Recently in Death Penalty Category

A quadruple murderer whom 11 out of 12 jurors believed should be executed has been let off with life in prison due to the state's ill-conceived single-juror veto law.  AP reports (emphasis added):

A Florida man convicted of killing his ex-girlfriend, her new boyfriend and her parents has avoided the death penalty.

The Tampa Bay Times reports 11 of 12 jurors voted Tuesday for 32-year-old Adam Matos to be executed, but without unanimous agreement, Matos automatically received a life sentence. The jury convicted him last week of four counts of first-degree murder.

Authorities say Matos fatally shot Megan Brown and her father, Greg Brown, at their Hudson home in 2014. He also fatally beat Margaret Brown and Nick Leonard with a hammer, jurors heard.

When the Hurst-fix bill was going through the Florida Legislature, I told everyone who would listen that a single-juror veto system (1) is not constitutionally required; and (2) will lead to arbitrary results and miscarriages of justice.  Nobody was interested.  This is the result.

Once more, with feeling, the right way to do it is the way Arizona and California do it.  The jury must be unanimous one way or the other to reach a verdict, just like in the guilt phase.  If the jury hangs in the penalty phase, declare a mistrial and empanel a new jury, just like in the guilt phase.  Why can't everyone who isn't dead set against the death penalty see that?

I  bring you the beginning of this story from the Washington Post, revolting even by the standards we sometimes need to discuss on this blog (emphasis added):

About 4:02 p.m. on Friday, police in Jerseyville, Ill., were dispatched to the Jersey Community Hospital in response to a 6-year-old boy's death.

Police say the child starved to death last week after his father and stepmother spent two years withholding food from him as punishment.

The boy, barred by Michael Roberts and Georgena Roberts from eating regularly since December 2015, died Friday weighing just 17 pounds, according to court documents. 

Some questions:  Do you think this was really "punishment" for anything?  Do you think it might just have been torture for the fun of it?  How do you think it feels to be starving to death for a third of your life?  Do you think a jail term, whatever its length, is proportionate to the grotesquely prolonged cruelty and sadism of these people?

UPDATE:  Most comments come in during the first day.  I see now, after waiting that day, that our usual abolitionist spokesmen  --  seldom at a loss to tell us how morally and intellectually superior their stance is  --  have nothing to say about this case.  It's usually a mistake to construe silence as an admission, but not this time.
Paul Hammel and Joe Duggan report for the Omaha World-Herald:

LINCOLN -- The State of Nebraska took a big step Thursday toward executing its first death-row inmate in 20 years, using an untried combination of lethal-injection drugs.

Attorney General Doug Peterson said Thursday that he is prepared to request a death warrant for Jose Sandoval after at least 60 days, which is the minimum notice period for condemned inmates under the state's execution protocol. The Nebraska Supreme Court issues death warrants if an inmate has no pending appeals.
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The Nebraska Department of Correctional Services notified Sandoval that it will inject four drugs in the following order: diazepam, fentanyl citrate, cisatracurium besylate and potassium chloride.

The Vienna Convention, Yet Again

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As noted in the update to yesterday's News Scan, Florida and Texas both carried out executions yesterday.  The Texas case involved the Vienna Convention claim rearing its ugly head again.

The usual suspects make the usual noises that the United States violated international law by going ahead with the execution, but it did not, either in this case or the landmark Medellin case.  Some background info is given in this post from 2014 on another Vienna Convention case.

In a nutshell, the United States is treaty-obligated to comply with the decision of the International Court of Justice in the Avena case, even though it is wrong, in the 55 cases that were before the ICJ in that matter.  The Optional Protocol, to which we were a party at the time but have since withdrawn, requires compliance.

However, compliance means only that a court review the case to determine if there was any prejudice from the violation.  See ¶ 121.  The ICJ rejected Mexico's contention that retrial or resentencing was required in every case.  See ¶ 123.

A Simple Suggestion on the Death Penalty

The death penalty continues to draw significant majority support, although less so now than over the last couple of decades.  See Kent's report on the Gallup Poll, here.  It also seems safe for the indefinite future from abolition in the Supreme Court, as I noted Monday.

There was a time when abolitionists argued principally that the death penalty is immoral, because, first, the government should not be killing people, and second, there is always the risk of executing the innocent, with no going back if we make a mistake.  These arguments failed to move the needle much for at least the last 40 years, so abolitionists have turned in a different direction:  They now say the death penalty simply costs too much and takes too long.

They're right about that, of course.  It does take too long and it costs a boatload  --  because abolitionists have made sure it does, by creating dozens and dozens of manufactured procedural issues having nothing to do with guilt, innocence or moral culpability.

The problem is that abolitionists' proposed solution does not follow from their premise.

The SCOTUS Lineup on the Death Penalty

The Supreme Court today announced a unanimous per curiam opinion in Dunn v. Madison.  I'll repeat the Heritage Foundation's summary of the case:

[T]he Court reversed a decision of the Eleventh Circuit in an Antiterrorism and Effective Death Penalty Act (AEDPA) case. AEDPA provides that a state prisoner is entitled to federal habeas relief only if the state trial court's adjudication of the prisoner's claim "was contrary to, or involved an unreasonable application of, clearly established Federal law." In this case, an Alabama trial court sentenced Vernon Madison to death for murdering a police officer. Awaiting execution, Madison suffered several strokes and petitioned for habeas, asserting that he had become incompetent to be executed. Experts testified that although Madison could not remember the "sequence of events from the offense to his arrest to the trial or any of those details," he did understand he was "tried and imprisoned for murder and that Alabama will put him to death as punishment for that crime." The district court denied Madison's petition but the Eleventh Circuit reversed. Today, the Supreme Court reversed, holding that no Supreme Court precedent has "'clearly established' that a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case."


Ginsburg, joined by Breyer and Sotomayor concurred, writing that while AEDPA precludes consideration of the question in this case, the question of "whether a State may administer the death penalty to a person whose disability leaves him without memory of him commission of a capital offense" "warrant[s] full airing." Breyer also concurred, writing separately to (once again) call into question the "unconscionably long periods of time that prisoners often spend on death row awaiting execution."


Bob Egelko has this story with the above headline in the SF Chron:

California has not executed a prisoner since 2006, but a legal scholar who opposes the death penalty says a recent state ballot measure and U.S. Supreme Court rulings could doom as many as 20 inmates who have run out of appeals.

With the passage last year of Proposition 66, which eliminated regulatory review of the state's new one-drug execution procedures, "I think there's going to be a wave of executions," Erwin Chemerinsky, dean of the UC Berkeley Law School, said Tuesday in a meeting with The Chronicle's editorial board.

That "wave" is long-overdue justice in some truly heinous murder cases, and, yes, that was the idea.

Gallup Poll on Death Penalty

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Gallup is out with its annual poll on the death penalty.  The article is here, and the data are here.

On the question that comes closest to the actual issue to be decided, the poll is unchanged within the margin of error for the last six years.  That question is, "In your opinion, is the death penalty imposed -- [ROTATED: too often, about the right amount, or not often enough]?" 

In 2011, the answers were Too Often 25%, About Right 27%, and Not Enough 40%, which means that 67% favored current or greater application.  This year's numbers are 26, 26, and 39, respectively, well within the ±4% confidence interval.

The question Gallup has asked since 1936 is, "Are you in favor of the death penalty for a person convicted of murder?"  The question is misleading as it asks about the death penalty for murder generally rather than just the worst murders.  So understood, I would answer that question "no" myself.  Gallup seems oblivious to the deficiency in this question, though, and regularly headlines the results in its reports.  This year's "favor" answer to that question is the lowest since March 1972 (before Furman v. Georgia), and that is the headline on their report.

At least 6% of the sample answered "not enough" or "about right" to the better question and "oppose" to the old one.  At least 15% of the sample answered "oppose" to the old question yet did not answer "too often" to the better one.  Clearly, interpreting an "oppose" answer to the old question as opposition to the death penalty in all murder cases is not correct.  Many respondents do not see it that way.

Proposition 66 Case Now Final

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On August 24, the California Supreme Court upheld the death penalty reform initiative, Proposition 66, rejecting every one of the attacks made on it.  See this post.  However, the opponents filed a petition for rehearing, and the court gave itself 60 days to consider it.  See this post.

Today, the court denied rehearing, making only trivial modifications to the opinion.

This is a major victory, even if a delayed one.  The issues are nearly all of state law.  The only federal question was a bogus equal protection claim that the majority easily swatted down and the concurrences didn't even bother to mention.  There is no substantial basis for a certiorari petition to the U.S. Supreme Court.  This case is over.

So the effective date of Proposition 66 is today when it should have been almost a year ago, the day the voters enacted it.

United States District Judge Richard Seeborg does not give a damn what the United States Supreme Court says; he is going to ensure no one is executed in California regardless of controlling precedent.

In Glossip v. Gross (2015), the Supreme Court set out the requirements for a death row inmate to obtain a preliminary injunction in a method-of-execution civil suit.  One of the elements is that he must "establish a likelihood of success on the merits."  (Slip opinion p. 11.)  To establish that in a method-of-execution suit, the high court ruled (p. 13):

"requires petitioners to establish a likelihood that they can establish both that [the state's] lethal injection protocol creates a demonstrated risk of severe pain and that the risk is substantial when compared to the known and available alternatives."

Years ago, before Glossip, a California murderer named Michael Morales blocked his execution by arguing that the three-drug protocol then in effect would likely violate the Eighth Amendment.  Since then, the other murderers whose judgments have been upheld all the way through the review process have piled in.  They have also been granted stays on nothing more than a showing that they are similarly situated to Morales.

But the intervention/stay orders issued last April 18 and today are post-Glossip orders.  Don't they require the showing that the Supreme Court says is required?  Of course.  And what does Judge Seeborg say about the Glossip requirement?

Justice, Finally, for a Fallen Officer

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Montgomery Police Corporal Anderson Gordon III was murdered in the line of duty 20 years ago last month. His Officer Down Memorial Page is here.

As noted yesterday, the U.S. Supreme Court vacated a stay that had been entered by a district court in blatant disregard of the legal requirements for a stay.  Justice Thomas later entered a brief stay himself to allow the full court to consider a subsequent petition.  Justice Thomas seems to use his temporary stay authority as Circuit Justice more often than the others.  Upon consideration, the full court denied relief and vacated that stay, and the execution proceeded.

WSFA in Montgomery has this story on the execution.

Stays and Possibility of Success

The U.S. Supreme Court has vacated another stay of execution from Alabama, reminding the lower federal courts that "a significant possibility of success on the merits" is a requirement for a stay.  See prior post of October 4.  No, again, you can't use the All Writs Act to weasel out of that requirement.  Here is the order in Dunn, Commissioner v. McNabb, 17A440:

The application to vacate the injunction entered by the United States District Court for the Middle District of Alabama on October 16, 2017, presented to Justice Thomas and by him referred to the Court, is granted. "[I]nmates seeking time to challenge the manner in which the State plans to execute them must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits." Hill v. McDonough, 547 U. S. 573, 584 (2006). The All Writs Act does not excuse a court from making these findings. Because the District Court enjoined Respondent's execution without finding that he has a significant possibility of success on the merits, it abused its discretion. We accordingly vacate the injunction.

Justice Breyer and Justice Sotomayor would deny the application to vacate the injunction.

To End the Death Penalty: Lie More

Except for punishment for outright perjury or planning to kill government witnesses, there is no penalty known to me against the defense side's engaging in perverse or deceitful behavior in order to advance the ball.  Indeed, such behavior is not merely condoned but commended:  The client is presumed innocent; actual innocence (or guilt) is all but irrelevant; the state employs politically ambitious and morally tone-deaf prosecutors; the cops cheat; and criminal punishment is per se the outcropping of a backward, racist American culture that needs stiff blowback in order even to start to straighten out.  So if this particular client is guilty or even worse than guilty, hey, look, this is not my problem.  The state has all the resources, and we need to wake up  --  have a "national conversation" about justice, that is.

Ever heard that one before? 

I mention it here because of an entry Doug Berman has up today titled, "Could poor health help save the life of Ohio's 'poster child for the death penalty'?"  It's about an Ohio killer fighting off his scheduled execution because he is, so his lawyer claims, very ill.  You have to read all the way to the end to get the punchline:

Campbell argues that poor health is one reason he shouldn't be put to death, but he used an earlier, false health claim to commit the crime that put him on death row. Campbell feigned paralysis from a glancing bullet wound suffered during a robbery arrest. As Campbell was being taken to the Franklin County Courthouse for a hearing on April 2, 1997, he sprang from his wheelchair, overpowered a deputy sheriff, took her gun and fled. He then carjacked Dials, who was at the courthouse to pay a traffic ticket. After driving Dials around for hours, Campbell ordered him onto the floor of his truck and shot him twice.

Want to frustrate the death penalty?  Just keep lying.  I must ruefully admit, it works much of the time.

Execution Protocols and Bureaucracy

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Don Thompson reports for AP that California's Office of Administrative Law has once again rejected the state's proposed new execution protocol.  Why do these bureaucrats have any say in the matter anyway?

"This is stupid," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation that sued to force the new rules. Since the regulations must be approved by state and federal judges anyway, he said, "this additional layer of bureaucracy is completely unnecessary."

That's why death penalty supporters ended the role of the Office of Administrative Law in Proposition 66, the ballot measure that voters approved in November, he said.

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The regulatory office similarly rejected an earlier proposal in December. It said in a brief decision Monday that some of those same issues remain unresolved.

However, the state Supreme Court in August upheld Proposition 66 ending the requirement that prison officials receive approval from state regulators. Death penalty opponents asked the judges to reconsider it with a Nov. 22 deadline, but Scheidegger expects the justices to uphold their earlier ruling.

A month ago, the U.S. Court of Appeals for the Eleventh Circuit revived a suit over Alabama's substitution of midazolam for pentobarbital as the first drug of its three-drug execution method.  USCA11 said that the plaintiffs had adequately pleaded the elements required by Glossip v. Gross, including the availability of an alternative.  They alleged that sodium thiopental is available, taking us full circle to the original three-drug method.  The case is Burton v. Commissioner, No. 17-11536.  Burton's is the "lead" case, but there are a total of twelve, including the case of Jeffery Borden.

But an allegation sufficient to state a cause of action and a demonstrated possibility of success on the merits sufficient for a preliminary injunction are two different things.  Thiopental is, in fact, not currently available.  Last Friday, the Eleventh Circuit decided to enjoin the execution of Borden anyway, under the All Writs Act.  Citing its own precedent, the court said that the usual requirement of a likelihood of success on the merits does not apply to the All Writs Act.

So you can stop the execution of a judgment that is already very long overdue just by alleging a "fact" that is patently false?

The Supreme Court today vacated the injunction in Dunn v. Borden, No. 17A360.  The vote was apparently 6-3:  "Justice Ginsburg, Justice Breyer, and Justice Sotomayor would deny the application to vacate the injunction."  No opinions are on the Court's website as of this writing.

Borden's execution date is tomorrow.

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