Recently in Death Penalty Category

There is much attention being paid today to a report that Oklahoma used potassium acetate instead of potassium chloride in the execution of Charles Warner in January.  As near as I can determine, it is much ado about not much.

Abby Broyles of KFOR, who witnessed the execution, has this story.  She quotes a statement by Gov. Mary Fallin that DOC was advised that the two substances were "medically interchangeable."

It makes sense that they would be.  Both are potassium salts.  When such a salt dissolves, the positive potassium ion separates from the negative ion.  The purpose is to produce a massive increase of potassium ion in the blood, which causes cardiac arrest, and it should not matter what the negative ion is as long as it is nothing with a major biological effect of its own.

Sean Murphy of AP has this story, saying, "After the first drug was administered during Warner's execution, he said, 'My body is on fire.' But he showed no other obvious signs of distress."  That is inconsistent with Broyles' report which said that Warner's statement was made before any of the drugs were injected.  Both reporters were witnesses.  Whichever version is correct, he certainly made his statement before receiving the potassium, the drug that would cause painful burning if the inmate is not first sedated.

Swapping another drug for the one in the protocol should not be done, and the state is correct to hold executions until this is all straightened out, but there is no reason to believe that the swap caused any actual problem in the Warner execution.
As we have noted a number of times on this blog, the question wording in polls about the death penalty produces widely varying results.  The most common failure in poll questions on this subject is to ask a question that implies the respondent is being asked to specify a punishment for murder generally rather than the worst murders.  Punishment for the worst murders is the actual policy question to be decided.  Virtually no one today is arguing we should execute all murderers, yet poll respondents are regularly asked that.

Now we see a ray of light in the darkness.  The High Point University/News & Record Poll asked a question that is worded far better than the big boys at Gallup et al. seem to be able to manage.  A sample of 446 North Carolina residents were asked between Sept. 26 and Oct. 1:

"Thinking in general about your views of the death penalty, are there any crimes for which you believe people should receive the death penalty?"

HPU N&R Poll - Death penalty - Oct. 2015

The Kansas Death Penalty Arguments

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Three Kansas capital cases were argued in two parts in the U.S. Supreme Court today.  The cases are those of the Carr brothers (the Wichita Massacre case) and of another murderer named Gleason.  The first hour considered an issue common to all three cases, the Kansas Supreme Court's strange decision that the standard jury instruction in the case is unconstitutional because it imposes a burden of proof beyond a reasonable doubt on the prosecution for the aggravating circumstances but does not tell the jury there is any burden of proof on the defendant for the mitigating circumstances.  The second hour considered the issue of trying the Carr brothers together.  The transcripts are here and here.

One indication that a lower court decision is tripe is when the lawyer for a respondent spends most of his argument trying to convince the Supreme Court to duck the issue.  That is what Jeffrey Green tried to do representing Gleason and Jonathan Carr, claiming that the Kansas Supreme Court did not really decide this case under the Eighth Amendment but instead under state law, which the U.S. Supreme Court has no jurisdiction to review.  He did not make much headway.  The high court decided long ago in Michigan v. Long that if a state court decision is unclear on whether its basis is state or federal they will assume it is federal.  The Chief notes at page 34, with a note of exasperation, "The whole point of Michigan against Long was so that we wouldn't have to do what we've been doing for the last 10 minutes, which is to debate whether a decision that mentions both Federal and State law is based on Federal or State law."  Not a good sign for the defendants.

The Attorney General of Kansas argued this part personally for the people of that state.  Such personal appearances are sometimes criticized by people who say the office holders should step back and leave argument to the career pros, but they do send a message of the importance of the matter, and oral argument is mostly for show anyway.

SCOTUS Considers the Wichita Massacre

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Even among people who deal with violent crime all the time, there are some crimes of such revolting depravity, such pure evil, that they knock us back in our chairs just reading about them.  The United States Supreme Court considers such a case tomorrow.  It is the notorious case of brothers Jonathan and Reginald Carr, whose crime spree culminated in a case called the Wichita Massacre.

The horrifying facts of the case are described briefly in CJLF's brief and press release.

The Federalist Society will have a "courthouse steps" teleforum.  Details at the end of this post.
The Kansas Supreme Court bent over backwards to overturn the supremely well-deserved sentences of the Carr brothers.  Along with a dubious holding on severance of the cases, the majority's far-fetched theory is that because the jury was instructed to find other matters beyond a reasonable doubt, the fact that the jury was not expressly instructed on the burden of proof for mitigation meant that the jury might have turned this around and imposed a similar burden on the defendant to prove mitigating circumstances.  Under this scenario, a jury supposedly might have ignored mitigation proved by a preponderance but not beyond a reasonable doubt and then unanimously agreed to a sentence that the jurors would not have thought just if they had considered those circumstances.

"Preposterous" barely describes this convoluted logic.

A Serial Killer's Final Moments

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I previously linked a Washington Post story about the execution of serial killer and multiple rapist Alfred Prieto.  I want to quote some parts of it, however, to illustrate a number of points retentionists stress, but are mostly deep-sixed by the mainstream media.  My hat is off to the Post for allowing this story to be printed.

[T]he state of Virginia handles the execution of convicted murderers in a precise and professional way. Similarly, serial killer Alfredo R. Prieto lived the final moments of his life with his own version of professionalism, maintaining the same passive look he held through his three long trials in Fairfax, and defiantly refusing to show any remorse or regret as he issued a rehearsed final statement similar to a pro athlete being interviewed after a game. He thanked his "supporters" and then snapped, "Get it over with."

The last story I read about an execution, that of Kelly Gissendaner for plotting to have her husband sliced to death so she and her lover could share the insurance money, started off with how she sang "Amazing Grace" during the execution procedure. Somehow I suspect, "Get it over with" is more common, but doesn't get widely reported because it doesn't make good abolitionist propaganda.

The Real Machinery of Death

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"Machinery of death" is a favorite phrase of the abolitionist movement.  It was invented by Justice Harry Blackmun in order to justify his constitutionally obtuse, mostly lonely, and ever-so-sanctimonious opposition to the death penalty.

A better example of the actual "machinery of death" was put out of business this week by the Commonwealth of Virginia when, after years of courtroom battles, it executed Alfred Prieto.  Prieto had been convicted of "only" four murders, but was almost certainly responsible for nine.  Talk about a "machinery of death."  (He also raped four of his victims before killing them).

In the typical last-minute pitch, cobbled together more from abolitionist lore than from facts, his lawyers argued that he was mentally defective.  That argument did not garner a single vote I know about in all the many years this case has been in litigation.  In a different context, making an argument of that character would be called "fraud." In this one, it's called "due process."

The Washington Post has an excellent article written by a reporter, Tom Jackman, who witnessed the execution. Originally, I was going to link the article simply because it has photos of five of the victims, but I also found, after reading it, that it contains many, many insights from a journalist who actually took the trouble to research his story.  I commend it to our readers.

Obstruction Out to Infinity

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Atlantic, a frenetically anti-death penalty magazine, published a piece titled, "Virginia Executes Alfredo Prieto With Appeal Pending."  It starts:

The commonwealth of Virginia executed Alfredo Prieto at 9:17 p.m. on Thursday night, and, according to BuzzFeed's Chris Geidner, Prieto still had an appeal pending before the Supreme Court at the time of his death.

Virginia did not violate the law by executing Prieto, as Geidner notes, because no stay of execution was in force when the death warrant became active at 9 p.m. But states typically wait for the final ruling from the Supreme Court before beginning the execution process.

The piece then goes on with the by-now-standard advocacy about how the death penalty is "under scrutiny from both the public and the courts," as if "under scrutiny" means we should hesitate forever before imposing a legal sentence.

It's possible the author thinks his readership is so stupid it doesn't realize that a defendant's lawyer can always and at any time run to court with an appeal  --  thus meaning, according to the logic he implies, that a death sentence could never be carried out.  It's also possible he doesn't know that counsel could have previously asked the court for a stay pending an order specifically authorizing the execution.

Possible, but not likely.  What the author actually wants is to ensure that the death penalty, no matter how thoroughly reviewed in a given case, and how popular with the public, is, strictly for ideological reasons, obstructed out to infinity. 

Execution of a serial killer

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Tom Jackman reports in the WaPo, "We watched what appeared to be an utterly painless death for a man who brutally killed nine people and devastated nine families, and here is how it unfolded:"
A federal judge in Richmond, Virginia has lifted the temporary restraining order imposed yesterday by another judge in Alexandria, permitting the execution of serial killer Alfredo Prieto.  He is scheduled for execution for the murders of Rachael Raver and Warren Fulton in Fairfax County, Virginia.  He is also sentenced to death in California for the murder of Yvette Woodruff in San Bernardino County.  Tom Jackman has this story in the WaPo.

Prieto's claim that he is intellectually disabled was tried to a jury and rejected unanimously by them in one of his Virginia trials.  On retrial of the penalty, his lawyers considered the claim so weak they didn't even try again.

Prieto really should have been executed in California.  See Bill's post earlier today, noting a column by Debra Saunders.  The California case had already been through direct appeal and a first state habeas, the primary reviews a defendant is entitled to, before Virginia even began.  After the Virginia case was finally solved by DNA many years after the murder, that state tried the case twice and got it all the way through direct appeal, state habeas, and federal habeas while the state and federal courts in California were still stalling on secondary reviews.

A final claim in the case is that Virginia's refusal (or inability) to say where Texas got the pentobarbital it supplied to Virginia was a problem.  If the drug has been tested for potency and purity, it doesn't matter where it came from. 

Sterility is not required.  That is a concern in medicine to prevent postoperative infections, but the whole point of this procedure is that there is no post-op.  The form of pentobarbital sold for euthanasia of dogs under the trade name Euthasol says right in the product insert that it is not sterile.

The U.S. Supreme Court denied review here and here.  No dissents are noted.

Update:  Mission accomplished.  David Savage has this story in the LA Times.

California's New Death Row -- Virginia

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The title of this post is taken from Debra Saunders' spot-on and mind-bendingly ironic column in today's SF Gate. As Ms. Saunders notes:

California has a new Death Row -- it's called Virginia. Death penalty opponents, federal judges and defense attorneys have been so successful at blocking capital punishment in California that a San Quentin Death Row inmate has more to fear from being extradited for a capital murder to another state than seeing his sentence carried out here. There has been no execution in California since a federal judge effectively halted the practice in 2006.

There is undoubtedly someone more deserving of execution than the killer facing his imminent punishment in Virginia, but it's hard to think of one off-hand:

Take serial killer Alfredo Prieto. In 2005, Prieto was on San Quentin's Death Row for the 1990 rape and murder of 15-year-old Yvette Woodruff in Riverside County, when DNA evidence linked him to three 1988 murders in Virginia. Under Gov. Arnold Schwarzenegger, California sent Prieto to Virginia, where killers sentenced to death actually face the likelihood of execution. (Authorities say evidence links Prieto to nine murders.) In 2010, a Virginia jury sentenced Prieto to death for the murder of Rachel Raver and Warren Fulton, both 22. Prieto is scheduled for lethal injection at the Greensville Correctional Center in Virginia Thursday night. Just 13 inmates have been executed in California since the death penalty resumed in 1978. Prieto will become the secondāˆš California Death Row prisoner to be executed in another state.

We will probably never know how many innocent people are dead because Prieto wasn't executed before now.
From the OK Gov:

I, Mary Fallin, Governor of the State of Oklahoma, pursuant to Section 10 of Article 6 of the Oklahoma Constitution, hereby grant a stay of the execution of Richard Eugene Glossip of thirty-seven days from the current scheduled date of execution, September 30, 2015. This stay is ordered due to the Department of Corrections having received potassium acetate as drug number three for the three-drug protocol. This stay will give the Department of Corrections and its attorneys the opportunity to determine whether potassium acetate is compliant with the execution protocol and/or to obtain potassium chloride. The execution for Richard Eugene Glossip is therefore scheduled for Friday, November 6, 2015.
Technically that is a reprieve, not a stay.  The referenced section of the state constitution says, "The Governor shall have power to grant after conviction, reprieves or leaves of absence not to exceed sixty (60) days, without the action of the Pardon and Parole Board."

Glossip's petition to the U.S. Supreme Court was denied today with only Justice Breyer noting a dissenting vote.  They evidently were not impressed with his actual innocence claim, in contrast to Troy Davis, where they sent the case to a federal district judge for a full evidentiary hearing (at the conclusion of which he declared Davis's innocence claim to be "smoke and mirrors.")

Odd that potassium chloride would present a problem.  That is nothing fancy, just a simple salt.  Non-sodium table salt substitute (yuck) is often potassium chloride.

Georgia Completes Execution

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NBC News has this story, just breaking:

A Georgia woman who was executed despite a plea for mercy from Pope Francis sang "Amazing Grace" until as she was given a lethal injection, witnesses said.

Kelly Renee Gissendaner was put to death at 12:21 a.m. Wednesday after a flurry of last-minute appeals failed.

Gissendaner, who was sentenced to death for the 1997 stabbing murder of her husband at the hands of her lover, sobbed as she called the victim an "amazing man who died because of me."

Particularly noteworthy was this paragraph later in the article:

In the hours before her death, Gissendaner pressed a number of appeals, arguing that it was not fair she got death while the lover who killed her husband got a life sentence. She also said the execution drugs might be defective, and that she had turned her life around and found religion while in prison.

I must be missing the argument there that could not have been made many years before last night.  It strikes me that the time has long since come to sanction lawyers who intentionally clog the courts and make a spectacle of legal process by bad faith, last-minute, kitchen-sink appeals.


Mistweeting Justice Scalia

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Chris Schmidt has this post at ISCOTUS now, the moral of which is, "Tweets are a lousy way to get our coverage of public events."

Jennifer Pignolet of the Memphis Commercial Appeal tweeted live during a speech by Justice Scalia, "Ta[l]king now about the death penalty. Says he now has 4 colleagues who believe it's unconstitutional. He disagrees."  (Emphasis added.)  Just one small problem.  The "now" and the present-tense verb were completely wrong.  Schmidt reports,

Scalia did not say that four of his current colleagues are ready to strike down the death penalty.  What he said, as Pignolet of the Commercial Appeal reported in a follow-up article, was the following: "I sat with three colleagues who thought the death penalty is unconstitutional ... I sat with three colleagues, and there is now a fourth -- Justice Breyer has announced that he thinks the death penalty is unconstitutional."  This quotation clearly indicates that Scalia was looking backwards in time, to colleagues he sat with, not to his colleagues on the current Court.  He was not talking about Sotomayor or Kagan or Kennedy.  He was talking about William Brennan, Thurgood Marshall, and Harry Blackmun, each of whom denounced the death penalty as unconstitutional while sitting on the Court.  In talking about his four anti-death penalty colleagues, Scalia was not saying anything we didn't already know.

Another Bogus Atkins Claim

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Serial killer Alfredo Prieto is sentenced to death in two states, one of which actually carries out its sentences.  The anti-DP public relations machine is raising a stink with a claim that Prieto is intellectually disabled (formerly known as mentally retarded).  The U.S. Court of Appeals for the Fourth Circuit considered that claim in June.  After summarizing Prieto's evidence, the court said:

At the same time, however, the Commonwealth also presented extensive evidence that Prieto's adaptive functioning was not deficient. The jury heard from the prosecution that three prison psychologists had evaluated Prieto when he was incarcerated in California and that each had concluded that he was not intellectually disabled. One of these psychologists reported that Prieto's "cognitive functions were adequately developed, and that his level of conceptual thinking and reasoning were adequate for the formation of good judgement [sic]." The jury learned that Prieto had written his own prison grievances challenging his lack of access to recreation and had filed a pro se legal challenge to the conditions of his confinement on Virginia's death row. In these documents, Prieto employed accurate legal terminology and to prepare them, he conducted self-directed legal research. The jury received copies of Prieto's elementary and high school report cards indicating that he mostly received grades of "good" and "very good." The jury was reminded that Prieto acted alone in his crimes, and that he had exhibited leadership abilities when committing prior crimes.
In her breathless, Holier-than-Thou article in the NYT a couple of weeks ago, Linda Greenhouse, a Senior Research Scholar and Lecturer at Yale Law School, told us that distaste for the death penalty had reached the point in the United States that "there is a widespread de facto moratorium in place, even in most of the 31 states that still have the death penalty on their books."

This was despite the fact, which Ms. Greenhouse understandably never mentioned, that, up to that point in 2015, there had been 19 executions in the country, or one approximately every twelve days.  Also omitted was the fact that, over the last five years, there were 206 executions, or slightly more than one every ten days.

Adding to Ms. Greenhouse's less-than-conventional definition of a "widespread de facto moratorium" on executions was the one last night, as reported by Yahoo News.

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