Supreme Court

TEXAS – Prosecutor asks for current medical standards in death penalty evaluations


When determining whether someone with a death sentence has a mental disability, Texas has long used outdated standards partially created by elected judges. Now that those standards have been ruled unconstitutional, one district attorney wants the state to use a markedly different measuring stick: current medical science.

Harris County District Attorney Kim Ogg sent a brief to the Texas Court of Criminal Appeals Wednesday afternoon in the case of Bobby Moore, a man convicted in the 1980 shooting death of a Houston supermarket clerk. Ogg now says Moore is intellectually disabled, but the questions surrounding the prisoner’s mental capacity led to a March Supreme Court ruling that invalidated Texas’ method of determining intellectual disability for death row inmates.Justice Ruth Bader Ginsburg wrote in the court’s opinion that the state’s test created an “unacceptable risk” of executing intellectually disabled people, a practice deemed unconstitutional.

But while the ruling tossed out Texas’ old way of determining disability, it didn’t create a new one. Instead, cases of death-sentenced inmates who were deemed competent for execution under the old test were suddenly ripe for new litigation, and at least two men who had been on death row for decades had their sentences changed to life in prison — all while awaiting a final ruling on Moore’s intellectual capacity.

Ogg asked for Moore’s sentence to be reduced to life in prison, and her brief also asked Texas to create a new way of determining intellectual disability — one that sticks to the medical books.

“‘Unacceptable risk’ necessitates that the States should strictly adhere to the definitions of intellectual disability as contained within the most current versions of the clinical manuals,” said the brief.

She implored Texas to conform to the standards set by the American Psychiatric Association, similar to how Louisiana and Mississippi determine intellectual disability. If the Texas court accepts Ogg’s suggestion, death penalty experts say it will put Texas in line with the Supreme Court’s ruling and will put fewer Texas death penalty cases in front of the high court in the future.

“You don’t have the same systemic problems in states that are using medical definitions,” said Robert Dunham, executive director of the Death Penalty Information Center, a national organization critical of current death penalty practices. “We see persistent problems in states [that] have adopted standards that are clearly inconsistent with the contemporary medical standards or have created procedures that make it virtually impossible to prove intellectual disability.”

Dunham said in general that states have sought to conform to previous Supreme Court rulings, but others — Texas, Georgia, Missouri, Arkansas and Florida — have created hurdles for proving the disability. He said the best way for Texas to avoid future problems is to use existing medical standards.

The Texas Attorney General’s Office, which represents the state in federal death penalty appeals, and several district attorneys in counties where intellectual disability cases are in play did not return phone calls Thursday.

In 2002, the Supreme Court ruled that executing people with intellectual disabilities is unconstitutional under the Eighth Amendment, but it left it up to the states to determine how to qualify the condition. The legal definition of intellectual disability doesn’t have to fully match a medical definition, but it does have to be informed by the current medical frameworks, according to the court.

The Texas Court of Criminal Appeals created its own method two years later. Death penalty critic Judge Elsa Alcala wrote in a 2015 opinion that the test was only meant to be a temporary solution “in the absence of any legislative guidance.” The method found inmates facing execution intellectually disabled if their IQ was 70 or below. If an IQ was above 70 but close enough to be within a margin of error (the state put Moore at 74), the court would look at how well the person functioned in daily life by referencing 1992 medical guidelines and a controversial set of questions called the “Briseno factors.”

The factors included questioning if a neighbor or family member would consider the person disabled, the person’s ability to lie and the planning involved in the murder. In its March ruling, the U.S. Supreme Court said the Briseno factors strayed too far from medical-based frameworks.

“The [Court of Criminal Appeals] overemphasized Moore’s perceived adaptive strengths — living on the streets, mowing lawns, and playing pool for money — when the medical community focuses the adaptive-functioning inquiry on adaptive deficits,” Ginsburg wrote.

Chief Justice John Roberts agreed with the incorrect usage of the Briseno factors but wrote in a dissenting opinion that the court’s majority tossed the Texas court’s ruling without considering societal standards.

“The Court instead crafts a constitutional holding based solely on what it deems to be medical consensus about intellectual disability,” Roberts wrote. “But clinicians, not judges, should determine clinical standards; and judges, not clinicians, should determine the content of the Eighth Amendment.”

It’s unknown when the Texas court will make a decision in Moore’s sentence or a new way to determine intellectual disability. In the meantime, the death penalty’s intersection with intellectual disability is up in the air.

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Missouri: Court denies motions from man set to be executed Tuesday


The Missouri Supreme Court has denied the latest legal challenges from a man scheduled to be executed Tuesday for raping and killing a 15-year-old Kansas City girl in 1989.
The judges ruled Friday to overrule a motion that sought a stay of execution for Roderick Nunley.
The court also rejected his request for a writ of habeas corpus, which allows prisoners to challenge their convictions on constitutional grounds.
Nunley was 1 of 2 men who pleaded guilty and received the death penalty in the death of Ann Harrison.
   Michael Taylor (left), Roderick Nunley (right)    She was waiting for a school bus in front of her home when she was abducted.
Michael Taylor was executed for the same crime in 2014.
Source: Associated Press, August 30, 2015

High court won’t rehear death penalty case


The Supreme Court refused Friday to reconsider the death-row appeals of 3 Oklahoma prisoners whose pending executions by lethal injection were upheld by the justices in June.
Without comment, the court denied a petition filed by the prisoners’ lawyers that would have turned the case into one testing the overall constitutionality of the death penalty.
The justices ruled 5-4 on June 29 that Oklahoma can use the sedative midazolam as part of a 3-drug lethal injection protocol, despite contentions that it may not render prisoners completely unconscious and incapable of feeling pain. The court’s majority said the inmates failed to suggest any better alternative.
But the decision included a sweeping dissent from Justices Stephen Breyer and Ruth Bader Ginsburg that questioned whether capital punishment is no longer constitutional. The 2 liberal justices cited scores of death-row exonerations, racial and geographic disparities, decades-long delays between sentencing and executions and a trend away from capital punishment in courts and states.
Breyer, who wrote the dissent, urged the court to hear a case in the near future on whether the death penalty violates the Constitution’s prohibition against cruel and unusual punishment. The court ruled that way in 1972, resulting in a 4-year moratorium on executions, but reversed itself in 1976.
“It would be appropriate for the court to use this case to address the constitutionality of the death penalty, because the outcome will turn not on facts specific to any single litigant, but on circumstances common to the administration of the death penalty,” attorneys for death-row inmates Richard Glossip, John Grant and Benjamin Cole said.
A similar effort was mounted in early July by Missouri prisoner David Zink, but the Supreme Court refused to delay his execution, and he was put to death July 14. Barring a last-minute reprieve, Glossip is scheduled to die Sept. 16, with Grant and Cole to follow later this year.
A more likely candidate for the Supreme Court to consider whether the death penalty is constitutional will come before the U.S. Court of Appeals for the 9th Circuit on Monday. In that case, a federal district judge already has declared California’s death penalty unconstitutional because of long delays, inadequate funding for defense lawyers, and the lack of a lethal injection protocol.
The June Supreme Court case concerned the specific drug used by Oklahoma and some other states to sedate prisoners before lethal drugs are administered. While Florida has used midazolam with apparent success, three executions in Arizona, Ohio and Oklahoma resulted in condemned prisoners gasping and writhing on their gurneys.
The high court’s 5-member conservative majority ruled that states may continue to uses midazolam because the defendants could not suggest an alternative – a burden that the court’s 4 liberal members criticized in a dissent written by Justice Sonia Sotomayor.
Source: USA Today, August 28, 201

Death Penalty Delays Not Violative of Eighth Amendment, Unanimous California Supreme Court


The lawyer for a death row inmate failed to demonstrate that systematic delays in the resolution of capital cases result in an arbitrary process that violates the Eighth Amendment, the California Supreme Court unanimously ruled yesterday.
The court, which has rejected such arguments in the past, asked the parties for supplemental briefing on the issue after a federal district judge ruled last year that such delays rendered the state’s death penalty unconstitutional.
But while Ropati Seumanu is free to make a more individually focused argument in a habeas corpus petition, Justice Kathryn M. Werdegar wrote, he is not entitled to have his sentence overturned merely because more than 14 years have elapsed since he was sentenced to die for a murder in his hometown of Heyward.
“Our conclusion would be different were the California Department of Corrections and Rehabilitation to ask all capital inmates who have exhausted their appeals to draw straws or roll dice to determine who would be the 1st in line for execution,” the jurist said. “But the record in this case does not demonstrate such arbitrariness,” she continued.
“Unquestionably, some delay occurs while this court locates and appoints qualified appellate counsel, permits those appointed attorneys to prepare detailed briefs, allows the Attorney General to respond, and then carefully evaluates the arguments.”
Those delays safeguard the defendants’ rights, rather than violate them, she said.
Seumanu was 22 when he, his brother and 2 teenagers stole a car one night in May 1996 and confronted Nolan Pamintuan, 25, who had just returned from a pre-wedding dinner with his fiancee, according to testimony.
The robbers took an inscribed Movado watch his fiancee had given him as a wedding gift and $300 that they forced him to withdraw from a bank ATM. After expressing irritation at the fact he had no more money to give them and had reached the ATM’s withdrawal limit, Seumanu killed him with a shotgun blast to the chest, according to the testimony.
His brother, Tautai Seumanu, pleaded guilty to murder and was sentenced to 28 years to life in prison, and the two teenagers were given shorter sentences for manslaughter, kidnapping and robbery.
Ropati Seumanu, who served as a deacon in the First Samoan Gospel Church, where his father was pastor, was also described by a witness as the founder of a gang called Sons of Samoa, affiliated with the Crips. Witnesses said he committed numerous assaults in the years before the murder.
In addition to rejecting Seumanu’s Eighth Amendment claim, the justices concluded that he was not entitled to a reversal based on prosecutorial misconduct.
Werdegar was critical of Deputy District Attorney Angela Backers for, among other things, telling the jury that Seumanu’s lawyers were putting on a “sham” defense and didn’t believe their client’s alibi, for asking jurors to view the case through the eyes of the victim, who begged for his life before being shot, and for telling the jury – after the defense lawyers introduced themselves and their client – that the deceased was her “client.”
But none of those remarks affected the verdict, Werdegar said, because the evidence of guilt was strong and the jury was properly instructed not to be swayed by prejudice or sympathy and that the remarks of counsel were not evidence.
The case is People vs. Seumanu, 15 S.O.S. 4375.
Source: Metropolitan News Company, August 26, 2015
  1. The Eighth Amendment (Amendment VIII) to the United States Constitution is the part of the United States Bill of Rights (ratified December 15, 1791) prohibiting the federal government from imposing excessive bail, excessive fines, or cruel and unusual punishments, including torture.

 

Texas Death Row Inmate Bernardo Tercero Wins Reprieve


HUNTSVILLE (August 25, 2015)
The Texas Count of Criminal Appeals Tuesday stopped the scheduled execution of a Nicaraguan man convicted of killing a Houston high school teacher during a robbery more than 18 years ago.
Bernardo Tercero, 39, was scheduled to receive a lethal injection Wednesday evening in Huntsville.
The Texas Court of Criminal Appeals issued a reprieve Tuesday after attorneys contended in an appeal that a prosecution witness at Tercero’s trial in 2000 gave false testimony.
The appeals court has returned the case to the trial court to review the claim.
Tercero was convicted in the shooting death of Robert Berger, 38, who was in a Houston dry cleaners shop in March 1997 when Tercero came in to rob it.
Prosecutors said Tercero was in the U.S. illegally at the time of the slaying.
Source: Associated Press, August 25, 2015

 

Colorado lawmakers bump into death-row inmate Nathan Dunlap


August 17, 2015

In June, four Colorado legislators got face-to-face with death row inmate Nathan Dunlap, the Chuck E. Cheese killer whose execution was postponed last October by Gov. John Hickenlooper to the dismay of many pro-death-penalty Coloradans.

Like they do most summers, these members of the Capital Development Committee were touring state colleges, universities and other facilities to find out how taxpayers’ dollars are being spent and to consider future funding requests.

The June 8-10 tour took the committee to northeastern Colorado, to tour the Sterling Correctional Facility, which houses the state’s three death row inmates.

Legislators on the Sterling visit were Reps. Ed Vigil, D-Fort Garland and J. Paul Brown, R-Ignacio; and Sens. Randy Baumgardner, R-Hot Sulphur Springs and Jerry Sonnenberg, R-Sterling.

According to the legislators, the accidental encounter was uneventful and Dunlap was “very polite.”

Baumgardner said Dunlap came out of an elevator with a guard and had to walk through the group of mostly pro-death-penalty lawmakers because the space was so tight.

The inmate was held by the arm by the guard and was in full chains and shackles, according to Vigil.

“We were surprised,” Baumgardner said, and he believed Dunlap was as well.

Vigil described the situation as “surreal. It took me a second to recognize him,” he said.

“It’s a pretty nice facility,” Baumgardner said of the prison. There are things that need to be looked at, but that’s true for all of the state’s prisons, he added.

As to how meeting Dunlap impacted their opinions about the death penalty, the encounter didn’t change any minds, according to the legislators.

 

LOUSIANA : No A/C for death row inmates at Angola: decision made final, barring another appeal


August 17, 2015

Death row inmates at Louisiana State Penitentiary who claimed in a federal lawsuit that triple-digit temperatures inside their cells at Angola amounts to cruel and unusual punishment have been denied a rehearing of their case.

The decision by the 5th U.S. Circuit Court of Appeals not to re-examine the case, which was handed down Friday (Aug. 14), upheld a decision delivered July 8 by a three-judge 5th Circuit panel. The July 8 decision found heat indices reaching up to 108 inside the inmates’ cells did, in fact, violate the Eighth Amendment of the U.S. Constitution. However, the panel explained in its July 8 decision, the prison should not be required to install air-conditioning on death row to remedy the violation.

U.S. District Judge Brian Jackson had earlier ruled the conditions were unconstitutional and ordered the state to create and implement a plan, which included air conditioning, for cooling off death row.

The state appealed Jackson’s decision, but in the meantime, a plan was drafted. Death row tiers, built in 2008, are only heated and ventilated. The plan would have also provided inmate with chests filled with ice and allowed them daily cold showers. An appeals court intervened on behalf of the state before the prison ever put the plans in place, halting the implementation with an injunction while agreeing to take a look at the case.

The 5th Circuit on July 8 offered a few reasons why installing air conditioning on death row would have gone too far to provide relief for the plaintiffs. Air conditioning would be available year-round, when temperatures were often not extreme; it would cool off inmates who didn’t have medical conditions worsened by heat; and air conditioning “of course is expensive.”

Attorneys for the inmates argued in their request for a rehearing that Jackson’s order for air conditioning was less intrusive — and involved more micromanaging — than the remedies suggested by the panel.

The three inmates who filed suit, Nathaniel Code, 57; Elzie Ball, 60; James Magee, 35, all have medical conditions, such as diabetes and hypertension, that can be exacerbated by high heat. 

It’s unclear, the inmates’ attorney Mercedes Montagnes indicated, whether or not the inmates will appeal the case to the U.S. Supreme Court.

“We…have not yet decided our next step,” she said in an emailed statement.

Death row inmate seeks medical evaluation


August 17, 2015

A medical examination done Friday on a death row inmate convicted in a 1994 Columbia triple murder is expected to determine whether a benign brain tumor will cause complications with the state’s lethal injection protocol, according to federal court documents.

Ernest Lee Johnson has been in prison since June 1995, and a noncancerous tumor was discovered in his brain years later. Doctors removed part of the tumor in 2008, and the last scan of Johnson’s brain, in 2011, showed the remaining tumor wasn’t growing, according to a motion filed in June by one of his attorneys, Kansas City-based Jeremy Weis. The motion requested funding to hire physician Joel Zivot, assistant professor of anesthesiology and surgery at Emory University’s School of Medicine and the medical director of the cardio-thoracic intensive care unit at Emory University Hospital, to examine and evaluate Johnson.

Chief Judge Greg Kays of the Western District of Missouri in late June approved $7,200 for Zivot to review Johnson’s medical records and perform another scan of the condemned man’s brain, as well as to pay for travel time, consultation with attorneys and help in drafting an affidavit. Zivot will “render an expert medical opinion as to how Mr. Johnson will respond to the lethal injection drugs and whether he will respond differently than other Missouri inmates due to his unique medical condition,” Weis wrote.

Weis and Johnson’s other attorney, William Gaddy, did not respond to messages seeking comment. Michael Spillane, a Missouri assistant attorney general, is representing Troy Steele, the warden of Potosi Correctional Center, where Johnson is being held, who is named as the defendant in the case. Nanci Gonder, spokeswoman for the attorney general’s office, said the examination was conducted on Friday and that Spillane is waiting to obtain a copy of Zivot’s findings. Johnson’s next court date has not been set.

The most recent federal litigation continues a flurry of post-conviction proceedings for Johnson. Johnson was convicted in 1995 of the Feb. 12, 1994, murders of Fred Jones, 58, Mary Bratcher, 46, and Mable Scruggs, 57. His death sentence was twice overturned, in 1999 and 2003. The Missouri Supreme Court in 2008 affirmed a 2006 Pettis County jury’s decision to put Johnson back on death row, despite arguments from his attorneys that his IQ was in the 60s, far below the average of 100. Attorneys had previously gotten the sentence reversed because of Johnson’s mental retardation. The state’s highest court in 2008 had ruled his representation hadn’t successfully proven Johnson’s mental handicap.

As Jones, Bratcher and Scruggs closed a Casey’s General Store on Ballenger Lane, Johnson came in armed with a handgun and robbed the cash register before bludgeoning the victims to death with a hammer and flat-head screwdriver.

Johnson’s case went to the Eighth U.S. Circuit Court of Appeals in early 2013. A three-judge panel in December that year denied his application for appeal, and the U.S. Supreme Court in October 2014 denied a petition to hear the case. Nothing has been filed in the pending U.S. District Court case since Kays approved Zivot’s examination on June 22.

© 2015 Columbia Daily Tribune. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

The death penalty is about to go on trial in California. Here’s why it might lose


On Aug. 31, the death penalty will go on trial at the Ninth Circuit Court of Appeals. The oral argument stems from a judgment in 2014, in which Federal District Judge Cormac Carney ruled that California’s death penalty system was unconstitutional.
Carney argued that because of the extremely low likelihood of execution and long delays on death row, the system was actually a penalty of life without parole with the remote possibility of death. His ruling declared that execution after such a long delay serves no retributive or deterrent purpose beyond the long prison term, and is therefore arbitrary and unconstitutional (see Jones v. Chappell, 2014). As Carney wrote in his California decision, no rational jury or legislature would design a system that functions as the system actually works. But, he argued, we must evaluate the system we do have, not the one we might prefer to have.
Nationwide, the “new” death penalty consists of 20 years or more on death row, followed by some probability of execution. The average delay from crime to execution for those executed since 2010 is 16 years across the United States, even longer in California, as the judge noted. 38 % of inmates executed nationally since 2010 served more than 20 years; 17 % served more than 25 years; 5 inmates were killed after more than 35 years of delay. The vast majority are never executed.
In a previous post Anna Dietrich and I documented that only about 16 % of condemned inmates across the nation have been executed. By far, the most likely outcome of a death sentence is that it will be overturned on appeal. Many death row inmates simply die of old age. For those few where the death sentence is actually carried out, increasing percentages languish on death row literally for decades before execution.
Supporters of the death penalty argue that Carney overstepped with his sweeping decision throwing out the entire California death penalty. Oral arguments in the Ninth Circuit Court of Appeals will begin at the end of this month. California certainly was at the low end of the distribution of “efficiency” in carrying out its death sentences in our previous analysis. Out of more than 900 death sentences, the state has carried out just 13 executions. It stands as one of the few states, along with Pennsylvania, that has large numbers of death sentences that result in very few executions.
What’s the lag time between sentence and execution outside California?
Except for Virginia, no state in the country carries out even 1/2 of all its death sentences. The most common outcome after a death penalty, by far, is reversal of the death sentence with a new sentence of life without parole. Inmates may sit on death row for years before this reversal.
This graph looks at 1,379 of the 1,394 executions that were carried out between 1977 and 2014 (I could not recover the date of the crime for 15 cases), showing the length of time from crime to execution. Of course, inmates do not move straight from the crime scene to death row. However, there has been no significant increase in the time between crime and death sentence, which averages 1.5 years.
Why is there so much time from sentence to execution?
Delays come for many reasons. Death penalties in California and elsewhere trigger a mandatory appeal to a state’s top court, and then, if not reversed, through the federal system. These are part of the safeguards mandated by the U.S. Supreme Court in the 1976 Gregg decision ushering in the “modern” death penalty. Carney noted that in California, appeals attorneys are not appointed for 3 to 5 years. They take 4 years to learn the case and file their appeal. Attorneys for habeas appeal (through the federal courts) are not appointed, on average, until 8 to 10 years after the death sentence.
Most of this delay results from a severe backlog of death penalty cases, a lack of qualified attorneys who are willing to accept capital assignments under the conditions that the state offers, and delays in appointing required qualified defense counsel.
How long does it take, exactly, to carry out the death penalty?
Each dot on the figure refers to a particular inmate executed. At the lower-left corner, the 1st case is the 1st “modern” execution: Gary Gilmore, executed by firing squad in Utah in 1977. Vertical placement of the dot indicates the number of years from the crime to the execution. Horizontal placement indicates the date of the execution.
As you can see, some executions occur relatively quickly, even today. Across the bottom of the graph are those inmates who “volunteer” for execution by instructing their attorneys to abandon all appeals. 20 of the 206 inmates executed since 2010 waited fewer than 5 years from crime to execution. However, you can see that average delays are increasing dramatically (about one additional year of delay every 3 years), and that increasing numbers of inmates are serving very long sentences before being executed. Many more remain on death row with no execution in sight.
For the 206 inmates executed since 2010, their average time from crime to execution was 16 years. 36 served more than 25 years before their execution. Overall, through 2014, 178 inmates have been executed after serving more than 20 years; 58 after more than 25 years; 14 after more than 30 years; and 5 after more than 35 years. Florida executed Thomas Knight in January 2014 for a crime committed in January 1974 – almost 40 years later. In contrast, Gilmore was killed by Utah’s firing squad in January 1977 for a crime that occurred in July 1976. Knight’s crime came 2 years before Gilmore’s, but he waited another 37 years after Gilmore’s execution on Florida’s death row before that state put him to death.
In the recent Glossip v. Gross decision affirming the use of lethal injection, the U.S. Supreme Court affirmed its support for the death penalty in the opening words of the majority decision: “Because capital punishment is constitutional, there must be a constitutional means for carrying it out.”
In his dissenting opinion, Justice Stephen Breyer noted a number of practical problems with the administration of the punishment. He noted 3 “fundamental constitutional defects”: 1) unreliability; 2) arbitrariness; and 3) unconscionably long delays. These have led, he wrote, to 4) abandonment of the penalty by most places within the United States. Since the Court’s 1976 reaffirmation of capital punishment, replete with new constitutional “safeguards sufficient to ensure that the penalty would be applied reliably and not arbitrarily,” numerous practical problems have emerged, Breyer wrote. “The circumstances and the evidence of the death penalty’s application have changed radically since then,” he wrote. “Given those changes, I believe it is now time to reopen the question.”
Source: The Washington Post, Frank Baumgartner, August 5, 2015. Mr. Baumgartner is the Richard J. Richardson distinguished professor of political science at the University of North Carolina-Chapel Hill.