USA NEWS

Prosecutors Say Shannon Miles Shot Texas Deputy 15 Times


August 31, 2015 (nyt)

HOUSTON — The man charged with killing a sheriff’s deputy at a suburban gas station Friday emptied his 15-round handgun into the back and the back of the head of the deputy, as witnesses watched in horror and surveillance cameras captured the shooting, prosecutors said Monday.

The man, Shannon Jaruay Miles, 30, walked into a courtroom crowded with sheriff’s deputies and police officers for his first court appearance here Monday morning. Mr. Miles said nothing as the Harris County district attorney, Devon Anderson, described to a judge what the authorities have called an unprovoked attack. The deputy, Darren H. Goforth, 47, had pulled into a Chevron gas station about 8:30 p.m. Friday when Mr. Miles approached him from behind and opened fire, the authorities said.

After the hearing, Ms. Anderson said Mr. Miles was cooperating with investigators but said they were still trying to establish a motive, even though prosecutors do not have to prove one under Texas law. Law enforcement officials have said it appeared Deputy Goforth was targeted because he was wearing a uniform.

After a weekend of denouncing a “dangerous national rhetoric” aimed at the police, officials have been hesitant to comment further and to explain how it might have influenced Mr. Miles. The Harris County sheriff, Ron Hickman, said Saturday, referring to the “Black Lives Matter” slogan, “Well, cops’ lives matter, too.”

Asked Monday whether anti-police sentiment had anything to do with the case, Ms. Anderson replied: “I have no idea whether it does or not. But you know what — I want to accentuate the positive here.” She spoke of a Saturday vigil and a Sunday prayer walk that drew over 1,000 people to the gas station each day.

“This crime is not going to divide us,” Ms. Anderson said. “This crime is going to unite us. People of all races were out there. That’s what’s important here.”

Mr. Miles, who graduated in 2003 from a high school near the gas station, Cypress Falls, and played on the football team there, did not have to enter a plea at the probable-cause hearing. His arraignment was set for Oct. 5.

Anthony Osso, one of Mr. Miles’s court-appointed lawyers, said: “I just ask people to keep an open mind. It’s really easy to pass judgment and rush to judgment on it.”

In 2012, Mr. Miles was arrested in Austin on allegations of assaulting and seriously injuring a man at the Salvation Army shelter where he had been staying, the authorities said. He was accused of punching and kicking the man in a dispute over which television program to watch, and he was charged with aggravated assault with a deadly weapon, officials said.

Mr. Miles was sent to a state mental hospital after an evaluation found him mentally incompetent to stand trial, said Joe Frederick, the Travis County assistant district attorney in the case. After a six-month stay, Mr. Miles was found competent to face prosecution, but the case was dismissed in 2013 when officials were unable to find the victim.

Ms. Anderson said investigators had found 15 .40-caliber Aguila shell casings near Deputy Goforth’s body. A witness said he had pulled up to the gas station with his children, and he heard gunshots, Ms. Anderson said. The witness saw a black man with a bald head standing over the deputy and shooting, and he saw the man flee in a red Ford truck with an extended cab.

The gas station’s surveillance camera video showed the truck had a trailer hitch on the back and a white cooler in the bed. A search for the vehicle led investigators to Mr. Miles’s home.

In Mr. Miles’s garage, investigators found a .40-caliber Smith & Wesson pistol, Aguila cartridges and a white cooler, Ms. Anderson said. Tests on the pistol showed it matched the gun that fired the shell casings left at the scene, she said.

In the Execution Business, Missouri Is Surging


Defense lawyers call it a crisis; the state says it’s just doing its job.
Since Texas carried out the country’s 1st lethal injection in 1982, the state has performed far more executions than any other state. To date, 528 men and women have been put to death in Texas, more than the total in the next 8 states combined.
But viewed from a slightly different angle, Texas has lost its place as the epicenter of the American death penalty, at least for the moment.
Since November 2013, when Missouri began performing executions at a rate of almost 1 per month, the state has outstripped Texas in terms of the execution rate per capita. In 2014, both states executed 10 people, but Texas has more than 4 times the population of Missouri. This year, the difference is not quite as stark (Texas: 10, Missouri: 5) but Missouri still ranks number 1. The state that has become the center of so many conversations about criminal justice through the courts and cops of Ferguson is now the center of one more.
Why?
The politicians, judges and prosecutors who keep the system running at full steam simply say the death penalty is a good thing and the pace of executions is a sign that nothing is gumming up the pipes of justice. Defense attorneys are more eager to talk about the reasons for the current situation. They tend to use the word “crisis.”
The Drugs
The most important reason for the rise in Missouri’s rate of execution is also the most mysterious. As other states have dealt with a nationwide shortage in lethal-injection drugs by turning to new and experimental combinations – leading to grisly botched executions (Dennis McGuire in Ohio, Clayton Lockett in Oklahoma, and Joseph Wood in Arizona) and lawsuits that have slowed down the pace of executions – Missouri has managed to get a steady supply of pentobarbital, a common execution drug.
Like their counterparts in all death-penalty states, Missouri officials are pushing in court to keep the source of their pentobarbital a secret. Texas has also exclusively used pentobarbital for executions in recent years, but has struggled to find a compounding pharmacy that will produce it. In Missouri, corrections officials had also struggled, but now have managed to stockpile the drug.
“We’re the only state in the union with no trouble getting pentobarbital,” says Cheryl Pilate, a Kansas City attorney who has represented death-row inmates. The pentobarbital made by small, generally unregulated compounding pharmacies – the choice in Texas – does not have a long shelf-life, leading Pilate and her colleagues to wonder whether Missouri officials are getting the drug from a veterinary supplier (the drug is often used to euthanize animals) or a manufacturer from overseas. Attorney General Chris Koster recently said in a court filing, quoted by BuzzFeed, that “Missouri uses pentobarbital as the lethal chemical in its execution process, but does not admit nor deny the chemical now used is compounded as opposed to manufactured.”
The Governor and the Attorney General
Attorney General Koster, as well as Missouri Governor Jay Nixon, are both Democrats and both outspoken supporters of the death penalty. Nixon himself was the attorney general before Koster, so both have overseen the state’s side in fighting the appeals of death-row inmates, pushing them along toward execution. Koster has suggested that the state set up a laboratory to make its own supply of lethal-injection drugs.
Nixon has the power to commute death sentences to life in prison, but he has done so once in his 6 1/2 years as governor, and he provided no explanation for why. Many political commentators have speculated that Nixon and Koster, as Democrats in a primarily conservative state – where the electoral votes went to Mitt Romney in the 2012 presidential election – use executions to establish their tough-on-crime bonafides. “As a Democrat in public office, you would lose a lot of votes by not being enthusiastically in support of the death penalty,” says Joseph Luby, an attorney with the Death Penalty Litigation Clinic in Kansas City.
Nixon and Koster’s support for the death penalty fits a historical pattern of death-penalty support among blue governors in red states. In the 1990s, Texas Governor Ann Richards never commuted a death sentence and Arkansas Governor Bill Clinton famously flew home from the presidential campaign trail to preside over an execution of a man missing part of his brain. (Nixon had his own similar case earlier this year.) At the same time, Republicans in states near Missouri – Governor John Kasich in Ohio and former Governor Mike Huckabee in Arkansas – have regularly granted clemency to death-row inmates.
Nixon’s office did not respond to a request for comment on the politics of the death penalty, while Koster’s press secretary, Nanci Gonder, replied that he “has consistently supported the death penalty for the most serious murder convictions” and “1 of the duties of the Attorney General is to ensure that legal punishments for violating Missouri’s criminal laws are carried out.”
The Courts
Sean O’Brien, a professor at University of Missouri-Kansas City School of Law, spent much of his career defending death-row inmates and recalled a case in which the judges at the Missouri Supreme Court ruled against the prosecution. In 2003, the court ruled in favor of a man who committed a murder before turning 18, a decision that was later ratified by the U.S. Supreme Court and became the basis for a nationwide ban on the execution of juveniles.
Missouri Supreme Court judges are appointed by the governor, and in 2013 Governor Nixon selected Judge Mary Russell to be chief justice, overseeing the setting of execution dates. Her court set up the 1-a-month schedule in November of that year. When she stepped down in July this year, she told several reporters that the pace of executions picked up because they had been on hold during the lethal-injection drug shortage. Once the state had the drugs, she said, “there were a number of people who had been backlogged whose appeals were exhausted.”
“It’s required by law that the Supreme Court shall set execution dates,” she added. “It’s not that we agree or disagree with the death penalty.”
The Eighth Circuit U.S. Court of Appeals, which has final say over death cases in Missouri, rarely stops executions, according to O’Brien, the law professor. “We’ve got a situation where all 3” – the governor, attorney general, and supreme court – “are lickety-split gung-ho on this, and the federal courts aren’t stopping them.”
The Defense Bar
During a short phone interview last week, the Missouri capital-defense attorneys Cheryl Pilate and Lindsay Runnels used the words “crisis,” “disaster,” “horrific” and “overwhelming” as they described their “extremely small and embattled defense bar.” They see their cohort’s rushed work and missed deadlines and paltry resources as signs of broader problems with public defense in the state. Missouri was ranked 49th by the National Legal Aid & Defender Association in per-capita spending on indigent defense in 2009.
My colleague Ken Armstrong has chronicled the experience of one overburdened defense lawyer who dealt with the executions of 2 clients over 2 months at the end of 2013. In a March 2015 letter to the Missouri Supreme Court, members of the American Bar Association Death Penalty Assessment Team wrote, “The current pace of executions is preventing counsel for the condemned from performing competently.”
“You live in a perpetual state of tension,” Pilate said, “thinking your client could be next.”
This state of affairs may not last. A pending lawsuit over the secrecy of the lethal injection drugs might force the state to divulge its source, allowing for more litigation that could lead to a slow-down. The Missouri Supreme Court will soon have a new chief justice. A future Republican governor or attorney general could follow the lead of Kasich or Huckabee. The defense bar may get more help from national anti-death penalty groups now that the state is ground zero. For now, though, as the death penalty declines nationally, Missouri is headed in the other direction.
Source: themarshallproject.org, August 31, 2015

What’s the Future of the Death Penalty in America?


Two recent high-profile cases have once again highlighted America’s complex relationship with the death penalty. In Colorado, a jury declined to impose the death penalty on theater shooter James Holmes. And in Connecticut, whose legislature had recently abolished capital punishment prospectively, the state supreme court held that the Connecticut constitution barred the execution of those whose offenses had preceded that legislative change.
Both cases contributed to the ongoing national capital punishment debate. Some openly wondered whether the availability of the death penalty in Colorado still has any practical meaning, if jurors couldn’t be convinced to impose it on someone like Holmes. And the Connecticut court’s opinion included an extensive discussion of the various trends taking shape across the country. It’s clear that the question of the future of capital punishment in America remains a lively one. (Full disclosure: I’m a criminal defense attorney, and my practice includes capital cases, including one that is currently pending.)
It’s not hard to understand why this debate generates such strong feelings on both sides. Although my work has been on the defense side, anyone involved in the justice system gets a first-hand look at the heinous nature of violent crime. Crime scene and autopsy photos, and the visible emotions on the faces of the family members who attend every hearing, are constant reminders of the horrific harms that human beings can inflict on one another and the irreparable damage caused to those left behind.
On the other hand, some believe that regardless of the circumstances it’s simply unacceptable for the state to take the life of one of its citizens. Others who can accept capital punishment in theory question whether our existing system is sufficiently reliable to support that penalty (a concern I’ve come to share based on my time in that system).
With such powerful motivations on both sides and the highest of stakes involved, it shouldn’t be surprising that this is such a passionate debate. And one development that’s significantly affected the course of capital punishment in America is the fact that death penalty opponents have been extremely effective in making it increasingly difficult to actually secure and impose a death sentence.
First, they’ve devoted an extraordinary amount of effort and resources to training defense lawyers at the trial level to avoid death sentences for their clients. (Colorado, where the Holmes trial took place, is a national center for this type of education; the “Colorado Method” of jury selection is a staple of capital defense training.)
And of course, an initial death penalty determination doesn’t end the matter. There are several layers of appellate review through a series of courts, and cases involving death sentences get extra appellate scrutiny. The actual legal rules are more demanding, and those rules may be applied in an especially exacting way–particularly if some of the judges along the way have their own reservations about capital punishment. The result is that death-penalty cases are regularly reversed and sent back for new trials or sentencing proceedings. For example, in Oregon, where my practice is based, the State is about to take its fourth shot at securing a death sentence for serial killer Dayton Leroy Rogers; Rogers was convicted back in 1989 and has been sentenced to death 3 times, with the Oregon Supreme Court ordering resentencing each time.
Finally, even if a death sentence survives all of this review, it still has to be imposed, and this is no mere formality–again, partly because of the efforts of abolitionists, who have made it difficult for companies to supply the chemicals needed for executions. The result is that even some states with large numbers of prisoners on death row virtually never actually execute anyone. In recent years, several governors have gone as far as declaring moratoria on executions in their states, in some cases formalizing what had already been the rule in practice.
All this means that it takes a lot of political will to actually carry the process to its end and execute someone–a point illustrated by some intriguing facts cited in the Connecticut court’s opinion. Apparently, the vast majority of American executions are concentrated within a small band of states–in 2014, for example, Texas, Missouri, Florida and Oklahoma collectively accounted for approximately 90 % of the nation’s 35 executions, and similar concentrations within small subsets of states appear across broader time periods. Presumably, these are the states where legislators, prosecutors and others not only believe strongly in the death penalty themselves, but understand that their constituencies share that belief and will support them in the face of vigorous opposition.
So what’s the future of the death penalty in America? I don’t see it going away at the national level. Abolitionists have fought for decades to have the Supreme Court declare capital punishment categorically unconstitutional, but although they’ve come close at times and clearly have the ears of some current justices, I don’t expect that the Court will ever go that far–at least not anytime soon. So I expect that capital punishment will remain constitutionally permissible, and that those states with steadfast support will continue imposing it.
Meanwhile, those states whose residents are more ambivalent about the death penalty may increasingly reconsider whether a capital punishment regime is worth the immense costs, burdens and endless litigation required to keep it in place–especially given the increasingly significant possibility that even a defendant sentenced to death may never actually be executed. These questions may be mulled over by legislatures, governors, prosecutors, and others. (A judge in Kentucky, for example, recently forbade the state from seeking the death penalty in a murder case based on her apparent conclusion that that penalty would never actually be imposed, so that the enormously increased costs and burdens compared to a non-capital case would end up being wasted.) And through it all, Americans of goodwill will continue to debate the questions of whether and when the ultimate penalty should be imposed.
Source: Huffington Post, Kevin Sali, August 29, 2015. Mr. Sali is a criminal defense attorney in Portland, Oregon, USA.

Nebraska death penalty repeal on hold


Supporters of retaining the death penalty in Nebraska turned in thousands more signatures than necessary on Wednesday to suspend the repeal and place the issue before voters.
Nebraskans for the Death Penalty turned in petitions containing 166,692 signatures. Leaders of the group called that a surprisingly large number and said it signaled that voters in the 2016 general election will retain the ultimate penalty for the most heinous murders, reversing the repeal enacted by the State Legislature this spring.
A lot of senators will find out that their constituents have a different view, I really believe that,” said State Sen. Mike Groene of North Platte, a death penalty supporter who circulated petitions.
Opponents of the death penalty, meanwhile, said that they expect Nebraska voters to come to the same conclusion as 30 of the state’s 49 state lawmakers. Voters will learn that the risks of executing innocent people, the “tremendous waste” of taxpayer dollars and the hurdles in obtaining the necessary drugs have made the death penalty immoral, unjust and unworkable, said the Rev. Stephen Griffith of Nebraskans for Alternatives to the Death Penalty.
“Just like the legislators they elected, we believe the more Nebraskans learn about the failures of capital punishment, the more they will be inclined to get rid of it,” said Griffith, the group’s new executive director.
The pro-death penalty group formed in June and launched its petition drive just after state lawmakers overrode Gov. Pete Ricketts’ veto and repealed the death penalty.
The vote drew national attention as Nebraska became the first conservative state since North Dakota in 1973 to do away with the death penalty. Currently, 31 states have capital punishment.
But the victory by death penalty opponents in Nebraska now appears to be in jeopardy.
The pro-capital punishment group turned in nearly 3 times as many signatures as is necessary to place the issue on the ballot: 5 % of the state’s registered voters, about 57,000 signatures. The drive must also meet that 5 % threshold in 38 of the state’s 93 counties.
But Nebraskans for the Death Penalty also appears to have a comfortable cushion to suspend the repeal of the death penalty until voters decide its fate at the ballot box.
To do that, the drive needed to submit valid signatures of 10 percent of the state’s voters, or about 114,000 signatures.
Typically, 15 % to 25 % of signatures are invalidated, either because a signer wasn’t registered to vote or for other technical reasons. Even if 25 % of the signatures were disqualified, the drive would still have 125,000 valid signatures, more than enough to suspend the repeal.
State Treasurer Don Stenberg, a former attorney general who was an honorary co-chairman of the pro-death penalty group, said there was “a lot of significance” to collecting so many signatures.
“It’s reflective of the tremendous support that Nebraskans have in keeping the death penalty,” Stenberg said.
He was one of several supporters of capital punishment who spoke at an afternoon press conference, staged in front of an 8-foot-high wall of boxes holding petitions gathered by the group’s nearly 600 paid and volunteer circulators. Signatures were collected in all 93 counties.
Officials in the counties are expected to take more than a month to count and validate the signatures.
Stenberg, as well as the Attorney General’s Office, both said the signatures are presumed valid when they are turned in, until the count proves otherwise.
So, they said, the repeal of the death penalty – which was scheduled to go into effect on Sunday – is on hold until the count is completed.
“There will be some uncertainty in the law,” Stenberg said. But, he added, “It’s not unusual to have uncertainty in the law.”
Nebraska lacks the necessary drugs to carry out an execution via its only legal means, lethal injection. But Stenberg, who as attorney general presided over the state’s last 3 executions in the 1990s, said that if the state obtains the necessary drugs, there’s nothing preventing current Attorney General Doug Peterson from asking for execution dates for the 10 men on death row.
Peterson, on Wednesday, said he was reviewing the cases.
The State Supreme Court would have to approve any requests for execution dates. It’s unclear if the court would do that while a referendum on the issue is pending and after the Legislature voted to repeal the death penalty.
One of the senators who voted for the repeal, Bob Krist of Omaha, said death penalty supporters will need a lot more support to overturn the repeal in the 2016 election.
He said the referendum should not be about vengeance but “justice and fiscal conservatism.” Krist said the state has spent millions and only executed 3 people in the last 6 decades.
He also questioned if the drive collected most of its signatures from Omaha and Lincoln, or from areas like Norfolk and Falls City, where there have been horrible murders and support for capital punishment is higher.
“So here we go. Game on,” Krist said.
Officials with Nebraskans for the Death Penalty said they collected enough signatures to qualify the issue for the ballot in the 1st month, then used a last-minute push to qualify the measure in the necessary 38 counties.
Chris Peterson, the drive’s spokesman, said the group expects to spend about $800,000 to $900,000 on its petition-gathering effort, which included hiring hundreds of paid circulators and an Arizona consulting company.
That spending, he said, is comparable to what a group spent last year to get an initiative petition on the ballot to increase the state’s minimum wage. Nebraskans for Better Wages turned in 134,899 signatures after a 60-day drive.
Ricketts and his family were among the prime financiers for the pro-death penalty drive. The Republican governor contributed $200,000 in the first 2 months, and his father, TD Ameritrade founder Joe Ricketts, gave $100,000.
Officials with the pro-death penalty group said that petition signers overwhelmingly said they deserved a chance to vote on the issue.
“It’s too important of an issue to be left to the give-and-take of politics,” said Groene.
Vivian Tuttle of Ewing, whose daughter Evonne was 1 of 5 people slain during an attempted robbery at a Norfolk bank in 2002, said she put 8,000 miles on her car seeking support for the referendum drive.
“Wherever I went, people said ‘I want to help do this,'” Tuttle said.
The last time a referendum petition appeared on the ballot was in 2006, when voters were asked whether to overturn a law mandating the consolidation of Class I school districts.
Source: lexch.com, August 29, 2015

Virginia relaxes restrictions on death row inmates


Virginia prison officials have relaxed the restrictive conditions under which death row inmates live and are in talks to settle a lawsuit over those prisoners’ near constant placement in solitary confinement — a signal that state authorities are willing to at least modify the incarceration practice that is facing increasing criticism across the country.
State officials revealed in a recent court filing that Virginia’s eight death row inmates are allowed weekly contact visits with family members and more opportunity for showers and recreation — including daily sessions in which they are allowed to mingle in person with up to three others slated to die.
Victor M. Glasberg, an attorney for four inmates in Virginia who are suing over their placement in solitary confinement, said the contact visits with family members, in particular, are “decidedly huge” for the inmates. But he said he is working to understand how the other changes have been implemented and whether the inmates are still forced to spend nearly 23 hours a day alone.
“The issue of the hours spent in solitary is a huge, outstanding issue,” Glasberg said. “They’ve said they want to negotiate in good faith, and I’m going to accept that.”
The four death row inmates represented by Glasberg alleged in a lawsuit late last year that being forced to spend so much time in solitary confinement constituted cruel and unusual punishment, causing them severe mental distress while they waited to be executed. The issue is one that is being examined across the country; Supreme Court Justice Anthony M. Kennedy, for example, mused in June that it might be time for the high court to take a look at the use of solitary confinement.
Virginia Department of Corrections Director Harold W. Clarke said in an affidavit submitted in the case that, as part of a review of its policies and procedures for those slated to die, the department decided to provide more privileges to death row inmates who follow the rules.
Clarke said in his affidavit that death row inmates would be given an hour and a half of outdoor recreation time five days a week, an opportunity for “in-pod” recreation with three of their peers for an hour every day and the opportunity for daily showers. (Inmates had alleged that they were allowed just an hour of outdoor recreation time five times a week and thrice-weekly showers.)
Clarke also said death row inmates could have weekly contact visits with family members, and prison officials were working to construct facilities for them — including a covered recreation yard with a basketball court and stationary exercise equipment, and a multipurpose day room where they could purchase books and movies, make calls and send e-mails, play cards, and watch TV. Both areas, Clarke said, were expected to be finished by October.
Source: The Washington Post, Matt Zapotosky, August 29, 2015

Disease, suicide killing Ala inmates faster than execution


August 29, 2015

IRMINGHAM, Ala. (AP) — Disease and suicide are claiming inmates on Alabama’s death row faster than the executioner.

With Alabama’s capital punishment mechanism on hold for more than two years because of legal challenges and a shortage of drugs for lethal injections, five of the state’s death row inmates have died without ever seeing the inside of the execution chamber.

John Milton Hardy, convicted of killing Clarence Nugene Terry during a robbery at a convenience store in Decatur in 1993, was the most recent death row inmate to die. Prison officials say he died of unspecified natural causes on June 15.

Convicted killer Benito Albarran, 41, hanged himself in the infirmary at Donaldson prison about two months earlier. A decade earlier, he was convicted of fatally shooting Huntsville police officer Daniel Golden outside a Mexican restaurant where he worked.

Golden’s brother, David Golden, said family members wanted to witness Albarran’s execution and felt cheated by his death.

“He took the coward’s way out,” Golden told reporters in Huntsville after Albarran killed himself.

Attorney Joseph Flood, who represented Albarran as he challenged his conviction in state court, said the inmate’s mother died a week or two before he took his own life.

“He fell into a deep depression after that,” said Flood.

In March, David Eugene Davis, 56, died of natural causes at Holman prison near Atmore after suffering from liver failure. He was convicted of killing Kenneth Douglas and John Fikes in St. Clair County in 1996.

Two more death row inmates died last year, Ricky Dale Adkins of cancer and Justin T. Hosch, who hanged himself at Holman prison. Hosch was convicted in Autauga County in the 2008 shooting death of Joey Willmore, and Adkins was condemned for killing real estate agent Billie Dean Hamilton in St. Clair County in 1988.

The last inmate put to death in Alabama was Andrew Reid Lackey, who died by lethal injection on July 25, 2013, for killingCharles Newman during a robbery in Limestone County in 2005. At the time, he was the first inmate put to death in the state since October 2011.

With 189 people currently on death row, the state is trying to resume executions, but legal challenges could be a roadblock.

The state is asking a federal judge to dismiss a lawsuit filed by death row inmate Tommy Arthur, who challenged the use of the sedative midazolam as inhumane during lethal injections. The U.S. Supreme Court has upheld the use of the drug in an Oklahoma case, but Arthur contends Alabama’s execution protocol is different from the one used there.

The state switched to midazolam after it had to halt executions because it was out of other drugs needed for lethal injections.

California Death Penalty, Struck Down Over Delays, Faces Next Test


August 29,2015 (NYT)

Whether California’s application of the death penalty is so drawn out and arbitrary that it amounts to cruel and unusual punishment will be argued on Monday before a federal appeals court in Pasadena.

If the lawyers for a condemned man are victorious, the case could bring a reprieve to more than 740 prisoners now on death row at San Quentin State Prison and send legal ripples across the country. Either way, legal experts say, it raises issues about the administration of capital punishment that are likely to reach the Supreme Court over time.

In Monday’s hearing before a three-judge panel of the United States Court of Appeals for the Ninth Circuit, California officials will seek to overturn a surprise ruling last year by a lower federal court, which declared the state’s “death penalty system” to be unconstitutional

Hailed by death penalty opponents as a breakthrough and attacked by others as unwise and legally out of line, the decision was issued on July 16, 2014, by Judge Cormac J. Carney of Federal District Court in Santa Ana. It focused not on disparities in the meting out of death sentences in the first place — the more familiar charge — but on the decades of tangled and prolonged reviews that follow and the rarity of actual executions.

In a scathing account of what he called a dysfunctional system, Judge Carney noted that of the more than 900 people who had been sentenced to death in California since 1978, when the current legal structure was established, only 13 had been executed.

Citing growing delays in a judicial review process that can take 25 years or more, far above the national norm, Judge Carney said death sentences had been transformed, in effect, into “life in prison, with the remote possibility of death.”

The “random few” who are put to death, he said, “will have languished for so long on death row that their execution will serve no retributive or deterrent purpose and will be arbitrary.”

Judge Carney ruled on the appeal of Ernest Dewayne Jones, who was condemned to die in 1995 for a murder and rape and made a last-ditch plea to a federal court after his appeals to the California Supreme Court had been denied. The judge vacated Mr. Jones’s death sentence as he declared California’s capital-punishment process to be generally unconstitutional.

The decision was a stunning one, and California officials have sharply challenged it on both procedure and substance. They say it was illegitimate because Mr. Jones’s arguments about the arbitrariness of the review system — issues going beyond the long delays alone — had not first been considered in the California courts, as required.

Beyond that, according to the brief from the state’s attorney general, Kamala D. Harris, a Democrat, the delays and rarity of executions do not reflect random quirks. Rather, it says, they are a product of California’s effort to be scrupulously fair, ensuring that condemned prisoners have high-quality lawyers and every opportunity to question the legality of their sentences.

California legislators have required such exhaustive reviews and procedures as “an important safeguard against arbitrariness and caprice,” the state holds, quoting from a 1976 Supreme Court decision.

In a plebiscite in 2012, California voters affirmed the death penalty by a narrow margin, with 52 percent voting to keep it and 48 percent voting to replace it with life in prison without parole.

California inmates normally wait three to five years just for the appointment of a qualified defense lawyer, a delay that may be repeated as convicts pursue two successive state appeals and then a federal one. Beyond the prolonged process of reviewing death sentences, California has had a de facto moratorium on executions since 2006 because of disputes over the method of lethal injection.

The questions of arbitrariness and extreme delay that are raised by the Jones case are important and may well gain purchase in the courts, said Eric M. Freedman, a professor of constitutional law and death penalty expert at Hofstra University.

“But that does not necessarily mean that this particular litigation will be the vehicle by which the courts resolve these issues,” he added, noting that procedural or other questions could lead the appeals panel to overrule the Jones decision.

The arguments made by Mr. Jones’s lawyers — and echoed by Judge Carney — are similar in part to those made in June by Justice Stephen G. Breyer of the Supreme Court. In a sweeping dissent, joined by Justice Ruth Bader Ginsburg, Justice Breyer went beyond the lethal-injection issue at hand to ask whether the death penalty was so marred by unreliable decisions, arbitrary application and delays that it should be abolished.

But conservative justices responded that death penalty opponents, in their zeal to erect obstacles to executions, were responsible for inordinate delays and unpredictability.

If the Ninth Circuit and even the Supreme Court should uphold Judge Carney’s ruling, this would not necessarily cause the death penalty to unravel nationwide, said Douglas A. Berman, an expert on criminal law at the Ohio State University Moritz College of Law.

Judge Carney’s decision turned on details specific to California, and with its high number of condemned prisoners and very low pace of executions, the state is in a class by itself, Mr. Berman said. Still, he added, a similar critique might succeed in a few other states, including Pennsylvania and Florida.

Given the deep divisions within California over the death penalty, Mr. Berman added, the state may, in an odd way that has nothing to do with constitutional principles, be well served by the status quo.

“Voters, and perhaps the executive branch, too, are not that troubled with a system that has lots of death sentences and few executions,” Mr. Berman said.

Texas: Scheduled Execution Date Withdrawn for Joe Franco Garza


The scheduled execution date for Joe Franco Garza has been withdrawn.
Garza was scheduled for execution on September 2. He was found guilty of the 1998 murder of Silbiano Rangel and sentenced to death.
There is an agreed order that said his execution would be stayed while more DNA testing is completed.
The Lubbock County Criminal District Attorney’s Office and Garza’s attorneys both agreed to this, according to court records.
The agreed order states that a number of pieces of evidence, including clothing, fingernails, and hair among others, be tested.
“It’s not an admission by the DA’s office that he’s entitled to relief,” David Guinn, a Lubbock criminal defense attorney, said. “It’s a good thing for the court to do. As a matter of fact, it takes a smart judge with a lot of courage to stop an execution date, but in light of recent scientific revelations and material, why not be safe? Why not make sure?”
Guinn added, “If he’s a bad guy he’s not going anywhere, and if we get it wrong, well, thank goodness for justice.”
“Several pieces of physical evidence are going to be evaluated by the lab. Both parties agreed to that as set forth in the order, and that the results of that testing will come back to Mr. Garza’s attorneys, and the State of Texas,” Guinn said. “And when they get that back, they’ll look at it and decide what to do next.”
Source: everythingnlubbokc.com, August 28, 2015

Nebraska group says it can stop death penalty repeal


An organization campaigning to reinstate Nebraska’s death penalty after lawmakers repealed it in May said Wednesday it has collected more than enough signatures to suspend the law before it goes into effect and place it before voters in 2016.
Nebraskans for the Death Penalty, which was heavily financed by Republican Gov. Pete Ricketts and his family, said it had gathered 166,692 signatures from all 93 of the state’s counties. Nebraska’s unicameral Legislature had voted to repeal capital punishment over the objection of Ricketts, becoming the 1st traditionally conservative state to do so in 42 years.
The pro-death penalty group needed roughly 57,000 valid signatures from registered voters to force a statewide referendum, and double that number to immediately halt the death penalty repeal going into effect. They appear to have exceeded the 10 % of registered voters hurdle needed to block repeal pending a November 2016 ballot measure on the issue.
“Nebraskans sent a strong message about crime and punishment in our state by signing this petition in extraordinary numbers,” said state treasurer and former attorney general Don Stenberg, a co-chair of the petition drive.
The announcement came just before the repeal law was set to go into effect on Sunday, but the signatures still need to be verified. The petitions now go to the Nebraska secretary of state’s office, which will forward them to counties to verify the signatures in a process that will take about 40 days.
Republican Attorney General Doug Peterson, who supports the death penalty, said in a statement that the signatures are “presumptively valid” until determined otherwise. Stenberg said no one will know the exact number of valid signatures for at least a month, but the state constitution makes clear that petitions go into effect on the day they’re submitted.
Even if the law is suspended, Nebraska currently has no way to execute any of the 10 men on death row because its lacks 2 of the 3 required lethal injection drugs and has struggled to obtain them legally. The state paid $54,400 in May to order the drugs from a broker in India, but federal authorities have said they can’t be legally imported.
Nebraska lawmakers voted by the narrowest possible margin, 30-19, to override Ricketts’ veto. Ricketts assailed the Legislature as out of touch with the wishes of most residents. The repeal vote was helped by an unusual coalition of conservative state senators and more traditional death penalty opponents who had fought unsuccessfully for decades to eliminate the punishment. Some conservatives said they opposed it for religious and moral reasons, while others cast it as an inefficient government program that wastes tax money.
“What the Nebraska Legislature did is going to have an effect,” said Robert Dunham, executive director of the Washington-based Death Penalty Information Center, whose group takes no stance on the death penalty but often criticizes how it’s administered. “The message that conservative legislators can reach across the aisle with moderate and liberal legislators – that message is still there and still resonates.”
Nebraska hasn’t executed an inmate since 1997, and has never done so using the state’s current 3-drug lethal injection protocol.
The state was the 19th to abolish capital punishment, as has the District of Columbia, while the death penalty is legal in 31 states and for some federal crimes. The number of executions in the United States has gradually declined in recent years and only a handful of states led by Texas regularly put inmates to death.
The announcement of the number of signatures caps an 82-day petition drive backed by Ricketts and his father, TD Ameritrade founder Joe Ricketts. The governor had given $200,000 to Nebraskans for the Death Penalty as of the last filing deadline on July 31, while his father had donated $100,000. The group raised a total of more than $652,000 from 40 individual donors and seven groups classified as businesses, political action committees and other entities.
The largest donation in July came from the conservative, Washington-based Judicial Crisis Network, which gave $200,000. Nebraskans for the Death Penalty relied on a combination of paid and volunteer petition circulators, and was aided by an Arizona-based strategist who specializes in ballot campaigns.
Source: Associated Press, August 28, 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