Recently in Death Penalty Category

Ryan v. Hurles Returns to SCOTUS

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Arizona's attempt to reinstate the death sentence of murderer Richard Hurles is back in the U.S. Supreme Court.  The prior petition was "relisted" an astonishing 22 times before the Ninth Circuit withdrew its opinion and issued a new one, causing the state to withdraw its petition.  The case was noted many times on this blog, including this post and this post, and it was a "regular" in John Elwood's "Relist Watch" at SCOTUSblog.

The new petition is number 14-191.
Will Dahlgreen at YouGov has this article stating that according to that organization's survey, "50 years after the last execution in Britain, people still tend to support the reintroduction of the death penalty, by 45-39%."

However, as noted by in this post by Peyton M. Craighill and Scott Clement at The Fix, the WaPo's political blog (previously mentioned on this blog here) YouGov polls a self-selected sample, one of the worst ways to do polling.  Actual support is likely much higher, as has been indicated in recent years by legitimate polls.  See posts of 2010 and 2013.
Today the U.S. Supreme Court issued one of its midsummer orders lists.  These are usually just routine administrative orders, but occasionally you get something interesting. 

In today's orders list, we find this gem from Ballard v. Pennsylvania, No. 13-9364:  "The letters of June 2, July 8, July 14, and July 16, 2014, received in this case, are referred to the Disciplinary Board of the Supreme Court of Pennsylvania for any investigation or action it finds appropriate."  Hmmm.  What's that about?

This is a capital case.  Ballard is a so-called "volunteer," a death-sentenced inmate who doesn't want his sentenced reversed or even delayed.  Marc Bookman of the Atlantic Center for Capital Representation, claiming to be Ballard's lawyer, filed a certiorari petition asking the U.S. Supreme Court to review the decision of the Pennsylvania Supreme Court affirming the judgment.  Ballard himself had a thing or two to say about that.

What's the Matter with Kansas?

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Its state supreme court, that's what.  That court is as bad on capital cases as California's old pre-1986 Bird Court was.  They don't seem to learn from their repeated reversals by the U.S. Supreme Court, including last term's unanimous Kansas v. Cheever (CJLF brief here).  In July 18's reversal of the death sentence of a double murderer, Justice Biles notes in dissent:

I dissent from the majority's holding that Sidney Gleason's sentence was imposed in violation of the Eighth Amendment to the United States Constitution because the district court failed to explicitly instruct the jury that mitigating circumstances need not be proven beyond a reasonable doubt. The majority's conclusion defies the United States Supreme Court's established Eighth Amendment jurisprudence and lacks any persuasive analysis articulating why the circumstances in this case justify a departure from that precedent.

SCOTUS Denies Stay to Worthington

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The US Supreme Court has denied stays of execution for Missouri murderer Michael Worthington.  In one case he was seeking review of the Missouri Supreme Court decision.  In the other, he asked for a stay pending a decision by the U.S. Court of Appeals for the Eighth Circuit.   Justices Ginsburg, Breyer, Sotomayor, and Kagan dissented from the denial of stay in the latter case.

Update:  Missourinet reports, "5 grams of pentobarbital were administered at 12:01 a.m.  He appeared to quit talking to his family by 12:02 and appeared to quit breathing at 12:03.  The Department of Corrections places the time of death at 12:11."

That's how it's done.  Pentobarbital is quick, effective, and painless.  Congress should outlaw the manufacturer's restrictions on resale as a restraint of trade.

Willingham, Again

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Eliott C. McLaughlin reports for CNN:

More than a decade after his execution, Cameron Todd Willingham is still a pawn in the debate over the death penalty.

Opponents of capital punishment say Willingham's is a clear case of an inmate being wrongfully executed, while the original prosecutor and state of Texas have been steadfast in their assertion that Willingham should be no one's cause célèbre.

"Willingham was a psychopathic killer who murdered his three children," John H. Jackson, the former Navarro County prosecutor who handled the case in 1992, wrote in an e-mail. "He submitted to a polygraph with predictable results, he confessed the murders to his wife, the trial evidence established two prior incidents when he tried to kill his children in utero by vicious attacks on his wife."
There are many prior posts on this blog on this case.  A few of them are:

Firing Back in the Willingham Case

More on Willingham Case

Willingham's Last Words

Statement on Willingham

Stacy Kuykendall press conference

Folding the Tent on Charlie Baird's Circus

Inconclusive Willingham Report

Still Guilty

Missouri Execution

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Worthington v. Roper, 631 F.3d 487, 492 (CA8 2011):

On the night of September 29, 1995, [Michael] Worthington broke into [Melinda] Griffin's St. Charles County condominium. He used a razor blade to cut through the screen in the kitchen window and confronted Griffin in her bedroom. After strangling her into unconsciousness, Worthington raped Griffin with such force that he [caused severe physical injuries]. Griffin regained consciousness during the rape and attempted to fight Worthington, but he beat her and strangled her again, this time killing her. He then stole her jewelry, credit cards, mobile phone, keys, and car.
Guilt was confirmed by DNA and by Worthington's possession of Ms. Griffin's jewelry and keys.  He also confessed.  The judgment was affirmed on direct appeal in State v. Worthington, 8 S.W.3d 83 (Mo. 1999).

For a case with no question of guilt to drag on for another 15 years after the direct appeal is a travesty, but long-overdue justice is finally scheduled for tonight.  Carey Gillam has this story for Reuters noting the scrutiny of this execution after the Wood execution in Arizona.  But Missouri still has pentobarbital, the superior drug for this purpose as noted here and here.

Update:  Jim Suhr of AP has this story on the last-minute appeals.

Update 2: Susan Weich of the St. Louis Post-Dispatch has this article on Mindy Griffin and her parents, Carol and Jack Angelbeck.
Jim Salter reports for AP:

ST. LOUIS (AP) -- Despite a shortage of lethal-injection drugs, two of the nation's most active death penalty states have quietly carried on with executions by turning to pentobarbital, a powerful sedative that generally puts inmates to death swiftly and without complications.

Missouri and Texas have avoided the prolonged executions seen in other states where authorities are struggling to find a reliable chemical combination. The drug's apparent effectiveness raises questions about why it has not been more widely adopted.

"There is a better drug, and that better drug is pentobarbital," said Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation.

Curious that the story says "raises questions" and quotes me on another point but leaves out my explanation of why more states aren't using pentobarbital -- the opponents have created an artificial shortage by harassing the suppliers.  The problematic executions conducted with midazolam are entirely the fault of the death penalty opponents.


Libertarians Endorse Murder

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OK, they don't endorse murder, exactly, but they come too close for comfort in a truly idiotic, and dishonest, article in Reason Magazine by Nick Gillespie. Its title is, "Why the Death Penalty Needs to Die."  Here's how it starts:  

Another week, another botched killing under the legal euphemism of capital punishment. After macabre screw-ups in Oklahoma and Ohio, it was Arizona's turn last week, when double-murderer Joseph Rudolph Wood III took about two hours to die. The specific problem this time around was an apparently unreliable "cocktail" of the drugs used in the lethal injection process. 

But let's face it: There's no good way to kill a person, even one as completely unsympathetic as Wood (he killed his ex-girlfriend and her father, shooting them at point-blank range). 

That's it!  The people we execute are no worse than "unsympathetic."  But "unsympathetic" is the last we hear in this article about any particular murder or the people who commit them.  The rest of it is just the usual supercilious, if surprisingly unoriginal, lecture.

It's not that libertarian ideas are bad; on the whole, they're quite good.  I only wish the people holding them would put some effective effort into pushing back the overweaning, tax-eating, initiative-destroying welfare state they say they oppose rather than trying to score brownie points with the press with this sort of snide breast-beating.
Not all capital defense attorneys see themselves as being on a crusade to abolish the death penalty or to throw sand in the gears in the meantime.  David Goodwin has a letter to the editor in the L.A. Times in reaction to a column by George Skelton:

As a criminal defense attorney with four capital cases, I agree with Skelton that the death penalty system is broken. Here's a radical idea: Fix it.

Skelton is right that Gov. Jerry Brown and Atty. Gen. Kamala Harris, both lifelong death penalty foes, will do nothing to fix the system. It is unethical for them not to zealously enforce the law just because they don't like it. Unable to win at the ballot box, the opponents win by obstruction and refusing to do the job they are obligated to do.

Someday a governor may be in office who does not like certain environmental protections or civil rights statutes. If that happens, I hope it is remembered where the precedent arose that the executive need not do the public's bidding.

We need more with attitudes like Goodwin's.  Specifically, we need capital defense lawyers who will do their duty as advocates to make the best case for their assigned client but who will not delay, obstruct, or bury the courts with patently meritless pleadings.  (See In re Reno, 55 Cal. 4th 428 (2012).)  Capital cases should be just like noncapital cases in this regard.  A lawyer assigned an appeal for a rapist sentenced to prison is not on a crusade to abolish imprisonment.  He just makes the case that his particular client shouldn't have been convicted or shouldn't have been sentenced to as much time as he got.

Retired prosecutors might be good candidates to step up and take capital appeals and state habeas petitions.  Any takers?
If I were Attorney General of California, Judge Carney's decision in Jones v. Chappell, noted here, here, here, here, and here would have been greeted the same day by a fiery denunciation and a Churchillesque pledge to fight it wherever, whenever, and for as long as it takes.  Instead, we have who we have, and we hear [sound of crickets chirping].

The Attorney General is the chief law enforcement officer of the State of California and has a constitutional duty to see that its laws are enforced.  (Cal. Const. Art. V § 13.)  Until we hear otherwise, we should assume that Ms. Harris will do her duty and do everything in her power to have this clearly erroneous obstruction of the law overturned.  Purely hypothetically, though, I have been musing about the possibilities.  So let's take a little stroll down the "what if" road.

In California, can the District Attorney intervene in a federal habeas corpus collateral attack on a felony conviction and appeal a grant of relief if the Attorney General fails to?
Today in Los Angeles, Judge Cormac Carney entered final judgment on Claim 27 of Jones v. Chappell, his absurd decision that delay in the review of capital cases is a reason to change a death sentence to life imprisonment.

Federal Rule of Civil Procedure 54(b) permits a judge to enter final judgment on one claim while other claims remain pending "if the court expressly determines that there is no just reason for delay," which this judgment does.

This final judgment is appealable under 28 U.S.C. § 1291.  See, e.g., Brown v. Eli Lilly & Co., 654 F.3d 347 (CA2 2011).  A notice of appeal must be filed within 30 days.

There is no reason not to appeal this decision.  There is no excuse not to.
Arizona Director of Corrections Charles Ryan has this statement on the execution of Joseph Wood (emphasis added):

The Department of Corrections followed the execution protocol and, as with every execution, it was monitored by an IV team of licensed medical professionals in control of the medical procedures.

The first confirmation that inmate Wood was fully and deeply sedated occurred at 1:57 PM, five minutes after the direction to proceed with the administration of drugs was given. The medical team re-affirmed the inmate remained deeply sedated seven additional times before death was pronounced at 3:49 PM.

Once the inmate was sedated, other than sonorous respiration, or snoring, he did not grimace or make any further movement. Throughout this execution, I conferred and collaborated with our IV team members and was assured unequivocally that the inmate was comatose and never in pain or distress.

Physiologically, the time to complete an execution varies for each individual. The Department of Corrections will conduct a full review of the execution protocol and process. We will await the results of an independent autopsy from the Pima County Medical Examiner and we have requested a toxicology study as well.
Also, Ashby Jones and Jacob Gershman have this story in the WSJ.

Colorado Gov. Race Now A Toss-Up

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Colorado Governor John Hickenlooper was considered "safe" for reelection not so long ago.  Real Clear Politics changed its rating to "toss-up" last week.

On July 15, I noted that the NBC/Marist Poll had Hickenlooper ahead 49-43.  Conventional political wisdom is that an incumbent is in trouble if early polls show less than a majority, even if leading the opponent.

Two polls since then have come out 43-44 and 44-43, Quinnipiac and PPP respectively.  I generally dislike the term "statistical dead heat" in political poll reporting, but it fits here.  That's a dead heat.
 
Dan Frosch has this story in the WSJ:

Republicans have tried to cast Mr. Hickenlooper as indecisive, noting his move last year to delay the execution of a convicted murderer, Nathan Dunlap, over concerns about the death penalty's morality. Mr. Hickenlooper didn't grant Mr. Dunlap clemency either, instead issuing a "temporary reprieve."
The Federal Public Defender for Arizona has filed a motion to stop the execution of Joseph Wood already in progress.  The first paragraph says:

The Arizona Department of Corrections began the execution of Joseph Rudolph Wood III at 1:52 p.m. At 1:57 p.m ADC reported that Mr. Wood was sedated, but at 2:02 he began to breathe. At 2:03 his mouth moved. Mr. Wood has continued to breathe since that time. He has been gasping and snorting for more than an hour. At 3:02 p.m. At that time, staff rechecked for sedation. He is still alive. This execution has violated Mr. Wood's Eighth Amendment right to be executed in the absence of cruel and unusual punishment.
The conclusion does not follow from the premises.  The motion does not dispute the ADC's conclusion that Wood is sedated.  If he is sedated, he is not in pain, and nothing happening here remotely qualifies as "cruel."  Gasping and snorting do not necessarily mean a person is in pain, and if he is sedated he certainly is not.

When states were able to use the single-drug protocol with pentobarbital, the executions went smoothly.  The problem here has been caused by those who pressured the suppliers to stop supplying pentobarbital, and any response should be directed at reopening that supply line.

Update:  AP reports the Arizona AG says the execution is completed, though it took about 2 hours.

The anti-death-penalty crowd is already throwing around their favorite word, "botched."  Wrong.  Joseph Wood died, as he should have, and he was sedated, not suffering extreme pain or, for that matter, any pain.  That is not "botched."

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