Recently in Death Penalty Category

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:
The United States Supreme Court this morning took up two capital cases from Texas, Moore v. Texas, No. 15-797, and Buck v. Stephens, No. 15-8049.

Moore has stated two "questions presented" in his petition.  One has to do with the definition of intellectual disability (formerly called mental retardation) for the purpose of the categorical exemption from capital punishment established in Atkins v. Virginia.  The second is the infamous "Lackey claim," that length of time on death row alone is enough reason to vacate an otherwise valid sentence, even when the state has been fighting tooth and nail against delay and the defendant has been causing it.  The latter has been turned down by the high court again and again, never getting more than two votes to take it up.  The order granting certiorari does not limit the grant to question 1, as I would have expected, but it is possible that this is an oversight and the court will amend the grant to exclude the Lackey claimUpdate:  The orders list and the docket now indicate that the grant of certiorari is limited to Question 1, the Atkins claim, turning down the Lackey claim.

In Buck, the defendant's own expert testified at some length that the defendant would not be dangerous in a prison environment, an opinion highly favorable to the defense on a critical question.  In the course of the testimony, the expert testified regarding the factors that correlate with rates of violent crime.  In response to a question from defense counsel, the expert said, "It's a sad commentary that minorities, Hispanics and black people, are overrepresented in the Criminal Justice System." 

This is not a claim that race causes people to be violent.  It is simply a statement of an unfortunate but undeniable demographic reality.  This statement, and a brief follow-up on cross-examination, have been widely misrepresented by Buck's lawyers and the media.  The full transcript of the testimony is here.

In other action, the high court decided a procedural question involving the Prison Litigation Reform Act and "exhaustion" in Ross v. Blake.
Sometimes you wonder how the families of murder victims restrain themselves from just going after the murderers in the courtroom, as they sit only a few feet away.  It's not surprising that Van Terry, the father of 18-year-old Shirellda Terry, yielded to temptation and lunged that at evil-to-the-core Michael Madison.  The police stopped him before he could reach Madison.  Michael Miller has a report, with video, at the WaPo.

We tell people to trust the system to work and not take things into their own hands.  Too often the system betrays them.  Ohio owes it to Mr. Terry as well as the other families to review this case within a reasonable time and, if there is no reversible error, carry out the sentence.  The cases of Timothy McVeigh and the D.C. Sniper demonstrate that a full and fair review can be carried out in five or six years from sentence to execution.

That should be the standard.  Absent any substantial claim of actual "got the wrong guy" innocence (and most capital cases have none) every capital case should reach a final conclusion -- reversal or execution -- within six years.

Easiest Decision of the Year

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The Justice Department has announced that it will seek the death penalty against Dylan Roof.  

About a year ago, Roof sat in a pew in the Emanuel AME church in Charleston, SC. After an hour in which several parishoners were holding a Bible discussion, he shot nine of them to death.  The victims were all black; Roof is white.  He did it out of racial hate, neither more nor less.  To my knowledge, no sane person has raised any question about who committed this massacre or why.

I worked for DOJ for years, and I cannot fathom why it would take eleven months to decide on the death penalty.  Being as charitable as I can, my guess is that the Department was careful to solicit the views of the victims' families, and that opinion was divided.  Some very religious people oppose capital punishment under all circumstances.

Roof, however, is a walking, and conclusive, case for the death penalty.  The idea that a prison sentence, regardless of its length, is proportionate to this crime is absurd.

I'm all for salvation, but salvation comes from God.  The best our law can do is justice. Now, justice will have its chance.
In Oklahoma, a grand jury has released its report on the problems with executions by lethal injection in that state and the substitution of potassium acetate for potassium chloride.  There are numerous procedural errors detailed in the report, and opponents of the death penalty are having a field day with them.  However, this should not obscure the "bottom line" finding on the execution of Charles Warner (emphasis added):

Warner's death was intentionally inflicted by correctional officers acting pursuant to a Death Warrant issued by the District Court in State of Oklahoma v. Charles Fredrick Warner, Oklahoma County Case No. CF-1997-5249.  The execution, which involved the administration of midazolam, rocuronium bromide, and potassium acetate, was completed in a manner consistent with the Death Warrant and statutory authority. The intravenous administration of the three-drug cocktail to Warner resulted in his humane death within eighteen minutes of the commencement of the sequential administration of these drugs. There is no evidence the manner of the execution caused Warner any needless pain. Nevertheless, his execution was not administered in compliance with the Department's Protocol or in a manner allowing Warner to challenge the procedure prior to his death.

Going forward, the grand jury recommended further research on the use of nitrogen, recently authorized by the legislature:

Press conferences were held at county registrars of voters around the state as we turned in the petitions.  Sean Emery of the Orange County Register has this story on the turn-in there.

Here are photos from the Sacramento event, by our own Marissa Cohen.  Click on the photo for a larger view.

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Sacramento District Attorney Anne Marie Schubert introduces the measure and discusses its significance.
In 2012, the friends of murderers came within four percent of repealing California's death penalty by popular vote, something that has not been done in any state in the United States.  Opposition to the death penalty (like other soft-on-crime efforts) is mostly an elitist cause, pushed by affluent people who can go home to their leafy neighborhoods while the bloody consequences of their feel-good "humanitarianism" fall on people of more modest means.  Thus, repeal bills have gotten through legislatures even when the people of the state are opposed to repeal.  We saw this in Connecticut, where repeal went through even as polls showed the people opposed by 2-1.

In California, the death penalty was enacted by initiative and can't be repealed by the Legislature.  However, the Legislature has failed to do the maintenance necessary to make the death penalty effective, and until now the forces of justice have not been able to raise the very large amounts of money needed to get a fix-it initiative on the ballot.

I can easily see why a lot of people who support the death penalty in principle voted for repeal in 2012.  The present system is not working.  If I genuinely believed it was not fixable, I might vote for repeal myself.

The well-funded friends of murderers have enough signatures to put repeal on the ballot again this year.  But this year is different.  Through a herculean fund-raising effort led by the district attorneys, there will also be a competing initiative to actually fix the system, making the reforms that our derelict Legislature has killed instead of passing so many times.

"Mend it, don't end it" was our slogan in opposition to repeal last time.  A good many people asked, "Yeah, but when are you going to mend it."  Finally, we have a good answer.  This time, the people of California have a direct choice between the two.  The status quo is toast.

I have no doubt the people will choose to mend it and not end it if they are fully and honestly informed of the choice before them.  The main concern now is the overwhelming funding advantage the opponents have.  They can and will spend big bucks to put misleading advertisements on the air, and our side will have only a shoestring grass-roots campaign.  This campaign may be a test of the extent to which money can buy an election.
It is being widely reported in the press that drug manufacturer Pfizer is putting restrictions on the sale of its drugs to prevent them being used in executions.  However, no press release to that effect is on their press release page as of this writing.

I was not aware that any state was using a Pfizer-brand drug, so the impact is unclear.  There may not be any impact at all.

The states most actively carrying out executions have been getting their drugs from compounding pharmacies.  The statement by the opponents that Pfizer's action drives the sourcing "underground" is nonsense.  There is nothing "underground" about compounding pharmacies.

The lethal injection drugs of choice remain thiopental and pentobarbital, and all we really need is for Congress or the Supreme Court to abrogate or overrule the D.C. Circuit's wrongly-decided Cook case so that imports from Asia can resume.  Any questions about purity or potency can be easily resolved by testing.
Mark Berman at the Washington Post has this story on the Hurst remand argument, noted in my post yesterday. Unfortunately, the article contains a glaring error.

The uncertain situation dates back to January, when the U.S. Supreme Court struck down Florida's unique system of imposing death sentences as unconstitutional because it let judges, rather than juries, make the final call.
Wrong.  The issue in Hurst was the finding of an aggravating circumstance making the defendant eligible for the death penalty.  Way back in the Spaziano case in 1984, as described in my previous post, the Supreme Court rejected the argument that the Sixth Amendment requires that the jury make "the final call."

In light of the facts that the Sixth Amendment does not require jury sentencing, that the demands of fairness and reliability in capital cases do not require it, and that neither the nature of, nor the purpose behind, the death penalty requires jury sentencing, we cannot conclude that placing responsibility on the trial judge to impose the sentence in a capital case is unconstitutional.
The Hurst Court was very careful not to say that Spaziano was overruled entirely.  Instead, Spaziano and Hildwin were overruled only "to the extent they allow a sentencing judge to find an aggravating circumstance, independent of a jury's factfinding, that is necessary for imposition of the death penalty."  In other words, Spaziano is still good law on the "final call."

Why does the WaPo keep getting things wrong on capital cases?  Maybe it's because the "experts" consulted for their stories consist mostly, if not entirely, of advocates for one side of the issue.
In January, the U.S. Supreme Court decided in Hurst v. Florida that the Florida capital sentencing system did not comply with a series of cases beginning with Apprendi v. New Jersey (2000).  Yesterday the Florida Supreme Court heard oral argument on remand in the Hurst case.  Several people have asked me what should/will happen to the cases of the murderers presently on death row in Florida.  "Should" is easier to answer than "will":

1.  Cases final on direct appeal (i.e., those where the Florida Supreme Court has affirmed the judgment in the initial appeal and the U.S. Supreme Court has denied the petition to take the case up or the defendant did not file one) should not be affected by Hurst.

2.  Cases already tried and pending on appeal should be affirmed under the "harmless error" rule if it is clear beyond a reasonable doubt that the jury would have unanimously found at least one aggravating circumstance if they had been asked to do so.   For example, if the jury convicted the defendant of robbery and murder and there is no question in the case that the murder was committed in the course of the robbery (an aggravating circumstance), that would be harmless error.

3.  Cases where there is a Hurst error that does not meet the standard for harmless error should be retried as to penalty under the new statutory procedure.

Preventable Deaths

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Timothy Jones, 34, is currently on trial in South Carolina for murdering his five children in 2014.  The year prior, in 2013, he was awarded primary custody following divorce proceedings with his now ex-wife, Amber Jones, 31, who has filed a lawsuit against the South Carolina Department of Social Services.  Brandy Zadrozny of the Daily Beast reports the suit's allegations:

[The DSS] failed to fully investigate multiple allegations of abuse, from teachers, school officials, neighbors, babysitters, and Amber Jones herself, according to the complaint. When investigations uncovered abuse, the DSS made a half-dozen ineffectual "safety plans," instead of reporting evidence of child abuse to the authorities and removing the children from Mr. Jones's care.

Mr. Jones had a history of substance abuse and served time in prison for drug possession, forgery, burglary and car theft, crimes that are now deemed "nonserious" and would classify him as a "nonviolent" offender in the state of California and in the proposed federal sentencing reform.  It is disheartening to realize that this rap sheet, even if regarded by the state and the DSS as consisting of "nonserious" and "nonviolent" offenses, could be discounted when considering the primary custody of five children.

Prosecutors are seeking the death penalty against Mr. Jones for these horrific -- and preventable -- murders.  If ever there was a crime for which death is the suitable penalty, this is it.  Anything less for a man who brutally kills his five small children would be unjust.

Kansas v. Carr Podcast

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Justice Antonin Scalia's last opinion for the U. S. Supreme Court was Kansas v. Carr, decided 8-1 on January 20.  The Federalist Society has this podcast on the decision, by yours truly.

Why We Have the Death Penalty

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Today marks the third anniversary of the Boston Marathon bombing.  The bombers killed three people and injured and maimed 264 others, some grotesquely and many for life.  They also killed an MIT policeman in the aftermath.

The bombers were Dzhokhar Tsarnaev and his brother. The brother was killed in a confrontation with the police. Dzhokhar was captured.

He was and is a Jihadist.  The reason for the bombing was hate for America, neither more nor less.

Over the screeching of abolitionists, and attempts politically to intimidate the government from seeking capital punishment, Dzhokhar was convicted by a federal jury in Boston, one of the most liberal cities in the country, and sentenced to death.

Of course he has not been executed, while taxpayers get dunned for hundreds of thousands of dollars in the service of manufacturing excuses for his gruesome behavior.  In the meantime, in nearby Harvard Law School, the main reaction is shrugging, except for those still protesting in little Dzhokhar's behalf.  

There is a ream I could write about this horrid case, but I'll refrain except to say two things.  First, the case impeaches to the point of farce the notion that we should never, ever permit a jury to consider imposing a death sentence.  Second, for the many in academia and other sanctuaries of self-satisfied righteousness who think, with Dzhokhar, that Amerika stinks, some consideration might be given to what actually stinks, to wit, the continued, everyday suffering of the victims.  

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