There is rare issue of agreement in the 2014 gubernatorial campaign: Both Republican incumbent John Kasich and his likely Democratic challenger Ed FitzGerald oppose legislative efforts to eliminate the death penalty in Ohio.* * *This bill is likely headed nowhere soon at the statehouse.
Even if a majority of the pro-death penalty Republican lawmakers changed their view, Governor John Kasich's spokesman told 10TV he would not support it.
The likely Democratic nominee for governor, Ed FitzGerald, also would not endorse it.
"Through his experience in law enforcement, Ed has come to know that there are certain people whose crimes are so heinous that they forfeit their right to live," said Matt McGrath, Ohio Democratic Party spokesman. "Therefore society ought to reserve the right to carry out the death penalty."
Kasich's spokesman Rob Nichols says the governor remains a supporter of the death penalty. As a legislator he voted against a bill that would have replaced it with life imprisonment.
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Regarding the testimony of the defendant's expert, the court notes, "Dr. Heath's opinion on the matter was not that midazolam was ineffective as an anesthetic, but that it should be the only drug during the execution." There is nothing but speculation that William Happ, the only inmate previously executed with this protocol, was insufficiently anesthetized, and the fact that his head moved does not mean he was conscious.
There is not much left for the Florida Supreme Court, or any federal court, to decide. On the inmate's own expert's testimony, he has no claim that is even in the ballpark of meeting the Baze standard.
At the threshold, there are often complicated questions of federalism in a decision to prosecute a murder in federal court rather than state court. Does federal jurisdiction extend to this case under the statute and within the limits of the Constitution? If so, is this a case that should be prosecuted in federal court as a matter of policy?
The policy question was easy in this case. This was an act of terrorism directed at the United States as a nation. In any event, we are past the threshold jurisdiction issue, and that is not what the article claims is complicated.
Given that this is a federal case in which death is an available punishment, should the prosecution seek it? Of course! That is not complicated at all. Death should be sought in cases at the upper end of the heinousness scale, and this case pegs the meter. It was a terrible crime against a great many victims, and no substantial mitigation has come to light. The mere possibility that the younger brother was influenced by the older is not remotely close to outweighing the extremely aggravated circumstances of the crime, and any claim of actual duress is conclusively refuted by the perpetrator's scrawling in the boat after his brother's death.
The ridiculously long time that federal courts are taking to resolve capital appeals is not a complication of the decision to seek the death penalty. It is a failure of the Administration to put the priority on these cases that they deserve. For the collateral reviews, Congress has mandated that "any motion under section 2255 by a person under sentence of death, shall be given priority by the district court and by the court of appeals over all noncapital matters." See 28 U.S.C. §2266(a). The courts are ignoring this law, and the Administration is not pressing them on it.
Yet even here, there are some crimes and criminals so horrific that a jury will unanimously find death to be the appropriate punishment. We know from polls that when you focus people on the murders at the upper end of the heinousness scale, support for the death penalty rises even among those otherwise ambivalent. Gary Klien reports for the Marin Independent Journal:
Calling him "an evil and disturbed man," a Marin County judge sentenced convicted serial killer Joseph Naso to death Friday for the murders of six women over a span of nearly two decades.
Judge Andrew Sweet said the evidence proved that Naso inflicted "abhorrent and repugnant levels of suffering and cruelty" on the victims, and humilitated them even more by meticulously documenting the crimes in his diaries and photographs.
The case is also Exhibit A for search conditions on probationers and parolees. See United States v. Knights (2001).
Having reviewed the parties' briefs and the record in this expedited appeal, we conclude Joseph Franklin has not met his burden under 28 U.S.C. § 2254(d) to present sufficient evidence to warrant interference with the judgment of the Missouri courts nor has Franklin proffered sufficient evidence to show a likelihood of success on the merits to support a stay of execution. See Panetti v. Quarterman, 551 U.S. 930, 946-47, 956-57, 961 (2007). Determining the district court abused its discretion, we reverse the district court's stay of execution.
Well that's pretty short and sweet, probably due to the time pressures.
I don't have the actual ruling, but from the story it appears that the judge might believe that litigating the method of execution is the new normal, a permanent additional phase to capital litigation, and every inmate has to be allowed that challenge. It shouldn't be. A single-drug execution with pentobarbital is so far from the risk of extreme pain required under Baze that there normally should not be any basis for a stay.
[Editor's Note: Orders are here and here. No dissent noted. Scalia recused.]
A federal judge in Missouri on Tuesday granted a stay of execution to white supremacist serial killer Joseph Paul Franklin just hours before his scheduled death, citing concerns over the state's new execution method.I don't have the actual ruling, but from the story it appears that the judge might believe that litigating the method of execution is the new normal, a permanent additional phase to capital litigation, and every inmate has to be allowed that challenge. It shouldn't be. A single-drug execution with pentobarbital is so far from the risk of extreme pain required under Baze that there normally should not be any basis for a stay.
Well, not quite never. Steve Fry of the Topeka Capital-Journal has this story on the lawyer in the Kansas case of Phillip Cheatham.
Should we see more such proceedings? Bear in mind that it is now considered mandatory in capital appellate defense culture to savagely attack the trial lawyer regardless of how good a job he actually did. When was the last time you saw an initial collateral review petition in a capital case that did not allege ineffective assistance? I can't think of any offhand. And of course for a judge or panel itching to find an excuse to overturn the sentence, IAC makes a juicy target. The claims are so "fact bound" that a grant of relief is less likely to be reversed on discretionary review further up the chain.
If bar discipline proceedings regularly follow IAC reversals, and if such reversals are frequently made even if the lawyer did, in fact, do a good job, then lawyers may shun capital cases at trial.
On the other hand, if bar discipline proceedings are common, lawyers would have a stronger incentive not to fall on their swords in the collateral review proceeding. They would have an incentive to do what civil lawyers do to protect themselves from accusations of malpractice. They would document as they go along to protect themselves from potential claims and come out with guns blazing when wrongly accused.
Knight/Muhammad challenges Florida's new injection protocol, which substitutes midazolam hydrochloride for the first drug of the three-drug protocol that was standard until the last few years. The protocol includes a check for consciousness after the first drug, the safeguard that Justice Ginsburg found critically missing from the Kentucky protocol upheld by a majority in Baze v. Rees.
The usual constitutional test in prison medical cases is "substantial risk of serious harm." As the Baze plurality indicated, in the lethal injection context that translates to a substantial risk of severe pain during the execution. The Florida Supreme Court majority concludes that Muhammad "has raised a factual dispute, not conclusively refuted, as to whether the use of midazolam hydrochloride in Florida's lethal injection protocol will subject him" to such a risk. So they send the matter to the trial court for an evidentiary hearing, followed by a rapid briefing schedule, and oral argument, if necessary, on December 18. The stay expires in a little over a month, December 27.
On the merits, the dissent is probably right. As a practical matter, I think the court's action is for the best. The stay is brief. With an evidentiary hearing, findings of fact, and a state court opinion on the merits, the resulting judgment should be close to bulletproof when (not if) the attack is made in federal court. When these steps are missing or inadequate, the federal courts are more likely to step in, and the overall delay is likely to be longer.
Missouri's recent gap has been considerably shorter, only two years, but nonetheless they have an exceptionally appropriate miscreant set for next Wednesday. Jim Salter reports for AP:
No one knows exactly how many atrocities Joseph Paul Franklin committed as he crossed the country more than three decades ago, fueled by hatred of blacks and Jews. Along the way he bombed a synagogue, robbed banks, shot and wounded a porn icon -- and killed, by his own account, nearly two dozen people.Missouri has given up on using propofol for executions and has evidently secured a source of pentobarbital, which is the best one to use if they can get it. It's use in animal euthanasia is very well established, and it has been used in numerous executions since thiopental became hard to get.
Even among the hard-core criminals on Missouri's death row, Franklin is perhaps the most notorious, a cunning killer who picked out victims at random, using marksman skills to murder and maim from a hidden spot in a vacant building, a grassy field and a highway overpass.
We make four holdings. We hold that a county prosecutor may consider the facts of a crime as a mitigating circumstance or lack thereof under RCW 10.95.040(1). We hold that a county prosecutor does not have to complete an exhaustive investigation of mitigating circumstances before filing a death penalty notice. We hold that the county prosecutor in this case properly exercised his discretion to file a death penalty notice. And we hold that the trial court improperly intruded upon that subjective determination when it held the prosecutor to a higher standard. Accordingly, the death penalty notice against Monfort is reinstated, and the matter is remanded to the trial court for proceedings consistent with this opinion.
In his 2003 New Republic review of a biography of Douglas (Wild Bill: The Legend and Life of William O. Douglas, by Bruce Allen Murphy), Seventh Circuit judge Richard A. Posner offers this succinct summary of Douglas's judicial career: "For Douglas, law was merely politics." Here's Posner's colorful fuller assessment: "Apart from being a flagrant liar, Douglas was a compulsive womanizer, a heavy drinker, a terrible husband to each of his four wives, a terrible father to his two children, and a bored, distracted, uncollegial, irresponsible, and at times unethical Supreme Court justice who regularly left the Court for his summer vacation weeks before the term ended. Rude, ice-cold, hot-tempered, ungrateful, foul-mouthed, self-absorbed, and devoured by ambition, he was also financially reckless--at once a big spender, a tightwad, and a sponge--who, while he was serving as a justice, received a substantial salary from a foundation established and controlled by a shady Las Vegas businessman."
As Posner acknowledges, one can, of course, "be a bad person and a good judge, just as one can be a good person and a bad judge." By the evidence, Douglas was both a terrible person and a terrible judge.
I might add that Douglas, for all his flaws, did not join Marshall and Brennan in believing that the death penalty is a per se violation of the Eighth Amendment. Ironically, he was succeeded by a far better man and a better (on most things) judge, John Paul Stevens, who, maddeningly, got this fundamental point wrong.
Given that, at the time the State Constitution was adopted, capital punishment was a sanctioned penalty for specified crimes and that the plain language of the constitution anticipates its use, the framers could not have considered capital punishment to be "cruel or unusual." We agree with the trial court that "[l]ooking at the language of the New Hampshire Constitution and the circumstances of its adoption, the framers undoubtedly anticipated that the death penalty would be imposed for many crimes."* * *As the trial court found, "[g]iven how frequently the death penalty has been debated, and how consistently the representative branches of government have upheld it, . . . capital punishment does not offend general community standards of decency in this State." We agree with the trial court that "[t]he legislative history of capital punishment in this State demonstrates that a consensus has not been reached that capital punishment is cruel or unusual." We presume the validity of "a punishment selected by a democratically elected legislature" and conclude that the defendant has not met the "heavy burden [that] rests on those who would attack the judgment of the representatives of the people." Deflorio, 128 N.H. at 316 (quotation omitted). Accordingly, we hold that the defendant has not established that the death penalty statute facially violates Part I, Article 18 or Part I, Article 33 of the State Constitution.