WBNS-TV in Ohio is reporting this week on a topic that we periodically delve into: the reality of the death penalty appeals process, and how expensive this is in both time and money.  Good. The fact that not enough money exists for effective death penalty defense at the trial level, and how this directly correlates to a more expensive appeals process — well, more discussion on that truth would be welcome.  At least we’re seeing a start down that path.

Focusing upon the 26-year appellate journey of one case, the news story first discusses the details of Ohio Death Row’s David Stumpf’s case.  Stumpf was convicted and sentenced to death for the murder of Mary Jane Norman over a quarter of a century ago, and he’s still in the appellate process.  The coverage doesn’t end there, however; the investigative report also discusses the federal death row appellate docket of the United States Court of Appeals for the Sixth Circuit. 

Surprising to no one, their recognition is this:  it costs everyone involve a tremendous amount of time and money not just to try a death penalty case (as it goes through the two phases, guilt and penalty), but also to insure that the State is not seeking to execute an innocent man, or that the State is attempting to kill someone in violation of federal or state law.  That’s the reason for these appeals.  It can, and should, be rare that the government kills a citizen — and the appellate process is a vital protection to us all. 

Richard Dieter of the Death Penalty Information Center has written a paper discussing this subject, and includes the following data regarding costs (emphasis added):

In Texas, a death penalty case costs taxpayers an average of $2.3 million, about three times the cost of imprisoning someone in a single cell at the highest security level for 40 years.(3) In Florida, each execution is costing the state $3.2 million.(4) In financially strapped California, one report estimated that the state could save $90 million each year by abolishing capital punishment.(5) The New York Department of Correctional Services estimated that implementing the death penalty would cost the state about $118 million annually.(6)…

The California Supreme Court, for example, spends more than half its time reviewing death cases.(35) The Florida Supreme Court also spends about half its time on death penalty cases.(36) Many governors spend a significant percentage of their time reviewing clemency petitions and more will face this task as executions spread. As John Dixon, Chief Justice (Retired) of the Louisiana Supreme Court, said: "The people have a constitutional right to the death penalty and we’ll do our best to make it work rationally. But you can see what it’s doing. Capital punishment is destroying the system."(37)

Once again, it may well be that money will be the reason that more and more focus is placed upon capital punishment in this country — and this is a welcomed perspective.  The reality remains that there is a financial crisis in this land regarding providing competent defense to death penalty defendants at the trial level, and this obviously dominoes into a more expensive appellate process.  The more that everyone starts talking money and the death penalty, the better. 
 

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. 

 

Today, the Death Penalty Information Center (DPIC) held a press conference to release details about their latest poll concerning capital punishment in America today.  The DPIC describes its efforts as one of "the most comprehensive studies ever conducted of Americans’ views on the death penalty."

The poll itself was done by Lake Research Partners.  Those polled?  1500 registered voters.  Results?   Sixty-one percent (61%) opt for something other than the death sentence for murder with prefered alternative punishments being life with no possibility of parole and with restitution to the victim’s family (39%), life with no possibility of parole (13%), or life with the possibility of parole (9%).

See DPIC for more details.  Here is one chart summarizing their findings:

 

 

Okay, we’re aware that there is a national shortage of  thiopental sodium, one of the three drugs legally okayed to be used in execution by lethal injection.  The result has been delaying some executions.  In at least one instance, an execution kept to the calendar as the needed drug was purchased from an overseas supplier (not FDA-approved) (Arizona’s execution of Jeffrey Landrigan using a British product).

Over in Oklahoma, they’re got a different take on things, apparently.  Because in Oklahoma, news is that they are considering substituting pentobarbital for thiopental sodium — and in case you don’t recognize that drug, pentobarbital is the drug that vets have been using for years, to put down beloved family pets.  

So, Oklahoma appears to be answering "no" to the question of whether or not there is any difference between euthanizing animals and executing human beings.  Next question, will Oklahoma ask its vets to oversee the execution process since doctors are prohibited by their ethical oaths from doing so? 

The issue will be brought before federal judge Stephen Friot of the U.S. District Court for the Western District of Oklahoma, in a hearing set in Oklahoma City on November 19, 2010, on whether or not Oklahoma can substitute pentobarbital for thiopental sodium.  Judge Friot has been on this federal bench since 2001, appointed by President George W. Bush to the federal bench after practicing law for almost 30 years. 

Within thirty days of this hearing, on December 16, 2010, John David Duty is scheduled to be executed by the State of Oklahoma. If Oklahoma’s request is granted, Mr. Duty may will be the first man executed in this country through the use of pentobarbital. 

Here’s a question for the bench and bar’s consideration:  with the U.S. Supreme Court’s approval of Arizona’s overseas supplier, then why isn’t Oklahoma following Arizona’s precedent?  Can’t an argument be made that this is exactly what the U.S. Supreme Court was suggesting be done in view of the drug shortage? 

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:

  • 64% of Americans support death penalty for persons convicted of murder
  • 29% of Americans oppose the death penalty for those convicted of murder.

[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:

  • 49% chose the death penalty as the sentence for someone convicted of murder
  • 46% chose the life imprisonment option as the sentence for someone convicted of murder.

[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:

  • 49% did not believe that the death penalty is imposed often enough
  • 26% believed it to be "about the right amount"
  • 18% found it imposed too often.

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 discussed earlier this week, the ability to consider QEEG Brain Mapping as evidence in capital trials is of major importance. 

QEEG is different than other brain imaging tools.

Over the years, the ability of experts to provide analysis of the human brain through x-rays, CAT scans (Computerized Axial Tomography scans) or MRIs (Magnetic Resonance Imaging) has become routinely accepted, although each in their own time was considered to be a scientific breakthrough into the understanding of how the brain functions (or malfunctions).  These types of scientific tools, however, deal more with the structure of the brain itself.  Use any of them, get a visual of the particular subject’s brain structure.  A snapshot of sorts.

With QEEG (Quantitative Electroencephalography), you get more. QEEG goes to function, not just structure.  Through this new technology, experts can study how a particular subject’s brain is functioning — in real time — through this painless evaluation of the brain’s electrical activity.  This is done by around 20 sensors being placed upon the person’s scalp; they then read electrical neuron activity under certain conditions (eyes closed, open, etc.).  QEEG provides more than a snapshot; through expert analysis, these results more fully explain exactly how well, or how lacking, a particular person’s brain is capable of functioning. 

Why is this so vital in capital cases?

Intellectual functioning has been considered in regard to the death penalty by the United States Supreme Court.  In the landmark case of Atkins v. Virginia, 536 U.S. 304 (2002) the High Court ruled that it is unconstitutional to execute an individual suffering from "mental retardation" because this would be in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment.  The Supreme Court had also considered the issue in Penry v. Lynaugh, 492 U.S. 302 (1989)("Penry 1") opining that "mental retardation" should be a mitigating factor to be considered by the jury during sentencing – a case that was referenced and not expressly overruled in Atkins but which has come to be considered as effectively overruled by the Atkins case.  Consider the Florida statute (Florida Code Section 921.141(6)) listing our state’s mitigating factors in death cases:

Mitigating circumstances shall be the following:
(a) The defendant has no significant history of prior criminal activity.
(b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.
(c) The victim was a participant in the defendant’s conduct or consented to the act.
(d) The defendant was an accomplice in the capital felony committed by another person and his or
her participation was relatively minor.
(e) The defendant acted under extreme duress or under the substantial domination of another person.
(f) The capacity of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law was substantially impaired.
(g) The age of the defendant at the time of the crime.
(h) The existence of any other factors in the defendant’s background that would mitigate against imposition of the death penalty.

Over time, reference to the term "mental retardation" as it appears in precedent has been replaced with the more appropriate term "intellectual disability."  See, R. Schalock et al., "The Renaming of Mental Retardation: Understanding the Change to the Term Intellectual Disability," 45 Intellectual and Developmental Disabilities 2 (April 2007).  

Determination of a defendant’s intellectual ability is therefore paramount to the issue of sentencing – and the ability to use QEEG brain analysis here is of paramount importance to those interested in both the imposition of justice and the application of mercy.

For my blog readers, here is the press release issued earlier this week regarding QEEG admissibility:

Highly Publicized Grady Nelson Death Penalty Trial Sets National Precedent with Florida Circuit Court Judge Hogan-Scola’s Admission of QEEG Brain Mapping Evidence

Miami, Florida (PRWEB) 28 October, 2010 — “This may be the first time in any United States criminal courtroom where QEEG analysis has been ruled admissible and respected for its ability to provide vital information on brain injury and impairment,” explains Terence Lenamon, death-qualified Miami criminal defense attorney and co-counsel with David S. Markus in Grady Nelson’s penalty phase trial. 

On November 8, 2010, the death sentence will be at issue as the penalty phase begins in the highly-publicized trial of Grady Nelson for the first-degree murder of his wife, Angelina Martinez, who died after being stabbed over 60 times. This time, in a precedent-setting ruling by Judge Jacqueline Hogan-Scola, jurors will be able to include the results of brain mapping via a quantitative EEG (“QEEG”) in their deliberations of mitigating factors balancing between a life or death sentence for Nelson. 

In its simplest terms, explains testifying expert Dr. Robert W. Thatcher, a nationally known pioneer in QEEG analysis who is Board Certified by the American Board of Certification of Quantitative Electroencephalography and a principal in Applied Neuroscience, Incorporated, “…QEEG is a computer analysis of around 19 channels of simultaneous EEG recording under controlled conditions including 3-dimensional source imaging.”

Otherwise known as “brain mapping,” for over 20 years admission of QEEG results has been deemed largely inadmissible in state and federal courts across the country under the legal standards set by the U.S. Supreme Court under either its Frye or Daubert rulings. Historically, some judges have found QEEG testing to be insufficiently reliable to be admitted as scientific evidence. 

This evidentiary impasse has continued despite QEEG’s growing respect within the scientific community. Today, there are over 50 companies selling QEEG products in the marketplace. Among them, Applied Neuroscience, Incorporated sells its NeuroGuide Deluxe™ which has been tested as reliable. 

On October 6, 2010, the defense motion to allow QEEG evidence presented by Dr. Thatcher as admissible to the jury deciding the sentence of convicted murderer Grady Nelson was granted. After hearing arguments from both sides, and considering the scientific evidence and expert testimony given by both sides, the court ruled that QEEG met the standards of Daubert and Frye and would be allowed. 

 “[E]verything I have heard, the methodologies are sound, the techniques are sound, the science is sound,” ruled Judge Hogan-Scola, announcing that the QEEG evidence would be allowed when the penalty phase begins next month. 

To have Judge Hogan-Scola courageously allow QEEG evidence as part of the mitigating evidence brought forward by attorney Terence Lenamon in the penalty trial of Grady Nelson is newsworthy on a national level. It is a particularly important and welcomed step in the understanding of mental capacity as it relates to the punishment of defendants in this country, particularly those facing the death penalty.

“We are understandably encouraged by the fierce dedication to justice exhibited by Judge Hogan-Scola in her ruling on QEEG,” continues Mr. Lenamon. “Having a judge with her combination of legal expertise and scientific knowledge was crucial here, and the time to recognize QEEG analysis by experts such as Dr. Thatcher as sound science is long overdue.”

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

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

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

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

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

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

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

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

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

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

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

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

What is The Confession about?  From Doubleday:

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

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

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

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