Recently in Death Penalty Category

Death Penalty Repeal Fails in Montana

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Mike Dennison reports in the Montana Standard:

The state House deadlocked Monday 50-50 on a bill to abolish the death penalty in Montana, likely killing the measure for the 2015 Legislature.
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Monday's vote fell largely along party lines, with most Republicans against it - but it took three of the House's 41 Democrats voting "no" to reject the bill, which would abolish the death penalty in Montana and substitute it with life in prison without parole. Montana has two murderers on death row.
While the vote is welcome, it is unfortunate and worrisome that they got that close.  Repeal supporters have swung marginal votes with arguments that the process takes too long and costs too much, when the obvious answer is to make in faster and, in the process, cheaper.

The way to make review of death penalty cases faster and cheaper while making it more reliable with regard to genuine miscarriages of justice is to limit all repeated reviews, after the first full round of review, to questions with some bearing on actual innocence. 

Framed by the Innocence Project?

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We previously noted the Alstory Simon story here in 2008 and here last November.

Jacob Siegel reports in the Daily Beast on the restitution suit filed by the "actual killer" in one of the earliest and most famous "exoneration" cases.  The ironic and inconvenient truth is that the "actual killer" nailed by the "innocence" crusaders was actually innocent.

"It took two sides to get this thing done," Crawford says of the forces that pulled Simon into the murder case and put him in prison.

"This thing" Crawford refers to darkly is the collusion between overzealous state prosecutors and a high-profile leader of a since disbanded franchise of the Innocence Project, a nationally lauded legal program that gathers evidence to exonerate wrongfully convicted prisoners. In this case Crawford and others allege that in its eagerness to free a prisoner on death row, the Northwestern University branch of the Innocence Project framed Simon, and Cook County prosecutors went along with it.

Simon was convicted in 1999 for a double-murder in Chicago in 1982 on the basis of what he says was a coerced confession and released on Oct 30, 2014 after being exonerated by a new investigation. Now, in a bid for restitution and maybe some justice, Simon has filed a $40 million lawsuit against Northwestern and former professor David Protess, famed founder of Medill's Innocence Project.

According to Simon's lawsuit, "The horrific injustice that befell Simon occurred when defendants, Northwestern University professor David Protess, Northwestern University private investigator Paul Ciolino, and attorney Jack Rimland, conspired to frame Simon for the murders in order to secure the release of the real killer, Anthony Porter," the suit reads.
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The problem, as Cook County State's Attorney Anita Alvarez said in a statement after Simon's release, was that the "investigation by David Protess and his team involved a series of alarming tactics." Those tactics, "were not only coercive and absolutely unacceptable by law-enforcement standards," Alvarez said, "they were potentially in violation of Mr. Simon's constitutionally protected rights."

The Chair

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AP reports:

NASHVILLE, Tenn. - The Tennessee Supreme Court has agreed to hear a legal challenge over a law allowing the state to electrocute death row prisoners if lethal injection drugs are unavailable.

The challenge is part of a lawsuit filed by 34 death row inmates over Tennessee's death penalty protocols -- both lethal injection and electrocution. The state wants the court to dismiss the challenge to electrocution protocols because none of the inmates are currently scheduled to die by electrocution.

The new electrocution law was meant to jumpstart the state's stalled execution process, but it opened the door to new legal challenges.

The hearing is scheduled for May 6 in Knoxville.

The high court also is considering whether the state must release the identities of the people who carry out executions.

Jumpstart?  A curious choice of words.

Sometimes your allies are more trouble than your opponents.  These bills to revert to the electric chair or firing squad are not going to fix anything.  Look at Oklahoma, folks.

The Road Ahead For Oregon

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John Kitzhaber is no longer Governor of Oregon.  There is no news of his issuing any death row commutations on his way out the door.  AP has this story on a noncapital commutation. 

Kitzhauber's December 6, 2011 reprieve, quoted in the Oregon Supreme Court's decision in Haugen v. Kitzhaber, S060761 (June 20, 2013), reads,

NOW, THEREFORE, by virtue of the authority vested in me by Article V, Section 14 of the Oregon Constitution, I, John A. Kitzhaber, MD, Governor of the State of Oregon, hereby grant Gary D. Haugen a temporary reprieve of the aforementioned death sentence for the duration of my service as Governor.
The duration of his service is over.  The reprieve is over.  What next?

The new Governor, until-today Secretary of State Kate Brown, can and should allow the law to take its course.  The primary thing wrong with the death penalty is that the judgments take too long to carry out.  Imposing a moratorium as a remedy makes no more sense than the nineteenth-century doctors bleeding patients as a remedy.

But will she?

Ignorance At The Top

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You can't expect the average Joe on the street to understand precisely what a case pending before the U.S. Supreme Court is about.  I do expect the press to get it right, but I'm not shocked at an occasional error.

What is shocking, though, is for the Attorney General of the United States to completely misunderstand what a case before the high court is about. 

Sari Horwitz reports in the WaPo:

Attorney General Eric H. Holder Jr. said Tuesday that he would support a national moratorium on lethal injections until the Supreme Court reviews the protocol used in a botched execution in Oklahoma last year.
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"The Supreme Court's determination as to whether or not lethal injection is consistent with our Constitution is one that ought to occur," Holder said after reiterating his personal opposition to the death penalty.

"I think a moratorium until the Supreme Court made that determination would be appropriate."

That is the most ignorant statement I have ever heard from an Attorney General.

The Supreme Court is not determining whether lethal injection generally is consistent with the Constitution.  There is no serious question that the single-drug pentobarbital method that Texas has used without incident nearly 40 times is constitutional.  The case of Glossip v. Gross does not involve any question that would call that method into question.  That case involves the three-drug method used in Oklahoma, with midazolam as the first drug and with additional drugs to follow that would surely cause extreme pain if the inmate is not anesthetized by the first one.

To call for a national moratorium on all lethal injections, including those not implicated by the method involved in the case, is irresponsible and ignorant.  If Mr. Holder is concerned about the method being used in Oklahoma, he should show some leadership in helping to break down the barriers to the states' acquisition of pentobarbital.

The sooner he is gone the better.

In the sixth comment to a prior thread, Doug Berman, raises a number of important points I've seen frequently in the national death penalty debate.  They have sufficient gravity that I want to address them in a separate entry.

Doug's principal question is about the meaning of "proportionality" and the implications of that term in the law of punishment.

I had asked Doug if he thinks a jail sentence of any length fits the mind-bending crime of killing a hostage by burning him to death. Doug says that he does not.  He adds, however:

I also do not think a lethal injection would "fit" this grotesque crime, either. The only concept of "fit" that ever really made sense to me was the classic biblical admonition: "You must show no pity for the guilty! Your rule should be life for life, eye for eye...." With that concept of fit in mind, I think the only fitting punishment here would be seemingly be execution by burning at the stake.

In a prior thread, I believe you explained that certain concepts of civilization and humanity in the United States would preclude us from seeking this type of truly fitting punishment. I am not sure I would agree if I subscribed, in any significant way, to the notion that US punishment schemes should be principally focused on trying to impose "fitting" punishments. But, in my own assessments of punishments, I do not generally use vague normative terms like "fit" or "proportionality" because I really have very little idea of what these terms can possibly mean in the vast majority of cases, especially controversial ones.

Doug's questions are good ones, but, being a simple-minded man, I don't think the answers are all that hard.

State DP Legislative Notes

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In South Dakota, a bill to repeal the death penalty was defeated in committee, Mark Walker reports for the Argus-Leader.  A bill to allow people to state with their DMV registration that they did not want their murderers executed in the event that they were murdered was also killed, AP reportsUpdate:  The repeal bill, SB 121, was not merely defeated.  It went down in flames, 7-2.

In Oklahoma, bills to allow nitrogen hypoxia as an alternate method passed committees in both house easily: 9-0 for SB 794 in the Senate and 7-2 for HB 1879 in the House.  Sean Murphy has this story for AP.

In Virginia, the Senate approved a bill, S.B. 1393, to protect suppliers of execution drugs from harassment by extending confidentiality to them.  The bill now goes to the House.  The Governor supports it.
The United States Supreme Court has denied a stay of execution to Missouri murderer Walter Storey.

The Ethics Bureau at Yale filed an amicus brief claiming that counsel cannot ethically suggest a better method of execution while arguing against the one the state plans to use.  I think that is nonsense, and it is likely that five Justices of the Supreme Court think so also.  I plan to post a longer explanation later.

"Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would grant the application for stay of execution."

Update:  I may not get to this for a while, so I will upload it and let interested readers read it for themselves. This is wrong in so many ways I hardly know where to start.
On January 30 we had a hearing in our suit against the Secretary of the California Department of Corrections and Rehabilitation to force him to adopt a usable execution protocol.  See my post after the hearing.

Judge Chang has issued a final ruling.  It is dated Friday, February 6, although it was not available until late Monday.  The final ruling is a reprint of the tentative ruling with a few paragraphs added at the end making the tentative ruling final and addressing the AG's arguments at the hearing.

This is only a preliminary step, rejecting the AG's attempt to have the case thrown out at the threshold.  That attempt is called a demurrer in California and other states that follow the old procedure.  In federal courts and states that follow the federal model, it would be a Rule 12(b)(6) motion.  Although preliminary, it does settle two very important points:

1.  Victims have standing to bring this case, both as parties with an interest over and above that of the public generally and "public interest" standing to enforce a public duty.  The latter wouldn't be allowed in federal court, but we are not in federal court.

2.  CDCR has a duty to establish a protocol.  They do have discretion on the details, but not on whether they do or don't establish one.  The bureaucracy cannot place a de facto moratorium on capital punishment, as they did in Maryland and as they have in California so far, simply by sitting on their hands and not establishing the protocol.

These are the primary questions of law in this case.  Actually issuing a writ of mandate will require resolution of further details, but this is a big gain for the cause of justice.

CJLF's press release is here.

Update:  Maura Dolan has this story for the LA Times.  Jennie Rodriguez-Moore has this story for the Stockton Record.
It recently came out that Barack Obama lied when, as a candidate in 2008, he said he opposed same sex marriage.  He was for it from the getgo, as almost everyone around him knew.  But it would have posed electoral problems for him to tell the truth, so he didn't.  He correctly calculated that, at the time, lying would bring in more votes.

This revelation will come as a surprise to very few people.  This is, after all, the same man who, also for political gain, assured us that, "if you like your insurance, you can keep your insurance," knowing as he spoke that this was false.  Both the premises and the specific requirements of Obamacare made it certain that millions would lose their insurance, which they did.

For purposes of this blog, the question arises whether Obama is also lying when he says he supports the death penalty.  And make no mistake, this is indeed his stated position when campaigning in his home state:

I believe that the death penalty is appropriate in certain circumstances. There are extraordinarily heinous crimes, terrorism, the harm of children, in which it may be appropriate. Obviously we've had some problems in this state, in the application of the death penalty and that's why a moratorium was put in place and that's why I was so proud to be one of the leaders in making sure that we overhauled it, death penalty system that was broken. For example, passing the first in the nation videotaping of interrogations and confessions in capital cases. We have to have this ultimate sanction for certain circumstances in which the entire community says this is beyond the pale.

Is that what he actually thinks, or will that position, like his opposition to gay marriage, go over the side of the boat for political and/or ideological reasons?
The United States Supreme Court today granted a stay of execution pending its resolution of a certiorari petition to Lester Leroy Bower, who was found guilty of four counts of capital murder 31 years ago in Texas.  The Court of Criminal Appeals' opinion is here.

Applicant raised four issues in the instant application: (1) actual innocence based upon newly discovered evidence; (2) Brady violations; (3) a claim that Article 37.071 operated unconstitutionally because his jury did not have a vehicle to properly consider mitigating evidence; and (4) a claim that executing him after twenty-four years on death row amounts to cruel and unusual punishment.
I do not know which issue the Supreme Court thought warranted a stay, but I'm inclined to think it was the third.  The first two are largely factual determinations, and though actual innocence in a capital case would be enough to warrant the Supreme Court's attention, the unanimity in the lower courts suggests there is little there.  The fourth is the tired old claim that has never gotten more than a single vote in any Supreme Court case.

Are we really debating Penry, still, after all these years?

Texas 7 Murderer Executed

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Michael Graczyk reports for AP:

A three-time convicted robber who helped engineer the biggest prison break in Texas history was executed Wednesday evening for killing a suburban Dallas police officer while the notorious gang was on the run.

Donald Newbury, 52, became the third member of the group known as the "Texas 7" executed for the fatal shooting of 29-year-old Aubrey Hawkins, an Irving officer who interrupted the fugitives' robbery of a sporting goods store on Christmas Eve in 2000.

Why We Have the Death Penalty

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The list of horrors for which no sane person could think a jail term, no matter its length, is proportionate punishment, continues to grow.  The latest came out today, in this CBS story titled, "ISIS Video Purports to Show Jordanian Pilot Burned Alive."  This kind of barbarism has not been seen in, what, 400 years?

I'd like to ask those among our readers who oppose the death penalty in all circumstances to watch the tape (I haven't and I'm not going to).  Then I hope they'll explain why the death penalty is undeserved in this instance, and what other punishment consistent with civilized (and generally Eighth Amendment) standards fits this crime.

If they believe that the punishment should not fit the crime, contrary to the accepted view in every other aspect of criminal law, that's fine  --  they're entitled to that position  --  but I hope that, in the future, they'll say up front and loudly that that is the position they want the country to adopt.

Hearing on Lethal Injection Suit

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In November, CJLF filed suit against the Secretary of California's Department of Corrections and Rehabilitation demanding that he stop dragging his feet and establish an execution protocol that the state can actually use, given the constraints imposed by existing injunctions.  The suit is on behalf of two family members of murder victims, Bradley Winchell and Kermit Alexander.

The California Attorney General, representing the Secretary, filed a document called a demurrer.  That is, in essence, an attempt to get the suit thrown out at the threshold, saying that even if every fact we allege is true, we still don't have a case.  The hearing was last Friday.  The day before, Judge Shellyanne Chang issued a tentative ruling, favorable to us on all the major points.  After the hearing, she took the matter under advisement, but I saw no indication that anything in the oral argument changed her mind.

The California Attorney General is an advocate representing a client, but also a public official representing the public.  She has, at times, declined to advocate positions she considered contrary to the public good, even if legally supportable.  What I find particularly offensive here is the argument that victims of crime have no standing, as if they were complete strangers to the underlying criminal cases.  The people enacted Proposition 9 in 2008 to refute that notion, and nationwide victims of crime are gaining recognition as people with real, legitimate interests in seeing justice done.

KOVR, the local CBS affiliate on channel 13, sent a cameraman to record the hearing and to interview us on the courthouse steps afterward.  Update:  There was a brief segment on the 6:00 Friday newscast.  Some still shots of the interviews are posted after the break.

Texas Execution

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Michael Graczyk reports for AP:

A Texas man convicted of killing a 38-year-old woman nearly two decades ago while he was on parole for a triple slaying years earlier was executed Thursday evening.

Robert Ladd, 57, received a lethal injection after the U.S. Supreme Court rejected arguments he was mentally impaired and ineligible for the death penalty. The court also rejected an appeal in which Ladd's attorney challenged whether the pentobarbital Texas uses in executions is potent enough to not cause unconstitutional pain and suffering.

There are no dissents noted in the two Supreme Court orders.  Pentobarbital is the way to go.

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