Recently in Death Penalty Category

Cheever Follow-Up

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Today's News Scan notes the affirmance by the Kansas Supreme Court of the death sentence of Scott Cheever for the murder of Sheriff Matt Samuels in the performance of his duty.

This case was decided on remand from the United States Supreme Court.  The first time out, the Kansas Supreme Court reversed the conviction.   That court found a Fifth Amendment violation in the requirement that Cheever submit to a mental examination when he claimed a "mental disease or defect" defense.  The U.S. Supreme Court reversed unanimously in an opinion by Justice Sotomayor.  CJLF filed an amicus brief in the case.

On the first round, the Kansas Supreme Court considered only the penalty phase issues likely to arise on retrial because the case was going to be retried anyway.  On remand from the U.S. Supreme Court, they needed to consider in full whether to affirm the penalty.

One of the issues was whether the defendant was entitled to an instruction that the defendant need not prove his mitigating circumstances beyond a reasonable doubt.  The Kansas court had held that the Eighth Amendment requires this, but that holding was reversed last January by the U.S. Supreme Court in Kansas v. Carr.  CJLF also filed a brief in that case.  The state court can, and did, hold that the instruction is still required by state law.  However, because Cheever did not request the instruction a different standard of review applies, and the absence of the instruction was not so detrimental as to require reversal in this case.

Affirmance of this entirely just sentence is a good result, but long overdue.  It took so long because the Kansas Supreme Court erroneously decided two issues of federal constitutional law.  Kansas has the worst system of any state for appointing Supreme Court judges -- the State Bar is the gatekeeper to the bench -- and it shows.  Reform of this process should be top priority in that state.
Sacramento District Attorney Anne Marie Schubert has this op-ed in the Sacramento Bee, responding to an earlier piece by Ron Briggs.  Unfortunately, it is behind the Bee's paywall.

The reason that no executions have occurred in California for 10 years is the state's delay in drafting regulations for a method of execution. Otherwise, there could have been at least 15 sentences carried out during the past decade. It's outrageous that victims' families were forced to sue the state to draft these regulations. Proposition 66 will prevent biased and unsympathetic politicians and government bureaucrats from interfering with this process.
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Briggs believes abolition will benefit victims' survivors by closing cases and sparing them further "wounds." That is offensive and presumptuous. In our experience, most survivors want "justice" for the murderers of their family members. Repealing the death penalty will not heal these peoples' wounds; it keeps them permanently open.

Briggs naively touts life without parole as a sufficient alternative to the death penalty. He forgets that the last murderer executed in California, Clarence Ray Allen, was sentenced to death for the murder of three people, which he planned while already serving a life sentence for murder. Life imprisonment was not enough to protect the public from Allen.

Moreover, victims' families will always be haunted by the specter that an inmate sentenced to life without parole will suddenly ask the governor to reduce a sentence - as happened recently in the case of a Fresno murderer who waited 36 years and applied for clemency. As long as an inmate sentenced to life without parole lives, the governor could reduce the sentence and a murderer may be released on the streets.
And yet another wrongly maligned prosecutor is exonerated.

AP reports from Manassas, Virginia:

For much of the last 15 years, Justin Wolfe was both a death row inmate and a cause célèbre. His supporters, as well as a federal judge who heard his appeal, believed he was a victim of malicious prosecutors who covered up the truth in an effort to execute an innocent man.

Now Wolfe's 15-year legal saga -- which at one point had him days from execution and later on the brink of total exoneration and freedom -- has concluded with a 41-year prison sentence and an admission that prosecutors had it right all along.
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After years of denying responsibility for the 2001 murder of Daniel Petrole, Wolfe on Wednesday apologized to Petrole's family in a packed Manassas courtroom.
One of the ploys that opponents of the death penalty use to try to block it -- given that the American people are solidly against their real position -- is to drag out the appeals process for decades and then claim that it is cruel to keep people on death row for decades.

This is called the Lackey claim for Justice Stevens's solo opinion in Lackey v. Texas, 514 U.S. 1045 (1995).  After Justice Stevens retired, Justice Breyer took up the cause.  He reiterated his position last night in the last minute appeal of Georgia murderer John Wayne Conner.  But he is still alone.  No other justice joined his dissent.

Conner was executed at 12:29 a.m. Friday with the single-drug method using pentobarbital, Rhonda Cook reports for the Atlanta Journal-Constitution.  Georgia can apparently still get pentobarbital, the preferred drug for this purpose, though most states cannot.

The lethal injection drug shortage is entirely artificial and due in large part to the misinterpretation of the Food, Drug, and Cosmetic Act by the D.C. Circuit in Cook v. FDA, 733 F.3d 1 (2013).  Congress can and should correct that misinterpretation with a simple fix.

USCA9 Corrects DP Error En Banc

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It should not be news that a federal court of appeals sitting "en banc" has corrected an erroneous decision by a three-judge panel.  That's what the en banc process is supposed to do.  However, in the Court of Appeals for the Ninth Circuit it has long been rare that a rogue panel decision wrongly overturning a death sentence was even reviewed en banc, much less corrected.  At times, petitioning for such a rehearing has been considered such an exercise in futility that some AG offices would not even bother but would instead go straight the Supreme Court.  (The Supremes don't like that.)

Today we have the Arizona case of Eric Mann.  Mann baited two men to his house to sell them cocaine for $20,000, took the money, and then shot them both.

You Can't Make This Up, Part Eight Zillion

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A prominent legal blog has this entry:  "Why Capital Punishment Is No Punishment at All."  I'll quote the entry verbatim:

Capital punishment has generated an incredible amount of public debate.  Is the practice constitutional?  Does it deter crime?  Is it humane?  Supporters and opponents of capital punishment disagree on all of these issues and many more. There is perhaps only one thing that unites these two camps: the belief that the death penalty is society's most severe punishment.

In this Article, I argue that this belief is mistaken. Capital punishment is not at the top of the punishment hierarchy.  In fact, it is no punishment at all.  My argument builds from a basic conception of punishment endorsed by the Supreme Court: for something to qualify as a punishment, it must be bad, in some way, for the person who is punished.  By drawing upon the philosophical literature regarding death, I show that this is not the case.  Contrary to our intuitions, the death penalty is not bad, in any way, for a condemned criminal.

This conclusion should not be understood to suggest that death is never bad. In most circumstances, death is bad.  There are, however, situations in which it is not, and capital punishment, as employed in the United States penal system, is one such situation.  By showing that capital punishment is not bad for the condemned criminal, I provide a strong constitutional objection to the practice.

Gads, why hasn't the ACLU thought of this?  Capital punishment is unconstitutional because being put to death is "no punishment at all"!!!

As mentioned in my previous post, there is a second case challenging the death penalty on dubious facts, State v. Villalobos in Maricopa County Superior Court.  The State's opposition to the defense's motion to dismiss is here.

Vince Goddard of the Maricopa County Attorney's Office is seeking further information on cases of supposed innocence on the DPIC's list that really aren't.  If you have useful information and wish to assist, you can email it to and your email will be forwarded to him.
The opponents have some significant advantages in the death penalty debate.  They have nearly all of academia on their side as well as the bulk of American journalism.  They can assert things as "facts" and rarely get challenged on them. 

A year ago, Justice Breyer wrote a dissent in Glossip v. Gross, saying, "I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution."  What follows is a recitation of all the claims that have already been rebutted but with no mention of the rebuttals.

A funny thing happens on the way to the courthouse.  When these claims are asserted as a basis for a legal argument rather than an attempt to sway public opinion, then a government with the resources to do so makes the contrary case, and the claims regularly go down in flames.  The Supreme Court's decision in McCleskey v. Kemp is remembered (often with outrage on the Left) for holding that even assuming that the Baldus study's finding of race-of-victim bias in capital sentencing was correct McCleskey still didn't have a claim.  Nearly forgotten is the finding of fact by the Federal District Court that the study's data, when correctly analyzed, showed nothing of the sort.  See my 2012 OSJCL article for the details on this and other studies in the area.

The federal capital case of United States v. Fell is now pending retrial in Vermont.  The defense wants the trial judge to declare the federal death penalty unconstitutional, citing all the usual claims.  The court is holding a two-week hearing this week and next to decide the underlying facts.  If the government pulls out all the stops putting on evidence and if we get a fair decision, this could be a major advance for the pro-death-penalty side, with findings of fact that most of the claims cited in Justice Breyer's opinion are actually false.

Wilson Ring has this story for the Associated Press.

There is a second case in Maricopa County (Phoenix and vicinity), Arizona, where the defense has cited the infamous "innocence list" and the prosecution is putting on evidence as to just how many of the supposedly "exonerated" actually did it.

How to Run on a Losing Issue

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The Democrats have adopted a platform calling for an end to the death penalty as cruel and unusual punishment.

Thank God for your enemies.

Gallup tends to be better tuned in to public opinion than the DNC, and last October found the following:  Solid Majority Continue to Support Death Penalty.  As the article accompanying the poll recounts (emphasis added):

WASHINGTON, D.C. -- About six in 10 Americans favor the use of the death penalty for a person convicted of murder, similar to 2014. This continues a gradual decline in support for the procedure since reaching its all-time high point of 80% in 1994....

These results come from Gallup's annual Crime poll, conducted Oct. 7-11, 2015. While the public has, with one exception, favored the death penalty over the 78 years Gallup has asked this question, support for the measure has varied considerably. The low point for support, 42%, came in the 1960s, with support reaching its peak in the mid-1990s and generally declining since that point. Over the past decade, however, there has been minimal fluctuation in the percentage of adults who favor the death penalty, with support always at or above 60%.

With child butchers like Wendell Callahan and automated lynch artists like Dylann Roof out there  --  and God only knows what future episode of Jihadist mass murder  --  I can only hope the Democrats make abolishing capital punishment their Number One issue. They may yet find a way to lose.

Dueling Initiatives

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Alex Matthews has this story at Capitol Weekly on the dueling California death penalty initiatives.
Yesterday I predicted that the opposition to the initiative to fix California's death penalty would be dishonest.  I did not expect to be proved right so quickly.

The opposition's press release says, "Due to its arbitrary application and other factors, the death penalty does not achieve any of its supposed crime deterring benefits according to a 2012 National Academy of Sciences study."  Borrowing the WaPo Fact Checker's scale, that's Four Pinocchios, i.e., a whopper.

Putting aside for now the controversy over the NAS committee's composition, methods, and conclusions, let's just look at the objective fact of what that report says.  Does it say what the opponents' press release claims it says?  No, it most certainly does not.

There is a huge difference between "the truth or falsity of Proposition X has not been proved either way" and "Proposition X has been disproved."  The opponents claim that the report says that the deterrent effect has been disproved.  Here is what it actually says (emphasis added):

The committee concludes that research to date on the effect of capital punishment on homicide is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates.
In other words, the committee's position is that deterrence has been neither proved nor disproved.

Citing this report for the argument that the death penalty has been affirmatively shown not to deter is either flat-out lying or astonishingly ignorant.  The Supreme Court held in the classic case of New York Times v. Sullivan that "actual malice" in publishing false statements means either knowing falsehood or reckless disregard of the truth.  The opponents are unquestionably guilty of actual malice in this falsehood.
The initiative to fix problems that have obstructed the enforcement of the death penalty in California has qualified for the ballot.  The announcement is on the website of Californians for Death Penalty Reform and Savings.

Four years ago, the friends of murderers came within four percent of repealing the death penalty because they had the money to qualify an initiative while the forces of justice did not.  Many people believed that the choice was therefore one between repeal and the status quo of a penalty that is never enforced.

Not this time.  The status quo will be history come November, and the people have a clear choice between "end it" and "mend it."

If both initiatives pass, the one that gets the greater number of "yes" votes will prevail.

The greatest problem, once again, will be the great disparity in funding.  Softness on crime is the cause of deep-pocketed elitists who do not suffer the consequences of crime, while the base for toughness on crime consists mainly of regular folks of modest means who do.  The other side will be able to run deceptive ads, and we will have limited ability to counter them with truthful rebuttal through paid advertising.  Hopefully we will be able to get the truth out through other means.

Still Waiting for Justice

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Brenda Van Dam's life changed forever 13 years ago when her seven-year-old daughter, Danielle, went missing from her bedroom and was later found murdered.  Danielle's killer, David Westerfield, was convicted of kidnapping, murder, and possessing child pornography and was sentenced to death.  Today, over a decade later, he continues to sit on California's death row.  In this powerful op-ed penned by Van Dam in the San Diego Union-Tribune, she writes,

Now, 13 years later, he still waits for his sentence to be carried out, living at taxpayers' expense, the taxes I pay, at San Quentin's death row. And we who loved Danielle, searched for Danielle, wept for her and sat through every moment of the trial also still wait for that sentence to be carried out. We wait still for justice.

Sadly, we are not alone either. While Westerfield has been on death row for 13 years, there are others who have committed terrible crimes against innocent people, including against those who serve and protect us in law enforcement, and against our children, who wait on death row. And their families, like us, wait for justice to be done.

Our legal system, which is supposed to work for the people, has evolved into a frustrating patchwork of legal blockades and stalling tactics that has allowed attorneys for death row inmates to abuse the system to drag out and delay death sentences from being carried out for, in some cases, several decades. Some convicted death row inmates even outlive the family members of their victims. The family members die never having seen justice done to those who changed their lives forever.

Fortunately, the people of California have an opportunity to change that. Thanks to the hard work of a number of law enforcement professionals, public safety officials and elected officials, the California Death Penalty Reform & Savings initiative was submitted to elections officials throughout the state in order to qualify a reform measure for the November ballot.

An Aggravated Assault On Death Row

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The primary reasons for punishing people who have committed serious offenses are retribution, incapacitation, deterrence, and rehabilitation.  Prison largely incapacitates, but not entirely, as this AP story reminds us.

Officials say a prison guard is recovering after he was attacked by a condemned inmate on California's death row.

They say 27-year-old Jesse Manzo assaulted the San Quentin State Prison correctional officer Thursday evening as he was being escorted back to his cell after taking a shower.

Manzo slipped his wrist out of an open handcuff and used the handcuff to hit the officer several times.

Officials said Friday that the officer was taken to an outside hospital for treatment of cuts including a significant facial injury.

Manzo has been on death row since 2013.

He was convicted of first-degree murder in Riverside County for the 2008 gang-related hate crime killing of Raymond Franklin.
Given that he has only been on death row three years, this is not a case where we can say he should have been executed already.  Even so, this is a reminder that he will be a danger from now until he is executed.  If the repeal initiative passes, he will be a danger from now until he dies of other causes, which may be a very long time.
On May 17, the Public Safety Committees of the two houses of the California Legislature held Joint Legislative Informational Hearings on the two proposed death penalty initiatives, one to repeal and the other to reform the process.

Full videos of the two hearings are available on this site.  Hit the "Next" button a few times to get to May 17.  It's on the fourth page as of this writing.

To watch in smaller bites, the pro-reform campaign has posted individual videos of our side's witnesses on YouTube:

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