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Eighth Time's the Charm

Hit man and repeat murderer Thomas Arthur was finally executed in Alabama last night after dodging seven prior execution dates.   Kim Chandler has this story for AP.

Arthur filed a last-minute petition in the U.S. Supreme Court, and Justice Thomas (the assigned Circuit Justice for the Eleventh Circuit, including Alabama) granted a temporary stay while the Court considered it.  The Court lifted the stay and denied relief barely in time for the execution to be carried out before the warrant expired at midnight.

The petition had to do with the state's use of midazolam as the first drug of the protocol.  An additional wrinkle was the defendant's request for his lawyer to have a cell phone to make a call if things went badly.  Justice Sotomayor dissented alone.

The midazolam problem is entirely artificial and entirely unnecessary.  The federal government needs to bring down the barriers that are presently preventing the states from importing barbiturates from willing suppliers in Asia.  Is anyone in the government paying attention?

Update:  Kim Chandler and Jay Reeves have this follow-up story for AP on racing the clock.
The oral argument before the California Supreme Court in the suit challenging Proposition 66, the death penalty reform initiative, is set for Tuesday, June 6 at 9:30 a.m.

California's nomadic Supreme Court hears arguments in Sacramento and Los Angeles as well as its headquarters in San Francisco, and this argument date is in L.A.

That's D-Day, appropriately enough.  We are anxious to head south, storm the beach, and engage in the battle, hopefully winning a major victory for justice.
In 1992, J.W. Ledford murdered Dr. Harry Johnston in Murray County in northwest Georgia.  As long-overdue justice for this crime approached, Ledford's lawyers argued that execution with pentobarbital (the preferred drug, which Georgia still has as other states run out) would be excruciatingly painful in his case because his long use of a painkilling medication had raised his tolerance level.  Kate Brumback has this story for AP.  It was a far-fetched claim, given that lethal injection involves a massive overdose.  So how painful was it?

Records from past executions show that the lethal drug generally starts flowing within a couple of minutes of the warden exiting the execution chamber. Ledford raised his head to look at his right arm right after the warden left and about a minute later appeared to speak to a guard to his right.

He then rested his head, closed his eyes and appeared to take several deep breaths before falling still within two or three minutes of the warden leaving the room.
In other words, the pentobarbital worked exactly as it should have.

Let's not forget what Ledford did to deserve his punishment.
Immediately after last November's election, two lawsuits were filed by the anti-death-penalty crowd in California.  One of them, in the California Supreme Court, seeks to block the voter-approved reform measure, Proposition 66.  Briefing in that case is completed, and we are waiting with bated breath for oral argument to be set.

The second case was filed by the ACLU in Superior Court in Oakland, Alameda County.  This suit claims that the statute specifying lethal injection as the method of execution and leaving it to the Department of Corrections and Rehabilitation (CDCR) to fill in the details violates the separation of powers.  This thesis has been rejected by courts nationwide except Arkansas.  Seriously, you would have to go all the way back to 1935 and the notorious "sick chicken case" to find such a cramped view of delegation in the federal courts or any but an aberrant few state courts. 

CDCR filed a demurrer.  That's legalspeak for "even if all the facts you allege were true, you would still have no case as a matter of law."  It's a way to get rid of a bogus case at the threshold instead of going to trial.

Judge Kimberly Colwell sustained the demurrer without leave to amend.  That's legalspeak for "You're outta here and don't come back."

The early pages of the order are background and rejecting CDCR's arguments why the court should not reach the merits.  The good stuff is the merits discussion beginning on the bottom of page 8.
Abolitionist Fordham Law Professor Deborah Denno has a book review out endorsing the prediction by another abolitionist, Professor Carol Steiker of Harvard, that the death penalty will be eliminated by the Supreme Court when it "seems right"  --  an intriguing phrase Prof. Denno does not further explain.

SL&P carries an enlightening quotation from Prof. Denno's piece, the last paragraph of which I'll quote below (emphasis added) and then analyze:

[T]he Review expands on some key contributors to the death penalty's decline that may have been obscured by the all-encompassing nature of the Steikers' regulation argument -- for example, the emergence of unforeseeable exogenous variables (similar to the introduction of DNA evidence into criminal trials in the 1980s), as well as pressure points that exist largely outside of the constitutional regulatory framework, such as lethal injection litigation.  Despite these influences, the Review finds the Steikers' prediction -- that, when abolition seems right, it will come by way of a "Furman II" Supreme Court decision -- to readily comport with the death penalty's trajectory over the last fifty years.

The odd thing is that Prof. Denno, though a capital punishment expert, seems to have next to no idea of what the "death penalty's trajectory over the last fifty years" has actually been.

Willingham Prosecutor Cleared

The anti-death-penalty crowd very earnestly desires a case of a demonstrably innocent person actually executed, and if they can't find a real one they will just invent one.  Employing the Lenin Principle, if they can simply repeat enough times that Cameron Todd Willingham was innocent of burning to death his baby daughters, he will become innocent.  The original New Yorker article on the case was a shameless piece of propaganda, as demonstrated in this post.  After the first year, it seemed like we were making some progress on balanced coverage, as noted in this post, but as time went on the only people interested in the case were those with an anti-death-penalty agenda, and that has become the overwhelmingly dominant narrative.

In their quest, they went after the original prosecutor in the case for a claimed Brady disclosure violation.  Interestingly, in Texas you can take a bar discipline case to a local jury, so that is what former prosecutor (and now judge) John Jackson did.

Regrettably, the only coverage on the decision I can find is by the Marshall Project, an advocacy group masquerading as journalists.  So we have to take the story with a heaping tablespoon of salt.  The WaPo is printing this report instead of devoting actual journalism resources to it.  Update:  Michael Kormos has this article on the verdict in the Corsicana Daily Sun, the local paper for the venue.  Regrettably, the article has no information on the trial or the evidence presented that convinced the jury the charges were groundless.

The Wichita Massacre on Remand

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John Hanna reports for AP:

Kansas' top court wrestled Thursday with whether it can mandate new, separate sentencings for two brothers facing execution for four notorious slayings that became known as "the Wichita massacre."

Jonathan and Reginald Carr had a joint trial and sentencing hearing over dozens of crimes in Wichita in December 2000 that ended with three men and a woman shot to death in a snow-covered soccer field. The crimes were among the most notorious in the state since the 1959 slayings of a western Kansas family that inspired Truman Capote's book "In Cold Blood."

This is the second time the Kansas court is considering whether the brothers -- who turned on each other at trial -- should have been sentenced separately. The court in 2014 listed their being tried and sentenced together as among the most serious flaws that made the court proceedings so unfair that the men should be re-sentenced, but the U.S. Supreme Court ordered another review.

Delaware DP Reinstatement Bill

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Last August, the Delaware Supreme Court seriously misinterpreted the U.S. Supreme Court's decision in Hurst v. Florida.  In this post at the time, I asked, "Does Delaware Attorney General Matt Denn have the requisite vertebrae to petition for certiorari?"  Regrettably, the answer was no.

A bill to "fix" the system that isn't actually broken has passed out of committee to the floor of the House, Ian Gronau reports for the Delaware State News.  A floor vote scheduled for today has been postponed and is expected Tuesday, WMDT reports.

Regrettably, the bill would adopt what I call a "single-juror veto" law as opposed to a true unanimity law.  Single-juror veto laws have resulted in gross miscarriages of justice, including the Aurora theater shooting case in Colorado and the Carnation murders in Washington State.  See also this post.
Prosecutors often present unsavory fellows  --  members of drug gangs, for example  -- as witnesses in drug trafficking cases.  In closing argument, they'll remind a skeptical jury that, while these witnesses might not be of the best character, you can't expect the people who know the inner workings of drug conspiracies to be the Pope.

The implication is that the Pope is a model of honesty.

Well, not exactly.
Fox 16 News in Arkansas has this 12-minute video with its reporter Donna Terrell, a witness to last night's execution of Kenneth Williams.  Five minutes in, she says Williams' chest was going up and down, though her description is less dramatic than that of another media witness.  This lasted about four minutes, she says.  She does not say that anything she observed indicated pain.  She saw no grimacing or clenched fist, but what she saw was not the peaceful "going to sleep" that she expected.

I wonder how the witnesses are briefed on what to expect.  Movements do happen.  This article by Dr. Patty Khuly (DVM, presumably) on PetMD, regarding animal euthanasia, says:

Movement after death (such as an intake of breath) is not considered a sign of pain or incomplete euthanasia. It is common. In fact, some postmortem movement is typical. It happens because of electrical impulses remaining in the peripheral nerves of the body after brain waves have ceased.
The anti-DP crowd is wasting no time exploiting public misunderstanding, and I have no doubt they will be aided by the less objective, less professional elements of the press.  Some reporters are just in love with the term "botched execution."  Truly, deeply, passionately.  So they will jump at the chance to call any execution "botched" on the thinnest evidence.  Applying the Lenin Principle, if an execution is called "botched" often enough in the media, then it becomes "botched" in the public mind.  No factual basis required.

There is yet another report by a commission on the death penalty, this time from Oklahoma.  All you really need to know is that this commission was put together by the Constitution Project, an anti-death-penalty advocacy group that masquerades as neutral.  The one thing you can be absolutely sure of is that any group put together by the Constitution Project will have been carefully selected to produce a report in accordance with their agenda.

The Associated Press predictably swallows the group's self-serving description hook, line, and sinker:

Oklahoma is moving forward with new protocols for executing death row inmates, despite a unanimous recommendation from a bipartisan study group that a moratorium on the death penalty remain in place, the state's new attorney general said Wednesday.
"Bipartisan" in what sense?  Having both Democrats and Republicans on the panel?  That might be true, but it would be irrelevant.  Having both sides of the death penalty divide fairly represented on the panel?  I haven't seen a Constitution Project panel yet that fit that description.

Just Deserts

What punishment is appropriate for a life-sentenced killer who kills again?

According to Arkansas News Online, Kenneth Dewayne Williams was sentenced to

life without parole for the Dec. 13, 1998, kidnapping and slaying of 19-year-old Dominique Hurd, a University of Arkansas at Pine Bluff cheerleader from Fort Worth. Williams was convicted of capital murder in Hurd's death and of attempted capital murder in an attack on Hurd's boyfriend, Peter Robertson of New Jersey.

According to trial testimony, Williams abducted the couple from a Bonanza restaurant parking lot in Pine Bluff, forced them to drive to an automated teller machine to get cash and then took them to a wooded area and shot them.

And what happened next?  On Oct. 3, 1999, 18 days after beginning his prison sentence,

Williams ... escaped by hiding in a hog-slop truck that was on the prison grounds and then jumping out as the truck left the prison. He hid in a ditch and eventually made his way to [Cecil] Boren's house, where Boren was outside working in his garden. Williams stole Boren's guns, fatally shot the former warden seven times and made off with the guns and Boren's vehicle.

Williams was recaptured the next day after a high-speed chase in Missouri that resulted in the death of another driver.

Williams really should have gotten the death penalty the first time.  Kidnapping, robbery, and attempted murder on top of murder are more than sufficient aggravating circumstances.  For the second murder, the choice is even more clear.  A life-sentenced inmate is "judgment proof" from any sentence but death, as life sentences are necessarily concurrent in fact regardless of how they are sentenced on paper.  The choices of punishment for the murder of Cecil Boren are (1) death, or (2) none at all.

Option (1) is scheduled for overdue completion tonight.
Last week, I commented on Justice Sotomayor's dissent in the McGehee case from Arkansas.  She said that the Supreme Court should stay the Arkansas executions to resolve a difference of opinion between federal courts of appeals regarding the availability of an alternative method of execution when an inmate claims the state's method creates an excessive risk of pain.

My comment at the time was that there was not yet a circuit split that was ripe for Supreme Court review because the decision of a Sixth Circuit panel was not yet that circuit's final word.  The court might take up the case for rehearing before the full court (en banc).

Sure enough, today the Sixth did exactly that.
Two of the arguments most frequently lodged against the death penalty are that executions can be botched, leading to extended, severe pain; and that surviving family members don't want the trauma either of the protracted capital legal process or the bitter, sometimes jarring experience of the execution itself.

Both arguments were made by the defense side in last night's executions, and both were, as is typically the case, phony.

Will there be any sanctions for defense counsels' deceit?  Let me ask that another way:  Short of outright perjury or helping to plan the murder of prosecution witnesses, are there ever sanctions for defense counsels' deceit?

You've heard it all before.  Hey, look, we gotta be zealous!  Besides, the actual facts don't look so hot, so what else do you expect us to do?  Honestly, you Puritanical stuffed suits just don't have an ounce of compassion.  Anyway, who can really, actually, finally know "The Truth?"

Abolitionism, Down for the Count

Arkansas carried out two executions tonight, the first time that has happened in almost 20 years, as the Washington Post observes.  It executed another murderer a few days ago.

My sense of it is that this development may be remembered as the moment the movement to abolish the death penalty started back downhill after many years of gaining ground.  This is true, I think, whether or not Arkansas succeeds in executing a fourth killer on Thursday, something that now seems likely to happen.

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