of the 2013 Excellence in (Investigative) Journalism Award and the 2008 New England Book Festival Award. A highly sought-after pundit, Phelps has made over 100 media-related television appearances: Early Show, The Today Show, The View, Fox & Friends, truTV, Discovery Channel, Fox News Channel, Good Morning America, TLC, BIO, History, Oxygen, OWN, on top of over 100 additional media appearances: USA Radio Network, Catholic Radio, Mancow, Wall Street Journal Radio, Zac Daniel, Ave Maria Radio, Catholic Channel, EWTN Radio, ABC News Radio, and many more.

Phelps is one of the regular and recurring experts frequently appearing on two long-running series, Deadly Women and Snapped. Radio America calls Phelps “the nation’s leading authority on the mind of the female murderer,” and TV Rage says, “M. William Phelps dares to tread where few others will: into the mind of a killer.” A respected journalist, beyond his book writing Phelps has written for numerous publications—including the Providence Journal, Connecticut Magazine and Hartford Courant—and consulted on the first season of the hit Showtime cable television series Dexter.

Phelps grew up in East Hartford, CT, moved to Vernon, CT, at age 12, where he lived for 25 years. He now lives in a reclusive Connecticut farming community north of Hartford.

Beyond crime, Phelps has also written several history books, including the acclaimed, New York Times bestselling NATHAN HALE: The Life and Death of America’s First Spy, THE DEVIL’S ROOMING HOUSE, THE DEVIL’S RIGHT HAND, MURDER, NEW ENGLAND, and more.

It’s only on television that the Federal Bureau of Investigation is always honorable and crime lab evidence is beyond reproach. 

In reality, FBI agents and especially the FBI Crime Lab, and evidence coming out of that FBI lab, have been brought into question — and even more, discredited by experts. 

That’s right:  FBI evidence has been wrong.  Even more scary, FBI evidence has been used to put people behind bars that prosecutors should have known better than to trust and to use.

FBI Evidence Not to Be Trusted 

For more on this scandal, check out:

“FBI admits flaws in hair analysis over decades,” published in the Washington Post on April 18, 2015

“CSI Is a Lie: America’s forensic-investigation system is overdue for sweeping reform," published in The Atlantic on April 20, 2015.

“Pseudoscience in the Witness Box: the FBI faked an entire field of forensic science,” published in Slate on April 22, 2015.

Attorneys Move for New Trial for Florida Death Row Inmate Oscar Bolin

Those who have lived in Florida for awhile may well recognize the name of Oscar Ray Bolin and the horrendous murders of three women (Natalie Holly, Terri Lynn Mathews and Stephanie Collins) that he has been convicted of committing, and for which he has been sentenced to death. 

Others may recognize his name because of the media coverage that has been given to his marriage to Rosalie Bolin, a noted mitigation specialist in death penalty cases. 

Note:  Rosalie Bolin is a friend and colleague of Terence Lenamon.  If you want to learn more about her love story with Oscar Bolin, check out the piece done by ABC’s 20/20 earlier this month, “How a Florida Woman and Convicted Serial Killer on Death Row Met and Fell in Love.”

 
Here’s the thing.  

Over in Hillsborough County, Oscar Bolin’s lawyers have brought forward a request for a new trial based upon an investigation done by the Office of the Inspector General. 

The basis of that request?  

The Inspector General’s report reveals thirteen (13) FBI agents working in the crime lab not only falsified evidence in the lab but they also took the witness stand and lied about it under oath.  One of those bad apples is an agent named Michael Malone.

This same FBI agent, Michael Malone, was the federal agent in charge of the evidence in Oscar Bolin’s case.  It was this agent, Michael Malone, who asserted that black fiber evidence connected Oscar Bolin to the murders of the three women for which he now sets on Death Row. 

At the Hillsborough County hearing, a whistleblower from the FBI, agent Fred Whitehurst, took the stand on Bolin’s behalf and not only described a “culture of corruption” at the FBI, but that the evidence provided by Michael Malone and his accompanying testimony about that evidence should not be considered in any trial because it is “unreliable.”

For more, watch the video here. 

Terry’s friend Rosalie Bolin and her husband, Oscar.

 

Death Penalty in Nevada

Few issues raise the passion of people as much as a discussion of capital punishment. The pro-death penalty crowd starts its argument from a moral base, often quoting the Bible as their source.

The anti-death penalty crowd has always attempted to counter the arguments with – wait for it – quotes from the Bible.

Now, a recently released study may be the pivot on which all future discussions turn – the economics of capital punishment. 

Costs

The criminal justice system in Nevada has found that it is almost twice as expensive to handle death penalty cases when compared with murder cases where the ultimate penalty isn’t sought.

A mandated state study that reviewed data from over 25 agencies gives added ammunition to anti-death penalty groups who have found arguing a moral point to be ineffective. 

From a suspect’s arrest through their final days in prison, state officials spend over $1.2 million on murder trials where criminals are condemned to death, but not executed. That’s roughly $530,000 more when compared to murder cases with capital punishment wasn’t sought. 

It may be counter-intuitive that death penalty cases are more expensive, but litigation costs, including the trial and appeals averaged about three times higher for death penalty cases than it did in non-death penalty cases. 

Among all Nevada prison inmates, convicted of murder, the costs are higher for people on death row. 

There are 83 people sentenced to die in Nevada. Prosecutors could have saved an estimated $43 million by not pursuing capital punishment in the first place. 

"The question is whether having that system is worth that kind of money," said Nichols Wooldridge, a criminal defense attorney in Las Vegas.

 

Death Penalty Rate

 

Nevada’s death penalty rate, per capita, ranks fourth in the nation and beats Texas and California. But the state’s death chamber is hardly used, and only twelve people have been executed since the US Supreme Court reinstated the death penalty in 1976. 

Of those, only one person died against his will. 

The last execution in the state occurred over eight years ago. 

Opponents Hopeful

Death penalty opponents in the state are hoping the findings will mean fewer death penalty cases in the state. 

The study’s findings are in line with previous research which examined the economic burden of capital murder cases. That research, released by the Kansas Judicial Council found that defending a death penalty cases costs as much as four times than other murder cases. 

Death penalty opponents hope that Nevada’s study will boost efforts to minimize support for capital punishment. 

"Many people who favor the death penalty believe it is cheaper," said Wooldridge. "Once people understand and they informed, maybe things will change." 

New Death Chamber

Even though Nevada doesn’t have any executions in the immediate future, it still pushed to complete a new death room at Ely State Prison in TK. 

Less than a week after Governor Brian Sandoval signed a capital improvement bill the Public Works Board published an announcement seeking preliminary qualifications statements from potential contractors. 

State lawmakers who had rejected funding for a new execution chamber in 2013 approved the cost this year despite significant reservations about the cost and lingering uncertainty over the death penalty. 

Contained in the bill Sandoval signed is $850,000 to remodel a prison admin building. 

Once executions are scheduled, state officials with the Nevada Department of Corrections plan to use midazolam, the same drug used in Oklahoma executions. 

Death penalty opponents in the state spoke out and said that usage of the potion will generate claims after extremely publicized cases of executions that were botched. 

Three death row inmates in Oklahoma sued after the state initially adopted midazolam last year when executing Clayton Lockett.

Witnesses to Lockett’s death reported that the inmate contorted, heaved and groaned. Prison administrators were horrified and tried to stop the execution procedure.  Lockett died 43 minutes later. 

Midazolam is an anti-anxiety drug meant to place prisoners in a coma before hydromorphone, which will cause death, is administered. 

The drug’s critics argue that it does not guarantee unconsciousness to evade pain from the follow-up drugs. 

Supreme Court Ruling

In a 5-4 decision, the US Supreme Court said using midazolam does not violate constitutional protections against cruel and unusual punishment. The court also noted that midazolam had previously been used in twelve cases without complications.

 Last Execution

 The last killing in Nevada was in 2006 at the since closed Nevada State Prison in Carson City.

 Daryl Mack’s execution was completed with a combination of pentobarbital, pancuronium bromide, and potassium chloride.

Nevada and additional jurisdictions have been scrambling to find options after death penalty antagonists convinced producers not to sell the drugs for executions. 

About 80 individuals are on Nevada’s death row. 

By the Numbers 

·         Number defendants sentenced to die: 131

·         Inmates permanently removed from death row because of legal action: 25

·         Death row inmates died from natural causes: 11

·         Death row inmates died from suicide: 2

About Face

Donald Heller, who wrote California’s death penalty law, is now advocating for replacing the death penalty with a sentence of life without parole. Heller says now that the law did not have the intended result. 

"At the time, I was under the impression that it would do swift justice, that it would get the murderers through the system quickly and apply the death penalty," Heller said. 

Now Heller says," The cost of our system of capital punishment is so enormous that any benefit that could be obtained is so dollar wasteful that it serves no effective purpose."

Truscott’s conviction was overturned in 2007.
______________________________

This article was contributed by New York-based criminal attorney Arkady Bukh, a frequent media contributor and published author.  Mr. Bukh served as defense counsel for Azamat Tazhayakov of Boston Bomber Marathon case. 

It has been published here without edit or change as provided by Arkady Bukh, 14 Wall St, New York NY 10005, (212) 729-1632.
 

Great series by the Death Penalty Information Center, "50 Facts About the Death Penalty," is now finished, with all 50 Facts online. 

Each Death Penalty Fact has a great image with a bit of information about the death penalty in America, and there are links to additional information on that particular topic for those who want to know more.  Really good stuff.

 

 

This week, a state supreme court held that the death penalty is unconstitutional — and banned all executions in the State of Connecticut. However, the holding is fact-specific to the situation in Connecticut. Three years ago, the state abolished capital punishment — but there were men sitting on Death Row already.

Connecticut Death Row Inmates Win Appeal

So, one of the Death Row inmates filed an appeal, arguing that it was unconstitutional for his execution to not be barred now that the same crime for which he had been sentenced to death would no longer be eligible for capital punishment in Connecticut.

The Connecticut Supreme Court agreed. Read the opinion here.

The Connecticut opinion does more than rule on the situation of what to do about the state’s remaining Death Row inmates, though. It also discusses the death penalty in general and contains arguments against this form of punishment, with language like “… no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose.”

Those advocating against the continued use of the death penalty in the United States might find this of particular interest.