Recently in Death Penalty Category

Michele Hanisee, Vice President of the Association of Los Angeles Deputy District Attorneys, has this post at the ADDA Blog.

The world contains extremely dangerous and evil people who cannot be deterred by threat of incarceration.  I'm not talking about the average gang murder or robbery gone bad.  I am talking about the people who rape infants to death, who kidnap, torture, rape and murder children, who target police officers in the line of duty, who kill not just one, but a half dozen or dozen or more innocent victims in serial and mass murders.  These people are the reason why California still needs a death penalty.
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Once California has an execution protocol in place, there is little the Governor or the Attorney General can do to thwart the implementation of the law.   After all appeals are final, jurisdiction over these cases returns to the local District Attorney and the local courts.   It is the local District Attorney and court who then schedule an execution date.  CDCR has no more power to refuse compliance than they have to refuse to accept a sentenced prisoner for housing.

It is important to remember that only a jury of one's peers can impose death - not the police, not the District Attorney, not the judge.  Jury verdicts are rendered by the citizens of the community because they have the strongest interest in keeping their communities safe and protecting residents from the criminals who would prey on them.  The people of this state voted to keep the death penalty and the Governor and Department of Corrections have an obligation to honor the will of the voters and impose the law of this state.
The Marshall Project, a soft-on-crime advocacy organization masquerading as a journalism organization, has this article claiming that Dylann Roof is an anomaly in that he is a white person who will likely face the death penalty for the murder of black people, dragging out the old race-of-victim bias claim again.

They quote raw numbers on race and executions from another masquerading organization, the Death Penalty Information Center.  But raw numbers mean nothing because of the apples-and-oranges problem.  Patterns of offending are not uniform across races, and a comparison of two groups that differ in ways other than the variable of interest proves absolutely zilch.  That is lesson one of day one of an elementary social science class, but if your purpose is to inflame rather than inform, you can just skip right over that.

Then there is this gem:

Capital Case Prosecutors Convention

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The Association of Government Attorneys in Capital Litigation (AGACL) opens its 36th annual conference today in Charleston, SC.  Its agenda is here.  I have the honor of addressing the General Session on Friday afternoon.  The subject will go under the broad heading, "Death Penalty Policy."

I'm planning it in three parts  --  a description of where I think the country is right now on capital punishment; the most effective answers I have seen over the years to abolitionist arguments; and a call to action in defense of the death penalty.

Any suggestions as to what in particular readers think it might be useful for me to say would be welcome. 
California's capital punishment opponents have a problem.  Despite about a thousand capital judgments in the post-Gregg era (beginning with the passage of the Deukmejian bill in 1977), they don't have a single substantiated case of an actually innocent person receiving that sentence.  So they have to make some up.

SF Chrontrarian Debra Saunders has this column on the CNN series Death Row Stories and its episode on Kevin Cooper.  First, she notes a prior episode of the series.

Last year, CNN's "Death Row Stories" ran an episode about a California woman convicted of first-degree murder, then freed when a federal judge overturned the verdict because prosecutors withheld evidence. I had a few issues with the episode, in part because Gloria Killian was not tried for capital murder and never spent a minute on Death Row. I wrote at the time, CNN should rename the series, narrated by capital-punishment opponent Susan Sarandon, "Death Row Propaganda."
On to Cooper:

When the tests finally were done, DNA nailed Cooper to the crime scene, where he claimed never to have been. In 2004, [defense investigator Paul] Ingels told me, "It proves, beyond any shadow of a doubt, that Kevin Cooper was involved in the murders."

When Cooper's lawyers devised this elaborate story about officials framing Cooper by manipulating DNA, forensics expert Dr. Edward T. Blake objected because he relies on those tests to exonerate innocent convicts. When I asked Blake if Cooper is guilty, Blake answered, "Yeah, he's guilty, as determined by the trial and the failure of a very extensive post-conviction investigation to prove otherwise." Blake also had worked for Cooper's defense team.

I've covered a lot of crime stories. I've never had two people who worked for the defense tell me an inmate is guilty.
Saunders has more on the case in a blog post.

Last Wednesday was the 20th anniversary of the murders of two toddlers, Michael and Alex Smith, by their mother, Susan Smith.  Ms. Smith was having an affair and hoped to run off with a man who didn't want to be burdened with kids  --  who can, after all, be quite a load at that age.  She dealt with this by strapping them in seat belts in her car, which she then rolled into a lake.  

In one of the more spectacular miscarriages of justice I can remember, the jury rejected a death sentence and gave her life.

She is taking full advantage.  This story, from ABC news, is chock full of lessons for those of us interested in criminal law, and capital cases in particular. 

Harmless Error

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What does it mean that an error is harmless?

Well, here is what seems to be a pretty good example.  Suppose a jury is told that the perpetrator's DNA matches the defendant's, and that the chance of that being a coincidence is 1 in 43,000,000,000,000,000,000,000.  Later, an error is discovered in the database from which that figure was generated.  It should have been 1 in 40,000,000,000,000,000,000,000. Does that matter?  Either one equals waaaaaaay less than reasonable doubt.

If I understand this AP article by Michael Graczyk correctly, that is the claim that caused the Texas Court of Criminal Appeals to stay the execution of Clifton Lamar Williams for the brutal beating, stabbing, and arson death of Cecelia Schneider, 93, of Tyler, Texas.

Still, to the extent there is any confusion on an issue affecting the actual guilt determination, it is right to be super careful.  On the other hand, we should have a rule against last-minute stays on issues that have nothing to do with guilt, say no less than 30 days before the execution.
The ABC News affiliate in Omaha has this story about a family that has volunteered with the Nebraska citizens' effort to allow the electorate to have its say on the legislature's death penalty repeal.  

As the story points out, billionaire George Soros has donated $400,000 to the effort to deny giving the voters their say.  I'm glad at least that he's such a fan of participatory democracy.  If I'm remembering correctly, he and his allies were backers of getting the death penalty on the ballot for voters to have their say in California in 2012 (Prop 34).  Perhaps the experience there (the death penalty won by a little less than half a million votes) convinced abolitionists that voters should be kept out of it.

Contributions to Nebraskans for the Death Penalty can be made here.

Oops, Wrong Sniper

The Stockton Record has this story on a locally notorious murder and the DA's decision to seek the death penalty. It's a good story overall, but I was taken aback by this passage:

Virginia, Scheidegger said, executed Lee Boyd Malvo, also known as the "D.C. Sniper," in less than six years. "And that's entirely doable (in California)," he said.
Of course, it was the mastermind of the D.C. Sniper conspiracy, John Allen Muhammad, who was executed.  I just referred to him as "the D.C. Sniper," as I usually do, when I spoke with the reporter.  The accomplice Lee Boyd Malvo was a juvenile at the time of the crimes and was not executed.

Update:  The Record has corrected the article.

The parenthetical "(in California)" is also added.  I think it is doable to get our state processes done in five years with the proper reforms.  Then the federal courts will have to have deadlines set by implementing Chapter 154, which would be about three years.  Realistically we are looking at about eight years.

Justice Breyer's Dubious Authorities

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The following is a guest post by Connecticut Senior Assistant State's Attorney Harry Weller, commenting on Justice Breyer's dissenting opinion in Glossip v. Gross on Monday. The Connecticut Superior Court decision referred to is In re Death Penalty Disparity Claims (Oct. 11, 2013), previously noted in this post.   As always, opinions expressed by guest bloggers are their own.

I was taken aback when I read Justice Breyer's reference to Prof. John Donohue's law review article about racial bias in Connecticut's administration of its capital sentencing scheme. That a United States Supreme Court Justice would quote an article about a study that was thoroughly rejected in litigation is astonishing. This is especially so in this instance, when the proponents of Donohue's study kept his written report from the habeas court to also block admission, on hearsay grounds, of the devastating and unqualified evisceration of his study by the state's expert.

I'm equally concerned that Justice Breyer cited the report without questioning the validity of Donohue's "egregiousness" scale. After all, Donohue just made up the scale and never tested it objectively to determine whether it indicated anything meaningful or relevant about  Connecticut's capital sentencing scheme. Thereafter, when his egregiousness results--compiled by law students from scrubbed summaries--disagreed with the results dictated by the statutory criteria for imposing a death sentence--as evaluated by experienced prosecutors, judges, and juries based on all the evidence--Donohue determined that the latter were arbitrary.

Glossip v. Gross Podcast

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For those of you who can't get enough of my commentary on Glossip v. Gross (and I know you're out there), yesterday's FedSoc teleforum is now available as a podcast.

Seriously, I'm told that the number of downloads of the podcast versions of the teleforums greatly exceeds the live participation on the calls, and I thank the Federalist Society both for hosting the teleforum and making the podcast available so promptly.

A small newspaper in central Pennsylvania published an editorial on Monday hailing Governor Tom Wolf's statewide moratorium on the death penalty.  It begins with a quote from novelist Raymond Chandler claiming that law is not justice but rather an imperfect mechanism that randomly jets out results - sometimes we get what we call justice; sometimes naught. 


The editorial proceeds by mentioning the case that led to the moratorium:  Hubert Lester Michael Jr.  Michael was convicted of the murder of 16 year old Trista Eng.  Eng had posted an ad to sell a chair, which Michael responded to.  Later Michael picked her up while she was hitchhiking. He bound, raped and killed her.  Eng's life was over at 16 because she posted an ad to sell someone a chair.   Her family is left to pick up the pieces. 


To which the editorial staff at the York Daily Record state:

All of us feel for these families. Many of us will never fully understand what they are going through.

And certainly, for them, and for many others, the death penalty is an emotional issue. But for the sake of justice, however imperfect, we have to be able to take a rational look at the death penalty and its purpose, its cost and its flaws, no matter how difficult that may be.

Mr. Michael is a poor candidate for this kind of rational reflection. He admitted his crimes. He had a history of brutality. He is a monster. It is easy to say, as York County District Attorney Thomas Kearney did, that he is "the poster child" for the death penalty.

Perhaps Mr. Michael deserves death.

But he is not what this debate is entirely about.

The rational debate about the death penalty is - at base - really about retributive justice.  The abolition movement is fond of recounting the "death is different" motto, which the Supreme Court invoked at least as far back as 1977.  But that is precisely the point: murder is a uniquely grievous crime that calls upon any civilized and orderly society to punish in an exceptional manner.   Society, of course, wants to deter murder and it wants to preserve the safety of its citizens, but justice, at least in this world, is an entirely human enterprise and it derives from the simple idea that people deserve to be punished when they have transgressed seriously against the social norms embodied in the law.

There is no "perhaps" in Michael's just deserts; what he deserves is worse than death but he mercifully gets less.  The conversation, though, is about deserving.  It is emotional but that does not render it irrational.  The touchstone of our humanity is that we can feel for others: the families of the victims; the outrage at the conduct of someone like Michael; the loss of safety that we all experience upon hearing of a horrendous crime; the brief thought: that could have been my child.  It is this same emotional affair that lends us to extend a lesser punishment for those who have truly extenuating circumstances.  Justice is not cold nor should it be because it is an entirely human endeavor not a mechanical one.   The debate about the death penalty does include concerns about its reliability as does the entire criminal justice system, but it is, at heart, a debate about what people like Hubert Lester Michael deserve and that is reason at its best. 

The outcome of the much-covered case, highlighted in articles here and here, filed by several death row inmates in Oklahoma holds great significance for the future of California's death penalty system.  In a 5-4 decision on Monday, the U.S. Supreme Court ruled on the case of Glossip v. Gross, determining that the sedative midazolam can be used in executions without violating the Eighth Amendment prohibition of cruel and unusual punishment.  Gov. Jerry Brown's administration now has 120 days to propose a new lethal injection method, as stipulated with families of murder victims in a recent settlement.  The ruling will fortunately create greater challenges for death penalty opponents and death row inmates, but a resumption of executions is not without obstacles:

-State law requires extensive public comment on a new execution method, including mandatory administrative procedures and hearings, a lengthy process that could take a year.

-Opponents of the death penalty may decide to return the ballot with a measure to replace the death penalty with life without parole, such as the one that was narrowly defeated by voters in 2012.

-Drug manufacturers are making it increasingly difficult for prisons to obtain lethal drugs for executions.

Glossip Symposium at SCOTUSblog

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It's been a busy day in the wake of Glossip.  The case has drawn a lot of media attention.  We will have some links to coverage tomorrow.

Tomorrow I will be on a teleforum with the Federalist Society at 2:00 p.m. ET.

SCOTUSblog is having a symposium on the case.  The first post to be published is by Alabama SG Andrew Brasher, a co-amicus on our side of the case.

I have sent in my entry.  I will post the last section after the break.  I'll have a link to the The full post when it is available on SCOTUSblog.

Update:  The posts by Deborah Denno and Stephen Schwinn are available now.  They are not happy campers.
The title of this post is taken in part from Ed Whelan's column in NRO's Bench Memos. His observations are especially pertinent to the claim, repeated ad nauseum, that the death penalty is headed for extinction.

There was a time when this was true.  As Ed reminds us, however, it was 43 years ago.  On this very day in 1972, in Furman v. Georgia: 

...five justices vote to overturn a death penalty as cruel and unusual punishment in violation of the Eighth Amendment but can't agree on a rationale. Each of the five justices instead issues his own opinion. Despite the fact that the Fifth and Fourteenth Amendments expressly assume the existence of the death penalty, Justices Brennan and Marshall each assert that the death penalty is in every instance an Eighth Amendment violation. 

This morning, about two generations and 1411 executions later, the Court issued its opinion in Glossip, saying, among many other things (emphasis added):

Our decisions in this area have been animated in part by the recognition that because it is settled that capital punishment is constitutional, "[i]t necessarily follows that there must be a [constitutional] means of carrying it out." 

So much for our abolitionist friends (or anyone) claiming to have a crystal ball.


1.  Justice Kennedy joined Justice Alito's strong opinion for the Court and did not pen any kind of concurrence.  For those who thought (or hoped) Justice Kennedy was on the verge of disbanding capital punishment, this is hugely important.

2.  If either of President Obama's appointees were inclined to outlaw capital punishment per se, now was the time to go on record by signing on to at least some part of Justice Breyer's dissent (with Justice Ginsburg).  Neither did.  It would thus appear that there are seven solid votes against the abolitionist position, including the five youngest Justices.

3.  The abolitionist shake-and-jive of trying to dry up lethal injection drugs as a means to end the death penalty not only failed; it backfired.  The Court has caught on, and caught on explicitly.

In my view, today's decision was the most significant Supreme Court victory for the death penalty since Gregg was decided in 1976.

P.S.  Last week, conservatives were doing a good deal of grousing about Burwell and Obergefell, and generally about Republican Supreme Court appointments. CJLF takes no position on those two cases.  I personally, however, would like to thank President Reagan for Antonin Scalia and President George H. W. Bush for Clarence Thomas, both of whom shredded the Breyer dissent.  And a special thanks to President George W. Bush for Sam Alito, whose precision, perceptiveness and analytical rigor were on bold display this morning.

UPDATE:  The CBS Radio News at 1 pm EDT led off with the Glossip case, and within 15 seconds was playing a comment by Kent.

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