Recently in Death Penalty Category

The U.S. Supreme Court has released the last of its scheduled summer orders lists.  The orders in these lists are generally routine, and this one is no exception.

Among the most routine of orders are the denials of rehearing petitions.  There have been some cases where "rehearing" was granted to a case that was never literally heard in the first place.  That is, some cases turned away at the threshold (certiorari denied) have been taken back up after another case changed the relevant law.

But when was the last time the U.S. Supreme Court decided a case after full briefing and argument and then granted rehearing to reconsider its decision?  I can't remember a single case, and I've been doing this a long time. Yet lawyers keep filing the petitions.

Today's list denied rehearing in Glossip v. Gross.  The August 10 list denied rehearing in Davis v. Ayala.
The death penalty battle today has largely become one of grass-roots supporters versus elitist opponents.  The anti side has the big bucks donors, near unanimity in academia, and a press that often regurgitates uncritically all the propaganda the Soros-funded "Information Center" can pump out.

Our side has the common sense of regular folks.

In Nebraska, the organized and well-funded opposition flooded the unicameral legislature with its message and got a repeal bill passed over the governor's veto.  A sparsely funded effort to gather signatures for a referendum promptly began.  Grant Schulte has this report for AP on today's announcement that they got enough signatures.  Bill quotes part of it in his post, which was posted nearly simultaneously with the original version of this one.  More after the break.
The Associated Press reports that Nebraska voters have given enough signatures to put the legislature's death penalty repeal bill on the ballot next year.  Indeed, the petition drive gathered tens of thousands more signatures than were necessary to prevent the bill from taking effect at all.

An organization campaigning to reinstate Nebraska's death penalty after lawmakers repealed it in May said Wednesday it has collected more than enough signatures to suspend the law before it goes into effect and place it before voters in 2016.

Nebraskans for the Death Penalty, which was heavily financed by Republican Gov. Pete Ricketts and his family, said it had gathered 166,692 signatures from all 93 of the state's counties. Nebraska's unicameral Legislature had voted to repeal capital punishment over the objection of Ricketts, becoming the first traditionally conservative state to do so in 42 years.

The pro-death penalty group needed roughly 57,000 valid signatures from registered voters to force a statewide referendum, and double that number to immediately halt the death penalty repeal going into effect. They appear to have exceeded the 10 percent of registered voters hurdle needed to block repeal pending a November 2016 ballot measure on the issue.

I contributed to the petition drive, and I look forward to contributing next year to defeat the high-handed legislators, of whichever party, who wanted to trade justice for puff pieces the newspaper.

On the evening of June 17 of this year, white supremacist Dylann Roof, after sitting in a black church for about an hour, pulled out a Glock .41 handgun with hollow-point bullets and murdered nine black people who had been in a prayer and Bible study group. No sane person doubts either that he did it, that he knew what he was doing, that he thought about his actions, or that the motive was anything other than racial hate. It was a 21st Century mass lynching, there is no other honest name for it.

South Carolina, like the great majority of states, has the death penalty.  Even if it should be abolished in the future because of the risk of executing the innocent, or because it is (or is said to be) employed  discriminatorily against African Americans, or because it takes a long time and costs a lot, will any abolitionists come off their "facts-never-matter" stance to support its use in this utterly clear and grotesque case?

They've done it before.  In the Oklahoma City bombing, a USA Today/CNN/Gallup poll found that a majority of those typically against capital punishment on principle supported it for Timothy McVeigh.  The crime was just too much of an assault on the basics of civilized life.

Isn't that also true here?  Have we not reached the point in America where we are going to say no to lynching  --  to say no and mean it? To understand that the country has passed a turning point toward ensuring dignity regardless of race? To understand that even if in the case of the "ordinary" mass murder we should accept a prison term, we have come too far and paid too much to do that here?

As a general matter, tolerance, understood as a generous turn of mind, is a good thing. But it depends on what we are being asked to tolerate.  There should be no tolerance for Dylann Roof's attempt to drag America back to a hideous past.  I will be looking for abolitionists to do some of the critical, reflective thinking they say they value and, in this case, support the death penalty.

Euthanasia in Europe

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Charles Lane has this opinion article in the WaPo, headlined, "Europe's sinister expansion of euthanasia."  CJLF takes no position on the issue, and I won't volunteer my personal opinion, at least not today, but I thought I would note this paragraph:

Frank van den Bleeken, imprisoned for 30 years for rape and murder, sought euthanasia from Distelmans, citing his incurable violent impulses and the misery of life behind bars. Belgian officials and Distelmans initially agreed; a lethal injection the murderer might have gotten as punishment in the United States would be supplied as therapy in anti-death penalty Europe.
And what do Belgian doctors prescribe for a painless death?  Sodium thiopental, the drug we are blocked from importing by the D.C. Circuit's dubious decision in Cook v. FDA.
Anti-death penalty zealot Linda Greenhouse has a piece up in the NYT gushing over the Connecticut Supreme Court's 4-3 decision retrospectively abolishing the death penalty, even though the state legislature  --  a very liberal legislature  --  abolished it only prospectively, and even though that distinction was crucial to getting an abolition bill passed at all, as Kent has noted. The gist of Ms. Greenhouse's article is that the death penalty is on the way out the door, and sooner or later, the fabled "national conversation" about its defects will take us to the Higher Ground that Ms. Greenhouse and her Manhattan pals occupy.

There is much to say about the Greenhouse work, but for now I want to mention only two things to point out how slanted, if not simply dishonest, it is.

First, the big opportunity for a major strike against the death penalty came, not in Connecticut, but, less than eight weeks ago, in the United States Supreme Court's Glossip case.  Abolitionists were giddy with anticipation.  Liberal blogs were all over themselves anticipating a "big decision."

Didn't happen.  The opposite happened.  A SCOTUS majority, with Justice Kennedy on board with every word, declared that "it is settled that capital punishment is constitutional."

But that Glossip was ever decided cannot be found in the Greenhouse piece until nicely down the page, in its tenth paragraph, and the word "Glossip" does not appear until after that.  This is in an article about the future of the American death penalty, mind you.

Death-penalty Deception

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Don Pesci has this op-ed in the Waterbury Republican American:

In 2012, the Democratic majority in the legislature abolished Connecticut's death penalty while leaving the penalty operative for the 11 convicted murderers on death row, thus demolishing all their moral arguments against capital punishment. If the death penalty is cruel, unusual and morally indefensible, would it not be doubly inappropriate for death-row inmates?

Only those who were committed to a scheme of deception supposed the partial-abolition bill would remain law after the Connecticut's Supreme Court reviewed a case challenging the justice of the throwaway legislation that would permit the state to execute 11 men in the absence of a law prescribing a penalty that had been abolished.

Everyone pretended otherwise -- and this pretense was entirely political. Gov. Dannel P. Malloy and the Democratic legislators favoring abolition knew the bill could not pass if the 11 death-row inmates had not been exempted. Two mass murderers, Joshua Komisarjevsky and Steven Hayes, only recently had been convicted and sentenced to death for having committed a particularly heinous murder in Cheshire. The two recent parolees had invaded a home in Cheshire, pummeled homeowner Dr. William A. Petit Jr. with a baseball bat, tied two of his young daughters to their beds, forced his wife to draw money from a bank, raped the wife and one of the daughters, and then set fire to the house, murdering all inside but the doctor, who managed to escape and alert police. Theirs was just the sort of crime that merited a death penalty.

Breathtaking Hypocrisy

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Hypocrisy is common in politics and especially in the highly contentious issues we deal with.  Yet once in a while there comes along an instance that takes the breath away from even the most jaded.

Connecticut Governor Dannel Malloy has opened up a wide lead in the race for Hypocrite of the Year for 2015.  An AP story on today's decision concludes with these paragraphs:

Democratic Gov. Dannel P. Malloy issued a statement Thursday saying those who have been on death row will spend the rest of their lives in state prisons with no possibility of freedom.

"Today is a somber day where our focus should not be on the 11 men sitting on death row, but with their victims and those surviving family members," he said. "My thoughts and prayers are with them during what must be a difficult day."

If your focus had been on the victims and surviving family members, Gov. Malloy, you would have vetoed the damned bill, as Gov. Rell did before you.  You are solidly on the side of the murderers against the victims and you very well know it.

Malloy did what he did and, unlike some other governors, told the people he would as he was running for the office.  But to invoke the victims on this day and say we should focus on them when he is the one who sabotaged their hopes for justice, that is just gratuitously rubbing salt in the wounds.  This statement is beyond despicable.

A Broken Promise In Connecticut

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When the death penalty repeal bill was being considered in the Connecticut Legislature in 2012, the proponents swore up and down that the nonretroactivity clause meant that the murderers currently on the state's death row -- especially the notorious Chesire murderers -- could still be executed.  They managed to convince enough swing votes with that argument to squeak the bill through despite the 2-1 opposition of the people of the state.

To the surprise of no one who has been involved in this battle for any length of time, the anti side then turned on a dime and began fighting in the state courts to set aside the existing death sentences.  The Connecticut Supreme Court fairly quickly took up the question of whether the statute had that effect, and then they sat on the case for over two years after argument.

Today, that court decided in State v. Santiago:

Texas Executes "Volunteer"

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Michael Graczyk reports for AP:

Texas inmate Daniel Lee Lopez got his wish Wednesday when he was executed for striking and killing a police lieutenant with an SUV during a chase more than six years ago.

The lethal injection was carried out after the U.S. Supreme Court rejected appeals from his attorneys who disregarded both his desire to die and lower court rulings that Lopez was competent to make that decision.

In April, the Fifth Circuit noted, while dismissing the appeal:

Lopez is as resolute that Texas should carry out his capital sentence as he is that no counsel deprive him of that choice. The district court, after ascertaining competency, nonetheless granted Lopez's "motion to dismiss counsel, effective on the conclusion of any appeal." (Emphasis added). This court does not address, because the State did not raise, the appropriateness of our considering this appeal by counsel who were appointed for petitioner by the district court against his will, and who have filed this appeal despite his wishes and despite the court's resolution of the Rees v. Payton, 384 U.S. 312 (1966) issue. Cf. Sanchez-Velasco v. Sec. of the Dept. of Corrections, 287 F.3d 1015 (11th Cir. 2002).

The general rule is that the client sets the goals of representation and the lawyer makes the tactical decisions on how to achieve them.  Can a lawyer ethically decide on his own that the client is mentally incompetent and take it upon himself to set the goals of representation?  I don't think so, but it's an issue that needs to be settled.

I also do not think that the court can pass on the issue merely because the state did not raise it.  Does a court have jurisdiction to overturn, or even stay, a judgment that neither party to the original case wants disturbed?  No one else has standing, the Supreme Court has said, and standing is a jurisdictional requirement. 

It seems to me that unless and until a court has determined that the inmate is mentally incapable of making the decisions that belong to the client in the attorney-client relationship, and appointed someone to make them on his behalf, nobody including the lawyer can legally take it upon himself to make those decisions.

One of the reasons that the U.S. Court of Appeals for the Ninth Circuit is so often reversed by the Supreme Court (and often summarily, unanimously, with a harsh rebuke, or all of the above) is that the full court chronically fails to correct the errors of rogue panels when they favor a state prisoner, especially in capital cases.

Last December I noted that a 2-1 majority of a 3-judge panel (Thomas and Reinhardt, Kozinski dissenting) had overturned yet another death sentence, after four previous reviews of the case by other courts had found no reason to disturb the judgment.

Today, wonder of wonders, the Ninth agreed to rehear the case pseudo-en-banc, i.e., before an eleven-judge panel comprised of the chief judge and ten randomly selected judges.  Unfortunately, the automatically selected chief judge is the author of the erroneous opinion, so Arizona will need to draw six persons of sense out of ten.  That is less than even money in the Ninth, but not out of the question.  We do know that a majority of the pool voted to rehear the case.
A recent Washington Post article discussed the upcoming Ninth Circuit hearing on a federal district court decision that invalidated California's death penalty scheme.  The gist of the district court's decision was that delay had grown to the point that, by the time the prisoner was executed   --  if he ever was  --  the execution has lost most or all of its penological value, was thus arbitrary and, for any practical purpose, pointless.

So what accounts for so much of the years of delay?  Careful inquiry into the facts of the case to insure we've got the right guy?  Review to insure that fair procedures were followed?

Not exactly.  According to the story, here are the sources of the lion's share of the delay (emphasis added):

Delays come for many reasons. Death penalties in California and elsewhere trigger a mandatory appeal to a state's top court, and then, if not reversed, through the federal system. These are part of the safeguards mandated by the U.S. Supreme Court in the 1976 Gregg decision ushering in the "modern" death penalty. Carney [the district judge who ruled against the California death penalty] noted that in California, appeals attorneys are not appointed for three to five years. They take four years to learn the case and file their appeal. Attorneys for habeas appeal (through the federal courts) are not appointed, on average, until eight to 10 years after the death sentence.

Got that?  At the minimum, there are 15 years of delay just for the appointment of attorneys, and a maximum of 19.  Two things jump out at you.
Sadie Gurman reports for AP:

Colorado theater shooter James Holmes will be sentenced to life in prison without parole after a jury failed to agree Friday on whether he should get the death penalty for his murderous attack on a packed movie premiere.

The nine women and three men said they could not reach a unanimous verdict on each of the murder counts. That automatically eliminates the death penalty for the failed neuroscientist, who blamed his calculated murders of 12 people on mental illness.

A rule of law that says the opinion of one juror can trump the opinion of the other eleven borders on insane.  We would never consent to such a rule for the guilt verdict.  In no state of the union does a jury hung 11-1 for conviction produce an acquittal.  Why does any state have such a rule for the penalty phase?

States that have this crazy rule need to get rid of it.  A hung jury on penalty should trigger a retrial with a new jury, as it does in California and Arizona.

Yesterday, North Carolina Gov. Pat McCrory signed HB 774 to defeat some of the tactics used by the anti-death-penalty crowd to hinder lethal injection.

The bill provides that the monitoring of the lethal injection may be done by a health professional other than a physician.  Physician participation was included as a safeguard for the inmate and then exploited by opponents, saying it was unethical for physicians to participate.  Let no good deed go unpunished.

The bill exempts execution procedures from the Administrative Procedure Act.  There is no legitimate need to so encumber the procedures, as they are subject to intense judicial scrutiny anyway.

The bill removes the excessive legislative detail regarding the drugs to be used, giving the state authorities the flexibility needed to deal with improving methods and drug shortages.

Finally, the bill provides for confidentiality for suppliers of the drugs so that supply will not be blocked by a "heckler's veto."  This post by Craig Jarvis at the website of the Raleigh News & Observer originally misreported that the bill kept the drugs themselves secret, but it has now been corrected.

Civilized Life, and What Lies Beyond

In my address to a national gathering of capital case prosecutors last week, I ended with a reminder of why, in the end, we have the death penalty:  There are some crimes so grotesque that they lie beyond the boundary of civilized life.  When a human being knowingly commits such a crime, he has already crossed that boundary.  All the death penalty does is close the door behind him.

The case I used as an illustration was the beating death of a little boy, Elias Johnson. That story is here.  Another case, which I discussed here recently, was Susan Smith. 

I wish I could say these cases are rare.  They aren't.  I just came across another one, this one from nearby Maryland.

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