Recently in Death Penalty Category

What a difference a year makes. There are three news stories about death penalty legislation in my Google Alerts email this morning, and all three are about state legislatures considering expanding their death penalty laws. They are noted after the jump.

So what's going on here? Has public opinion on the death penalty shifted dramatically from last year, when repeals and contractions were on the table, to this year, when expansion is on the table in multiple states? No. Polls consistently report that support has been steady. The difference is that political tides have changed for unrelated reasons, producing a shift in which legislators feel confident of reelection and which feel uneasy.

Judson Berger reports on FOXNews.com,

The Senate Judiciary Committee has postponed the hearing for a controversial Court of Appeals nominee after the panel received a letter from a home-state prosecutor blasting the candidate as a judicial loose cannon and after Republicans raised concerns about bias in favor of sex offenders.

U.S. District Court Judge Robert Chatigny gained notoriety in 2005 for his role in trying to fight the execution of convicted serial killer and rapist Michael Ross, also known as The Roadside Strangler, whom Chatigny had described as a victim of his own "sexual sadism."

When it comes to the goals of representation, the rules are quite clear: the client is in charge. See, e.g., ABA Model Rule of Professional Conduct 1.2. Michael Ross was a "volunteer" who decided to waive his appeals and receive his punishment. His lawyer's duty was to achieve the client's goal. Whenever someone "volunteers," the anti side generally runs in and claims he must be crazy, using a variation of the original Catch-22. But in fact waiving appeals can be a rational choice. It was in Ross's case, and the lawyer did the right thing. Judge Chatigny nonetheless threatened the lawyer with loss of his license in an appalling display of judicial intemperance.  From the story:

"I've never seen conduct like this," said a Republican source. "I'm shocked that the White House vetted this guy ... and still put him up for a judgeship."

Also appalling is Judge Chatigny's assertion that sadism is "clearly mitigating" in a capital case. Not everything that has a code in the DSM is mitigating. Antisocial personality disorder is a code for behavior that is aggravating. Describing a sadistic rapist and murderer as a "victim" indicates a seriously skewed view of criminality. Sadism is defined by urges, not by an inability to resist them. A person who has an urge to do things the rest of us would not want to do is nonetheless fully responsible for his voluntary choice to act on them.

A third jury has decided that serial killer Rodney Alcala should be sentenced to death for five murders, including that of a 12-year-old girl. Gillian Flaccus has this story for AP. The previous judgment was overturned by the Ninth Circuit. The story says the jury "recommended" death, but in California the jury returns a verdict, not a recommendation.

While looking for something else, I came across a transcript of Professor John McAdams' testimony to the Senate Judiciary Committee, Senate Hearing 109-540, Feb. 1, 2006. I've copied it in full after the jump. Some of the numbers are a bit out of date, but the main points remain valid.

Juan Lozano reports for AP,

A Texas judge who came under criticism for his ruling declaring the death penalty unconstitutional took back his controversial decision on Tuesday.

However, Judge Kevin Fine said he still wants more information on whether the state's death penalty statute is unconstitutional because it allows for the possible execution of an innocent person.

*                              *                             *

Fine said there was no precedent to guide him in resolving the issues raised by defense attorneys in a case involving a man accused of fatally shooting a Houston woman and wounding her sister during a robbery in front of their home in June 2008.

Has this guy been asleep since 1972 and come out yawning like Rip Van Winkle? These issues have been debated ad nauseam.

Here are photos from the death penalty "mock trial" event in London on Tuesday. The link starts at index page 3, where most of the pictures of the home team are.

We hope to have a full online video of the event soon.

In today's orders list, the U.S. Supreme Court declined to grant certiorari to Edward Jerome Harbison, a Tennessee inmate challenging state implementation of its lethal injection protocol.  In his petition in Harbison v. Little (09-7777), Harbison asked the Court to rule that lower courts should not uphold the state's lethal injection procedures by declaring that the state's lethal injection protocol was "substantially similar" to the protocol approved by the Supreme Court in Baze v. Rees.  If the Court had granted certiorari and ruled for Harbison, lower courts would be forced to conduct detailed examination of a state's injection protocol in order to determine whether the procedure causes unnecessary pain before death occurs.

In 1983, Harbison broke into the home of Edith Russell, and when she came home unexpectedly he beat her to death with a heavy, marble vase.  He stole various items of value belonging to her. A jury convicted him of first-degree murder, second-degree burglary, and grand larceny, and sentenced him to death for the murder.  Last April, the Supreme Court ruled on his claim for appointment of federal counsel during clemency proceedings, and last July, the Sixth Circuit ruled on Harbison's lethal injection claims. 

The three-judge panel for the Sixth Circuit vacated the district court's judgment that Tennessee's lethal injection protocol violated the Eighth Amendment.  The district court had found Tennessee's lethal injection protocol inadequate for four reasons.  First, it found the protocol deficient because it did not provide a proper procedure for ensuring that the inmate was unconscious before administering the second drug.  Second, it believed the protocol did not provide for the adequate training of officer.  Third, it did not believe the protocol adequately monitored the administration of drugs.  The district court also faulted Tennessee for failing to adopt a "one-drug" protocol or alternative procedures. 

The Sixth Circuit relied on Baze -- which upheld Kentucky's protocol and held that a substantially similar protocol would not violate the Eighth Amendment -- and concluded that Tennessee's "substantially similar" three-drug protocol also did not violate the Eighth Amendment.  The same four complaints raised by the district court had been addressed by the Supreme Court in Baze, and each time, the Court concluded that the alleged risks rise to the level of a constitutional violation.  Baze's discussion and ultimate rejection of these concerns allowed the Sixth Circuit to uphold Tennessee's protocol. 

A dissent, written by Judge Clay, would have remanded the case for an evidentiary hearing to allow the district court to rule on whether Harbison can meet the Baze standard, but the majority declined to fashion such a remedy when neither party had requested it at oral argument. 

Lyle Denniston also has a post on SCOTUSblog discussing the Supreme Court's denial.

Tuesday starting at 6:30 GMT, there will be a "mock trial" on the death penalty in London. (That is 1:30pm ET or 10:30am PT.) Witnesses for the "defense" will be Paul Cassell, Robert Blecker, and yours truly. The announcement is here.

The "verdict" is probably predetermined. As I understand it, the audience will vote. Given that the audience is people who have paid $100 to attend a fundraiser for an anti-death-penalty organization, a unanimous vote for the other side is a distinct possibility, regardless of the presentations. My experience is that events such as this rarely or never sway the views of anyone whose mind is already made up either way, and not too many "swing votes" attend.

Nonetheless, this is a chance to present the other side to people who have probably never heard anything but the anti side's propaganda. The sponsors do seem to be interested in having the presentations balanced and flew us over for that purpose.

Don't know yet if the event will be available on the Web.

    However partisan the atmosphere in Washington may be, there is one thing I thought there should be a consensus on -- the U.S. Court of Appeals for the Ninth Circuit is badly out of the mainstream on criminal cases generally and capital cases in particular. Therefore, any appointments to that court should be made with the purpose of correcting toward the middle.

    Astonishingly, the Administration has done just the opposite. It has nominated Berkeley Professor Goodwin Liu. When Justice Alito was nominated, Professor Liu wrote a paper titled "Judge Alito and the Death Penalty." I wrote a rebuttal.

    To anyone familiar with the death penalty debate, it is painfully evident that Professor Liu takes the murderers' side on every debatable point. If confirmed, there is no doubt in my mind that he will be a vote to obstruct the enforcement of capital punishment in virtually every case. Adding him to the Ninth would take a court that is already far out of the judicial mainstream and push it even further in that direction.

    This calls for pull-out-the-stops opposition. The West suffers to this day from appointments made by Jimmy Carter on the advice of Alan Cranston three decades ago. We don't need more bad appointments to plague us for another generation.

The controversy in the Charles Hood case about the judge who years earlier had an affair with the prosecutor is now moot, at least as to the death sentence. The Texas Court of Criminal Appeals today ordered resentencing on other grounds. The problem (as in so many Texas capital cases, and, to a lesser degree, those of other states) is the U.S. Supreme Court's inability to agree with itself from one year to the next what the Constitution requires and what it forbids.

We wade once more into the murky waters of Penry law and the Texas death-penalty sentencing scheme. The ebb and flow of constitutional jurisprudence concerning when and what special instructions are necessary for the jury to give meaningful consideration to relevant mitigating evidence has sharply divided the United States Supreme Court, the Fifth Circuit, and this Court for some twenty years. The Chief Justice of the Supreme Court has noted that the jurisprudence surrounding the intersection of mitigation evidence and the Texas "nullification instruction" in pre-1991 death-penalty cases is "a dog's breakfast of divided, conflicting, and ever-changing analyses." Reasonable jurists differ on these matters.

Update: John Schwartz has this story in the NYT.

Lauren notes the NYT article on the Charles Dean Hood case. The first sentence of the article is:

Charles Dean Hood was sentenced to death in 1990 by a Texas judge who had been sleeping with the prosecutor in his case.

Only those readers who make it halfway down the article find out that the affair ended three years before the trial. Readers never do find out that the jury, not the judge, is the primary decision-maker on capital-case sentencing in Texas. Simply saying that Hood was sentenced to death by the judge leaves a reader with the impression that she made the discretionary sentencing judgment call in the case, which is not true.

That is not to defend what happened in this case, but there is no reason to make it sound worse than it really was.

The Supreme Court today summarily reversed yet another federal court of appeals decision overturning a state court based on the federal court's own dubious extrapolation from Supreme Court precedent, rather than because anything in the state court decision is actually contrary to Supreme Court precedent. That misuse of habeas for pushing the envelope has been error under case law since the 1989 decision of Teague v. Lane, and it has been forbidden by an Act of Congress since 1996. Yet some federal judges still don't get it.

The only thing unusual in today's summary reversal is that it was the Fifth Circuit that crossed the line. Usually it is the Ninth or the Sixth.

In Thaler v. Haynes, the prosecutor said he challenged a juror because she was not taking this capital case seriously enough. The judge believed him, but the judge who decided the motion was not the same judge who conducted the voir dire.  While it helps if the same judge also observed the voir dire, it takes a very strained reading of Batson v. Kentucky to find a requirement to that effect. What if the judge who conducted voir dire died suddenly between voir dire and the Batson motion. Would the defendant have an automatic entitlement to have his motion granted? The Texas Court of Criminal Appeals didn't buy it. Neither did the federal district judge.

The Fifth Circuit granted habeas relief.  For the "clearly established" requirement that a challenge based on juror demeanor must be judged by the judge who presided at voir dire, the Fifth Circuit cited Snyder v. Louisiana, 552 U.S. 472 (2008).  The Supreme Court today noted that even if Snyder had held that (it didn't), Snyder was decided six years after the relevant state court opinion. Stare decisis requires obedience, not clairvoyance.

David Klepper reports for the Kansas City Star:

The debate was emotional and the vote as close as they come, but ultimately the Kansas Senate upheld the state's death penalty on Friday.

*                                  *                                *

Even if the bill had passed the Senate, House Speaker Mike O'Neal, a Hutchinson Republican, said it was unlikely the House would consider it.

The Louisiana Department of Corrections has taken a proactive approach against piecemeal litigation of lethal injection claims. In response to an Administrative Procedures Act claim (the type that has tied up capital punishment in California, Maryland, et al.), they filed their own suit naming all 84 prisoners on death row as parties. This post on the blog Solitary Watch takes a dim view of the tactic, but I'll raise a glass to some refreshing initiative.

Twenty-six years ago, Florida Fish and Wildlife Officer Margaret Park was murdered in the course of her duties. The long overdue execution of Martin Grossman for this crime was carried out today. AP story here. The Supreme Court's "green light for the green mile" order is here. Mark Douglas of News Channel 8 notes a curious development:

Tonight, the Vatican, Jewish leaders as far away as Jerusalem, and thousands of petitioners are calling for a stop to the execution of convicted killer Martin Grossman.

But as of 5 p.m., there wasn't a single protester standing outside the Florida State Prison, where Grossman was scheduled to die of lethal injection....

Update: The part about no protesters is missing from the updated, post-execution version of Douglas's story.

Update 2: Douglas's "witness to execution" story is here.

Yeshiva World News reports that Governor Crist has sent out an answer to the emails he has received: