death sentence

Howland woman condemned to death row asking for another appeal


 

COLUMBUS, Ohio – Lawyers for Ohio’s only condemned female killer have asked the U.S. Supreme Court to accept her appeal.

Death row inmate Donna Roberts was convicted of planning her ex-husband’s 2001 killing with a boyfriend in hopes of collecting insurance money.

Roberts’ death sentence was struck down in the past after the state Supreme Court said a prosecutor improperly helped prepare a sentencing motion in her case.

The court also said a judge hadn’t fully considered factors that could argue against a death sentence.

Earlier this year, the Ohio Supreme Court once again upheld the death sentence for the 73-year-old Roberts.

She was sentenced to death for the third time in 2014 but appealed that decision.

Watch: Testimony from Roberts’ appeal

Roberts was accused of planning her ex-husband’s murder with her boyfriend Nathaniel Jackson. The killing happened in the couple’s home in Howland.

Jackson was also sentenced to death.

In the past, the court said a prosecutor improperly helped prepare a sentencing motion in Roberts’ case and that a judge hadn’t fully considered factors that could argue against a death sentence.

Justice Terrence O’Donnell, writing for the majority, rejected arguments that allowing a new judge to sentence Roberts after the original judge died was unconstitutional.

Justice O’Donnell explained that Roberts helped Jackson plan Fingerhut’s murder in a series of letters and phone calls while Jackson was in prison on an unrelated charge. She actively participated with Jackson in the killing by purchasing a mask and gloves for him and allowing him into the home, evidencing prior calculation and design, O’Donnell said.

The court ruled 6-1.

The Court also pointed out that although Roberts expressed sadness for Fingerhut’s murder, she never accepted responsibility for it and denied her scheme to kill Fingerhut, “notwithstanding overwhelming evidence to the contrary.”

The Court concluded the death penalty was appropriate and proportionate to the death sentence imposed on Jackson.

The state is expected to oppose Roberts’ latest request.

 

Advertisements

FLORIDA – Prison inmate who beat, killed his cellmate sentenced to death


A Santa Rosa Correctional Institution inmate who viciously beat and killed his cellmate in an apparent racial attack was sentenced to death Monday.

Shawn Rogers, 37, will be placed on death row for the murder and kidnapping of Ricky Dean Martin in 2012.

Rogers, who is a black man, and Martin, a white man, shared a cell in the prison. When word of unarmed black teenager Trayvon Martin’s death made it to the prison, Rogers carried out the racially motivated attack on Ricky Dean Martin that left him tied at the hands and feet, bruised, cut and in a coma that eventually killed him.

The court heard during Rogers’ trial that blood was smeared on the cell’s walls, and Rogers covered Martin’s body with a prayer rug before guards arrived. Martin’s face was covered with a pair of bloody boxer shorts.

A civil lawsuit filed by Martin’s family against the prison further claims Martin had filed grievances in the days before his death, saying he feared for his life and wanted to be moved from Rogers’ cell.

The same suit claims Rogers also raped Martin, though that claim was not presented by the state in Rogers’ criminal case.

Circuit Judge John Simon read a portion of Rogers’ sentencing document during court Monday, finding that the court agrees with the 12-person jury’s unanimous death recommendation.

“Mindful that a human life is at stake … the aggravating factors far outweigh the mitigating factors,” Simon said during sentencing, adding that not only did Rogers murder Martin, but he humiliated him in the process.

Rogers remained stoic as Simon read the document, not making any gestures or saying anything to his attorney, Kenneth Brooks. Rogers will join 349 other Florida prisoners on death row.

Neither Brooks nor prosecutor Jack Schlechter made any motions or arguments before Simon handed down the sentence. Both sides were allowed to present mitigating and aggravating factors in the case at a separate hearing in November, during which Simon heard about Rogers’ troubled past, with one doctor having called his upbringing a “perfect storm” for trouble.

At that same hearing, prosecutors pointed out Rogers had been functional to represent himself at trial, and was capable of premeditation because he voiced to others he would carry out an attack on a white person in the wake of Trayvon Martin’s death.

In addition to the death sentence for the murder charge, Simon sentenced Rogers to life in prison for the kidnapping to inflict terror charge.

Simon told Rogers he is entitled to an appeals process and per state law his death sentence will be automatically reviewed by the Supreme Court.

The civil lawsuit is still ongoing in Federal Court.

Mississippi Man Back on Death Row, Mental Evaluation Ordered


JACKSON, Miss. — The Mississippi Supreme Court on Thursday reinstated the death sentence of an inmate convicted of killing a prison guard.

Justices also ordered a state circuit court judge to hold another hearing on the mental capacity of Willie C. Russell , who came within hours of being executed more than two decades ago.

Russell, now 57, was convicted in the 1989 killing of Argentra Cotton, a guard at the Mississippi State Penitentiary at Parchman, where Russell was imprisoned for armed robbery, escape and kidnapping convictions in Hinds County.

A federal appeals court blocked the execution in January 1997 after Russell claimed he didn’t have a lawyer to appeal his death sentence. Russell later claimed he was intellectually disabled and could not be executed.

Sunflower County Circuit Judge Betty W. Sanders agreed and overturned the death sentence, and Russell remained in prison. On Thursday, justices said Sanders should have heard more testimony.

A majority of justices wrote that Russell underwent psychological testing in 2006 in an aggravated assault case, but he never underwent an assessment of intellectual disability.

In 2014, Sanders denied the state’s request for Russell to be evaluated for intellectual disability, saying the previous testing was sufficient. Five of the nine justices said Thursday that the judge conducted a “one-sided” hearing about Russell’s mental capacity before she overturned his death sentence.

However, four justices wrote a dissent, saying Russell had undergone enough psychological testing in 2006, and results of those tests could be used to determine whether he has an intellectual disability.

The U.S. Supreme Court ruled in 2002 that it is unconstitutional to execute a person who has intellectual disabilities.

Sanders is retired from the bench. A majority of justices said Thursday that an expert chosen by the state must be allowed to evaluate Russell before a circuit judge holds new hearing about his mental capacity.

 

Ohio Supreme Court to hear local man’s death penalty appeal


December  4,  2017

 

 

 

COLUMBUS, Ohio — On Tuesday, the Ohio Supreme Court is to preside over a legal debate over whether the death penalty should be executed on a young Clayton man – the second youngest on Ohio’s Death Row – for the murder of an even younger Warren County man at his home outside Waynesville in January 2014, according to the Journal-News.

Warren County Prosecutor David Fornshell will personally argue for the state to continue forward toward the execution of Austin Myers, now 22, of Clayton, although another Clayton man, Timothy Mosley – like Myers 19 years old at the time – actually stabbed to death Justin Back, 18, a 2013 Waynesville High School graduate about to enter the U.S. Navy.

“Austin Myers killed Justin. Tim was his weapon of choice,” Fornshell said last week, quoting Back’s stepfather, Mark Cates, a local prison guard.

It will be Fornshell’s first appearance before the high court on behalf of Warren County.

Lawyers appointed to appeal Myers’ death sentence have identified 18 violations of law they claim should convince the state’s high court to set aside his death sentence, including his age and the lesser sentence – life in prison without paroleMosley received in exchange for his testimony.

Three years later, Myers is still the second youngest of 140 Ohio prisoners facing the death penalty. Damantae Graham, 20, convicted of killing a Kent State University student, is the only one younger.

Myers’ lawyers also claim errors or misconduct by the judge, prosecutors and defense lawyers in the case, decided more than three years ago in Warren County Common Pleas Court, should convince the high court, including appointed Judge Cynthia Westcott Rice of Ohio’s 11th District Court of Appeals, to spare his life.

“Mr. Myers’s rights under the Constitution of the United States and the Ohio Constitution were violated and he was denied a fair trial and sentencing proceeding. Accordingly, this Court should reverse and discharge the defendant or grant a new trial. In the alternative, this Court should vacate the death sentence, remand for a resentencing hearing, and order the life sentence imposed,” lawyer Timothy McKenna said in his brief to the high court.

The appeal, pending since Oct. 27, 2014, was set for oral arguments on Oct. 20, after a second Ohio Death Row inmate was executed. These came after the postponement of scheduled executions starting in January 2014 following problems during the execution of Dennis McGuire, a Preble County man.

Rice was appointed to the high court on Nov. 6, replacing Justice Bill O’Neill, who recused himself after announcing he was running for governor.

The case

Myers and Mosley were arrested in July 2014 after Back’s mutilated body was found in Preble County, in a wooded area outside Versailles known as Crybaby Bridge. They both gave statements during interrogation at the Clayton Police Department used by investigators in reconstructing the crime, according to police and court records.

According to their statements, Mosely’s testimony and other evidence, after a day of preparation and planning, Myers and Mosley went to Back’s home in a small neighborhood along the Little Miami River, east of Waynesvile. With a garrote – fashioned by a friend who was not charged – Mosley came up behind Back and began choking him, while Myers restrained Back. When the garrote caught on Back’s chin, Mosley pulled out a knife and stabbed Back to death.

After cleaning the home and stealing Back’s iPod and wallet, as well as a gun and safe belonging to Cates, Mosley and Myers removed Back’s body, dumping it in Preble County after dousing it with chemicals to quicken decomposition. Before leaving the body, Myers shot it twice with Cates’ gun.

At trial, prosecutors convinced the jury that Myers was the mastermind of the crime and he was sentenced to die. Mosley, in exchange for his testimony, was sentenced in a plea bargain to life without parole.

The issues

Mosley was represented by Dennis Lieberman, a lawyer hired by Mosley’s family. Myers was represented by Greg Howard and John Kaspar, appointed by the court.

But Fornshell said Mosley got the deal because – unlike Myers- he offered to cooperate. Prosecutors needed one or the other to “put in the back story,” Fornshell said.

In addition, Fornshell said Mosley accepted responsibility and Myers was “exponentially more dangerous,” pointing to evidence indicating Myers handled the bulk of the planning and wanted to go back and kill Cates.

He’s a serial killer who got caught the first time,” Fornshell added.“There is absolutely no doubt in my mind.”

McKenna and co-counsel Roger Kirk did not respond to requests for interviews.

But their 110-page brief indicates they will emphasize Myers “was a 19 year-old immature adolescent with behavioral issues” who should be spared the death penalty, in part because Mosley’s sentence spared his life, although he wielded the murder weapon.

In addition, they claim prosecutors rendered Myers’ lawyers “admittedly ineffective” by withholding evidence until “on the Friday eve before the Monday trial,”as well as the fact that Mosley was to be a witness.

The appeal

The appeal is to be the first of a series of cases heard on Tuesday and Wednesday.

All arguments are streamed live online at sc.ohio.gov and broadcast live and archived on the Ohio Channel, according a release from the high court.

The court typically issues opinions within six months, but it was unclear when a decision would be issued in this case.

Stays of Execution 2017



Date of Scheduled Execution State Prisoner Reason for Stay
January
11 OH Anthony Kirkland Stay granted by Ohio Supreme Court on October 16, 2014 “pending disposition of available state remedies …. It is further ordered that this stay shall remain in effect until exhaustion of all state post-conviction proceedings, including any appeals.”
12 OH James Hanna Reprieve granted by Gov. John Kasich because Ohio did not have execution drugs.^^
12 OH Ronald Phillips Stay granted by magistrate judge in U.S. District Court on December 19, 2016 to permit litigation of challenge to Ohio lethal injection protocol; on December 21, 2016, governor then rescheduledexecution for February 15, 2017.
23 OR Gary Haugen Reprieve in place, Gov. John Kitzhaber imposed a moratorium on all executions in Oregon. Current Gov. Kate Brown has requested a report on the status of the death penalty and indicated the report will inform future policy decisions.
25 TX Kosoul Chanthakoummane Execution date rescheduled to July 19, 2017.
February
2 TX John Ramirez Stay granted by U.S. District Court on January 31, 2017 to permit new counsel to file a petition seeking clemency for Ramirez. On February 1, the United States Court of Appeals for the Fifth Circuit deniedthe Texas Attorney General’s motion to vacate the District Court’s stay order.
7 TX Tilon Lashon Carter Stay granted by the Texas Court of Criminal Appeals on February 3, 2017 on a 5-4 vote. The Court ruled that Texas had failed to timely serve the death warrant upon the Texas Office of Capital and Forensic Writs.
15 OH Ronald Phillips Stay granted by U.S. District Court magistrate judge on January 26, 2017 as part of preliminary injunction order declaring Ohio’s execution protocol unconstitutional. Then rescheduled for May 10, 2017 by Gov. John Kasich on February 10, 2017.*
19 OH Ramond Tibbetts Stay granted by U.S. District Court magistrate judge on December 19, 2016 to permit litigation of challenge to Ohio lethal injection protocol; on December 21, 2016, Gov. John Kasich rescheduledexecution for April 12, 2017.
March
2 PA Wayne Smith Stay granted by U.S. District Court for the Eastern District of Pennsylvania on January 25, 2017 to provide Smith to vindicate his right to pursue state and federal post-conviction challenges to his conviction and sentence that are available to all criminal defendants.
3 PA Richard Poplawski Stay granted by the Allegheny County Court of Common Pleas on February 17, 2017 to provide Poplawski the opportunity to pursue state post-conviction challenges to his conviction and sentence that are available to all criminal defendants.
4 PA Aric Woodard Stay granted by the York County Court of Common Pleas on February 9, 2017 to provide Woodard the opportunity to pursue state post-conviction challenges to his conviction and sentence that are available to all criminal defendants.
6 PA Patrick Haney Stay granted by U.S. District Court for the Western District of Pennsylvania on February 8, 2017 to provide Haney the opportunity to pursue state and federal post-conviction challenges to his conviction and sentence that are available to all criminal defendants.
15 OH Gary Otte Stay granted by U.S. District Court magistrate judge on January 26, 2017 as part of preliminary injunction order declaring Ohio’s execution protocol unconstitutional. Then rescheduled for June 13, 2017 by Gov. John Kasich on February 10, 2017.*
22 OH Jeremiah Jackson Stay granted by Ohio Supreme Court until exhaustion of all state post-conviction proceedings.
April
12 OH Ramond Tibbetts Stay granted by U.S. District Court magistrate judge on January 26, 2017 as part of preliminary injunction order declaring Ohio’s execution protocol unconstitutional. Then rescheduled for July 26, 2017 by Gov. John Kasich on February 10, 2017.*
12 TX Paul Storey Stay granted by Texas Court of Criminal Appeals.
17 AR Bruce Ward Stay granted by the Arkansas Supreme Court on April 14 to permit counsel to litigate whether Ward is mentally competent to be executed. Temporary restraining order granted by Pulaski County court on April 14 in litigation brought by pharmaceutical company seeking to bar Arkansas from using vecuronium bromide in scheduled execution. Restraining order lifted by Arkansas Supreme Court. Stay granted by the Arkansas Supreme Court on April 17 pending decision by the United States Supreme Court in McWilliams v. Dunn on questions concerning the right to an independent mental health expert that may affect the resolution of similar issues in Ward’s case.
17 AR Don Davis Temporary restraining order granted by Pulaski County court on April 14 in litigation brought by pharmaceutical company seeking to bar Arkansas from using vecuronium bromide in scheduled execution. Restraining order lifted by Arkansas Supreme Court. Stay granted by the Arkansas Supreme Court on April 17 pending decision by the United States Supreme Court in McWilliams v. Dunn on questions concerning the right to an independent mental health expert that may affect the resolution of similar issues in Davis’s case.
20 AR Stacey Johnson Temporary restraining order granted by Pulaski County court on April 14 in litigation brought by pharmaceutical company seeking to bar Arkansas from using vecuronium bromide in scheduled execution. Restraining order lifted by Arkansas Supreme Court. Stay issued by Arkansas Supreme Court on April 19 to allow hearing on postconviction DNA testing.
25 VA Ivan Teleguz Death sentence commuted by Gov. Terry McAuliffe on April 20 to life in prison, with no chance for parole.
27 AR Jason McGehee Preliminary inunction granted by U.S. District Court for the Eastern District of Arkansas staying McGehee’s execution until Arkansas Parole Board complies with 30-day period for public comment on its 6-1 recommendation for clemency and Gov. Asa Hutchinson decides whether to issue clemency.
May
10 OH Alva Campbell, Jr. Execution rescheduled for September 13, 2017 by Gov. John Kasich on February 10, 2017.*
10 OH Ronald R. Phillips Execution rescheduled for July 26, 2017 by Gov. John Kasich on May 1, 2017.**
17 OH Donald Ketterer Stay granted by Ohio Supreme Court until exhaustion of all state post-conviction proceedings.
16 TX Tilon Carter Stay granted by Texas Court of Criminal Appealson May 12 to permit the court to consider claim that new evidence shows that Carter’s conviction was a product of scientifically erroneous and false forensic testimony that the victim had been smothered.
24 TX Juan Castillo Execution rescheduled for September 7, 2017.
June
13 OH William Montgomery Execution rescheduled for October 18, 2017 by Gov. John Kasich on February 10, 2017.*
13 OH Gary Otte Execution rescheduled for September 13, 2017 by Gov. John Kasich on May 1, 2017.**
28 TX Steven Long Execution rescheduled for August 30, 2017.
July
19 OH Mark Pickens Stay granted by Ohio Supreme Court until exhaustion of all state post-conviction proceedings.
19 TX Kosoul Chanthakoummane Stay granted by Texas Court of Criminal Appealson June 7, 2017, to review claims of discredited forensic science.
26 OH Robert Van Hook Execution rescheduled for November 15, 2017 by Gov. John Kasich on February 10, 2017.*
26 OH Raymond Tibbetts Execution rescheduled for October 18, 2017 by Gov. John Kasich on May 1, 2017.**
August
15 PA Omar Shariff Cash Stay granted by U.S. District Court for the Eastern District of Pennsylvania on June 28, 2017 to provide Cash the opportunity to pursue state and federal post-conviction challenges to his conviction and sentence that are available to all criminal defendants.
22 MO Marcellus Williams Stay granted by Governor Greitens on August 22, 2017. The Governor appointed a Gubernatorial Board of Inquiry to further consider Marcellus Williams’ request for executive clemency.
30 TX Steven Long Stay granted by the Texas Court of Criminal Appeals on August 21, 2017 to permit Long to re-litigate his claim of intellectual disability under Moore v. Texas. The Texas courts had previously denied his claim, applying the “Briseno factors” that were declared unconstitutional in Moore.
September
7 TX Juan Castillo On August 30, 2017, the Bexar County District Court granted the Bexar County District Attorney’s motion to withdraw Juan Castillo’s execution date. The request was made after Governor Abbott declared a state of disaster for 30 Texas counties because of Hurricane Harvey. The court also issued an order setting a new execution date for December 14, 2017.
13 OH Jeffrey A. Wogenstahl Stay granted by the Ohio Supreme Court on May 4, 2016 on motion to vacate execution date and to reopen direct appeal. Execution rescheduled for April 17, 2019 by Gov. John Kasich on February 10, 2017.*
13 OH Alva Campbell, Jr. Execution rescheduled for November 15, 2017 by Gov. John Kasich on May 1, 2017.**
26 GA Keith Tharpe Stay granted by the U.S. Supreme Court on September 26, 2017 “pending the disposition of [Tharpe’s] petition for a writ of certiorari” seeking review of a decision by the 11th Circuit denying him an appeal of his habeas corpus claim that his death sentence was unconstitutionally tainted by the participation of a racially biased juror.
October
5 AL Jeffrey Borden Injunction granted by U.S. Court of Appeals for the 11th Circuit on September 29 staying Borden’s execution through October 19, 2017, but vacated by the U.S. Supreme Court on October 4. Stay grantedby U.S. District Court for the Middle District of Alabama on October 5, 2017
18 OH Melvin Bonnell Rescheduled for April 11, 2018 by Gov. John Kasich on February 10, 2017.*
18 OH William Montgomery Rescheduled for January 3, 2018 by Gov. John Kasich on May 1, 2017.**
18 OH Raymond Tibbetts Rescheduled for February 13, 2018 by Gov. John Kasich on September 1, 2017.^
18 TX Anthony Shore 90-day stay of execution granted by Harris County trial court to permit prosecutors to investigate claim that Shore was colluding with another death-row prisoner to confess to the murder in that case. Execution rescheduled for January 18, 2018.
19 AL Torrey McNabb Injunction granted by U.S. District Court for the Middle District of Alabama on October 16, 2017 astaying McNabb’s execution, and affirmed by the U.S. Court of Appeals for the 11th Circuit on October 18. Injunction vacated by U.S. Supreme Court on October 19, 2017 and stay lifted. EXECUTED.
26 TX Clifton Lee Young Stay granted by the Texas Court of Criminal Appeals on October 18, 2017 and evidentiary hearing ordered on Young’s claim that newly discovered evidence (gunshot residue on the gloves of the prosecution’s key witness and affidavits of four prisoners that this witness had bragged about committing the killing and framing Young) shows that his conviction and sentence were obtained with false or perjured testimony.
November
9 AR Jack Greene Stay granted by the Arkansas Supreme Court on November 7, 2017 on petition raising issue related to Arkansas procedures for determining competency to be executed.
14 NV Scott Dozier Stay granted by the Clark County District Court on November 9, 2017 to permit the prosecution to appeal its ruling barring the use of a paralytic drug in Nevada’s execution protocol.
15 OH Alva Campbell Gov. John Kasich called off the execution on November 15, 2017 after personnel of the Ohio Department of Corrections failed five times to find a suitable vein to insert an intravenous execution line.
15 OH Robert Van Hook Rescheduled for February 13, 2018 by Gov. John Kasich on May 1, 2017.**
16 TX Larry Swearingen Stay granted by trial court on October 27 because of clerk’s error in serving notice of execution.

Executions Scheduled for 2018


Executions Scheduled for 2018


Month State Prisoner
January
2 PA Sheldon Hannibal — STAYED
3 OH John Stumpf — RESCHEDULED
3 OH William Montgomery — RESCHEDULED
18 TX Anthony Shore
25 AL Vernon Madison
30 TX William Rayford
February
1 TX John Battaglia
13 OH Warren K. Henness — RESCHEDULED
13 OH Robert Van Hook — RESCHEDULED
13 OH Raymond Tibbetts
22 TX Thomas Whitaker
March
14 OH Douglas Coley — RESCHEDULED
14 OH Warren K. Henness — RESCHEDULED
20 MO Russell Bucklew
27 TX Rosendo Rodriguez
April
11 OH Melvin Bonnell — RESCHEDULED
11 OH William Montgomery
May
30 OH Stanley Fitzpatrick — RESCHEDULED
June
27 OH Angelo Fears — RESCHEDULED
July
18 OH Robert Van Hook
August
1 OH David A. Sneed — RESCHEDULED
September
13 OH Cleveland R. Jackson
October
10 OH James Derrick O’Neal — RESCHEDULED
November
14 OH John David Stumpf — RESCHEDULED

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.

Boston Bombing juror says he regrets giving Tsarnaev the death penalty


Kevan Fagan, ‘Juror 83’ in the trial of Boston Marathon bomber Dzhokhar Tsarnaev, says he probably would not have voted for the death penalty had he been aware that the families of some victims wanted a life sentence.
On Monday, the same day a federal judge ruled to keep the names of all jurors in the trial sealed, Mr. Fagan sat down for an interview with WBUR-FM.
Fagan is the first juror to speak publicly using his name, and to be photographed, according to the station.
Fagan would not discuss deliberations but said he “would probably change” his vote in the penalty phase of the trial if he had been aware that the parents of 8-year-old victim Martin Richard opposed the death penalty.
The week before the jury was set to deliberate on life imprisonment or death for Mr. Tsarnaev, nearly two years to the day of the bombing, Bill and Denise Richard wrote an essay, published in The Boston Globe, that a death sentence would only lead to lengthy appeals and draw out the anguish for their family:

We know that the government has its reasons for seeking the death penalty, but the continued pursuit of that punishment could bring years of appeals and prolong reliving the most painful day of our lives. We hope our two remaining children do not have to grow up with the lingering, painful reminder of what the defendant took from them, which years of appeals would undoubtedly bring.

The jurors were ordered to avoid social media and press throughout the trial.
Source: Business Insider, August 25, 2015

Connecticut’s Top Court Overturns Death Penalty in State


Three years after Connecticut abolished the death penalty for any future crimes, the state’s highest court on Thursday spared the lives of all 11 men who were already on death row when the law took effect, saying it would be unconstitutional to execute them.
The ruling comes in an appeal from Eduardo Santiago, whose attorneys had argued that any execution carried out after repeal would constitute cruel and unusual punishment. Santiago faced the possibility of lethal injection for a 2000 murder-for-hire killing in West Hartford.
The Connecticut Supreme Court, in a 4-3 ruling, agreed with his position.
“Upon careful consideration of the defendant’s claims in light of the governing constitutional principles and Connecticut’s unique historical and legal landscape, we are persuaded that, following its prospective abolition, this state’s death penalty no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose,” Justice Richard Palmer wrote for the majority.
“For these reasons, execution of those offenders who committed capital felonies prior to April 25, 2012, would violate the state constitutional prohibition against cruel and unusual punishment.”
The ruling means the 11 men on the state’s death row will no longer be subject to execution orders. Those inmates include Joshua Komisarjevsky and Steven Hayes, who were sentenced to die for killing a mother and her two daughters in a 2007 home invasion in Cheshire.
The repeal had eliminated the death penalty while setting life in prison without the possibility of release as the punishment for crimes formerly considered capital offenses.
Santiago was sentenced to lethal injection in 2005 for the murder-for-hire killing of 45-year-old Joseph Niwinski. But the state Supreme Court overturned the death sentence and ordered a new penalty phase in 2012, saying the trial judge wrongly withheld key evidence from the jury regarding the severe abuse Santiago suffered while growing up.
The ruling came just weeks after lawmakers passed the death penalty repeal.
Assistant Public Defender Mark Rademacher argued any new death sentence would violate Santiago’s constitutional rights to equal protection and due process. He said it would be wrong for some people to face the death penalty while others face life in prison for similar murders.
He told the court that Connecticut had declared its opposition to the death penalty and it wouldn’t make sense to execute anybody now.
Senior Assistant State’s Attorney Harry Weller had argued there were no constitutional problems with the new law, and death-row inmates simply face a penalty under the statute that was in effect when they were convicted. He also argued that the court could not repeal just part of the new law.
Connecticut has had just one execution since 1960. Serial killer Michael Ross was put to death 2005 after winning a legal fight to end his appeals.
Source: Associated Press, August 13, 2015

The 20 Best Lines From the Supreme Court Dissent Calling to End the Death Penalty


The case before the Supreme Court concerned a specific question: Was a certain sort of capital punishment via lethal injection constitutional? In a decision issued Monday morning, the four conservative justices plus swing vote Justice Anthony Kennedy said yes, and Justice Sonia Sotomayor wrote a dissenting opinion for the court’s liberals taking the opposite position. But in a stinging dissent of his own, Justice Stephen Breyer, who was joined by Justice Ruth Bader Ginsburg, went much further: He called for abolishing the death penalty, contending that capital punishment, as it is currently practiced, violates the Constitution. His opinion was methodically argued and chockfull of research (on exonerations, various disparities in the application of the death sentence, and more). Breyer, who in 2008 sided with the court majority in upholding the use of lethal injections in Kentucky, noted that his own experience overseeing capital punishment cases has led him to a forceful and passionate position: The death penalty must go.

Here are the best passages from his opinion.

In 1976, the Court thought that the constitutional in­firmities in the death penalty could be healed; the Court in effect delegated significant responsibility to the States to develop procedures that would protect against those con­stitutional problems. Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed. Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use.

I shall describe each of these considerations, emphasiz­ing changes that have occurred during the past four dec­ades. For it is those changes, taken together with my own 20 years of experience on this Court, that lead me to be­lieve that the death penalty, in and of itself, now likely constitutes a legally prohibited “cruel and unusual pun­ishmen[t].” U. S. Const., Amdt. 8.

*   *   *

[R]esearchers have found convincing evidence that, in the past three decades, innocent people have been executed.

*   *   *

[T]he evidence that the death penalty has been wrongly imposed (whether or not it was carried out), is striking. As of 2002, this Court used the word “disturb­ing” to describe the number of instances in which individ­uals had been sentenced to death but later exonerated. At that time, there was evidence of approximately 60 exonerations in capital cases….Since 2002, the number of exonerations in capital cases has risen to 115……Last year, in 2014, six death row inmates were exonerated based on actual innocence. All had been imprisoned for more than 30 years (and one for almost 40 years) at the time of their exonerations.

*   *   *

[T]he crimes at issue in capital cases are typically horren­dous murders, and thus accompanied by intense community pressure on police, prosecutors, and jurors to secure a conviction. This pressure creates a greater likelihood of convicting the wrong person.

*   *   *

[R]esearchers estimate that about 4% of those sentenced to death are actually innocent.

*   *   *

[B]etween 1973 and 1995, courts identified prejudicial errors in 68% of the capital cases before them.

*   *   *

This research and these figures are likely controversial. Full briefing would allow us to scrutinize them with more care. But, at a minimum, they suggest a serious problem of reliability. They suggest that there are too many in­stances in which courts sentence defendants to death without complying with the necessary procedures; and they suggest that, in a significant number of cases, the death sentence is imposed on a person who did not commit the crime….Unlike 40 years ago, we now have plausible evidence of unreliability that (perhaps due to DNA evidence) is stronger than the evidence we had before. In sum, there is significantly more research-based evidence today indicating that courts sentence to death individuals who may well be actually innocent or whose convictions (in the law’s view) do not warrant the death penalty’s application.

*   *   *

Thus, whether one looks at research indicating that irrelevant or improper factors—such as race, gender, local geography, and resources—do significantly determine who receives the death penalty, or whether one looks at re­search indicating that proper factors—such as “egregious­ness”—do not determine who receives the death penalty, the legal conclusion must be the same: The research strongly suggests that the death penalty is imposed arbitrarily.

*   *   *

The studies bear out my own view, reached after consid­ering thousands of death penalty cases and last-minute petitions over the course of more than 20 years. I see discrepancies for which I can find no rational explanations… Why does one defendant who committed a single-victim murder receive the death pen­alty (due to aggravators of a prior felony conviction and an after-the-fact robbery), while another defendant does not, despite having kidnapped, raped, and murdered a young mother while leaving her infant baby to die at the scene of the crime…Why does one defendant who committed a single-victim murder receive the death penalty (due to aggravators of a prior felony conviction and acting recklessly with a gun), while another defendant does not, despite having committed a “triple murder” by killing a young man and his pregnant wife?… For that matter, why does one defendant who participated in a single-victim murder-for-hire scheme (plus an after-the­ fact robbery) receive the death penalty, while another defendant does not, despite having stabbed his wife 60 times and killed his 6-year-old daughter and 3-year-old son while they slept?… In each instance, the sentences compared were imposed in the same State at about the same time.

The question raised by these examples (and the many more I could give but do not), as well as by the research to which I have referred, is the same question Justice Stew­art, Justice Powell, and others raised over the course of several decades: The imposition and implementation of the death penalty seems capricious, random, indeed, arbitrary. From a defendant’s perspective, to receive that sentence, and certainly to find it implemented, is the equivalent of being struck by lightning. How then can we reconcile the death penalty with the demands of a Constitution that first and foremost insists upon a rule of law?

*   *   *

[N]early all death penalty States keep death row inmates in isolation for 22 or more hours per day….This occurs even though the ABA has suggested that death row inmates be housed in conditions similar to the general population, and the United Nations Special Rapporteur on Torture has called for a global ban on solitary confinement longer than 15 days…  And it is well documented that such prolonged solitary confinement produces numerous deleterious harms. See, e.g., Haney, Mental Health Issues in Long-Term Solitary and “Supermax” Confinement, 49 Crime & Delinquency 124, 130 (2003) (cataloging studies finding that solitary confinement can cause prisoners to experience “anxiety, panic, rage, loss of control, paranoia, hallucinations, and self-mutilations,” among many other symptoms)

*   *   *

The dehumanizing effect of solitary confinement is aggravated by uncertainty as to whether a death sentence will in fact be carried out. In 1890, this Court recognized that, “when a prisoner sentenced by a court to death is confined in the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it.”… The Court was there describing a delay of a mere four weeks. In the past century and a quarter, little has changed in this respect— except for duration. Today we must describe delays measured, not in weeks, but in decades.

*   *   *

The second constitutional difficulty resulting from lengthy delays is that those delays undermine the death penalty’s penological rationale, perhaps irreparably so. The rationale for capital punishment, as for any punishment, classically rests upon society’s need to secure deter­rence, incapacitation, retribution, or rehabilitation. Capital punishment by definition does not rehabilitate. It does, of course, incapacitate the offender. But the major alternative to capital punishment—namely, life in prison without possibility of parole—also incapacitates.

*   *   *

Recently, the National Research Council (whose members are drawn from the councils of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine) reviewed 30 years of empirical evidence and concluded that it was insufficient to establish a deterrent effect and thus should “not be used to inform” discussion about the deterrent value of the death penalty.

*   *   *

Sometimes the community believes that an execution could provide closure. Nevertheless, the delays and low probability of execution must play some role in any calculation that leads a community to insist on death as retribution. As I have already suggested, they may well attenuate the community’s interest in retribution to the point where it cannot by itself amount to a significant justification for the death penalty…. In any event, I believe that whatever interest in retribution might be served by the death penalty as currently administered, that interest can be served almost as well by a sentence of life in prison without parole (a sentence that every State now permits.

*   *   *

The upshot is that lengthy delays both aggravate the cruelty of the death penalty and undermine its jurisprudential rationale. And this Court has said that, if the death penalty does not fulfill the goals of deterrence or retribution, “it is nothing more than the purposeless and needless imposition of pain and suffering and hence an unconstitutional punishment.”

*   *   *

And that fact creates a dilemma: A death penalty sys­tem that seeks procedural fairness and reliability brings with it delays that severely aggravate the cruelty of capi­tal punishment and significantly undermine the rationale for imposing a sentence of death in the first place…(one of the primary causes of the delay is the States’ “failure to apply constitutionally sufficient procedures at the time of initial [conviction or] sentenc­ing”). But a death penalty system that minimizes delays would undermine the legal system’s efforts to secure relia­bility and procedural fairness.

In this world, or at least in this Nation, we can have a death penalty that at least arguably serves legitimate penological purposes or we can have a procedural system that at least arguably seeks reliability and fairness in the death penalty’s application. We cannot have both. And that simple fact, demonstrated convincingly over the past 40 years, strongly supports the claim that the death pen­alty violates the Eighth Amendment.

*   *   *
The Eighth Amendment forbids punishments that are cruel and unusual. Last year, in 2014, only seven States carried out an execution. Perhaps more importantly, in the last two decades, the imposition and implementation of the death penalty have increasingly become unusual.

*   *   *

[I]f we look to States, in more than 60% there is effectively no death penalty, in an additional 18% an execution is rare and unusual, and 6%, i.e., three States, account for 80% of all executions. If we look to population, about 66% of the Nation lives in a State that has not carried out an execution in the last three years. And if we look to counties, in 86% there is effectively no death penalty. It seems fair to say that it is now unusual to find capital punishment in the United States, at least when we consider the Nation as a whole.

*   *   *

I recognize a strong counterargument that favors consti­tutionality. We are a court. Why should we not leave the matter up to the people acting democratically through legislatures? The Constitution foresees a country that will make most important decisions democratically. Most nations that have abandoned the death penalty have done so through legislation, not judicial decision. And legisla­tors, unlike judges, are free to take account of matters such as monetary costs, which I do not claim are relevant here….

The answer is that the matters I have discussed, such as lack of reliability, the arbitrary application of a serious and irreversible punishment, individual suffering caused by long delays, and lack of penological purpose are quin­tessentially judicial matters. They concern the infliction— indeed the unfair, cruel, and unusual infliction—of a serious punishment upon an individual.

*   *   *

I believe it highly likely that the death penalty violates the Eighth Amendment. At the very least, the Court should call for full briefing on the basic question.