Recently in Death Penalty Category

Texas CCA Denies Panetti Stay

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Continuing with the Panetti story (see previous post), the Texas Court of Criminal Appeals denied a stay 5-4, finding it had no jurisdiction.  Jim Malewitz has this story in the Texas Tribune, with links to the opinions.

Panetti's previous competency determination was in 2008.  The delay after that point was in litigating Panetti's claim that his "rights" under Indiana v. Edwards had been violated, i.e., that the Texas courts failed to anticipate the Supreme Court's correction of its own error and instead followed the precedents binding on them at the time.  (See comment to the previous post.)  Of course, Edwards didn't create any rights.  It only put a sensible limit on the right created out of whole cloth in Faretta.

So the trial court set an execution date on October 16, 2014, and counsel for Panetti filed their motion nearly a month later, less than 20 days before the execution.  Texas has an anti-last-minute statute limiting jurisdiction in the last 20 days.  No dice, say the majority.

These kinds of time limit laws can be harsh, but the unscrupulous tactics of the defense side has made them necessary.  Filing claims at the last minute that could have been made earlier and then demanding a stay to give the courts time to adjudicate them has long been a key tool in the obstructionist's toolbox.  See, e.g., Gomez v. U.S. District Court (Harris), 503 U.S. 653 (1992).
Continuing with the theme of Bill's post, the State of Texas has scheduled the execution next week of Scott Panetti for the 1995 murder of his wife's parents.  The editorial board of the New York Times can't help themselves.  Even when their position is basically a reasonable one, they still have to make absurd statements in the process.

During his capital murder trial, at which he was inexplicably allowed to represent himself, Mr. Panetti dressed in a cowboy suit and attempted to subpoena, among others, John F. Kennedy and Jesus Christ. A standby lawyer said his behavior was "scary" and "trance-like," and called the trial "a judicial farce."
The word "inexplicably" is just plain ignorant.  There is no mystery at all as to why Panetti was allowed to represent himself or who was to blame.  The blame lies squarely with the United States Supreme Court in the 1970s and its propensity at that time to make up rights that are not really in the Constitution.

In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court said that criminal defendants have a constitutional right to reject counsel and conduct their own defense.  Justice Blackmun noted in dissent, "If there is any truth to the old proverb that 'one who is his own lawyer has a fool for a client,' the Court by its opinion today now bestows a constitutional right on one to make a fool of himself."  In Panetti's case, make that a crazy fool.

The Faretta rule was long understood to be absolute in most jurisdictions, including Texas and the Fifth Circuit.  As long as the defendant was competent to stand trial, a very minimal standard, he had the constitutional right to represent himself, no matter how much of a farce he made of the trial.  If the trial court denied him that dubious right, the judgment would be reversed on appeal or overturned on habeas corpus.  The Texas trial judge was therefore correct, in the sense of following the precedents of both the state and federal courts, in allowing Panetti to represent himself.  In Indiana v. Edwards, 554 U.S. 164 (2008), we finally got the Court to modify Faretta and recognize that some people are competent to stand trial and assist counsel but not to be their own counsel, see CJLF brief, but 33 years had elapsed and a lot of water had passed under the bridge.

The issue in the courts now, though, is not Panetti's representation at trial but rather whether he is presently too crazy to execute. 
The record is now well established that if we are going to conduct executions by lethal injection, pentobarbital is the drug of choice.  That is the drug veterinarians use for animal euthanasia every day.

The manufacturer of pentobarbital has cut off the usual supply chain for obtaining it.  As discussed in this article by James Gibson and Corinna Lain forthcoming in Georgetown Law Journal, European governments are instigators of the shortage, interfering in a domestic policy choice of the United States that is quite simply none of their damn business.

The workaround is compounding pharmacies.  However, those pharmacies have been subject to harassment that makes them unwilling to supply the needed drug.  As noted in this post in September, the anti-death-penalty movement is responsible for the problematic executions carried out with other drugs when they made pentobarbital unavailable.

The Ohio Legislature is now moving forward, in HB 663, to extend confidentiality to suppliers of execution drugs.  The bill also prohibits any disciplinary action against doctors who provide the state with consultation on how avoid pain during an execution, which has been a problem.  The legislation declares contractual restraints on resale to be "void and unenforceable as against public policy."

Jeremy Pelzer had this article on the legislation last week on cleveland.com (site of the Plain Dealer).  He also has a follow-up article today on claims the legislation is unconstitutional.  Most of these claims are meritless, in my opinion.  Our friend Doug Berman from SL&P "said he believes HB 663 is 'probably' constitutional, but he questioned whether it would be better for Ohio to instead look at other methods of execution besides lethal injection."

A legislative analysis of the bill notes, "To the extent that the bill's provision voiding contracts applies to contracts entered into before the bill's effective date, it might be found to violate the clauses of the U.S. and Ohio Constitutions that prohibit the General Assembly from passing laws that impair contractual obligations."  True, but application to contracts made or renewed henceforth is worthwhile.  What we really need is for Congress to enact a law like this.  The Contract Clause only applies to states.
An important change in the public perception of capital punishment occurred about 15 years ago as stories of death row inmates being exonerated came to the surface.  Foremost among these stories was that of Anthony Porter, who was close to execution when another man confessed to the murder.  The truth was supposedly dug up by idealistic young journalism students who succeeded where the criminal justice professionals had failed.

The story was almost too good to be true for the anti-death-penalty movement.  And now we know it likely was not true.

Some years ago, I attended a talk by the lawyer for Alstory Simon, the man who confessed and went to prison while Porter was freed.  He said it wasn't the journalism students who got a confession from the "real" killer, it was a hired investigator.  On top of that, he said, the investigator used tactics that would result in a conviction being thrown out if a police officer had used them, and possibly a civil rights prosecution to boot.

Years later, the lawyer's efforts have born fruit, and Alstory Simon is the one who is exonerated.  Jim Stingl has this story in the Milwaukee Journal-Sentinel.

Ohio Legislation on Lethal Injection

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In Ohio, unlike certain other states, when they have a problem with their execution method their leaders actually show some leadership and do something about it.  Jackie Borchardt of Northeast Ohio Media Group reports:

State lawmakers will revise Ohio's lethal injection procedure by the end of the year, Statehouse leaders said during a legislative preview event here on Thursday.

House Speaker William Batchelder and Senate President Keith Faber, both Republicans, said concerns about Ohio's two-drug cocktail need to be addressed soon. The two leaders spoke briefly about what they want to accomplish before this legislature ends its work in late December and what might be among the first issues the next General Assembly will tackle in January.
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SCOTUS Stays Missouri Execution

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Last night the U.S. Supreme Court acted on two petitions from Missouri rapist and triple murderer Mark Christeson.  See description of the crime here.  There is no doubt about the justice in this case.  Guilt is conclusively proved by DNA, and the crime clearly warrants the penalty.  The Court is apparently satisfied that the lawyers purporting to represent Christeson actually do.  See prior post here.

In Supreme Court case 14-6878, the Supreme Court denied review of Eighth Circuit case 14-2220.  That case has to do with disclosure and compounded pentobarbital.

In Supreme Court case 14-6873, the Supreme Court granted a stay to allow it to decide whether to review Christeson's habeas petition, denied as untimely by the district court.  The Eighth Circuit denied a stay in case 14-3389. 

This case presents issues of representation of prisoners.  The Supreme Court opened a can of worms in its Martinez and Trevino decisions when it said that ineffectiveness of state collateral review counsel can be "good cause" for a federal court to consider a claim defaulted in state court.  If the same lawyer represents the prisoner in both proceedings, can he be expected to argue his own ineffectiveness?  But how many new lawyers are we going to appoint for one defendant?  We already say that trial counsel can't continue into habeas for this reason.  Is every defendant going to get another new lawyer for federal habeas, and will justice be delayed and denied in every capital case while that lawyer gets up to speed?  That could be some time, given how complex capital cases can be.

Note that this problem is not entirely limited to capital cases.  Martinez was not a capital case.  The problem of justice being delayed while the case is litigated is limited to capital cases, but the underlying conflict issues are not.

The Christeson case involves the related issue of appointed counsel missing the deadline to file the federal habeas petition, as distinguished from the state-court procedural defaults in Martinez and Trevino.

"He sat in a room, and he lied to me"

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In practical terms, the most important outcome for the cause of justice next week is control of the U.S. Senate, but in terms of "just deserts," the outcome I most want to see is for the people of Colorado to toss their profoundly dishonest Governor John Hickenlooper out on his ear.  Dennis O'Connor, whose 17-year-old daughter was one of four people murdered by Nathan Dunlap, explains why in this 30-second ad now being run on television by the Republican Governors Association.

A longer version for the internet is here.

Guy Benson has this article at Town Hall.

Texas Execution

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AP reports:

The U.S. Supreme Court denied the last-chance appeal of a former gang member scheduled for execution Tuesday evening after his defense attorneys argued that the man, who was convicted of killing three rivals 14 years ago in San Antonio, is mentally impaired.
The court denied a stay for Miguel Paredes in a brief order released Tuesday. Paredes, 32, was convicted along with two other men in the September 2000 shooting deaths of three people with ties to the Mexican Mafia. The victims' bodies were rolled up in a carpet, driven about 50 miles southwest, dumped and set on fire. A farmer investigating a grass fire found the remains.
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Paredes' attorney, David Dow, said the execution should be stopped because Paredes had "a significant mental disease" that may have affected his judgment when he told his previous lawyer 10 years ago not to investigate his family background. Dow also told the Supreme Court that Paredes' previous lawyer was deficient for not investigating the inmate's medical history.

In a response filed Tuesday morning, state lawyers said Paredes "presented no evidence that he is or ever has been mentally ill or incompetent," and that his earlier attorney couldn't be considered deficient when he "abided by Paredes' explicit instructions." Lower courts have sided with the state, which also noted that the latest appeal was filed after a deadline.
Unfortunately, the news story does not say what this "significant mental disease" is.  Update:  The Fifth Circuit's opinion indicates it is Dysthymic Disorder, which is kind of junior varsity depression.  Sorry, that is nowhere near severe enough to warrant reopening proceedings at this late stage.

Justice Breyer was recused from the case.  No dissent is noted.

Update 2:  Michael Graczyk reports for AP that the execution has been completed.

Another Unauthorized Filing?

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Here we go again.  Mark Christeson has a well deserved date with the Missouri execution team tomorrow.  See description of the crime here.  The usual last minute applications have been filed with the Supreme Court, but do the lawyers filing them really represent Christeson?  Justice Alito, the assigned Circuit Justice for the Eighth Circuit, including Missouri, wants to know.

See this post regarding the Ballard case in Pennsylvania last August.
One of the major themes of abolitionism is that because the death penalty unavoidably risks killing the innocent  --  and that sooner or later this is bound to happen  --  it must end.

The premise is right.  The conclusion is wrong.  It rests on the tacit view that the government's killing the innocent is an unacceptable price to pay, no matter how just the cause otherwise might be.

There are two problems.  One is that this view is false.  The other is that, not unrelatedly, almost no one believes it.

This was brought home to me graphically this weekend, when I read this article in the New York Review of Books.  As a nation, we killed thousands of innocents because, though it was a mind-bending moral price, it was worth it, given the stakes.

More on the Gallup Death Penalty Poll

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Yesterday we noted on this blog that the Gallup Poll found little change in Americans' views on the death penalty.  Well, "little change" isn't news.  It's dog bites man.  So Mark Berman in the WaPo has this story emphasizing the supposedly "botched" executions, plural, in the last year, and implying a sense of wonderment that this didn't change anything.  (Only one actually qualifies as "botched," IMHO.)

Well, why should it?  Do we change our views on any major issue because of isolated problems?  Do air bag recalls make us stop driving cars?  The problems with lethal injection are, for the most part, caused by the opponents of capital punishment, and our response should be to fix the problems, not to abandon a punishment that the vast majority of the American people believe to be the fundamentally right one for the worst murders.

Far worse than this, though, is a link at the bottom of the page, which takes the reader to a May 1 article titled "Everything you need to know about executions in the United States."  I hadn't seen this before.  Turns out that "everything" is the anti-death-penalty crowd's talking points straight down the line.  One misleading half-truth after another. Seriously, if anti-DP propagandist Richard Dieter had written this article himself, this is pretty much how he would write it.  Dieter is quoted twice in the article, without identifying him as an advocate for one side.  Ditto Denno.

It is disappointing to see such shamelessly one-sided coverage in the WaPo, which has generally been more balanced than certain other major newspapers.

Debating the Death Penalty

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Kent noted that it's next to impossible to change someone's mind about the death penalty, because the most basic and controlling views are dug deeper than the place argument can reach.

I've had much that same experience.  In all the time I've been thinking about this issue, I have changed only two minds.  One belonged to my mother-in-law, a pretty much down the line liberal, but with an independent streak (she ran away from home as a teenager to join the Israeli army in its earliest days.  She was an ambulance driver on the battlefield).

She held the conventional wisdom in Upper East Side Manhattan, where she lived. We got to talking one day about capital punishment, and I brought up the question what we're supposed to do with a previously convicted, angry and unrepentant multiple killer serving LWOP, who then does it again in prison, and vows this won't be his last.

That stumped her.  (She's not the only one, of course).  So she came around.

She was very into Jewish causes (the Holocaust Museum among them).  I'm sure she knew that Israel had kidnapped and executed Adolph Eichmann, and thought that was the right thing to do.  I believe that set the stage for her having the sort of open mind that, while rare, is the essential precondition for coming around. 
Earlier today, I noted Gallup's most recent poll on people's attitudes on the death penalty.  That post was updated later with some further data.

Structured questions in polls can give useful numbers, but open-ended questions can tell us some interesting things also.  Art Swift of Gallup reported separately on an open-ended question that asked people for the reason behind their position on the main question.
Gallup has this report by Jeffrey Jones, with the above headline, on its last poll on the death penalty.

On the standard question, asked since the 30s and best used for trends over time, support is 63%, about where it's been for the last decade.  There is a strong difference by political party, but even among Democrats, the "yes" vote is a plurality, just shy of a majority.

On the very badly worded question that effectively asks people to specify a single punishment for all murders regardless of degree or circumstances, respondents chose the death penalty over life without parole by 50-45.  This is up in the last few years.  The LWOP choice was briefly a tick ahead, 48-47, in 2006.

The actual public policy question to be decided -- what punishment to impose on the very worst murderers -- was once again not asked.

My criticisms of poll wording on this topic are noted in this post last February.

Update:  Not mentioned in the report linked above, but found in the linked data report, is a better question, "In your opinion, is the death penalty imposed -- [ROTATED: too often, about the right amount, or not often enough]?"  This question is better because, unlike the other two, it at least partially addresses the fact that were are talking about a (small) subset of murders, not all murders.  The result is 40% Not Enough, 28% About Right, 24% Too Often, and 9% No Opinion. 

Support for capital punishment in its present scope or tougher is the sum of Not Enough and About Right, which comes to 68%.  That's down somewhat from the historical average ("only" 2/3, rather than 3/4), but it still swamps the Too Often vote by well over 2-to-1.
CBS4 in Denver has this story with the above title.

A victim of the Aurora theater massacre said he believes defense lawyers and anti-death penalty groups have tried to use him like a pawn.

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