History > 2006 > USA > Death penalty (I)

Michael Morales
in an undated photo.
The execution of the California man
who raped and murdered an 17-year-old girl
was delayed for at least 15 hours early on Tuesday
because two court-appointed anesthesiologists
walked off the job over ethical concerns.

REUTERS/California Department of Corrections and Rehabilitation/Handout

Doctor walk-out delays execution        R        21.2.2006
http://today.reuters.com/news/newsArticle.aspx?type=domesticNews&storyID=
2006-02-21T140733Z_01_N21368630_RTRUKOC_0_US-CRIME-EXECUTION-DELAY.xml

Lawyers Elsewhere Take Note

as a New York Man

Is Freed by DNA Tests

May 17, 2006
The New York Times
By JIM DWYER and DAVID STABA

Freed after serving 10 years for a murder he confessed to but did not commit, Douglas A. Warney rolled out of a courthouse in Rochester yesterday morning in his wheelchair, celebrating the DNA tests that led the authorities to another suspect and condemning the tortuous legal process that had kept him behind bars.

"I'm angry that I was put in a position that I could have been executed for a crime that I didn't commit," said Mr. Warney, 44, who initially was charged with first-degree murder, which carried a possible death sentence.

Mr. Warney's release — after bitter fights over the validity of his confession, his right to DNA testing and an abrupt reversal by the Monroe County district attorney — struck a powerful note nearly 800 miles away at a prison in Nashville.

There, another man who had confessed to murder, Sedley Alley, was granted a two week stay of execution by Gov. Phil Bredesen of Tennessee so he could return to court to make new arguments for DNA testing that prosecutors have opposed and courts have not permitted.

Mr. Alley was scheduled to be executed at 1 a.m. today, but the state Board of Probation and Parole voted 4 to 3 to recommend that Governor Bredesen delay the execution to permit new tests. In presenting their plea to the board, Mr. Alley's lawyers said that the case of Mr. Warney in New York offered instructive parallels.

"The Warney case is so eerily similar to ours that it's scary," said Kelley J. Henry, an assistant federal defender in Nashville who is one of Mr. Alley's lawyers.

In both cases, the men were said by prosecutors to have made convincing admissions of guilt, offering details that only the killers would have known. Defense lawyers said that the confessions also contained striking inconsistencies with important facts. In neither case were DNA tests conducted, and the prosecutions rested almost entirely on the disputed confessions.

Prosecutors say that Mr. Alley admitted to killing and raping a 19-year-old marine, Suzanne Collins, in 1985. Evidence collected from and near her body has never been tested, and prosecutors say that Mr. Alley, who entered an insanity defense at his trial in 1987, first claimed he was innocent in 2004.

The state has opposed DNA tests, saying he forfeited any right to them by waiting so long to ask. Mr. Alley and his lawyers have been unable to persuade state or federal courts that he is entitled to them.

Governor Bredesen, whose wife, Andrea Conte, is a founder of a crime victims' group that supports the execution, said that he believed Mr. Alley was guilty and that he was acting "reluctantly" in delaying the execution.

In upstate New York, Mr. Warney was released shortly after noon yesterday, accompanied by members of his family and his lawyers. Based entirely on a two-page statement that he signed after being questioned by police, Mr. Warney was arrested and charged with stabbing William Beason to death on New Year's Day, 1996.

Soon after he was taken into custody, investigators learned that blood found at the crime scene had come from someone other than the victim or Mr. Warney. Defense lawyers said that it was the blood of the killer, and excluded Mr. Warney; prosecutors said that while he might have had an accomplice, he knew secret details of the crime. He was convicted and sentenced to a minimum of 25 years.

When Mr. Warney sought DNA testing two years ago, prosecutors opposed it, persuading a judge that the tests would not prove anything the jury did not already know.

Despite winning that argument, the prosecutors then conducted the testing, without telling Mr. Warney's lawyers. The results linked the blood to a man serving time in prison for a series of violent attacks with knives, including one murder. One of the man's fingerprints also was found in the victim's home.

That man, Eldred Johnson Jr., was interviewed in prison last week and told investigators that he had acted alone in killing Mr. Beason and that he did not know Mr. Warney, said the Monroe County district attorney, Michael C. Green.

Asked yesterday why he had refused to permit the DNA tests when Mr. Warney sought them, Mr. Green said, "I felt they legally weren't entitled to the relief they were seeking."

In February 2005, Mr. Green's office lost a case involving similar DNA issues in the Court of Appeals, the state's highest court. A few days after that decision, Mr. Green wrote a letter that began the process of testing the DNA in Mr. Warney's case.

Mr. Green said that ruling "had nothing whatsoever to do" with his decision to order the DNA testing. He did it, he said, because after rereading files from the Warney case he realized that blood at the scene might have come from someone who took part in the murder but was still at large.

"I called everyone together and said we have to go into this with a blank slate," Mr. Green said. "If it leads to evidence that shows Warney was properly convicted, great. If it shows us that he didn't do it, so be it."

One of Mr. Warney's lawyers, Peter J. Neufeld of the Innocence Project in New York, said that a special prosecutor should be appointed to investigate how Mr. Warney learned nonpublic facts about a crime that he was not involved in, arguing that the police must have fed details to Mr. Warney.

Mr. Green said Mr. Warney could have gotten information from newspaper articles, from visits to the victim's home, and from the detectives. "He could have gleaned information from the questions the police asked him," Mr. Green said. "We'll never know."

The interrogation of Mr. Warney was not recorded, a measure urged by some legal scholars as a way to resolve questions about the reliability of a confession. Mr. Green was ambivalent. "I don't have any real objection to taping," he said. "The one concern is that, is taping going to inhibit people from talking to the police?"

Jim Dwyer is one of the authors of a book, "Actual Innocence" (Doubleday, 2000), with Barry Scheck and Peter J. Neufeld. Mr. Neufeld is one of the lawyers representing Douglas A. Warney, and Mr. Scheck is representing Sedley Alley. Mr. Dwyer reported from New York for this article and David Staba from Rochester.

    Lawyers Elsewhere Take Note as a New York Man Is Freed by DNA Tests, NYT, 17.5.2006, http://www.nytimes.com/2006/05/17/nyregion/17dna.html

A death worse than a dog's

May 3, 2006 04:14 PM
Clive Stafford Smith
Guardian


For the last 12 years, I have delighted in the companionship of a golden retriever, rescued from neglect as a puppy. He is the most amiable dog in the world. He is getting on in years, and I know that in the not too distant future a vet is going to encourage me to have him put down. I hope it never comes to this, but at least when we put animals down the injection administered by the vet will not contain the drug potassium chloride, as it has been found to cause intense pain unless the animal is deeply unconscious.

This is not a reassurance that I can offer to my clients on death row.

The lethal cocktail administered in 37 US states and by the federal government to prisoners condemned to death typically does include potassium chloride, despite years of criticism. This drug is preceded by an anaesthetic and then a drug that paralyses the prisoner's muscles. I suspect this is done more to make society feel better rather than the prisoner. They used to cover the face of the electric chair's victim with a leather mask and strap him in so tightly that he could not writhe - not for the benefit of the prisoner, but for the witnesses. With lethal injection, if the prisoner did not feel pain, there would be little point paralysing him, which begs a very troubling question.

Surely the world's most "civilised" nation, which promotes its "compassionate conservatism", would ensure that the anaesthetic was sufficient? Well, actually, no, it doesn't. Death penalty lawyers have been systematically challenging the use of lethal injection recently, as the US has failed to come up with a "kinder, gentler" way to kill people. Human Rights Watch reports that, in fact, prisons do not permit anyone to monitor whether the anaesthetic has been effectively administered during an execution. Anaesthesia is a complex science, affected by the condemned prisoner's weight, his history of intravenous drug use, the blocking ability of the paralysing agent, and many other factors. Once again, the vets are doing a better job here, as guidelines require any veterinarian to do a hands-on check of the depth of anaesthesia before any painful procedure is commenced.

Lethal injection was invented 30 years ago, with no research (volunteer for a drug trial, anyone?), and has not been adapted since. A massive dose of barbiturates would be an alternative, and likely painless. However this has been rejected in the US as the execution audience - typically consisting of representatives of the state, a defence lawyer and the victim's family - would have to wait 30 minutes to know the prisoner was dead.

However, they might want to re-examine their position, since there have been a series of botched and lengthy executions under the current regime. Steven Morin's executioners took 45 minutes to find a vein. The needle inserted in Raymond Landry's arm popped out a couple of minutes after the drugs had started to flow and it took officials fourteen minutes to get it back in, for a total execution time of 40 minutes. Ricky Ray Rector spent 50 minutes moaning behind a curtain while five execution team members worked on both his arms to find a vein that would accept a needle. A total of 36 botched executions have been reported, with prisoners weeping and moaning, technicians eventually inserting needles in the prisoner's neck or foot, drug flow stopping halfway through, or the prisoner convulsing and writhing. There are reports of prisoners breathing long after paralysis should have set in under the protocol.

These accounts do not surprise me. I have witnessed death by lethal injection, and the prisoner's suffering is only one of the indignities. At Leslie Martin's execution, the witnesses chattered through the process and actually cheered when his death was ultimately announced.

Of course, the execution hour is just the culmination of years of mental suffering. One of my clients had his execution stopped at the eleventh hour on four occasions, once less than one minute before the schedule time. And, if the actual execution process is cruel, where do you rank saying goodbye to your children over and over again, comforting your mother, listening to discussions on talk-back radio about the pain you deserve to suffer, or simply living in a cell twenty-three and a half hours a day, for two decades?

Another of my clients had his sentence commuted to life after 17 years on death row. He later told me how odd it felt no longer knowing the form his death would take. During many years on death row, he knew that he was going to die by electrocution and then, when they changed the method, by lethal injection. But now, with a life sentence, he no longer knew. Would it be lung cancer from his chronic smoking habit? Would it be a shank in his side from a fellow prisoner? Or would he die of old age in the prison hospice, 30 years hence? He didn't know, and that felt strange, and also liberating.

My dog doesn't know how he will die. Actually I don't think he knows much at all. I hope he keels over mid-stride in pursuit of a tennis ball, but if it comes down to it, I will hold him while the drugs sweep him away. And, inevitably, at that moment I will also be also thinking of many people I have met who will suffer far more in their final hour.

    A death worse than a dog's, G, 3.5.2006, http://commentisfree.guardian.co.uk/clive_stafford_smith/2006/05/you_wont_feel_a_thing.html

Problems bog down execution of Clark

Drugs take his life after 86 minutes

Article published May 3, 2006
The Toledo Blade

LUCASVILLE, Ohio — In Ohio’s first lethal injection gone awry, condemned inmate Joseph Lewis Clark yesterday repeatedly shook his head and said, “It don’t work” as it became clear the drugs designed to kill him weren’t.

The execution team then closed the curtain separating witnesses from the execution chamber, but Clark’s moans and groans were clearly audible through the glass.

Ultimately, the 57-year great-grandfather and Toledo native was pronounced dead at 11:26 a.m., nearly 90 minutes after the execution’s start. The process, which usually takes 10 minutes, was also extended by Clark’s statement, the longest ever before an execution.

Clark became the 21st man and the first from Lucas County to be executed since Ohio resumed carrying out the death penalty in 1999.

The execution proceeded despite the issuance of a stay by a federal court Monday in the execution of a Hamilton County man set for June 15. That inmate has a lawsuit pending that challenges the constitutionality of the lethal injection protocol, arguing that the choice of drugs could lead to cruel and unusual punishment. Clark is not a party to that suit.

Clark was executed at the Southern Ohio Correctional Facility in Lucasville, Ohio, for the Jan. 13, 1984, slaying of David Manning, a 23-year-old husband and father who was shot at a gas station on Airport Highway in South Toledo.

He received a life sentence for killing another clerk, Donald Harris, 21, the night before at a store on Hill Avenue.

Clark was arrested after shooting a third man, Robert Roloff, during a holdup at a bank ATM in Toledo, three days after shooting Mr. Manning. Mr. Roloff survived.

“Justice has been served today for both David Manning and Donald Harris. Joseph Clark has finally received that which was his due,” Mary Ellen (Manning) Gordon, Mr. Manning’s widow, said after the execution.

Mrs. Gordon said she “did not shed a single tear for the execution of Joseph Clark,” whom she said was “a perfect candidate” to receive the death penalty. Mr. Manning’s brother, Michael, said that Clark tried to be a martyr. But he said Clark is “not a martyr. He’s just a murderer.”

Michael Manning and Brenda Kuhl, Mr. Harris’ sister, said Clark died peacefully.

“I think that it was kind of an easy way for him to go,” said Ms. Kuhl, who was in a waiting room with other relatives who did not see the execution.

Nevelle Stallworth, Clark’s nephew in Toledo, said he learned about what happened at the execution on the news.

“They know what they’re doing down there. They were gonna carry it through,” he said. “As long as he went peacefully.”

The execution team had struggled for 25 minutes to find usable veins in both of Clark’s arms, and made the decision to proceed with the execution with just one intravenous shunt in his left arm.

That vein apparently collapsed as the execution process began, according to Terry Collins, in his first week as director of the Ohio Department of Rehabilitation and Correction.

Clark was a longtime intravenous drug user before his arrest 22 years ago.

After a long speech in which he thanked his family and friends, apologized to his victims’ families, and preached against the dangers of drugs, Clark quoted from the Martin Luther King, Jr., “I Have a Dream” speech in declaring himself: “Free at last. Free at last. Thank God Almighty, I am free at last.”

Then the problems began.

At first, Clark was extremely still, breathing shallowly, and appeared to have fallen asleep except for occasional movement of his feet.

But after a few minutes, he raised his head and, frustrated, shook it back and forth, repeatedly declaring, “It don’t work.”

The execution team pulled the curtain closed at 10:37 a.m. The curtain reopened at 11:12 a.m. and the process resumed. But even then, Clark raised his head about a dozen times and appeared to try to speak. Finally, he rested his head and clearly began to snore.

The snoring ceased and he appeared to stop breathing at 11:23 a.m. He was formally declared dead by the prison warden three minutes later.

Mr. Collins said he was on the phone with the governor’s and attorney general’s offices discussing contingencies if the second attempt failed.

Clark died from a trio of drugs that first put him to sleep, then stopped his breathing, and finally stopped his heart.

The irony of the use of drugs in his death was not lost on Clark.

In his final statement, he said, “I would like to tell them young brothers and sisters also all over the world, do not let drugs ruin your life, ruin your body, and destroy your mind. Today my life is being taken because of drugs. If you live by the sword, you die by the sword.”

Lucas County Prosecutor Julia Bates said yesterday was a “very difficult day” for everyone in law enforcement and everyone in Ohio.

“There’s no joy in Lucasville on anyone’s side,” she said.

    Problems bog down execution of Clark, Toledoblade.com, 3.5.2006, http://www.toledoblade.com/apps/pbcs.dll/article?AID=/20060503/NEWS02/60503011&SearchID=73243451834313

Clark succumbs to lethal injection after more than one hour delay

Article published May 2, 2006
The Toledo Blade


LUCASVILLE - Joseph Lewis Clark, a Toledo native responsible for the deaths of two city men he shot and killed in robberies more than two decades ago, died today of lethal injection at 11:26 a.m.

But Clark’s execution was delayed by nearly an hour and a half because the execution team was unable to find a working vein to deliver the intravenous injection that would kill him.

Clark, a 57-year-old great-grandfather, was supposed to die shortly after 10 a.m. today at the Southern Ohio Correctional Facility from a trio of drugs that was supposed to first put him to sleep, then stopped his breathing, and finally stop his heart.

About 25 minutes after the process began, however, authorities apparently had not found a good vein to deliver the injection. The vein they were injecting apparently collapsed.

Clark bent his upper torso upwards, looked at those in the witness room outside the execution chamber, and repeatedly said: “It’s not working.”

At that point, the curtains across the windows to the room were drawn closed while authorities continued to try and find a working vein, according to Andrea Dean, spokesman for the Ohio Department of Rehabilitation and Corrections.

Ms. Dean insisted that Clark did not experience any discomfort, but those in the witness room could hear his moans and groans through the window behind the closed curtain.

After they were unable to find any working vein on his right arm, the execution team delivered the fatal injection through one IV on his left arm. The injection began at 11:17 a.m. and Clark was already asleep when the curtains to the witness room reopened. He was pronounced dead at 11:26 a.m.

He became the 21st person to die by lethal injection in Ohio and the first from Lucas County.

Before the execution process began, Clark apologized to the victims’ families and preached against the dangers of drug use.

He then concluded with the words of Martin Luther King, Jr.: “free at last, free at last, thank almighty God, I’m free at last.”

The execution process then began, but the problems soon became apparent.

Clark was convicted of the Jan. 13, 1984, slaying of David Manning, a 23-year-old husband and father, who was shot at a Clark gas station at 3070 Airport Hwy. in South Toledo. He received a life sentence for killing another store clerk, Donald Harris, 21, the night before at Lawson’s Store, 4401 Hill Ave. He was arrested after shooting a third man, Robert Roloff, during a holdup at a bank ATM in Toledo, three days after shooting Mr. Manning.

Ms. Dean described Clark as being in a “somber mood’’ this morning after sleeping about three hours. He spent his last night of life watching television and speaking on the telephone with his mother and other members of his family, including his son, Clifford Stallworth, imprisoned on drug charges at the Allen Correctional Institution at Lima.

He skipped the breakfast served to all other inmates, preferring orange juice, Pepsi, and cigarettes instead. He also declined any visitors this morning. He had been expected to meet with his attorneys and spiritual advisor.

The execution proceeded despite the issuance of a stay by a federal court in the scheduled execution of a Hamilton County man. That inmate has a lawsuit pending that challenges the constitutionality of the lethal injection protocol, arguing that the choice of drug could lead to cruel and unusual punishment.

    Clark succumbs to lethal injection after more than one hour delay, ToledoBlade.com, 2.5.2006, http://www.toledoblade.com/apps/pbcs.dll/article?AID=/20060502/NEWS02/305020015&SearchID=73243451091325

Inmate talks to family on day before execution

Article published May 2, 2006
The Toledo Blade

LUCASVILLE - Condemned inmate Joseph Lewis Clark dined on surf and turf and talked with family by phone yesterday as the hour of his death approached.

Gov. Bob Taft has denied clemency and Clark had no court appeals pending last night that could stop his execution at 10 a.m. today for the murder of David A. Manning 22 years ago during a drug-driven, nine-day armed robbery spree.

Clark would be the 21st man and the first from Lucas County to be executed since Ohio resumed carrying out the death penalty in 1999.

The execution appeared to be moving forward despite the fact that a federal judge yesterday issued a stay in the scheduled June 15 execution of Jeffrey D. Hill, who was convicted of murdering his mother in Hamilton County.

Hill is a party to a lawsuit challenging the protocol used in the lethal injection process, which critics argue could be unconstitutionally cruel and unusual punishment.

The Ohio Supreme Court refused to stop Clark's execution while that suit is pending.

Andrea Dean, spokesman for the Ohio Department of Rehabilitation and Correction, described Clark, 57, as "almost upbeat," talking to employees at the Southern Ohio Correctional Institution that he remembered from his days when death row was based there.

"He's at peace with this process and the fact that it is going to be carried out," she said.

"He does plan to address the Manning family as well as the [Donald B.] Harris family in his statement," she said.

Mr. Manning's widow, Mary Ellen (Manning) Gordon, said there's only one thing she wants to hear from Clark.

"I want him to tell the truth. He keeps saying David was attacking him, which is not true. I don't think he's remorseful. If he is, it's only because he's dying," she said.

The Harris family won't be in the room to hear Clark's last words. Mr. Harris, 21, was robbed and murdered the day before Mr. Manning was killed, but the jury in the Harris case returned a sentence of life in prison instead of death.

Donald's mother and sisters were outside the prison yesterday. They said they sometimes feel Donald has been treated as a second-class victim, going back two decades ago when they were living in California and were not informed of Clark's trial. They missed it.

"It's all centered around what he got the death penalty for, so it's understandable," said Donald's sister, Carrie. "But yet it's kind of nice if there's some recognition of what happened to Donald, not just as another [convenience store] clerk."

Clark, 57, was transported yesterday from the new death row at the Ohio State Penitentiary in Youngstown to the death house in Lucasville.

For his final requested "special meal," he dined on six shrimp, steak with A-1 sauce, fried chicken wings, french fries with ketchup, dinner rolls with butter, cherry pie, and Pepsi.

He will have the option of eating what the other inmates will have this morning before his execution by a trio of drugs that will sedate him, paralyze his lungs, and shut down his heart.

Mr. Manning's widow and two brothers, Michael and Stephan Manning, will witness the execution along with the media.

Clark asked that no members of his family witness his death.

    Inmate talks to family on day before execution, Toledoblade.com, 2.5.2006, http://www.toledoblade.com/apps/pbcs.dll/article?AID=/20060502/NEWS02/605020398&SearchID=73243451429485

Clark faces his day of reckoning for slaying

Execution is slated tomorrow morning

Article published May 1, 2006
The Toledo Blade

He'd done "some things wrong, some crimes" and needed prayer so he wouldn't do them again, the caller who identified himself as Joe Clark told a minister on a Toledo religious radio program late on the night of Sunday, Jan. 15, 1984.

"I just want to get them out of my life," he said. "I want to get close to God."

The minister urged him to stay on the line so his screener could get information off the air and the minister could personally visit him. The caller hung up.

It's unclear what Joseph Lewis Clark was looking for that night.

Within 24 hours, with two men already dead at his hands, he resumed his drug-driven robbery rampage that began eight days earlier and, again, the night ended with a man bleeding on the ground.

This time, however, a fast-thinking witness noted the license plate number of Clark's car. Until that moment, Clark wasn't on the radar screen of Toledo police.

Robert Roloff, Clark's final victim, survived two bullet wounds that night.

But David A. Manning, a 23-year-old husband and father who hoped to become a policeman, and Donald Harris, a 20-year-old who wanted to be hairdresser to the stars, did not survive Clark's crime spree.

Clark, 57, is scheduled to be executed at 10 a.m. tomorrow at the Southern Ohio Correctional Institution in Lucasville for Mr. Manning's death.

A trio of drugs will sedate him, paralyze his lungs, and then shut down his heart. He would become the 21st man and the first from Lucas County to be executed by Ohio since the state resumed carrying out the death penalty in 1999.

"I got wrapped up in crime because of the drugs. [The robberies] supported my drug habit," Clark said recently during a death-row interview conducted on behalf of the Ohio Legislative Correspondents Association.

Born in 1949 in Jonestown, Miss., to two cotton sharecroppers, Clark moved with his family to Toledo at the age of 4. According to his clemency petition, Clark was profoundly affected at the age of 14 by the sudden death of his father from carbon monoxide poisoning.

"Joe, upset at the loss of his father, stood by the casket kissing and rubbing his father while he cried," wrote his Akron attorney, George Pappas. "Joe had to be physically removed from his father's body."

According to the petition, Clark's mother turned to alcohol and pills after her husband's death. Discipline in the house was largely absent, and Clark began a life of crime: larceny, auto theft, and unarmed robbery as a juvenile that escalated into armed robbery and homicide as an adult.

A poor student who tested in the low-normal intelligence range, he dropped out of school in the eighth grade and fathered his first child at the age of 16. Two more children followed. Clark occasionally lived with their mother and they never married.

Clark's drug use began as a teen with codeine cough syrup, escalating to alcohol, barbiturates, amphetamines, and then Dilaudid and heroin injections.

'Devil is very powerful'

Despite all this, his 35-year-old nephew Nevelle Stallworth told The Blade he remembers "Uncle Lewis" as a lovable man and father figure.

He doesn't remember him as violent, but he said a person caught up in drugs is not the same person.

"When the devil is working with you, the devil is very powerful," he said.

According to Clark's clemency petition, Clark's girlfriend and the mother of his children would prostitute herself to finance their drug habits.

When she was arrested, he turned to armed robbery for money. On the night of Sunday, Jan. 9, 1984, he entered the Lyden Oil Co. at 1031 South Reynolds Rd.

"He forced me to lie on the floor, pointed his gun at my head, and just looked at me, contemplating shooting me. ... I was so terrified. I will never forget that day," Kim (Henry) Reno, the store's manager, wrote in a March 23 letter to the Ohio Parole Board.

Donald B. Harris, 21, a 1981 graduate of Sylvania Northview High School, wanted to manage his own beauty salon in California.

"You couldn't meet a nicer person," said his mother, Carol, of Perrysburg. "He would take his shirt off and give it to somebody if he needed it."

The plan was set. He would graduate from the Toledo Academy of Beauty Culture in April, 1984, and then move with his family to California where he would pursue his dream.

On Thursday, Jan. 12, Mr. Harris filled in for a friend for a clerk's shift at Lawson's Store at 4401 Hill Ave.

"[Clark] was clever enough. He staked these things out," said now retired Toledo police Sgt. James Lagger, a detective on the case.

"After the last customer left, he went inside," he said. "He had this young man on the floor and told him to open the safe, but he was unable to. He didn't know the combination. He shot him. He was that matter-of-fact about it."

A few months later, the Harris family moved to Los Angeles just as Donald had planned. It would be years before they returned.

Another victim

David A. Manning, who was 23, loved to sing, and the upbeat "Break My Stride" was riding the charts.

"Ain't nothing gonna break my stride," sang Matthew Wilder. "Nobody gonna slow me down. Oh no, I got to keep on moving."

"That was his song," said Mr. Manning's wife, Mary Ellen. "He was on a roll and nobody was going to slow him down."

Recently divorced and remarried, the father of two, stepfather of three, and a Marine reservist, Mr. Manning's long-term plan was to go to the police academy and become a Toledo officer. But first he felt the need to go back to work as a gas station attendant at the Clark Station at 3070 Airport Highway, a job he once quit after a robbery.

"He did not want to move in with me until he had a job," said Mary Ellen (Manning) Gordon, who has since remarried.

"I did not want him to take that job," she said. "He had been robbed before. He remembered the fear when he was robbed, but he wanted to be a contributing factor [to his new family]."

It was Friday, Jan. 13. The robbery and murder of Donald Harris the night before was all over the news.

"I wanted him to close up, just say he was sick, and come right home," said Mrs. Gordon. "He laughed and he told me he'd be home. David did not think for one minute that he'd be shot. He was robbed once, and he walked away with his life. He figured he would just give them the money [if it happened again]."

Clark, during his interview 22 years later, described what happened that night.

"Even before we got to the counter, I had the gun on him," he said. "We walked first to the safe, which was a floor safe. I asked him to open it, and he told me he didn't know the number or he needed the manager to open it with a key or something ...

"He handed me the money out of the cash register, and as I proceeded to leave, he started saying a few things like cuss words, you know," he said. "I didn't know if he realized I was one of the guys who robbed him before. He started coming toward me with something like a metal, like a metal rod or something, in his hand. As he was coming toward me, I somehow squeezed the trigger off, and I shot him. I just left then. Just left."

Mr. Roloff was aware of the two murders and expected the worst when, as he was checking his account balance at a bank ATM on the night of Monday, Jan. 16, he looked over his shoulder and saw a "scruffy" man with his hands in his pockets enter the well-lit vestibule.

'I saw death'

"I saw death walking up there," Mr. Roloff said. "I had the fear of my life."

He was shot twice as he wrestled with Clark, each time thinking his attacker was shooting blanks because he felt no pain.

Only after Clark fled did he look down and see the blood. One of those bullets remains lodged in his upper arm.

The quick action of yet another gas station attendant, who witnessed the struggle from across the street, led police to Clark. Mr. Lagger said he was sure Mr. Roloff would not have been Clark's last victim.

"He had the need for money, and he had the wherewithal to get it," he said. "Why would he stop, unless there was some major life-altering circumstance like getting caught? He had the gun. He had the ammunition. We were seeing a pattern established."

The day after his arrest, Clark used portions of his prison jumpsuit to hang himself in his cell at the Lucas County jail. Afterward, while recovering in the hospital, Clark confessed to the murders. He was tried first for the Manning murder and sentenced to death. He was later convicted in the Harris homicide and received a separate sentence of life in prison.

"We're embarrassed, ashamed, and humiliated over this, but we're still a family," his daughter-in-law, Domonique Stallworth, recently told the state parole board.

"We've stuck by him and continue to stick by him. Lewis ... has grieved, apologized ... He suffers more than ever ... He has 15 grandchildren and five great-grandchildren that he has never touched or held," she said.

Nevelle Stallworth hasn't seen his uncle since he went to prison for the murders.

"If Unc took that man's life, it was wrong," he said. "But it's for God to decide. I don't think it's their choice in Lucasville to take his life."

Daughter also killed

Both Domonique and Nevelle Stallworth said Clark knows what it's like to lose a loved one to murder.

Clark's 33-year-old daughter, Tina Rochelle Stallworth, a mother of nine and grandmother to one, was killed in 2001 when she was struck by one of several bullets fired into a Warren Street apartment. The gunman was never found.

Mr. Stallworth said he also wants justice for Tina, but he wouldn't want to see her killer executed. Other members of the Clark and Stallworth families declined to talk to The Blade, and no family member is expected to witness the execution.

Gov. Bob Taft Friday rejected a plea for clemency from Clark. The Ohio Parole Board had unanimously recommended no mercy, dismissing the sole psychological report from a decade ago that suggested Clark may have organic brain syndrome, damage that could date back to his crime spree 22 years ago.

After he confessed to the murders, Clark confirmed to police that he was the Joe Clark whom listeners heard on that radio station that night. Twenty-two years later, Mr. Manning's widow, Mary Ellen, has a theory about that call.

"Joseph Clark knew he was going to die and pay for his sins," she said.

"He wanted some person to say, 'It's OK. God will forgive you.' But Joseph Clark lived in man's world. He wasn't following the law of God."

Staff writer Christina Hall contributed to this story.

    Clark faces his day of reckoning for slaying, Toledoblade.com, 1.5.2006, http://www.toledoblade.com/apps/pbcs.dll/article?AID=/20060501/NEWS24/605010338&SearchID=73243451611728

Governor refuses to stop execution of Lucas County man in '84 killings

Article published April 29, 2006
The Toledo Blade

COLUMBUS - The clock continues to tick for Tuesday's scheduled execution of Joseph Lewis Clark.

Gov. Bob Taft yesterday rejected arguments that Clark's drug addiction, lack of discipline growing up after the death of his father, and low-normal intelligence led him into a nine-day armed robbery spree in 1984 that left two men dead.

Clark, 57, would become the 21st person and the first from Lucas County to be executed on Ohio's lethal injection gurney since the state resumed carrying out the death penalty in 1999.

His Akron attorney, George Pappas, could not be reached for comment.

Clark has spent more than half of his life behind bars, with 22 of those years spent on death row for the Jan. 13, 1984, robbery murder of David Manning, 23, of Toledo.

Mr. Manning, a recently remarried father of two and stepfather of three, was working as a gas station attendant when Clark shot him. Clark got away with about $65.

The night before, Clark killed Donald Harris, a 21-year-old beauty school student working as a convenience store clerk, a crime for which Clark ultimately received a life sentence.

His crime spree came to an end after he held up a third man at a bank ATM, and a fast-thinking witness noted his car's license plate number. His third victim, although shot twice, survived.

"A repeat offender with an extensive criminal record, Mr. Clark showed a callous indifference to the lives of his victims as he robbed them to support his drug habit …," Mr. Taft said in a written statement. "Neither the [Ohio] Parole Board nor I are persuaded by Mr. Clark's attempt to explain away Mr. Manning's murder."

Mr. Manning's mother, Lois, agreed with the governor's decision. But although she said she believes Clark should be executed, she does not want to see it happen.

"It will finally be over," she said. "[David's] wife called me last week, and every time she calls it brings back all the memories, and I get so depressed. When [Clark]'s gone, it will be over. Nothing can bring David back."

Mr. Manning's brothers, Michael and Stephan, plan to witness the execution along with his widow, Mary Ellen (Manning) Gordon.

Mr. Taft has only once granted outright clemency to a death row inmate, commuting the death sentence of convicted killer Jerome Campbell of Hamilton County to life in prison without parole after DNA tests shed doubt on evidence from his sentencing.

The governor has granted delays in the execution of John Spirko, a Toledo native convicted in the 1984 stabbing of a Van Wert County postmaster, while new DNA testing is conducted.

Barring some last-minute court intervention, Clark will be transported Monday from death row at the Ohio Penitentiary at Youngstown to the Southern Ohio Correctional Institution at Lucasville.

No member of Clark's family is expected to witness the execution, according to the Ohio Department of Rehabilitation and Correction.

    Governor refuses to stop execution of Lucas County man in '84 killings, Toledoblade.com, 29.4.2006, http://www.toledoblade.com/apps/pbcs.dll/article?AID=/20060429/NEWS02/604290378&SearchID=73243452077531

In Death Row Case, Justices Order Retrial Over Evidence

May 2, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, May 1 — With the first opinion by Justice Samuel A. Alito Jr., the Supreme Court ordered a new trial on Monday for an inmate on South Carolina's death row because the state courts improperly excluded evidence showing that another man might have committed the crime. The decision was unanimous.

Justice Alito said the rule of evidence applied by the South Carolina courts was irrational and arbitrary and served to deprive the defendant, Bobbie Lee Holmes, of a "meaningful opportunity to present a complete defense."

The rule in question, which is used by a small minority of states, says that when the state has presented strong forensic evidence of the defendant's guilt, like DNA analysis or a fingerprint, the defense can be prevented from offering the jury contradictory evidence that points to the guilt of another person.

Justice Alito noted that the South Carolina courts applied the rule even when the defense evidence, "if viewed independently, would have great probative value," as it might have had in the case at hand.

Justice Alito, the newest member of the court and a former federal prosecutor, said that "the true strength of the prosecution's proof cannot be assessed without considering challenges to the reliability of the prosecution's evidence."

He added, "The point is that by evaluating the strength of only one party's evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt."

The South Carolina rule was arbitrary and irrational in failing to heed this point, he said.

Although the unanimous 11-page opinion made the conclusion seem rather obvious, that was not necessarily how the case appeared as it reached the court. A coalition of 18 states, led by Attorney General Phill Kline of Kansas, filed a brief on South Carolina's behalf to argue that the issue was one of federalism, urging the court to grant the states "substantial latitude and respect" for their various approaches to their criminal justice systems.

Steffen N. Johnson, the lawyer for the state coalition, told the justices when the case was argued on Feb. 22 that nine states had similar rules.

On the defendant's side, the case, Holmes v. South Carolina, No. 04-1327, drew interest from the National Association of Criminal Defense Lawyers and from a group of 40 professors of evidence law, who told the court in their brief that the South Carolina rule was "a judicial usurpation of the jury's constitutional authority to decide guilt or innocence in criminal prosecutions." The professors' brief said "the fundamental issue in this case is the right to trial by jury."

The court has in recent years been paying renewed attention to the Sixth Amendment right to trial by jury, overturning, for example, sentencing systems that allow judges to make the central factual findings that in the court's view should be left to juries.

In his opinion on Monday, however, Justice Alito did not analyze the case as presenting a question under the Sixth Amendment or any other specific constitutional provision. His emphasis on what he called the irrationality and illogic of the South Carolina rule brought the opinion closer to a generalized due process analysis.

No matter what route the court took, its opinion was greeted with approval by defense lawyers. Barry C. Scheck, co-director of the Innocence Project at the Benjamin N. Cardozo School of Law at Yeshiva University, which filed a brief for Mr. Holmes, said the decision was "a strong signal that the Supreme Court is taking the right of defendants to prove their innocence very seriously and is taking a critical look at forensic evidence."

Mr. Scheck said that while DNA evidence had led to many exonerations of criminal defendants, it was "still subject to erroneous interpretation or application, and the defense has a right to challenge that in court."

In this case, Mr. Holmes was convicted of murdering an 86-year-old woman, Mary Stewart, who was robbed, beaten and raped by someone who entered her home. Mr. Holmes was connected to the scene through a palm print, fiber analysis and DNA evidence. He argued that the forensic evidence was unreliable because it had been contaminated and that the police were trying to frame him.

At a pretrial hearing, his lawyers presented witnesses to support his argument that another man was Ms. Stewart's attacker. But the trial court refused, under the South Carolina rule, to allow this evidence to be introduced at trial.

Justice Alito said that while states were free to exclude defense evidence that "has only a very weak logical connection to the central issues," the type of evidence at issue in this case did not come under that description.

"Just because the prosecution's evidence, if credited, would provide strong support for a guilty verdict," he said, "it does not follow that evidence of third-party guilt has only a weak logical connection to the central issues in the case."

In other action on Monday, the court granted review in a death penalty case from California. The case, Ornaski v. Belmontes, No. 05-493, filed by Bill Lockyer, the state attorney general, is an appeal from a ruling by the United States Court of Appeals for the Ninth Circuit that found inadequate a jury instruction on how to consider mitigating evidence about a defendant's background and character.

    In Death Row Case, Justices Order Retrial Over Evidence, NYT, 2.5.2006, http://www.nytimes.com/2006/05/02/washington/02scotus.html

High-profile review of lethal injection delayed

Thu Apr 27, 2006 9:55 PM ET
Reuters
By Adam Tanner

SAN FRANCISCO (Reuters) - A federal judge agreed on Thursday to a five-month delay in hearing a case that could help shape the future of capital punishment in the United States.

Condemned California killer Michael Morales has argued that lethal injection -- the procedure used for executions in 37 U.S. states -- is unconstitutional because it is cruel and unusual.

Morales was spared execution in February after San Quentin prison officials could not comply with Judge Jeremy Fogel's order that two anesthesiologists be present to assure the prisoner did not suffer undue pain.

The delay in the Morales hearing will also likely put off the execution of any of California's 647 other condemned inmates until the case is resolved.

Fogel, who last month toured San Quentin prison's death chamber to inquire how California executes its condemned inmates, was to review the issue in an evidentiary hearing next Tuesday and Wednesday, but agreed to a four-day hearing starting on September 19.

"Despite the efforts of the parties, discovery is not complete," Fogel, a judge for the U.S. District Court for Northern California in San Jose, said in his order.

"Remaining depositions that must be completed include the execution team leader for the previous 8 lethal injection executions at San Quentin, and the medical personnel who had various assignments during these executions."

Although death-row prisoners have sought unsuccessfully in the past to have courts bar lethal injection, the Morales case has given new hope to opponents of capital punishment.

On Wednesday, the U.S Supreme Court heard a case related to lethal injection and several justices asked state and U.S. government lawyers whether lethal injections caused excruciating pain.

"It's a topic that's hot right now but ultimately we are confident that when all the evidence is presented that we will prevail and be able to demonstrate that our procedure is and has been wholly constitutional," Dane Gillette, California's senior assistant attorney general, told Reuters.

He predicted California would resume executions by later this year.

Morales has confessed to the 1983 torture, rape and murder of 17-year-old Terri Winchell.

    High-profile review of lethal injection delayed, R, 27.4.2006, http://today.reuters.com/news/articlenews.aspx?type=domesticNews&storyid=2006-04-28T015542Z_01_N27360521_RTRUKOC_0_US-CRIME-EXECUTION-CALIFORNIA.xml

Supreme Court Debates Lethal Injection Method

April 26, 2006
By THE ASSOCIATED PRESS
Filed at 11:56 a.m. ET
The New York Times

WASHINGTON (AP) -- Some Supreme Court justices had tough questions for a Florida lawyer about whether the state's lethal injection method causes excruciating pain for death row inmates.

Justices were taking up the latest capital punishment debate that focuses on the trio of drugs used in Florida and most other states.

''Your procedure would be prohibited if applied to dogs and cats,'' Justice John Paul Stevens told Florida Assistant Deputy Attorney General Carolyn Snurkowski.

Justice Stephen Breyer said that a medical journal study found that inmates can suffer pain under the three-drug combination and it ''doesn't seem too difficult'' to alter the medicines.

Snurkowski said that it would be up to the inmate to detail a new method, an argument that seemed to anger several court members.

''Doesn't the state have a minimal obligation on its own'' to investigate whether its executions cause gratuitous pain, asked Justice Anthony M. Kennedy.

The high court is delving into a limited part of the subject: whether inmates can file special last-minute challenges to the chemicals used in lethal injection even if they've exhausted all their regular appeals.

Even still, the justices had a wide-ranging discussion about the way executions are carried out, and how they can be contested.

Justice Antonin Scalia said that if justices allow Florida death row inmate Clarence Hill to pursue claims, that could drag out a case that has already been pending for more than two decades.

Hill, convicted of killing a police officer, was strapped to a gurney with lines running into his arms to deliver the drugs when the Supreme Court in January intervened and blocked the execution.

He claims that the chemicals used in Florida executions and by many other states -- sodium pentothal, pancuronium bromide and potassium chloride -- can cause excruciating pain. The first drug is a pain killer. The second one paralyzes the inmate and the third causes a fatal heart attack.

Justices have never ruled on the constitutionality of lethal injection, which is used by the federal government and every state that has capital punishment except Nebraska.

In this case, they can give inmates new authority to challenge lethal injection as unconstitutionally cruel. The court's decision to hear the case renewed legal efforts around the country on behalf of death row inmates, and executions have been stopped in California, Maryland and Missouri.

If the court allows Hill to file a civil rights action, ''it will be a stamp of approval from the United States Supreme Court for these challenges to go ahead,'' said Deborah Denno, a Fordham Law School professor.

She said the outcome may not reveal much about the new court.

Chief Justice John Roberts replaced the late William H. Rehnquist, and Justice Samuel Alito replaced the retired Sandra Day O'Connor.

O'Connor wrote the court's 2004 ruling in its last lethal injection case. Justices said that Alabama death row inmate David Larry Nelson could pursue a last-ditch claim that his death by lethal injection would be unconstitutionally cruel because of his damaged veins. He argued that prison staff would have to cut into his flesh to get to a vein.

Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation, said, ''Hill's failure to follow the rules governing that process should not be rewarded by the opportunity to delay his well-deserved execution with a last-minute challenge in the form of a civil rights lawsuit.''

Hill was convicted of killing Pensacola Police Officer Stephen Taylor in 1982. Taylor's family is growing weary after 24 years of delays and want Hill, now 48, to be executed.

''It needs to be done and it needs to be over with,'' said Linda Knouse, the slain officer's sister.

The case is Hill v. McDonough, 05-8794.

------

On the Net:

Supreme Court: http://www.supremecourtus.gov/

    Supreme Court Debates Lethal Injection Method, NYT, 26.4.2006, http://www.nytimes.com/aponline/us/AP-Scotus-Lethal-Injection.html?_r=1&oref=slogin

North Carolina executes man despite injection doubts

Fri Apr 21, 2006 2:30 AM ET
Reuters
By Gene Cherry

RALEIGH, North Carolina (Reuters) - A North Carolina man was executed by lethal injection on Friday by officials using a machine to ensure he did not suffer undue pain, a procedure that raised ethical questions about medical staff monitoring the death.

Willie Brown Jr., 61, was pronounced dead at 2:11 a.m. (0611 GMT) by Warden Marvin Polk at the state's Central Prison, spokesman Keith Acree said. Brown had been sentenced to death for the 1983 killing of a convenience store clerk after a robbery.

Amid increased scrutiny of lethal injections across the country, a doctor and a registered nurse who routinely observe North Carolina's executions employed a brain wave monitor to determine whether Brown was unconscious before he was injected with paralytic and heart-stopping drugs.

Brown's execution was believed to be the first in the United States using the device. State officials purchased the machine after a judge ordered North Carolina to ensure Brown felt no pain.

In other states such as Florida and California, executions have been delayed while courts ponder whether lethal injections cause excessive pain.

North Carolina's procedure, approved by U.S. District Judge Malcolm Howard, raised ethical questions for the doctor and nurse who watched over the machine from an observation room near the death chamber.

The American Medical Association's code of ethics prohibits doctors from participating in executions and views the monitoring of a brain wave machine as relying on a physician's skill and expertise, and therefore forbidden.

'VIOLATES' MEDICAL OATH

"The use of a physician's clinical skill and judgment for purposes other than promoting an individual's health and welfare undermines a basic ethical foundation of medicine -- first, do no harm," said Dr. Priscilla Ray, head of the association's Council on Ethical and Judicial Affairs.

"Therefore, requiring physicians to be involved in executions violates their oath to protect lives and erodes public confidence in the medical profession."

The association is not a regulatory body and cannot punish doctors.

The execution of an inmate in California was halted in February after San Quentin prison failed to find anesthesiologists willing to participate. A judge had ordered the presence of anesthesiologists to ensure the inmate's death was painless.

Brown's lawyers argued the methods used by North Carolina and 36 other states did not fully ensure inmates were unconscious before lethal drugs were injected.

If inmates were not fully sedated, they could experience an agonizing death, defense lawyers said. That could result in cruel and unusual punishment prohibited by the Eighth Amendment to the U.S. Constitution, they said.

Brown's lawyers argued only medical professionals trained to administer anesthesia could ensure Brown was unconscious.

Howard ruled this week the brain wave monitor could be used instead. He also required the involvement of medical personnel for the execution to proceed.

State law has long required a physician to be present at executions. Their identities are confidential by law.

More than 2,000 people were known to have been executed around the world last year, the vast majority of them in China, Iran, Saudi Arabia and the United States, Amnesty International said on Thursday.

(Additional reporting by Maggie Fox in Washington)

    North Carolina executes man despite injection doubts, R, 21.4.2006, http://today.reuters.com/news/articlenews.aspx?type=domesticNews&storyID=2006-04-21T063039Z_01_N20277148_RTRUKOC_0_US-USA-EXECUTION-NORTHCAROLINA.xml

China, Iran, Saudi, US main executioners: Amnesty

Wed Apr 19, 2006 10:01 PM ET
Reuters

LONDON (Reuters) - More than 2,000 people were known to have been executed around the world last year, the vast majority of them in China, followed by Iran, Saudi Arabia and the United States, Amnesty International said on Thursday.

In its annual report on executions, the rights group said about 1,770 executions were reported to have been carried out in China in 2005, but added the real figure was undoubtedly much higher, noting a Chinese legal expert had been quoted as saying the true figure was about 8,000.

More than 20,000 people were on death row around the world, said the report, which repeated a call for the worldwide abolition of the death penalty.

Amnesty said at least 2,148 people were executed in 2005 in 22 countries -- 94 percent of them in China, Iran, Saudi Arabia and the United States. That's down from 3,797 executions in 2004, but up from 1,146 in 2003.

"The death penalty is the ultimate, irreversible denial of human rights, because it contravenes the essence of human values, it is often applied in a discriminatory manner, follows unfair trials or is applied for political reasons," Amnesty International Secretary-General Irene Khan said in a statement.

At least 94 people were executed in Iran, 86 in Saudi Arabia and 60 in the United States.

"As the world continues to turn away from the use of the death penalty, it is a glaring anomaly that China, Saudi Arabia, Iran and the U.S. stand out for their extreme use of this form of punishment," Khan said.

China has carried out executions by shooting or lethal injection, Saudi Arabia by beheading, Iran by hanging or stoning and the United States by electrocution or lethal injection, Amnesty said.

Amnesty said its figures were approximate because of secrecy surrounding the death penalty. China refuses to publish official statistics on executions while Vietnam has classified statistics on the death penalty as a "state secret", it said.

But the rights group said with the addition of Mexico and Liberia, 86 countries had now abolished the death penalty for all crimes, compared with 16 countries in 1977, it said.

In China, a person can be executed for as many as 68 crimes, including non-violent crimes such as tax fraud, embezzlement and drug offences, it said.

Amnesty said Iran was the only country it knew of that had executed juvenile offenders last year. The United States outlawed juvenile executions in March 2005.

Iran executed at least eight people in 2005 for crimes committed when they were children, including two who were still under the age of 18 at the time of their execution, it said.

    China, Iran, Saudi, US main executioners: Amnesty, R, 19.4.2006, http://today.reuters.com/news/articlenews.aspx?type=topNews&storyid=2006-04-20T020124Z_01_L19384786_RTRUKOC_0_US-RIGHTS-EXECUTION.xml

Judges Set Hurdles for Lethal Injection

April 12, 2006
The New York Times
By ADAM LIPTAK

Judges in several states have started to put up potentially insurmountable roadblocks to the use of lethal injections to execute condemned inmates.

Their decisions are based on new evidence suggesting that prisoners have endured agonizing executions. In response, judges are insisting that doctors take an active role in supervising executions, even though the American Medical Association's code of ethics prohibits that.

A federal judge in North Carolina, for instance, ordered state officials there to find medical personnel by noon today to supervise an execution scheduled for next week. Otherwise, the judge said, he will impose a stay of execution.

"This, of course, will make lethal injections difficult, if not impossible, to perform," said Dr. Jonathan I. Groner, a professor of surgery at Ohio State University who has studied lethal injections and opposes the death penalty.

A California judge plans to hold hearings on the issue next month, after an execution there was called off for lack of doctors, and the United States Supreme Court will hear arguments this month on whether death row inmates may use a civil rights law to challenge lethal injections as cruel and unusual punishment.

Scores of similar suits, asserting that lethal-injection procedures are illogical and potentially torturous, are pending around the nation. But, until recently, they had met with limited success, said Jamie Fellner, the director of the United States programs for Human Rights Watch, which will issue a report on lethal injections this month.

"When prisoners first started making these challenges," Ms. Fellner said, "the courts gave them short shrift. They thought these were stalling tactics. And there was not a lot of evidence."

The recent decisions, by contrast, rely on accounts of witnesses, post-mortem blood testing and execution logs that seem to show that executions meant to be humane have, in fact, caused excruciating pain.

The three chemicals used in lethal injections in about 35 states have long attracted attention for what critics say is their needless and dangerous complexity.

The first chemical in the series is sodium thiopental, a short-acting barbiturate. Properly administered, all sides agree, it is sufficient to render an inmate unconscious for many hours, if not to kill him. The second chemical is pancuronium bromide, a relative of curare. If administered by itself, it paralyzes the body but leaves the subject conscious, suffocating but unable to cry out. The third, potassium chloride, stops the heart and causes excruciating pain as it travels through the veins.

Problems arise, lawyers and experts for the inmates say, when poorly trained personnel make mistakes in preparing the chemicals, inserting the catheters and injecting the chemicals into intravenous lines. If the first chemical is ineffective, the other two are torturous.

In veterinary euthanasia and in assisted suicides in Oregon, a single lethal dose of a long-acting barbiturate is typically used. But corrections officials and their medical experts say using that method in executions would take too long and would subject witnesses to discomfort.

The three chemicals are to be used to execute Willie Brown Jr. on April 21 in North Carolina. Mr. Brown was convicted in 1983 of murdering Vallerie Ann Roberson Dixon, a convenience store employee, in Williamston, N.C. He had a long criminal history and had just been released from a Virginia prison after serving 17 years of an 80-year sentence for armed robbery and shooting a police officer in an effort to escape.

Lawyers for Mr. Brown said in a court filing that all he was asking for was that state officials adopt "a protocol for anesthesia that affords him the same assurance of dying without conscious suffering of excruciating pain that is given to household pets."

J. Donald Cowan Jr., a lawyer for Mr. Brown, said the state's reluctance to adopt a simpler protocol was "a little puzzling." That was especially so, he added, given that Mr. Brown's legal position amounted to saying, "State, this is how you can execute people properly."

Doctors helped fashion and promote earlier modes of execution, including the guillotine and the electric chair. Similarly, the original lethal-injection protocol was developed in Oklahoma in 1977 in consultation with state's medical examiner and an anesthesiology professor. Other states, typically acting through their corrections departments and individual prison wardens, apparently copied the protocol.

Though some states give prisoners a choice between lethal injection and a second method and Nebraska uses only electrocution, lethal injection is the all but universal method of execution in this country. Every state that has made its lethal-injection protocols public uses the three-chemical combination.

Unlike the earlier methods, lethal injections appear to mimic medical procedures and so require doctors' participation, said Kenneth Baum, a doctor and lawyer who supports the medical oversight of executions. "If the process is medicalized," Dr. Baum said, "you must have physicians playing a central role in the execution chamber and in analyzing the protocols."

But the American Medical Association's ethics code forbids doctors to perform an array of acts at executions, including prescribing the drugs, supervising prison personnel, selecting intravenous sites, placing intravenous lines, administering the injections and pronouncing death.

The code is not legally binding, and doctors in many states have participated in executions, often anonymously. In the recent California case, however, doctors willing to participate in the execution could not be located in time.

Judge Malcolm J. Howard of the Federal District Court in Greenville, N.C., on Friday ordered state officials to make certain that Mr. Brown would be provided with medical personnel capable of ensuring unconsciousness as the second and third chemicals were administered and of "providing appropriate medical care" if Mr. Brown woke up. Judge Howard did not say that the personnel had to be doctors, but medical experts said his meaning was unmistakable.

"He's describing a physician, specifically an anesthesiologist," said Dr. Richard J. Pollard, the president of the North Carolina Society of Anesthesiologists.

Noelle Talley, a spokeswoman for the North Carolina attorney general, would not say how the state planned to respond. "We're still reviewing the judge's order," Ms. Talley said.

Judge Howard based his order on what he said were "substantial questions" about the possibility of agonizing death. He noted that post-mortem levels of sodium thiopental in the bodies of four North Carolina inmates executed in the last six months suggested that they might have been conscious as they endured the suffocation and pain caused by the final two chemicals. Prosecutors said the testing might not have been conducted properly.

Judge Howard also noted that three lawyers who had witnessed executions in the state submitted sworn statements saying that some of the condemned men were writhing and gagging during their executions.

"Instead of the quiet death I expected," one of the lawyers, Cynthia F. Adcock, said in a sworn statement about her client Willie Fisher, who was executed in 2001, "Willie began convulsing. The convulsing was so extreme that Willie's cousin jumped up screaming."

Such convulsions are inconsistent with a proper dosage of sodium thiopental, a medical expert for Mr. Brown said.

An appeals court in New Jersey halted executions there in 2004 pending an explanation from corrections officials of an aspect of that state's lethal injection procedures. "Nothing in the record," the court said, "suggests medical consultation." The corrections department has yet to issue new regulations, and the State Legislature adopted a one-year moratorium in January.

Lawyers for a Missouri death row inmate, Reginald Clemons, said they would file their own challenge this month, asking that an anesthesiologist supervise his execution. "The state has chosen to proceed with an execution that requires the use of highly trained medical personnel," said Jill M. O'Toole, a lawyer with Simpson Thacher & Bartlett in New York. "It's put itself in this bind."

    Judges Set Hurdles for Lethal Injection, NYT, 12.4.2006, http://www.nytimes.com/2006/04/12/us/12lethal.html?hp&ex=1144900800&en=6921109d1af546bc&ei=5094&partner=homepage

Jurors Permit Death Penalty for Moussaoui

April 4, 2006
The New York Times
By NEIL A. LEWIS

ALEXANDRIA, Va., April 3 — A federal jury on Monday found that Zacarias Moussaoui was responsible for some of the deaths that occurred on Sept. 11, 2001, and was thus eligible to be executed. The unanimous verdict removes the greatest hurdle to the government's obtaining a death sentence.

The jury of nine men and three women will move into the next phase of the sentencing trial beginning Thursday in which they will decide whether Mr. Moussaoui, the only person to be tried in an American courtroom in connection with the Sept. 11 attacks, should be executed or spend the rest of his life in prison.

Mr. Moussaoui sat silently as the verdict was read, seemingly mouthing prayers to himself. The jury was stoic as were most of the handful of relatives of Sept. 11 victims in the courtroom, although two quietly wiped away tears.

It was the first phase of the trial that ended Monday and that was viewed by lawyers and death penalty experts as the one in which Mr. Moussaoui had the greater chance to escape execution.

At the time of the attacks on New York and the Pentagon, Mr. Moussaoui was in jail in Minnesota, having been arrested three weeks earlier on immigration charges.

The Justice Department argued that even though he did not take part in the attacks, he deserved to die because at the time of his arrest he willfully concealed detailed knowledge of Al Qaeda's plans to use suicide hijackers to fly planes into buildings.

His lies, a prosecutor told the jury, "made him just as guilty as if he were at the controls of one of those planes."

His court-appointed defense lawyers, whose help he spurned, countered that even though he was an Islamic extremist, he was only a minor player in Al Qaeda whose senior officials found him unreliable and had not planned on using him for the Sept. 11 plot.

The defense lawyers seemed to be building a solid case until Mr. Moussaoui took the stand last week and proceeded to acknowledge unreservedly every element of the prosecution's case. He asserted he was set to be part of the Sept. 11 plot by flying a fifth airplane into the White House.

His testimony was startling in that he had earlier said that he was to have participated in a separate Qaeda plot, had nothing to do with Sept. 11 and would fight the death penalty with all his strength.

Mr. Moussaoui, a 37-year-old Frenchman of Moroccan heritage, has through his courtroom outbursts and bizarre notes to the judge over the last few years, seemed at times indisputably irrational, and his decision to testify against the advice of his lawyers was initially seen as another ill-considered move.

But the testimony that vaulted him closer to a death sentence was delivered in a calm and deliberate manner. It may have been provoked by his anger at the defense lawyers' efforts to portray his role as trivial and suggested that what he wanted most of all was to be seen as a full-fledged member of Al Qaeda's Sept. 11 conspiracy. He even acknowledged how delighted he had been to hear the panicked tape-recorded voice of a flight attendant pleading for her life.

The jury, after about 16 hours of deliberation, was unanimous that the government had proved beyond a reasonable doubt four elements that make Mr. Moussaoui eligible for the death penalty: that he was over 18 at the time; that he had deliberately taken some action (lying to investigators); that he had done so contemplating that deaths would occur; and that at least one death had occurred because of his lies.

The prosecution's case nearly fell apart from several missteps, the most serious being the disclosure that a government transportation lawyer had improperly coached some aviation security witnesses. Moreover, in their cross-examination of Federal Bureau of Investigation witnesses, defense lawyers were able to build a portrait of serial misjudgments and missed opportunities by government investigators.

But when the time came for closing arguments, the prosecutors relied largely on Mr. Moussaoui's admissions in his testimony.

Rosemary Dillard, whose husband died on American Airlines Flight 77, which crashed into the Pentagon, and who has watched most of the trial, said she was celebrating. "That man has no soul, no conscience," she told reporters.

But Abraham Scott, who lost his wife in the Pentagon and who had sat through much of the trial, told reporters that while he was satisfied to some degree over the verdict, some testimony raised anew questions about the government.

"I don't think Moussaoui is totally to blame," Mr. Scott told reporters. "I also blame the government by not acting on certain information."

The second phase of the trial does not favor Mr. Moussaoui's chances to escape execution.

In the last few weeks, his lawyers emphasized that the argument that had he told the truth the plot might have been thwarted was only speculation and an insufficient basis to execute someone. But the second phase of the complicated federal death penalty law is more mathematical. The jury will be asked first to consider whether the aggravating factors of his crime outweighed any mitigating factors. Prosecutors have prepared as many as 45 family members of Sept. 11 victims to testify about the impact the crimes had on them and their families.

As for mitigating factors, Mr. Moussaoui's lawyers have suggested in court papers that they may introduce testimony from a psychologist showing that Mr. Moussaoui suffers mental impairment as a result of anti-Muslim bigotry he faced growing up in France.

But that may well be outweighed by the deaths of Sept. 11. The jurors' verdict Monday on three counts of conspiracy to use airplanes to kill people suggests they have deemed him responsible not for just one death, the minimum requirement for their finding, but all of the nearly 3,000 deaths that day.

As Mr. Moussaoui left the courtroom, he shouted, "You will never get my blood."

If the jurors are unanimous in finding that the aggravating factors outweighed any mitigating factors, they will move to decide whether to recommend the death penalty. If they are unanimous in favor of the death penalty, Judge Leonie M. Brinkema would be obliged to impose that sentence.

All 12 jurors have declared that they are not opposed to imposing the death penalty of lethal injection at the federal prison in Terre Haute, Ind.

Since the revision of federal death penalty laws, several defendants have been sentenced to death in federal court while only three have been executed, beginning with Timothy J. McVeigh, the Oklahoma City bomber, in June 2001.

    Jurors Permit Death Penalty for Moussaoui, NYT, 4.4.2006, http://www.nytimes.com/2006/04/04/us/04moussaoui.html?hp&ex=1144209600&en=971c21ea6cf88945&ei=5094&partner=homepage

Judge acts to protect executioners' privacy

Tue Apr 4, 2006 12:41 AM ET
Reuters
By Adam Tanner

SAN FRANCISCO (Reuters) - A U.S. federal judge reviewing whether lethal injection is cruel and unusual punishment ordered on Monday that identifying information on California's executioners not be made public.

In his order, Judge Jeremy Fogel in the Northern District of California said lawyers for a killer set to die by lethal injection could gain details about the executioners at San Quentin prison but not make that information public.

"The court has found that the records of recent executions raise substantial questions as to whether the drugs are in fact being administered properly," Fogel wrote in a protective order.

"Under these circumstances, plaintiff must be given a reasonable opportunity, in a manner that will not jeopardize the safety of prison personnel, to explore possible answers to these substantial questions, including answers that relate to the background, training and experience of the members of the execution team."

Last Thursday, Fogel made an unusual visit to the death chamber at San Quentin prison north of San Francisco to question the lead executioner in detail about California's lethal injection procedure.

Lawyers for Michael Morales, who raped and bludgeoned a 17-year-old girl to death in 1981, say the three-chemical lethal injection causes undue pain prior to death.

As lawyers review personally identifying details about the San Quentin staff who inject the lethal chemicals, they are barred from making those details public, the judge said.

During Fogel's visit last week, the guard who leads the execution expressed concern about others learning of his role in the administration of society's harshest punishment.

Inmate Morales was scheduled to be executed in February, but the proceeding was scrapped at the last minute when the prison proved unable to have two anesthesiologists present as ordered by Judge Fogel.

Fogel is scheduled to hold a full hearing on lethal injection next month. Attorneys for Morales on Monday filed a motion asking for a delay of his execution until September to allow a more thorough examination of the issue.

"A full and fair, timely hearing has the potential to resolve this issue for the courts, the defendants and approximately 660 currently condemned inmates and countless more to come," lawyer John Grele wrote.

    Judge acts to protect executioners' privacy, R, 4.4.2006, http://today.reuters.com/news/newsArticle.aspx?type=domesticNews&storyID=2006-04-04T044047Z_01_N03332476_RTRUKOC_0_US-CRIME-EXECUTION-CALIFORNIA.xml

Judge questions executioners at Calif. death row

Thu Mar 30, 2006 6:04 PM ET
San Francisco
By Adam Tanner

SAN FRANCISCO (Reuters) - A U.S. judge made an unusual visit to the death chamber at California's San Quentin prison on Thursday to ask questions about lethal injection, which is under challenge by an inmate condemned to die by the procedure.

Jeremy Fogel, a judge on the U.S. District Court for Northern California, is considering a motion from convicted killer Michael Morales that maintains lethal injection constitutes cruel and unusual punishment.

Morales, who raped and bludgeoned a 17-year-old girl to death in 1981, was slated to die in February. The prison called off the lethal injection at the last minute because it could not comply with Fogel's order that two anesthesiologists be present to assure the prisoner did not suffer undue pain.

In what prison officials said was the first hearing of its kind after more than a century of executions at San Quentin, Fogel asked prison guards on Thursday about the process in which an inmate is strapped to a gurney and injected with lethal chemicals. The procedure is used for executions in 37 states.

San Quentin initially hanged condemned prisoners starting in 1893, and 215 inmates later the state turned to lethal gas.

Fogel visited the airproof, aquamarine metal chamber first used in 1938. The chamber is used today by guards who attach intravenous lines for lethal injections.

California executed 194 people by gas through 1967, when the chamber went unused for a quarter century amid court fights over the death penalty. California executions resumed in 1993, but a federal judge ruled the next year that gassing inmates to death constituted cruel and unusual punishment barred by the U.S. Constitution.

To date, no U.S. court has found execution by lethal injection to be cruel and unusual.

Prison officials at San Quentin have offered to increase the dose of anesthetic before two lethal chemicals start flowing. Fogel is due to hold a full court hearing on the lethal injection procedure in his San Jose courtroom in May.

California, the most populous U.S. state, has 648 inmates who have been sentenced to death but it rarely carries out society's harshest penalty. Of the 64 condemned prisoners who have died on death row since 1980, 13 were executed at San Quentin, and 50 died of natural causes, suicide and other reasons. One was executed in Missouri.

    Judge questions executioners at Calif. death row, R, 30.3.2006, http://today.reuters.com/news/newsArticle.aspx?type=domesticNews&storyID=2006-03-30T230406Z_01_N30394204_RTRUKOC_0_US-CRIME-CALIFORNIA-EXECUTION.xml

JUDGE ORDERS DEATH FOR SMITH

Last modified: March 15. 2006 3:20PM
HeraldTribune.com
By TODD RUGER
todd.ruger@heraldtribune.com

SARASOTA – Joseph P. Smith was formally sentenced to death this afternoon for killing 11-year-old Carlie Brucia. He was sentenced to life in prison without parole for kidnap and rape.

Circuit Judge Andrew Owens’ decision to sentence Smith to death was not a surprise. The jury that found Smith guilty in November recommended 10-2 that he die for the crimes. Owens was required to give that recommendation “great weight.”

Smith, 39, an unemployed auto mechanic and convicted drug abuser, tearfully apologized for the crime last month. He asked Owens to spare his life and presented more evidence of his persistant drug and mental health problems.

Yet Owens found the aggravating factors of the crime - Smith’s previous felony convictions, Carlie’s age and the capital felony being especially heinous, atrocious or cruel - outweighed any mitigating factors.

Smith was high on cocaine when a surveillance camera captured him in the act of abducting Carlie behind a car wash on Bee Ridge Road on Feb. 1, 2004.

That snippet of videotape, and the discovery of Carlie’s body several days later, captivated the nation and outraged the community.

An appeal of the sentence to the state Supreme Court is automatic under state law. Today was likely Smith’s final appearance in Sarasota County before moving to death row.

A death row cell is 6 feet wide, 9 feet deep and 9.5 feet high. The average death row inmate spends about 12 years there before they are executed, according to the state Department of Corrections.

Death cases move slowly in Florida and cost taxpayers millions. Each case goes through as many as nine appeals steps before an inmate runs out of options.

One professor estimated that the typical cost for a death penalty case is about $1.3 million, while prison costs about $48 a day, according to Seminole Circuit Judge O.H. Eaton Jr.

Death Row inmates are counted at least once an hour. They are escorted in handcuffs and wear them everywhere except in their cells, the exercise yard and the shower.

And except for medical treatment, exercise, social or legal visits or media interviews, they are in their cells at all times.

    JUDGE ORDERS DEATH FOR SMITH, Last modified: March 15. 2006 3:20PM, HeraldTribune.com, http://www.heraldtribune.com/apps/pbcs.dll/article?AID=/20060315/BREAKING/60315004

Joseph Smith speaks, placing blame on drugs

Article published Feb 15, 2006
HeraldTribune.Com
By Todd Ruger

SARASOTA -- Joseph P. Smith sobbed as he tried to justify the unjustifiable, blaming depression and drug use for the kidnapping, rape and slaying of Carlie Brucia.

"I'm not trying to make excuses for what happened, but I really don't remember much past 4 p.m. that day," Smith, 39, said at a sentencing hearing Tuesday. "I am truly sorry for my actions."

Carlie's stepfather said Smith's plea was a last-minute "act" to persuade Circuit Judge Andrew Owens to spare him from the death penalty.

"It doesn't mean nothing to me," Steve Kansler said. "I don't believe it."

Between sobs, Smith told the judge he took "full responsibility" for the February 2004 crime and hopes he is an example of what can happen when depression and drug abuse collide.

"I wanted to die that day," Smith said. He told the judge that he took a lot of heroin and cocaine that night after his wife told him he couldn't move back in with her and their three daughters.

"Judge Owens, I was so high. I've never experienced a high like that," Smith said. "I don't understand how it all happened, I was very angry at myself and very high. I knew that killing her was wrong but I couldn't stop."

Prosecutor Debra Johnes Riva said the evidence contradicts Smith's claims that he didn't know what he was doing when he killed Carlie.

"He knew enough to cover up his crime," Riva said, detailing how Smith dumped Carlie's body in a remote place and threw her clothes and backpack in four different trash bins. He later told his family where to find the body after lying to police, she said.

"This is not somebody who blacked out and can't recall the details of his crime," she told the judge. "There are many people with drug issues who did not commit the heinous crimes you have in front of you today."

Two jurors who recommended that Smith get the death penalty were in court Tuesday to hear him speak.

The Rev. Ron Kruzel, the jury foreman, said it was unfortunate Smith didn't get a chance to make his statement before the panel deliberated on his sentence.

"I think it would have had an impact for some jurors in the penalty phase," Kruzel said.

But juror Karen Summers wasn't so sure.

"Very possibly there may be some real feeling in it, but it's a little late," she said.

Smith's attorney, Assistant Public Defender Adam Tebrugge, argued Smith had repeatedly sought help for his drug and mental health problems. He never got it, even months before Carlie's murder when he hit "rock bottom."

"When he's not using drugs, he has a lot of redeeming qualities," Tebrugge said.

Tebrugge argued that Owens should give Smith a life sentence because a death sentence would mean years of appeals. Those appeals would only further wound the community, he said.

"If you sentence Mr. Smith to death" it is "condemning the community to an endless recycling of this crime," he said.

Owens will formally sentence Smith on March 15.

Smith said he wasn't seeking mercy for himself, but for his family.

"The only reason I can see to ask you to give me a life sentence is for my family," he said. "I don't want to see them hurt any further."

Smith decided to speak, Tebrugge said. The attorney also said it was an effort to help heal Carlie's family.

"Hopefully, that brought them some solace."

    Joseph Smith speaks, placing blame on drugs, HeraldTribune.Com, 15.3.2006, http://www.heraldtribune.com/apps/pbcs.dll/article?AID=/20060215/NEWS/602150628

Questions Over Method Lead to Delay of Execution

February 22, 2006
The New York Times
By JOHN M. BRODER

LOS ANGELES, Feb. 21 — California officials indefinitely postponed the execution of a condemned killer because they said they were unable to comply with a federal judge's conditions for carrying out the sentence.

Judge Jeremy Fogel of the United States District Court for the Northern District of California ruled Tuesday afternoon that the state must use a single lethal dose of barbiturates — five grams of sodium thiopental — to kill the condemned man, Michael A. Morales, and that the drug must be administered by a medical technician in the death chamber.

Ordinarily, an unseen technician outside the death chamber injects a lethal three-drug potion through an intravenous line.

Earlier Tuesday, the planned execution was halted after two anesthesiologists brought in to oversee the injection refused to participate, saying it violated medical strictures against harming patients.

State officials could not find other medical professionals to administer the lethal dose Tuesday night under the conditions of the judge's new order, a lawyer for Mr. Morales said.

"After this new order came down, the state came back and said they couldn't comply," said John Grele, one of Mr. Morales's lawyers. "They couldn't find anyone to inject the chemicals to kill him."

Judge Fogel will hear testimony in early May on the science and law of the single-drug method of lethal injection. It has never been used in California.

Todd Slosek, a spokesman for the California Department of Corrections and Rehabilitation, said the state delayed the execution to give all parties time to study the judge's order and to debate the means of carrying out the death penalty.

Mr. Slosek said the state did not have time before Mr. Morales's death warrant expired at midnight Tuesday to find a technician willing to administer the lethal drugs in full view of dozens of witnesses.

"It changed the entire dynamics of the process," Mr. Slosek said.

Judge Fogel last week had ordered the presence of the doctors to ensure that the lethal combination of drugs was administered properly and that Mr. Morales did not suffer unduly.

Physicians are present at executions in most states to certify death, but they play no direct role in the killing of the prisoner. In this case, the two doctors, whose names were not released, apparently feared that they might be called on to intervene if the procedure went awry.

"While we contemplated a positive role that might enable us to verify a humane execution protocol for Mr. Morales, what is being asked of us now is ethically unacceptable," the doctors said in a statement read by a prison spokesman late Monday night. "As a result, we have withdrawn from participation in this current process."

Mr. Morales was convicted of capital murder in 1983 for the Jan. 8, 1981, killing of Terri Winchell, a 17-year-old from Lodi, Calif. The jury found that he conspired with his cousin to kill the girl because he was jealous of her involvement with the cousin's boyfriend.

Mr. Morales claimed he was drunk and high on PCP at the time of the crime and has since repeatedly expressed remorse.

Federal and state courts have turned down numerous appeals from Mr. Morales. Gov. Arnold Schwarzenegger has twice rejected clemency appeals, most recently on Monday.

After a hearing last week, Judge Fogel said the execution could proceed if California officials brought in the doctors to attend the death, or killed Mr. Morales using only sodium thiopental, a powerful painkiller that in high enough doses is fatal. Ordinarily, California and other states that use lethal injection follow the barbiturate with two other drugs, one to paralyze the muscles and respiratory system and a second to stop the heart.

Mr. Morales's defense team included Kenneth W. Starr, the former independent counsel who investigated President Bill Clinton and who is now dean of the law school at Pepperdine University. Mr. Starr wrote in a clemency petition that he was troubled by the original trial court's reliance on the testimony of a jailhouse informant who supposedly heard Mr. Morales confess to the crime.

The trial judge in the case, Charles R. McGrath of Ventura County Superior Court, told Mr. Schwarzenegger, a Republican, that he now opposed Mr. Morales's execution because he did not know at the time of the original sentencing that the informant had lied on the stand.

Carolyn Marshall contributed reporting from San Francisco and San Quentin State Prison for this article.

    Questions Over Method Lead to Delay of Execution, NYT, 22.2.2006, http://www.nytimes.com/2006/02/22/national/22execute.html

Execution's delay reflects fight over injections

Posted 2/21/2006 2:46 AM Updated 2/21/2006 11:21 PM
USA TODAY
By John Ritter

SAN QUENTIN, Calif. — A California murderer represents a new wrinkle in the opposition to lethal injection, a widely used execution method that has come under court challenge over claims that it could cause a dying inmate extreme pain.

The on-again, off-again execution of Michael Morales, on death row for raping and murdering a 17-year-old girl in 1981, was off again late Tuesday when the state attorney's office told a federal judge that it could not comply with his order that a medical professional inject the lethal drugs. (Related video: More on the postponement)

Morales, 46, had been scheduled to die early Tuesday morning until two anesthesiologists refused to participate in his execution, citing ethical reasons.

The federal judge had ordered an anesthesiologist to be present after Morales' lawyers argued that the three drugs used in California and 35 other states to put inmates to death violated the Constitution's ban on cruel and unusual punishment.

They said Morales could feel pain from the last two drugs if he weren't fully sedated by the first one.

Judge Jeremy Fogel denied Morales' motion but gave prison officials two options: They could put doctors in San Quentin State Prison's death chamber to make sure Morales was rendered unconscious or they could dispense with the first two drugs used to paralyze muscles and stop the heart and rely on an overdose of the sedative to kill him.

Prison officials had planned to press forward with the execution using only the sedative. Fogel approved that plan but said the sedative must be administered in the execution chamber by a person licensed by the state to inject medications intravenously, a group that includes doctors, nurses, dentists and other medical technicians.

The state attorney's office would not say whether getting a licensed person was the issue.

The victim's mother, Barbara Christian, was outraged. "I'm totally disillusioned with the justice system. We've been waiting 25 years with the expectancy that he is going to pay for his crimes," she said. "It feels like we just got punched in the stomach."

Lethal injection has been challenged many times since 1978 but more frequently in the past two years, says Deborah Denno, a law professor at Fordham University who has studied the issue.

No judge has declared unconstitutional lethal injection, which has largely replaced electrocution, gassing, hanging and shooting in executions. Some judges have ordered procedure changes to make sure the condemned suffer no pain, Denno says.

A New Jersey appeals court stopped executions in 2004 when it ordered prison officials to explain why specific chemicals are chosen and how they're administered. Executions haven't resumed. In Kentucky last year, a judge spelled out new ground rules, including a ban on injections in inmates' necks.

However, ordering an anesthesiologist to stand by "is unprecedented," Denno says. This spring, the U.S. Supreme Court will hear a Florida death row inmate's argument that he should be allowed to challenge lethal injection on civil rights grounds. The case is not expected to decide lethal injection's constitutionality.

On Tuesday, Judge Fogel said San Quentin officials could execute Morales that evening using at least 5 grams of the sedative sodium thiopental. Typically in surgery, 250-300 milligrams of the drug is used.

    Execution's delay reflects fight over injections, UT, 21.2.2006, http://www.usatoday.com/news/nation/2006-02-21-morales_x.htm

California postpones execution indefinitely

Tue Feb 21, 2006 10:47 PM ET
Reuters
By Carolyn Abate

SAN QUENTIN, California (Reuters) - California officials postponed indefinitely the execution of convicted killer Michael Morales on Tuesday after notifying a federal court they could not comply with a court order that medical professionals assist in carrying out his death sentence.

San Quentin State Prison spokesman Lt. Vernell Crittendon said prison officials, who had delayed the execution earlier in the day, could not find a licensed medical professional willing to inject a lethal drug into Morales.

"The warden has chosen to stand down," Crittendon told reporters, adding that he expects a court hearing on May 2 or May 3 to review the mechanics of California's lethal injection method of execution.

Separately, the clerk for the U.S. 9th Circuit Court of Appeals in San Francisco told Reuters that California Attorney General Bill Lockyer's office had decided to postpone the execution indefinitely.

"They notified us they weren't proceeding with the execution tonight," said clerk Cathy Catterson. "Accordingly the state will not proceed with the execution."

Catterson said Lockyer's office informed the court it could not comply with a judge's order last week requiring the state to take new precautions to assure a lethal injection did not cause undue suffering to Morales.

Defense attorneys claimed last week that lethal injection was cruel and unusual punishment, barred by the Constitution.

This prompted U.S. District Court Judge Jeremy Fogel to order prison officials to either alter the composition of the lethal chemicals used in the execution or make medical experts available to ensure unnecessary pain was not inflicted.

The two anesthesiologists selected for that task refused early on Tuesday to be present to certify Morales, 46, was unconscious before a lethal injection was given, thus minimizing any pain. That forced prison authorities to delay the execution for at least 15 hours.

"While we contemplated a positive role that might enable us to verify a humane execution protocol for Mr. Morales, what is being asked of us now is ethically unacceptable," the doctors said in a statement.

Without the doctors present, the state sought court approval on Tuesday to execute Morales with a single dose of sodium pentothal instead of a combination of drugs. A U.S. District Court approved that plan.

Morales, whose attorney recruited former Whitewater prosecutor Kenneth Starr to back his bid for clemency, had been scheduled to die at 7:30 p.m. PST (0330 GMT on Wednesday) for the 1981 rape and murder of 17-year-old Terri Winchell.

Her family was disappointed that the execution was postponed while Morales was relieved, Crittendon said.

Dr. Priscilla Ray, chairwoman of the American Medical Association Council on Ethical and Judicial Affairs, last week condemned the ruling requiring the anesthesiologists presence.

"The use of a physician's clinical skill and judgment for purposes other than promoting an individual's health and welfare undermines a basic ethical foundation of medicine -- first do no harm," she said. "Requiring physicians to be involved in executions violates their oath to protect lives."

California Gov. Arnold Schwarzenegger had denied a request for clemency on Friday and two last-minute appeals to the U.S. Supreme Court for a stay of execution failed late on Monday.

(Additional reporting by Michael Kahn and Jim Christie in San Francisco)

    California postpones execution indefinitely, R, 21.2.2006, http://today.reuters.com/News/newsArticle.aspx?type=topNews&storyID=2006-02-22T034751Z_01_N21385017_RTRUKOC_0_US-CRIME-EXECUTION.xml

Doctor walk-out delays execution

Tue Feb 21, 2006 9:07 AM ET
Reuters
By Carolyn Abate

SAN QUENTIN, California (Reuters) - The execution of a California man was delayed for at least 15 hours early on Tuesday after two court-appointed anesthesiologists walked off the job over ethical concerns.

Michael Morales, whose attorney had recruited former Whitewater prosecutor Kenneth Starr to back his bid for clemency, had been scheduled to die at 12:01 a.m. PST for the rape and murder of an 17-year-old girl in 1981.

The execution could not take place after the doctors refused to be present to give the court-required certification that Morales, 46, was in fact unconscious before the lethal injection was given, thus minimizing the pain.

San Quentin State prison spokesman Lt. Vernell Crittendon said the execution was rescheduled for 7:30 p.m. PST on Tuesday. Without the doctors present, the state will need to alter the chemicals used in the execution.

"While we contemplated a positive role that might enable us to verify a humane execution protocol for Mr. Morales, what is being asked of us now is ethically unacceptable," the doctors said in a statement read by Crittendon.

Defense attorneys had claimed last week that the use of the lethal injection was cruel and unusual punishment, barred by the Constitution.

This prompted a judge to order prison officials to either alter the composition of the lethal chemicals used or make medical experts available to ensure unnecessary pain was not inflicted during the execution.

U.S. District Judge Jeremy Fogel had expressed concern that two of the three chemicals used in California, which should kill within a minute, sometimes took several minutes before stopping the condemned person's heart. The state then agreed to provide an unidentified anesthesiologist to attend the execution.

In a statement last week, Dr. Priscilla Ray, chairwoman of the American Medical Association Council on Ethical and Judicial Affairs, condemned the ruling that required the anesthesiologists present.

"The use of a physician's clinical skill and judgment for purposes other than promoting an individual's health and welfare undermines a basic ethical foundation of medicine -- first do no harm," she said. "Requiring physicians to be involved in executions violates their oath to protect lives."

Two last-minute appeals to the U.S. Supreme Court for a stay of execution failed late on Monday.

PUBLIC APPEALS

The weeks leading up to Morales' date for execution drew considerable public attention due to allegations of forged documents in a clemency petition filed by the defense team, and a federal judge's ruling that required doctors be on hand to make sure the execution was properly administered.

The scrutiny began when Morales' long-time attorney, David Senior, recruited former Whitewater prosecutor Starr to help in the appeal process. Starr is currently the dean of Pepperdine University Law School.

Even the judge who handed down the death sentence wrote a letter supporting the clemency bid.

Days after they filed a request for clemency with Gov. Arnold Schwarzenegger, San Joaquin County prosecutors accused Starr and Senior of submitting forged documents. The sworn statements of six jurors supporting the clemency bid and another statement from a prosecution witness recanting her testimony were proved to be forgeries by the prosecuting team.

Senior and Starr said they did not conduct the interviews that led to the questionable documents but relied on another attorney. They quickly withdrew the documents but pressed the clemency bid.

Schwarzenegger denied the request on Friday.

Morales is the 14th person to be put to death in California since the death penalty was reinstated in 1978.

    Doctor walk-out delays execution, R, 21.2.2006, http://today.reuters.com/news/newsArticle.aspx?type=domesticNews&storyID=2006-02-21T140733Z_01_N21368630_RTRUKOC_0_US-CRIME-EXECUTION-DELAY.xml

Anesthesiologists Delay Calif. Execution

February 21, 2006
By THE ASSOCIATED PRESS
Filed at 11:23 a.m. ET
The New York Times

SAN QUENTIN, Calif. (AP) -- The planned execution of a man convicted of raping and murdering a 17-year-old girl was delayed until Tuesday night after two anesthesiologists refused to participate because of ethical concerns.

With the execution scheduled for 12:01 a.m. Tuesday, defense lawyers requested a stay from the federal judge who last week ordered San Quentin State Prison to have an anesthesiologist on hand to minimize Michael Angelo Morales' pain as he was put to death by lethal injection. A second anesthesiologist was retained as a backup.

Although U.S. District Judge Jeremy Fogel denied the motion, both anesthesiologists withdrew, citing ethical concerns raised by his ruling.

The exact wording of the judge's order was not immediately available, but the anesthesiologists issued a statement through the prison saying they were concerned about a requirement that they intervene in the event that Morales woke up or appeared to be in pain.

''Any such intervention would clearly be medically unethical,'' said the doctors, who have not been identified. ''As a result, we have withdrawn from participation in this current process.''

The American Medical Association, the American Society of Anesthesiologists and the California Medical Association all opposed the anesthesiologists' participation as unethical and unprofessional.

Prison officials rescheduled the execution for 7:30 p.m. Tuesday and said they would employ a different technique: administering a fatal overdose of barbiturate in lieu of the three-drug cocktail typically used in lethal injections.

Morales' attorneys had argued that the three-part lethal injection cocktail used in California and 35 other states violated the Eighth Amendment prohibition on cruel and unusual punishment. They said a prisoner would feel excruciating pain from the last two chemicals if he were not fully sedated.

Fogel refused to derail the execution, but he gave prison officials two options: retain the doctors to ensure Morales would be properly anesthetized, or forgo the paralyzing and heart-stopping drugs and overdose him on a sedative. With the anesthesiologists withdrawing, prison officials said they would use the second option.

Prison spokesman Vernell Crittendon said the prison has until 11:59 p.m. Tuesday to execute Morales. After that, the ''death warrant'' expires and officials would have to go back to the trial judge who imposed the death sentence in 1983 for another warrant.

Seeking another warrant could prove difficult for the state, however, since the original sentencing judge, Charles McGrath, joined Morales this month in asking Gov. Arnold Schwarzenegger for clemency in the case.

McGrath said he no longer believed the credibility of a jailhouse informant whose testimony helped land Morales on death row.

Morales has admitted to the crime that put him on death row. In a petition for clemency that Schwarzenegger first turned down on Friday, Morales claimed that he killed Terri Winchell 25 years ago because he was high on PCP and alcohol.

Morales was told of the delay and was ''nonchalant,'' Crittendon said. But Winchell's relatives were visibly upset, he said.

''There was a great deal of concern on their faces under the circumstances of some people that Michael Morales would not suffer,'' Crittendon said. ''They find that to be very disturbing.''

Earlier Monday, Morales appeared to have exhausted his options for a reprieve after the U.S. Supreme Court refused to consider his claim and the governor for the second time denied a request for clemency.

Associated Press Writers David Kravets and Michelle Locke contributed to this story.

    Anesthesiologists Delay Calif. Execution, NYT, 21.2.2006, http://www.nytimes.com/aponline/national/AP-California-Execution.html?hp&ex=1140584400&en=1b8942a7a3b19879&ei=5094&partner=homepage

Jurors wait for words from killer

A few jurors from the Carlie case return to the courtroom for Joseph P. Smith's hearing, hoping to hear from Smith about the murder

Article published Feb 14, 2006
HeraldTribune.Com
By TODD RUGER
todd.ruger@heraldtribune.com

SARASOTA -- A handful of jurors who recommended Joseph P. Smith be put to death for kidnapping, raping and murdering Carlie Brucia were in court Monday to find out whether he would speak.

"I want to hear him say something. I want to hear him say I'm sorry," juror Karen Summers said. "I don't think he can give you a why."

The hearing, which continues today, is Smith's last opportunity to ask Circuit Judge Andrew Owens to spare him the death penalty. He'll have an opportunity to read from a statement he prepared during the sentencing hearing but wasn't allowed to present unless he agreed to let prosecutors question him.

The jurors who attended Monday's hearing say they need to see the case through to the end.

"You can't push something aside; it doesn't make it go away," said Kande Hansen, who was an alternate juror.

What the jurors heard Monday included emotional statements about the crime's impact on Carlie's friends and family. Smith's attorneys also presented the judge with nearly 50 documents about Smith's physical ailments and mental health issues.

Carlie's aunt, Lori Brucia, set the tone when the judge asked whether she wanted to read a letter standing from a lectern or sitting in the witness stand.

"I think I'd like to sit and look right at Joe Smith," she said.

The letter, written by Carlie's grandmother, said "our family is forever broken" and "our hearts will never heal."

Cheri Langworthy, whose daughter befriended Carlie, talked about how "Carlie's brutal death has destroyed her family."

The prosecution read a letter from Susan Schorpen, Carlie's mother, who is in jail on charges of drug possession and facilitation of prostitution.

"We are forever broken," she wrote. "I want desperately for a real life again but I feel so broken."

Smith's attorney, Adam Tebrugge, said Monday that he will show that Smith sought treatment for drug addiction and mental health issues but was never treated adequately.

Jurors who had hoped to hear from Smith will have to return today.

Several of the jurors said they have struggled with what they heard and saw in nearly six weeks of testimony during the trial. A handful of them met around a conference table at the Rev. Ron Kruzel's Venice church last month to share homemade bread and soup, while discussing the case and its aftermath. Kruzel was the jury's foreman in the case.

"For us it was very important," said Hansen, who hadn't been able to talk about the evidence with other jurors because, as an alternate, she didn't deliberate the sentence. "There's nobody I could talk as frankly with, even my husband."

Kruzel said the meeting wasn't meant as therapy but was a chance for some of the jurors who had formed friendships to get together. But the court system doesn't offer counseling for jurors who sit through such traumatic trials and then go back to their regular lives.

Summers said she and another juror have gone several times to visit the memorial at the church where Carlie's body was discovered.

The first time was eerie, she said, because she recognized the area only from aerial photos presented as evidence in the case. Once there, she said she found "beauty" in the spot.

Still, several of the jurors said they won't be able to get past the case until Owens hands down the final sentence. That is scheduled for March 15.

"I know I gave every bit of myself to it," Summers said.

Hansen said being in the courtroom is different from hearing about it in the news.

"I don't think I will ever look at life the same way," she said. "There are terrible things people can do to other people."

Kruzel said he has tried to keep in touch with all the jurors, at least by e-mail, but some of them haven't responded.

He appeared on Court TV several times Monday and said he is writing a book on the trial. Still, he said, he came to court Monday for personal reasons -- he wanted to hear Smith talk about what he had done to Carlie.

"She was disposed of as garbage," he said.

    Jurors wait for words from killer, HeraldTribune.com, 14.2.2006, http://www.heraldtribune.com/apps/pbcs.dll/article?AID=/20060214/NEWS/602140328

Last chance for Carlie's killer

Joseph P. Smith, convicted in Carlie Brucia's death, may ask to be spared the death penalty this week

Article published Feb 13, 2006
HeraldTribune.com
By TODD RUGER
todd.ruger@heraldtribune.com

SARASOTA -- Joseph P. Smith scribbled out a note at his trial just before a jury recommended that he receive the death penalty for abducting, raping and murdering 11-year-old Carlie Brucia.

He wanted to read it to the jury, but didn't get a chance. The judge in the case ruled he would have to take the stand to do so, opening him up to cross-examination.

Smith will get one last chance this week to read his statement and ask Circuit Judge Andrew Owens to spare him from the death penalty.

This week's "Spencer" hearing, where Owens will take additional evidence, is scheduled to last about three days and could be the public's first chance to hear from Smith since the trial began. So far, his public statements have come from recorded jail phone calls in which he admitted the murder, and from an encoded letter to his brother, which was decoded by the FBI.

Any statement Smith might make in court -- called an allocution -- is not intended to address the facts of the case, said Assistant Public Defender Adam Tebrugge, who is representing Smith.

"It doesn't have to be a statement of remorse, but it could be, and is in many cases," Tebrugge said. "It could be your hopes for the future."

During a 2003 death penalty trial, Tebrugge told the judge that it's "not going to do us a heck of a lot of good" to read the allocution to only the judge.

That's because the judge must give "great weight" to the jury's recommendation before making the final sentence. So the people whose decision counts most never hear the allocution, Tebrugge said.

The only two possible sentences for first-degree murder are the death penalty or life in prison.

The same jury that found Smith, 39, guilty of kidnapping, raping and murdering Carlie voted 10-2 to recommend that he die for the crimes.

Judges rarely deviate from a jury's recommended sentence in a capital murder case.

Tebrugge said this week's hearing, required under state law, will give him a chance to introduce Smith's medical and mental health records that the jury never saw.

Assistant State Attorney Dennis Nales said the prosecutors' part of the hearing will be short, and will probably include statements from those affected by Carlie's death who didn't get a chance to speak to the jury.

Nales said he "wouldn't be surprised" if Smith made a statement.

After this week's court hearings, prosecutors and defense attorneys will be asked to submit written arguments about aggravating and mitigating factors they think the judge should consider.

Owens will issue a written sentence at a later date. It will be read in court with Smith present.

The last person sentenced to death in Sarasota County was John Troy, in 2003. He was convicted of the brutal 2001 stabbing death of his neighbor, Bonnie Carroll.

That jury voted 11-1 for the death penalty. Troy later read his allocution to the jury, but the judge went with the jury's recommendation. Troy is now on death row.

    Last chance for Carlie's killer, HeraldTribune.com, 13.2.2006, http://www.heraldtribune.com/apps/pbcs.dll/article?AID=/20060213/NEWS/602130358

In First Decision, Alito Votes to Block Execution

February 2, 2006
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON, Feb. 1 (AP) — Justice Samuel A. Alito Jr. cast his first vote on the Supreme Court on Wednesday, splitting with the court's conservatives in an appeal from a Missouri inmate who was to be executed at midnight.

Justice Alito joined five members of the court in blocking the execution of the inmate, Michael Taylor, who had argued that lethal injection is cruel and unusual punishment, a claim also used by two Florida death-row inmates that won stays from the Supreme Court over the past week.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas voted to lift a stay that Mr. Taylor had won from an appeals court earlier in the evening.

The court has agreed to use one of the lethal-injection cases to clarify how inmates may bring last-minute challenges to the way they will be put to death.

Earlier in the day, Justice Alito was sworn in for a second time in a ceremony at the White House, where he was lauded by President Bush as a man of "steady demeanor, careful judgment and complete integrity."

He was also was given his assignment for handling emergency appeals: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota. As a result, Missouri filed with Justice Alito its request for the court to void a stay and allow Mr. Taylor's execution.

The court's split vote Wednesday night ended a frenzied day of filings. Missouri twice asked the justices to intervene and permit the execution, while Mr. Taylor's lawyers filed two more appeals seeking delays.

Reporters and witnesses had gathered at the state prison awaiting word from the court on whether to go ahead with the execution.

Mr. Taylor was convicted of killing 15-year-old Ann Harrison, who was waiting for a school bus when he and an accomplice kidnapped her in 1989. He pleaded guilty and said he was high on crack cocaine at the time.

    In First Decision, Alito Votes to Block Execution, NYT, 2.2.2006, http://www.nytimes.com/2006/02/02/politics/politicsspecial1/02alito.html

Calif. judge seeks clemency for man he sentenced

Sat Jan 28, 2006 7:43 PM ET
Reuters
By Carolyn Abate

SAN FRANCISCO (Reuters) - A judge who sentenced a California man to death more than two decades ago for murder has asked Gov. Arnold Schwarzenegger to grant the inmate clemency just weeks before his scheduled execution.

In a letter to the governor, Ventura County Superior Court Judge Charles McGrath said Michael Morales should be spared the death penalty because testimony by a jailhouse informant used to determine his death sentence was now under question.

Morales, 46, is scheduled to die on February 21 at San Quentin State Prison for the 1981 killing of Terri Winchell of Lodi, California.

McGrath's letter supports Morales' clemency petition filed on Friday by attorneys David Senior and Kenneth Starr. Starr, former independent council in President Bill Clinton's impeachment, declined to comment about the Morales case on Saturday.

The attorneys say jailhouse informant Bruce Samuelson lied when he testified that Morales told him about the murder in detail and how he planned the killing. This testimony provided evidence that Morales was "lying in wait" to kill Winchell -- the special circumstances needed for McGrath to hand down a death sentence.

Years later at another court hearing, Samuelson told state attorneys he and Morales spoke in Spanish to avoid being overheard by other inmates. According to Morales' attorneys, their client does not speak Spanish.

"Thus, it was factually impossible for Mr. Morales to have made any of the statements attributed to him by Samuelson," the petition said.

Court documents show Morales was recruited by his cousin Rick Ortega to kill Winchell when Ortega discovered she was seeing his male lover. Witnesses at the trial said she was found half naked, and bludgeoned and stabbed numerous times.

Morales was convicted of the murder. It was unclear how much time he would serve in prison if he receives clemency.

If executed, Morales would be the third in California in as many months.

    Calif. judge seeks clemency for man he sentenced, R, 28.1.2006, http://today.reuters.com/news/newsArticle.aspx?type=domesticNews&storyID=2006-01-29T004253Z_01_N28209410_RTRUKOC_0_US-CRIME-EXECUTION-CALIFORNIA.xml

Marvin Bieghler in an Indiana State Prison photo.
The state of Indiana on Friday executed Bieghler,
a former drug dealer convicted of killing a young couple in 1983.

REUTERS/Clark County/Handout

  Indiana executes man for 1983 double murder
R    27.1.2006
http://today.reuters.com/news/newsArticle.aspx?type=domesticNews&storyID=
2006-01-27T135712Z_01_N26400069_RTRUKOC_0_US-EXECUTION-INDIANA.xml

Indiana executes man for 1983 double murder

Fri Jan 27, 2006 8:57 AM ET
Reuters
By Karen Murphy

MICHIGAN CITY, Indiana (Reuters) - The state of Indiana on Friday executed a former drug dealer convicted of killing a young couple in 1983.

Marvin Bieghler, 58, died at 2:17 a.m. EST (0717 GMT) following an injection of lethal chemicals at the Indiana State Prison, officials said.

His final words, to the prison officials preparing for the execution, were, "Let's get it over with."

Bieghler was convicted of killing Tommy Miller, 20, and his pregnant wife Kimberly, 19. Bieghler shot both execution style because he thought the husband had informed on his drug dealings, prosecutors said.

He was put to death after the U.S. Supreme Court, by a vote of 6-3, vacated a stay of execution granted by the 7th U.S. Circuit Court of Appeals on Thursday.

Bieghler had denied committing the slayings but the Indiana Parole Board voted earlier in the week against recommending clemency. Republican Gov. Mitch Daniels denied his petition for clemency.

It was the 1,008th execution in the United States since 1976 when the death penalty was restored, and the 17th in Indiana during that time period. So far in 2006 there have been three other U.S. executions.

In a written statement before the execution, Bieghler said, "I want to say Semper Fi to my brother warriors."

"Semper Fi," shorthand for Semper Fidelis, is the U.S. Marine Corps motto, meaning always faithful.

"You know who you are. I believe in God, country, corps. Death before dishonor. To my friends, grandkid and stepkids, you will always have the peace of my heart. Semper Fi," the statement added.

Bieghler was given a meal of his request on Wednesday which included black bean soup, mushroom Dijon, blooming onion, salad, New York steak, chicken breast, shrimp, baked potato, cheesecake and a soft drink.

He requested and received cigarettes. The prison normally suspends its no-smoking policy for inmates before execution.

    Indiana executes man for 1983 double murder, R, 27.1.2006, http://today.reuters.com/news/newsArticle.aspx?type=domesticNews&storyID=2006-01-27T135712Z_01_N26400069_RTRUKOC_0_US-EXECUTION-INDIANA.xml

Indiana man executed for 1981 slayings

Posted 1/27/2006 8:43 AM Updated 1/27/2006 10:15 AM
USA Today

MICHIGAN CITY, Ind. (AP) — After his last chance for a reprieve was exhausted, a convicted killer who challenged the legality of lethal injection said only: "Let's get it over with."

Marvin Bieghler, like Florida inmate Clarence Hill, challenged the lethal injection process as unconstitutional.
By Joe Raymond, AP

Marvin Bieghler, 58, was put to death early Friday for the 1981 slayings of a man and his pregnant wife inside their home. He was pronounced dead at 2:17 a.m.

About an hour earlier, the U.S. Supreme Court announced a 6-3 decision to overturn a federal appeals court ruling that cleared the way for Bieghler to challenge the method of execution. The high court had rejected a similar appeal earlier in the day.

Bieghler, a Marine Corps veteran who saw significant combat during the Vietnam War, did not mention the killings for which he was executed in a final written statement released by the prison.

The brief statement concluded: "I believe in God, country, corps. Death before dishonor. To my son, grandkids and stepkids, you will always have a piece of my heart. Semper fi, Marv."

Bieghler, like Florida inmate Clarence Hill, challenged lethal injection as unconstitutional. Hill contends the three chemicals used in Florida's method of execution — the same as those used in Indiana — cause pain, making his execution cruel and unusual punishment.

The Supreme Court said it would hear arguments in Hill's case. Bieghler's case differed from Hill's because he was allowed to contest the Indiana execution method and lost.

The Supreme Court has never found a specific form of execution to be cruel and unusual, and the Florida case does not give the court that opportunity. The justices could, however, spell out what options are available to inmates with last-minute challenges to the way they will be put to death.

Bieghler's attorney, Brent Westerfeld, had told justices in a motion Thursday that a "grave injustice may arise" if Bieghler was executed while Hill's case is pending because there is a chance that Hill will win the right to pursue his claim against lethal injection and eventually win.

The state attorney general's office argued that Bieghler's appeal was a delay tactic and that Indiana's chemical injection method of execution, used since 1996, was constitutional.

The state argued that the Constitution does not guarantee a pain-free execution.

"Indeed, electrocution is a constitutionally permissible form of execution which is undoubtedly more painful than lethal injection," the brief said.

Bieghler, an admitted drug dealer, was convicted in the deaths of Tommy Miller, 20, and Kimberly Jane Miller, 19, whose bodies were found Dec. 11, 1981, in their mobile home near the Howard County town of Russiaville, about 10 miles west of Kokomo.

Tommy Miller had been shot six times and his wife, who was four weeks pregnant, was shot three times. Bieghler, 58, told the parole board last week that he did not kill the couple and wanted Daniels to commute his death sentence to time served.

Tommy Miller's mother, Priscilla Hodges of Kokomo, traveled to the prison but was not allowed under state law to witness the execution. She said afterward she felt some sense of relief but that the execution did not bring her any closure.

"I hope he was right with the Lord," she said of Bieghler. "I hope he is with the Lord right now."

    Indiana man executed for 1981 slayings, UT, 27.1.2006, http://www.usatoday.com/news/nation/2006-01-27-indiana-execution_x.htm

Federal executions set to double in single week

Wed Jan 25, 2006 12:16 PM ET
Reuters
By Alan Elsner

WASHINGTON (Reuters) - The number of executions carried out by the U.S. federal government since 1988 is set to double in May, with three lethal injections scheduled in a single week.

Convicted murderers Richard Tipton, Cory Johnson and James Roane are scheduled to die in the federal death chamber in Terre Haute, Indiana, on May 9, May 10 and May 12, respectively.

"They don't have much in the way of legal resources remaining other than a clemency petition to President George W. Bush," said David Elliot of the National Coalition to Abolish the Death Penalty.

The three were members of an inner-city gang in Richmond, Virginia, sentenced to death in 1993 for taking part in a series of drug-related murders. All three are black.

In the U.S. criminal justice system most crimes are prosecuted by states rather than the federal government. Last year, all 60 executions carried out were administered by states.

The federal death penalty was reinstated in November 1988 with the introduction of a law designed to combat drug trafficking known as the Drug Kingpin Act. Since then, Congress has added over 50 other crimes that qualify for death.

They include kidnapping resulting in death, murder for hire, fatal drive-by shootings, sexual abuse crimes resulting in death, fatal carjackings or aircraft hijackings and sending materials through the mail with the intent of killing.

Congress is currently discussing new additions that would expand the federal death penalty even further.

"There was a dramatic jump in the number of federal capital crimes in the 1990s as Congress expanded its jurisdiction over criminal acts that have traditionally been under the purview of the states," said Ginny Sloan of The Constitution Project based at Georgetown University's Public Policy Institute.

"It's also become a way for politicians to show voters they are 'tough on crime,'" she said.

The most notorious person put to death at Terre Haute was Timothy McVeigh, convicted of the 1995 Oklahoma City bombing which killed 168 people.

Since then, only two others have been executed for federal crimes and the last execution was in 2003. There are currently 41 people on federal death row, 24 of whom are black.

MOUSSAOUI CASE

The government is seeking the death penalty for Zacarias Moussaoui, who has pleaded guilty to six counts of conspiracy in connection with the September 11 attacks on New York and Washington.

A jury in Alexandria, Virginia, will determine whether Moussaoui gets the death penalty or life imprisonment in a trial scheduled to begin next month.

In general, the number of executions in the United States has been falling in recent years, even while the federal death penalty expands in scope.

"The states are cutting back on their use of the death penalty, while the federal government is expanding," said Richard Dieter of the Death Penalty Information Center.

So far this year there have been two, with another scheduled Wednesday night in Texas. Marion Dudley faces execution for the 1992 shooting deaths of three people in a Houston drug house.

Critics argue that the federal death penalty is racially biased against minorities. If the three executions go forward in May, five of the six people put to death would have been either black or Hispanic.

A Department of Justice study released in 2000 found that 80 percent of the cases submitted by prosecutors for death penalty review were against minorities.

    Federal executions set to double in single week, R, 25.1.2006, http://today.reuters.com/news/newsArticle.aspx?type=domesticNews&storyID=2006-01-25T171608Z_01_N253973_RTRUKOC_0_US-CRIME-DEATH.xml

Supreme Court steps in to block Florida execution

Posted 1/24/2006 7:41 PM Updated 1/24/2006 7:57 PM
USA Today

WASHINGTON (AP) — The Supreme Court issued a last-minute stay late Tuesday to a Florida death row inmate who claimed he was mentally retarded and should not be executed for killing a police officer.

Florida prison officials had put off the execution of Clarence Hill, who also wants to challenge the drugs that would be used, before word came from the court.

It was not clear if the court's intervention would only briefly delay Hill's execution, which had been scheduled for 6 p.m. ET. Justices were reviewing a pair of Hill appeals, and Justice Anthony Kennedy filed paperwork that said the execution should be delayed.

Earlier, Hill had lost appeals at the 11th U.S. Circuit Court of Appeals in Atlanta. He was scheduled to die at Florida State Prison for the Oct. 19, 1982, slaying of a Pensacola police officer and the wounding of his partner.

The court could still lift the stay and allow Florida to move ahead with the execution.

Hill was to be the 61st inmate executed in Florida since 1976, when executions resumed after a 12-year moratorium, and the 257th since 1924, when the state took that duty from individual counties.

He first asked the court for a stay last week.

Hill did not request a final meal, Department of Corrections spokeswoman Debbie Buchanan said Tuesday, and he refused the late-morning meal served to other inmates at Florida State Prison — glazed ham, fruit glaze, greens, black-eyed peas, coleslaw, bread, a cookie and tea.

After the stay was issued, Corrections spokesman Robby Cunningham said there would be no execution Tuesday. Witnesses had been waiting in the prison's witness room for about an hour.

    Supreme Court steps in to block Florida execution, UT, 24.1.2006, http://www.usatoday.com/news/washington/2006-01-24-scotus-fla-execution_x.htm

California Assembly Sidelines a Moratorium on Executions

January 20, 2006
The New York Times
By CAROLYN MARSHALL

SAN FRANCISCO, Jan 19 - California lawmakers dashed the hopes of death penalty opponents on Thursday by not acting on legislation that would have imposed a two-year moratorium on executions in the state.

The Assembly Appropriations Committee placed the bill on hold, essentially killing it for the remainder of this legislative session, several lawmakers said. The author of the bill, Assemblyman Paul Koretz, a Democrat from West Hollywood, said he would probably introduce another version of the bill after the June primary election, but Republican opponents of a moratorium said they would fight that effort as well.

Mr. Koretz accused the Republicans of playing politics with his proposal.

"Unfortunately, the Republicans in California have turned this issue into a political wedge," Mr. Koretz said. "And they did not give the bill a fair hearing."

Mr. Koretz said Democrats, who control both houses of the Legislature, did not want to push the matter further until after the election.

"It has the potential to be used and misused in elections where state Democrats are running this year," he said.

Assemblyman Todd Spitzer, a Republican from Orange County, said the bill's demise had "nothing to do with politics."

"It has everything to do with a factual argument," Mr. Spitzer said, "that the death penalty is not abused or unfairly carried out in California."

California is one of several states reviewing its use of the death penalty, which is legal in 38 states. New Jersey, Illinois and Maryland have imposed moratoriums, while in 2004 capital punishment in New York and Kansas was declared unconstitutional.

The debate in California has picked up in recent months as the state prepares to quicken the pace of executions and a blue-ribbon commission studies, among other things, the state's prison system and the effectiveness, accuracy and fairness of capital punishment.

Mr. Koretz's measure, Assembly Bill 1121, would have imposed a 24-month moratorium beginning next January so that the Legislature could review the recommendations of the blue-ribbon panel.

In the meantime, executions move forward. The state executed Clarence Ray Allen, 76, on Tuesday. In 1980, while serving a life sentence for a 1974 killing, Mr. Allen ordered the killing of three people.

A judge on Wednesday set Feb. 21 as the execution date for Michael Morales, 45, who would become the third death row inmate to die in three months. Mr. Morales was sentenced to death for the rape and killing in 1981 of a 17-year-old woman.

    California Assembly Sidelines a Moratorium on Executions, NYT, 20.1.2006, http://www.nytimes.com/2006/01/20/national/20execute.html

California Executes Oldest Inmate

January 17, 2006
By THE ASSOCIATED PRESS
Filed at 9:53 a.m. ET
The New York Times

SAN QUENTIN, Calif. (AP) -- California executed its oldest death row inmate early Tuesday, minutes after his 76th birthday, despite arguments that putting to death an elderly, blind and wheelchair-bound man was cruel and unusual punishment.

Clarence Ray Allen was pronounced dead at 12:38 a.m. at San Quentin State Prison. He became the second-oldest inmate put to death nationally since the Supreme Court allowed capital punishment to resume in 1976.

Allen, who was blind and mostly deaf, suffered from diabetes and had a nearly fatal heart attack in September only to be revived and returned to death row, was assisted into the death chamber by four large correctional officers and lifted out of his wheelchair.

His lawyers had raised two claims never before endorsed by the high court: that executing a frail old man would violate the Constitution's ban on cruel and unusual punishment, and that the 23 years he spent on death row were unconstitutionally cruel as well.

The high court rejected his requests for a stay of execution about 10 hours before he was to be put to death. Gov. Arnold Schwarzenegger denied Allen clemency Friday.

Allen went to prison for having his teenage son's 17-year-old girlfriend murdered for fear she would tell police about a grocery-store burglary. While behind bars, he tried to have witnesses in the case wiped out, prosecutors said. He was sentenced to death in 1982 for hiring a hit man who killed a witness and two bystanders.

''Allen deserves capital punishment because he was already serving a life sentence for murder when he masterminded the murders of three innocent young people and conspired to attack the heart of our criminal justice system,'' state prosecutor Ward Campbell said.

Allen expressed his love for family, friends and the other death-row inmates in a final statement read by Warden Steve Ornoski. Allen ended his statement by saying, ''It's a good day to die. Thank you very much. I love you all. Goodbye.''

The family of one of Allen's victims, Josephine Rocha, issued a statement saying that ''justice has prevailed today.''

''Mr. Allen abused the justice system with endless appeals until he lived longer in prison than the short 17 years of Josephine's life,'' the statement said.

Last month in Mississippi, John B. Nixon, 77, became the oldest person executed in the United States since capital punishment resumed. He did not pursue an appeal based on his age.

Allen's case generated less attention than last month's execution of Crips gang co-founder Stanley Tookie Williams, whose case set off a nationwide debate over the possibility of redemption on death row, with Hollywood stars and capital punishment foes arguing that Williams had made amends by writing children's books about the dangers of gangs.

There were only about 200 people gathered outside the prison gates before Allen's execution, about one-tenth of the crowd that came out last month.

    California Executes Oldest Inmate, NYT, 16.1.2006, http://www.nytimes.com/aponline/national/AP-California-Execution.html?hp

Calif. inmate, 76, faces execution tonight

Posted 1/16/2006 5:38 PM Updated 1/16/2006 8:38 PM
USA Today

SAN FRANCISCO (AP) — The U.S. Supreme Court rejected an appeal Monday from a 76-year-old convicted killer who argued that he was too old and feeble to be executed.

The ruling cleared the way for Clarence Ray Allen — legally blind, nearly deaf and in a wheelchair — to be executed by injection early Tuesday for a triple murder he ordered from behind bars to silence witnesses to another killing.

He raised two claims never before endorsed by the high court: that executing a frail old man would violate the U.S. Constitution's ban on cruel and unusual punishment, and that the 23 years he spent on death row were unconstitutionally cruel as well.

The high court rejected his requests for a stay of execution, about 10 hours before he was to be put to death.

On one of the orders, Justice Stephen Breyer filed a dissent, saying: "Petitioner is 76 years old, blind, suffers from diabetes and is confined to a wheelchair, and has been on death row for 23 years. I believe that in the circumstances he raises a significant question as to whether his execution would constitute cruel and unusual punishment. I would grant the application for stay."

The Supreme Court has never set an upper age limit for executions or created an exception for physical infirmity.

Gov. Arnold Schwarzenegger, the California Supreme Court and a federal appeals court previously refused to spare Allen's life.

Allen went to prison for having his teenage son's 17-year-old girlfriend murdered for fear she would tell police about a grocery-store burglary. While behind bars, he tried to have witnesses in the case wiped out, prosecutors said. He was sentenced to death in 1982 for hiring a hit man who killed a witness and two bystanders.

Allen's heart stopped in September, but doctors revived him and returned him to San Quentin Prison's death row.

"These infirmities are not simply the result of the passage of time or of old age, as some would suggest, but result from prison authorities' deliberate neglect of his medical needs while in the state's custody," said Annette Carnegie, one of Allen's attorneys.

Before Allen, the oldest person executed in California since the reinstatement of the death penalty was a 61-year-old man put to death last January. He had spent 21 years on death row.

Last month in Mississippi, John B. Nixon, 77, became the oldest person executed in the United States since capital punishment resumed. He did not pursue an appeal based on his age.

Over the years, some justices on the Supreme Court have expressed interest in deciding whether a long stay on death row can be unconstitutionally cruel.

In 2002, Breyer said in the case of a Florida inmate who spent 27 years in prison: "It is fairly asked whether such punishment is both unusual and cruel."

Justice Clarence Thomas disagreed, writing that the inmate "could long ago have ended his anxieties and uncertainties by submitting to what the people of Florida have deemed him to deserve: execution."

    Calif. inmate, 76, faces execution tonight, UT, 16.1.2006, http://www.usatoday.com/news/nation/2006-01-16-calif-execution_x.htm

Governor Finds New Middle Ground in Death Penalty Debate

January 14, 2006
The New York Times
By JAMES DAO

WASHINGTON, Jan. 13 - Criminal justice was not high on Mark Warner's to-do list when he was elected governor of Virginia in 2001. And he did not mention the subject in his farewell address to the legislature on Wednesday.

But in four years as governor, Mr. Warner has incrementally and with little fanfare established groundbreaking policies on the use of DNA testing to confirm, or challenge, criminal convictions, many of them in death penalty cases. Last week, he became the first governor to order a DNA test involving a man who had already been executed.

The actions of Mr. Warner, who leaves office on Saturday, have established new middle ground in the polarized world of death penalty politics. Unlike former Gov. George Ryan of Illinois, who ordered a moratorium on executions in 2003, Mr. Warner has not called for halting executions, and he still supports capital punishment. His goal, he has said, has not been to undermine the system but to make sure it works.

"It's not like he wants to be a DNA or criminal justice crusader," said Ellen Qualls, Mr. Warner's spokeswoman. "It is not his hope that his actions will help the death penalty abolition movement. In each case, he's just tried to pick the right course."

But because Mr. Warner, a Democrat barred by law from a consecutive term, is considering a run for president in 2008, his actions are being scrutinized for political motives. Critics say those are clear.

"He's heading for Iowa," said Michael Paranzino, president of Throw Away the Key, a nonprofit group that supports the death penalty. Mr. Paranzino was referring to the Iowa caucuses that formally kick off the presidential campaign season.

Mr. Paranzino and other critics of Mr. Warner say the governor, who has tried to cast himself as a centrist on fiscal issues, gun control and other policies, has moved left on criminal justice to win support from liberal Democratic primary voters.

Iowa has no death penalty, and caucus voters there tend to oppose capital punishment, political experts say.

New Hampshire, whose primary immediately follows the Iowa caucuses, has the death penalty but has not executed anyone since capital punishment was reinstated in 1976.

"This merely raises his profile among those voters," Mr. Paranzino said.

Mr. Warner's supporters strongly dispute that. They argue that any gains he makes during the primaries from questioning capital punishment would become setbacks in the general election, when Republicans might attack him as soft on crime.

They also say that Mr. Warner's faith in DNA technology and his desire to make the justice system more effective fit his style as a nonideological manager whose biggest concern is making government work.

"As part of having a premier crime lab and supporting the death penalty, you want to find the truth and make sure people have confidence in that system," Ms. Qualls said.

Mark Rozell, a professor of public policy at George Mason University in Virginia, said he saw "little political traction" for Mr. Warner in death penalty issues because Democratic primary voters seemed more concerned about abortion, judicial nominations and the war in Iraq.

But Mr. Rozell also said Mr. Warner's approach could appease liberals while not angering conservatives. "There is a little bit for everybody in his stance," he said.

Regardless of motives, Mr. Warner has gone further than other governors in using newer, more sophisticated DNA tests to review prosecutions, many of which relied on less precise technologies, experts said. In the last two years, he ordered two sweeping reviews of DNA testing and other forensic analyses by the state's nationally acclaimed crime laboratory.

The first was prompted by the case of Earl Washington Jr., a retarded man who came within days of being executed for rape and murder before a DNA test by the laboratory raised questions about his guilt in 1994. He was pardoned in 2000.

But those tests were faulty, leaving open the possibility that Mr. Washington was involved in the crime until an independent DNA test proved his innocence in 2004. As a result, Mr. Warner ordered an independent audit that was highly critical of the state laboratory.

Last year, Mr. Warner ordered testing of genetic material found in the files of a former crime laboratory analyst. Three people were exonerated after requesting DNA tests from those files, and at the urging of the Innocence Project, a legal clinic based in New York, Mr. Warner ordered sophisticated DNA tests on a random sample of material in the files.

Those tests, involving about 30 cases, cleared two more men. Mr. Warner then ordered DNA testing on all of the analyst's files where convictions had been reached and genetic materials still existed.

Those materials, from cases dating from 1973 to 1988, could involve scores of cases, experts said.

Late last year, Mr. Warner granted clemency to Robin Lovitt, a convicted murderer on death row, because a clerk destroyed forensic evidence that could have undergone DNA tests. Last week, he became the first governor to order DNA tests in the case of a man who had been executed for murder.

The new tests found that the man, Roger K. Coleman, was almost certainly guilty of the murder for which he was executed in 1992, Mr. Warner announced on Thursday.

Critics said Mr. Warner probably knew the tests would prove Mr. Coleman's guilt and was therefore taking no risks in ordering them. But death penalty critics said the decision paved the way for other governors to use DNA to review death penalty convictions, even after executions.

"He has set an example for governors all over the United States," said Peter Neufeld, co-director of the Innocence Project. "It's the governors' responsibilities to go out and do DNA testing in these cases. That is the only way you can enhance the integrity of the criminal justice system."

    Governor Finds New Middle Ground in Death Penalty Debate, NYT, 14.1.2006, http://www.nytimes.com/2006/01/14/national/14warner.html

Gov. Schwarzenegger Denies Clemency To Allen

Execution Set For Tuesday at 12:01am PT

Jan 13, 2006 5:00 pm US/Pacific
AP
CBS5.com

(AP) SAN FRANCISCO California's oldest death row inmate -- a 75-year-old who is legally blind and nearly deaf -- is asking the U.S. Supreme Court to do something it has never done before: block an execution because of the condemned man's advanced age and infirmity.

Clarence Ray Allen's attorneys contend that executing a feeble old man amounts to cruel and unusual punishment banned by the U.S. Constitution.

Gov. Arnold Schwarzenegger on Friday denied Allen clemency. Barring a last-minute reprieve by the courts, the governor's decision means Allen will become the second-oldest person put to death since the U.S. Supreme Court allowed capital punishment to resume in 1976. He is set to die by injection Tuesday for ordering three slayings while behind bars for another murder.

Allen, who turns 76 on the eve of his execution, has been on death row for more than 23 years. He often uses a wheelchair and had to be resuscitated after suffering a heart attack last year at San Quentin Prison.

"The spectacle of Mr. Allen being wheeled into the death chamber, unable to walk and unable to see those who have come to witness his execution, violates all standards of decency and would amount to nothing more than the purposeless and needless imposition of pain and suffering prohibited by the Eighth Amendment," said Annette Carnegie, one of Allen's attorneys.

Schwarzenegger said Allen's age and health did not matter and noted that he committed his crimes at the age of 50. "His conduct did not result from youth or inexperience, but instead resulted from the hardened and calculating decisions of a mature man."

Allen's death sentence has been delayed by 23 years of appeals. He "should not escape the jury's punishment because our system works deliberately and carefully," Schwarzenegger said.

In his two years in office, Schwarzenegger has denied three petitions for clemency based on claims of innocence, mental incompetence, and good behavior or good deeds in prison. The last time a California governor granted clemency was in 1967, when Gov. Ronald Reagan spared a mentally ill killer.

The Supreme Court has said it is cruel and unusual to execute the mentally retarded, those who are so mentally incompetent they do not understand they are about to be executed or why, and inmates who killed when they were juveniles.

But the high court has never stopped an execution because of an inmate's advanced age or physical infirmities.
Sparing Allen could open the way for similar legal challenges from other sickly death row inmates. At the same time, some defense attorneys fear that if Allen prevails, states may restrict death row appeals -- for example, by setting firmer filing deadlines -- to prevent inmates from trying to run out the clock.

Prosecutors are fighting Allen's last-ditch appeal.

"The U.S. Supreme Court has never spoken to an exception to an upper age limit or a physical illness," said prosecutor Ward Campbell. "As a result, there is no case law from the United States Supreme Court compelling the courts to grant a reprieve."

The California Supreme Court denied similar claims by Allen on Tuesday.

The U.S. Supreme Court in 2004 refused to block the execution of James Hubbard, 74, of Alabama despite his claims of advanced age and mental incompetence.

In Mississippi last month, John B. Nixon Sr., 77, became the oldest inmate executed since capital punishment was reinstated in this country. He did not base his appeals on his age.

"We carefully considered it," said his lawyer, Brian Toohey. "There was no case law backing us up." However, Nixon did ask Gov. Haley Barbour for clemency because of his age.

The brother of one of Allen's victims said the arguments in favor of sparing the killer's life are nonsensical. Robert Rocha -- whose sister, Josephine, was murdered at a Fresno market in 1980 by a hitman Allen hired -- said Allen's repeated appeals are the only reason he is old and frail.

"Mr. Allen feels he is too old to die," Rocha said. "We feel Josephine was too young to die. She was only 17 when she was taken from us and murdered."

Allen was among California's first convicts condemned after the death penalty was reinstated here in 1977. He has been on death row since 1982.

Allen was serving time for murder when he ordered the three slayings because he feared the victims' testimony would hurt the success of his appeal, prosecutors said. Allen's hired hit man, Billy Ray Hamilton, was also sentenced to death.

Regardless of whether Allen is successful, legal experts predict such claims will be repeated by other condemned inmates, especially in California, where the nation's largest and most backlogged death row has an aging population.

California's death row houses five men older than 70; 34 are ages 60 to 69. Viva Leroy Nash, 90, of Arizona is the nation's oldest death row inmate. No execution date has been set.

The average age of the nation's condemned prisoners is 41, and the average stay on death row is a decade, according to the Bureau of Justice Statistics.

    Gov. Schwarzenegger Denies Clemency To Allen, CBS5.com, 13.1.2006, http://cbs5.com/topstories/local_story_013173218.html

DNA Ties Man Executed in '92 to the Murder He Denied

January 13, 2006
The New York Times
By JAMES DAO

WASHINGTON, Jan. 12 - Thirteen years after Roger K. Coleman went to the electric chair declaring, "An innocent man is being murdered tonight," a new DNA test has found that he was almost certainly the source of genetic material found in the body of his murdered sister-in-law, Virginia officials announced on Thursday.

The finding was a stunning blow to a lay minister who for nearly 18 years argued for Mr. Coleman's innocence, and it vindicated the prosecutors who won Mr. Coleman's conviction in 1982 and the governor, L. Douglas Wilder, who allowed his execution to proceed 10 years later.

"The confirmation that Roger Coleman's DNA was present reaffirms the verdict and the sanction," said Gov. Mark Warner, who ordered the test last week. It was the first time that a governor had ordered a DNA test involving an executed person.

The testing was closely watched across the nation because of the belief that it would provide powerful momentum to death penalty abolitionists if it were to prove that an innocent man had been put to death.

Yet even after Thursday's announcement, critics of capital punishment said Mr. Warner's decision set an important precedent that might encourage other governors, judges and prosecutors to allow postexecution DNA analysis in disputed capital punishment cases.

"The real issue is not whether one man was in fact guilty or innocent, it's rather that he set the example for what the other 49 governors should do on the hundreds of cases where DNA material still exists from people who have been executed," said Peter Neufeld, co-director of the Innocence Project, a legal clinic that has helped exonerate 172 inmates, often through DNA tests.

Supporters of the death penalty said the test was also significant because it proved that the criminal justice system had worked, and they predicted that the confirmation of Mr. Coleman's guilt would undermine future efforts to exonerate death row inmates.

"Once again we see that once you cut through the nonsense, the jury got it right," said Michael Paranzino, co-founder of Throw Away the Key, a group based in Maryland that supports capital punishment.

Nevertheless, Mr. Paranzino said he endorsed Mr. Warner's decision to order the new test, saying he thought such reviews would consistently prove the guilt of executed murderers and thus build public confidence in capital punishment.

Mr. Coleman, a coal miner, was convicted of raping and murdering Wanda McCoy, the 19-year-old sister of his wife, in the rural southwestern Virginia town of Grundy in 1981.

During his trial, prosecutors said that hairs found at the scene matched Mr. Coleman's, and that a spot of blood on his dungarees matched Ms. McCoy's blood type, O. The prosecution also presented the testimony of a prisoner who said Mr. Coleman had confessed in jail.

In 1988, James C. McCloskey, a divinity school graduate and founder of Centurion Ministries Inc., a group based in Princeton, N.J., that advocates for inmates it considers innocent, took up Mr. Coleman's case and spent four years reinvestigating it.

Mr. McCloskey concluded that Mr. Coleman did not have the time or motivation to commit the murder, raising questions about the jailhouse confession and the forensic evidence. He asserted that Mr. Coleman had been wearing clothing covered with coal dust but that no dust was found at the scene, and he offered evidence pointing to an alternative suspect.

The case gained international attention, with Time magazine putting Mr. Coleman on its cover and Pope John Paul II urging that his execution be stayed. But Governor Wilder, a Democrat, rejected a clemency petition, and Mr. Coleman died proclaiming his innocence.

Over the years, Mr. McCloskey continued to press state officials to conduct more sophisticated DNA analysis on vaginal swabs taken from the victim's body. Last week, Mr. Warner, a Democrat who supports the death penalty, agreed, saying the new tests could provide "a more complete picture of guilt or innocence."

On Thursday, Mr. McCloskey, whose work has exonerated two death row inmates, called the results "a kick in the stomach" and expressed dismay that Mr. Coleman had so successfully deceived him.

"Our search for facts can delude us into thinking that what we have found is gold, only to discover that it is in fact fool's gold," Mr. McCloskey said.

    DNA Ties Man Executed in '92 to the Murder He Denied, NYT, 13.1.2006, http://www.nytimes.com/2006/01/13/national/13dna.html

Supreme Court Split On California Death Sentence

Jan 11, 2006 8:17 am US/Pacific
AP
CBS5.com

(AP) WASHINGTON A divided Supreme Court reinstated a California inmate's death sentence on Wednesday, the first 5-4 vote under newly installed Chief Justice John Roberts.

Justices overturned an appeals court ruling that declared Ronald Sanders' sentence unconstitutional. Sanders was put on death row in the 1982 killing of a woman during a drug-related robbery in Bakersfield.

Justice Antonin Scalia wrote the ruling, the court's first death penalty decision since Roberts replaced Chief Justice William H. Rehnquist last fall.

The case presented a technical question for the court involving jurors' consideration of invalid aggravating factors.
Special circumstances used by prosecutors to win the death sentence - that the crime was committed during a burglary and was cruel or heinous - were later found invalid.

California argued that Sanders would have been sentenced to death even without those arguments. The Supreme Court's five conservative members agreed.

"The erroneous factor could not have `skewed' the sentence, and no constitutional violation occurred," Scalia wrote in an opinion joined by Roberts, retiring Justice Sandra Day O'Connor and Justices Anthony Kennedy and Clarence Thomas.

    Supreme Court Split On California Death Sentence, CBS5.com, 11.1.2006, http://cbs5.com/local/local_story_011111843.html

A 1986 Case Could Aid Appeals Along Death Row

January 12, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Jan. 11 - An argument before the Supreme Court in a 20-year-old murder case suggested on Wednesday that the court might be willing to open the door a bit wider to death row inmates seeking access to federal court to present plausible but belated claims of innocence.

It was a gritty argument with an unusually intense focus on the evidence that a Tennessee jury considered in convicting Paul G. House of the murder of a neighbor, Carolyn Muncey. Justices Antonin Scalia and Stephen G. Breyer were particularly steeped in the details and were deeply engaged on opposite sides of the case, debating it back and forth almost to the exclusion of the lawyers standing before them.

Mr. House has always maintained his innocence, and in 2004 he came within one vote of persuading a federal appeals court to reopen his case. The debate on the appeals court was over whether recently developed scientific evidence had cast enough doubt on the basis of his conviction to overcome the very high bar that the Supreme Court has set for federal courts to hear new claims that were not presented in the initial round of appeals.

The vote against Mr. House, in the United States Court of Appeals for the Sixth Circuit, in Cincinnati, was 8 to 7; all eight judges in the majority had been appointed by Republican presidents, and all seven dissenters had been named by Democrats. Six of the dissenters concluded that Mr. House had proved his innocence, while the seventh said that he was at least entitled to a new trial.

Addressing Mr. House's lawyer on Wednesday, Justice Scalia said he agreed that the case now looks "much closer" than it must have appeared to the jury in 1986. But that was not the issue, he continued. "Once the case has been tried, we have a much different task," Justice Scalia said, namely to determine "whether any reasonable jury could have found guilt."

Only if the answer was no could a federal court proceed to hear a petition for a writ of habeas corpus and consider whether constitutional errors that had not previously been identified had occurred at the trial. The Supreme Court's leading precedent on this question, a case from 1995 called Schlup v. Delo, refers to this hurdle as a "gateway" through which an inmate must pass. It is, Justice Scalia said, "a very heavy burden" for the defense to meet.

Mr. House's lawyer, Stephen M. Kissinger, replied, "It is a high burden, and we don't shrink from it."

The court's focus, Mr. Kissinger said, should now be on "the effect of the entirety of the evidence on a reasonable juror" rather than on dissecting each disputed piece of evidence.

Mr. Kissinger, an assistant federal defender from Knoxville, Tenn., challenged Justice Scalia's description of the gateway. "It comes down to the 'could' and 'would' distinction," he said. "We don't deny that there is evidence that 'could' support conviction, but that's not the test. What 'would' a reasonable juror conclude? Proof of innocence does not have to be absolute."

Underlying this argument was the question of whether the courts should adjust their rules to take account of the recent string of exonerations based on DNA evidence. Briefs filed by the Innocence Project, a legal clinic in New York, and by the American Bar Association point out that the Supreme Court decided Schlup v. Delo and other cases limiting inmates' appeal rights before DNA testing had revealed flaws in a disturbing proportion of criminal convictions. Those flaws call for new flexibility, the briefs argue.

In this case, House v. Bell, No. 04-8990, the new DNA evidence alone did not produce a clear exoneration. Rather, it substantially undermined the prosecution's theory of the case, which was that sex was the motivation for the crime and that Mr. House had killed the victim in the course of raping her.

Chemical analysis presented at the trial suggested that Mr. House's semen was found on Ms. Muncey's clothing, while DNA testing later showed it to be her husband's. The state maintains that this new evidence does not disprove that Mr. House was guilty of the murder.

The defense theory was that the husband, Hubert Muncey, was the killer. The new legal team that represented Mr. House in his habeas corpus petition produced witnesses who testified that they had heard Mr. Muncey make a drunken confession, but the federal district court discounted the evidence in rejecting the petition in 1997.

Mr. Kissinger said that if the case passed through the gateway, he would argue that Mr. House was deprived of the effective assistance of counsel at his trial and that the state withheld favorable evidence it was constitutionally obliged to produce.

Representing Tennessee at Wednesday's argument, Jennifer L. Smith, an associate deputy state attorney general, said that all of Mr. House's new evidence "fails to raise sufficient doubt" about the original verdict to get past the gateway into federal court on those or any other claims.

Now it was Justice Breyer's turn. He challenged the state's lawyer on a long list of evidentiary issues, leading Justice Scalia to interject at one point, "We could call on these witnesses ourselves and hear them all over again."

Justice Breyer said, "My goodness, I don't know who committed this crime."

Only nominally addressing Ms. Smith, Justice Scalia said: "Justice Breyer has not heard these witnesses. The district court did."

Along with Justice Breyer, Justice David H. Souter expressed strong doubts about the state's case. Justice Anthony M. Kennedy said that "at a minimum," he had questions about the death sentence if not the conviction. Justices Ruth Bader Ginsburg and John Paul Stevens said little, but if they follow Justice Breyer's lead, as is likely, there would be five votes to reopen the case, even assuming that Justice Sandra Day O'Connor, who was uncharacteristically quiet, is no longer on the court by the time a decision is issued.

Justice O'Connor's vote proved essential in a decision the court issued in another death penalty case on Wednesday, the first 5-to-4 decision since John G. Roberts Jr. became chief justice. In Brown v. Sanders, No. 04-980, the court reinstated the death sentence of a California inmate whose habeas corpus petition had been granted by the federal appeals court in San Francisco.

The appeals court had overturned the sentence because two of the four factors the jury cited in making the defendant, Ronald L. Sanders, eligible for the death penalty were later found by the California Supreme Court to be invalid. Writing for the majority on Wednesday, Justice Scalia said there was no constitutional error in the sentence because the jury was able to give proper consideration to the same facts and circumstances through the remaining, valid factors.

Chief Justice Roberts and Justices O'Connor, Kennedy and Clarence Thomas joined the majority opinion. Justices Stevens, Breyer, Souter and Ginsburg dissented.

    A 1986 Case Could Aid Appeals Along Death Row, NYT, 12.1.2006, http://www.nytimes.com/2006/01/12/politics/politicsspecial1/12scotus.html

Top court upholds California death sentence

Wed Jan 11, 2006 11:39 AM ET
Reuters

WASHINGTON (Reuters) - A divided U.S. Supreme Court on Wednesday upheld the death sentence for a California man, even though two of the four special circumstances that the jury relied upon in finding him eligible for the death penalty were later found invalid.

It marked the first decision in a death penalty case and the first 5-4 ruling by the high court under new Chief Justice John Roberts, who joined the conservative majority in upholding the death sentence for Ronald Sanders.

Sanders was found guilty of murder, burglary and attempted robbery in connection with the 1981 bludgeoning death of Janice Allen during a drug-related robbery.

The jury found four special circumstances making Sanders eligible for the death penalty: the murder was committed during a robbery; it was committed during a burglary; the victim was killed because she witnessed a crime and to prevent her testimony; and the murder was especially heinous, atrocious or cruel.

The California Supreme Court later invalidated two of the circumstances -- that it was committed during a burglary and that it was especially heinous, atrocious or cruel. It ruled the other circumstances were sufficient to uphold the death sentence.

A federal appeals court disagreed, overturned the death sentence and said Sanders was entitled to a new sentencing.

Writing for the majority, Justice Antonin Scalia ruled the jury's consideration of an invalid special circumstance in the case resulted in no constitutional violation.

He said the remaining two circumstances were enough to make Sanders eligible for the death penalty.

Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer, the court's four most liberal members, dissented.

    Top court upholds California death sentence, R, 11.1.2006, http://today.reuters.com/news/newsArticle.aspx?type=domesticNews&storyID=2006-01-11T163906Z_01_DIT158292_RTRUKOC_0_US-COURT-EXECUTION-CALIFORNIA.xml

Serial Killer, Angry at Sentencing Delay, Stops Cooperating

January 11, 2006
The New York Times
By JEFFREY GETTLEMAN

NEWARK, Jan. 10 - The New Jersey nurse who confessed to killing 29 people and has spent nearly two years cooperating with investigators decided abruptly on Tuesday that he would no longer help them.

The nurse, Charles Cullen, 45, was so upset about his sentencing being canceled last week that he is pulling out of a carefully constructed plea deal in which he had agreed to help identify his victims in exchange for not facing the death penalty, his lawyer, Johnnie Mask, said.

The authorities said that his refusal to cooperate could mean that prosecutors will seek the death penalty. It could also mean that many mysterious hospital deaths will not be resolved, leaving family members to forever wonder if their loved ones died naturally or were murdered.

Mr. Cullen has told the authorities he killed up to 40 people, many of them old and ailing patients whom he injected with lethal doses of heart drugs. But he did not remember all their names. So investigators have been struggling to identify them and, until Tuesday, were working closely with Mr. Cullen, sifting through mountains of medical records in the effort to jog his memory to determine exactly whom he killed.

The cooperation may now be coming to an end because of a kidney. In a strange concession to coax Mr. Cullen to come to his own sentencing and face dozens of grieving family members, New Jersey authorities agreed in December to allow him to donate a kidney to an ailing friend, as long as the operation was performed after his sentencing. But last week the authorities delayed the sentencing indefinitely, saying they needed more time to investigate hospital deaths in Morris and Essex Counties that Mr. Cullen may have caused. Mr. Cullen lost his patience, his lawyer said, and decided he would no longer help investigators.

"The deal is off," Mr. Mask said. "He's done. No more cooperation. Period."

"Now it's on the prosecutors' shoulders whether somebody else dies," Mr. Mask added, referring to the man who is waiting for a kidney donation.

Peter C. Harvey, New Jersey's attorney general, called that notion "ridiculous" and said it was not the prosecutors' role to find a new kidney for Mr. Cullen's friend.

"Our job is to protect the victims," Mr. Harvey said.

He also said, "It's strange that all of a sudden this guy has become a humanitarian after killing 22 people in New Jersey."

Paula T. Dow, the prosecutor for Essex County, where Mr. Cullen has admitted to killing several people, said Mr. Cullen's refusal to cooperate was "a clear breach of the plea agreement" and that "it now exposes him" to being brought back to court to face trial and possibly the death penalty.

But the reality of his ever being executed, at least in New Jersey, is slim because the state has not put anyone to death since 1963, and this week the Legislature passed a temporary moratorium on capital punishment. However, Mr. Cullen has admitted to seven murders in Pennsylvania, which does have the death penalty.

The authorities said on Tuesday that they were not sure if Mr. Cullen's action was a ploy to speed up donation of the kidney, or if he truly intended not to cooperate ever again. They added that they were unsure of what they would do next.

The development was the latest twist in a long case that began in 1987 at St. Barnabas Medical Center in Livingston, N.J. Mr. Cullen had a history of mental illness and suicidal behavior and gravitated to the night shift, where he was known among colleagues as solitary and strange, with a cold bedside manner.

In 1993 he was accused of killing a 91-year-old woman with a single injection of digoxin, a powerful heart drug that became his weapon of choice. But somehow he slipped through the cracks of the medical system and went on to work at 10 places in New Jersey and eastern Pennsylvania before he was arrested in 2003.

In 2004, he struck a deal with the authorities in both states to plead guilty and cooperate in exchange for at least two consecutive life terms, which in New Jersey meant he would not be eligible for parole for 126 years. But in December, as sentencing approached, problems arose, partly because of a little-known procedural rule that allows a defendant to skip his sentencing. Mr. Cullen said he might do that and deny his victims' families a chance to confront him.

Now it is not clear what will happen, with some prosecutors saying Mr. Cullen will be dragged into court, no matter what, while others are not so sure.

    Serial Killer, Angry at Sentencing Delay, Stops Cooperating, NYT, 11.1.2006, http://www.nytimes.com/2006/01/11/nyregion/11nurse.html

DNA could prove executed Virginia man not guilty

Posted 1/5/2006 7:44 PM
USA Today

RICHMOND, Va. (AP) — Gov. Mark Warner on Thursday ordered DNA evidence retested to determine whether a man convicted of rape and murder was innocent when he was executed in 1992.

If the testing shows Roger Keith Coleman did not rape and kill his sister-in-law in 1981, it will be the first time in the United States a person has been exonerated by scientific testing after his execution, according to death penalty opponents.

Warner said he ordered the tests because of technological advances that could provide a level of forensic certainty not available in the 1980s.

Coleman was convicted and sentenced to death in 1982 for the murder of 19-year-old Wanda McCoy, his wife's sister, who was found raped, stabbed and nearly beheaded in her home in the coal mining town of Grundy.

The case drew international attention as the well-spoken Coleman pleaded his case on talk shows and in magazines and newspapers. Time magazine featured the coal miner on its cover. Pope John Paul II tried to block the execution. Then-Gov. L. Douglas Wilder's office was flooded with thousands of calls and letters of protest from around the world.

Coleman's attorneys argued that he did not have time to commit the crime, that tests showed semen from two men was found inside McCoy and that another man bragged about murdering her. Coleman was executed on May 20, 1992.

    DNA could prove executed Virginia man not guilty, UT, 5.1.2006, http://usatoday.com/news/nation/2006-01-05-1992-execution_x.htm

Schwarzenegger says no clemency hearing
for oldest man on California's death row

Wednesday, Jan. 4, 2006
AP
By DAVID KRAVETS AP Legal Affairs Writer
FindLaw

(AP) - SAN FRANCISCO-Gov. Arnold Schwarzenegger said Wednesday he would not hold a clemency hearing for Clarence Allen, who at age 75 is the oldest man on California's death row and is scheduled to be executed on Jan. 17.

Allen is asking Schwarzenegger for mercy because he uses a wheelchair, is deaf and blind and suffers from other medical conditions.

Schwarzenegger has not announced whether he would grant clemency to Allen and commute his death sentence to life without parole.

Schwarzenegger has previously denied clemency to three condemned prisoners since taking office two years ago, including Stanley Tookie Williams, the founder of the bloody Crips gang, whose supporters, including several Hollywood stars, argued that he had redeemed himself behind bars with memoirs, children's books and lectures against the dangers of gang life.

Williams was granted a private clemency hearing by Schwarzenegger. One of the other condemned prisoners was granted a public clemency hearing and the third was not afforded any hearing.

Last week, Schwarzenegger said he would not have a public clemency hearing for Allen, and on Wednesday said there would be no private one.

Allen was sentenced to death for hiring a hit man who murdered three people at a Fresno market in 1980. At the time, he was incarcerated for murder at Folsom State Prison.

Allen had the trio killed because he feared their testimony would hurt his chances of prevailing in his appeal of a murder conviction, prosecutors said.

The convicted hit man, Billy Ray Hamilton, also is on death row. Prosecutors said Hamilton was following Allen's orders when he killed Bryon Schletewitz, Douglas Scott White and Josephine Rocha.

Allen also is petitioning the California Supreme Court to block his execution, saying it would be unconstitutionally cruel because of his medical condition. Allen suffered a heart attack in September.

A majority of the state Supreme Court must back a decision granting clemency for Allen to prevail.

Allen is the oldest of the nearly 650 prisoners on death row in California.

2006-01-04T22:20:33Z

    Schwarzenegger says no clemency hearing for oldest man on California's death row, FindLaw, 4.1.2006, http://news.findlaw.com/ap/o/51/01-04-2006/1a94000ca280c05c.html