History > 2009 > USA > Justice > Death penalty (I)

Dennis J. Skillicorn

is scheduled for execution Wednesday

at the state prison in Bonne Terre, Mo.

Even some supporters of the death penalty

now question whether he should be killed.

Photograph:

Jeff Roberson/Associated Press

Executions Debated as Missouri Plans One

NYT

19.4.2009

http://www.nytimes.com/2009/05/19/us/19death.html 

Death Sentences Dropped,

but Executions Rose in ’09

December 18, 2009
The New York Times
By JOHN SCHWARTZ

More death row convicts were executed in the United States this year than last, but juries continue to grow more wary of capital punishment, according to a new report.

Death sentences handed down by judges and juries in 2009 continued a trend of decline for seven years in a row, with 106 projected for the year. That level is down two-thirds from a peak of 328 in 1994, according to the report being released Friday by the Death Penalty Information Center, a research organization that opposes capital punishment.

“This entire decade has been marked by a declining use of the death penalty,” said Richard Dieter, the executive director of the group.

The sentencing drop was most striking in Texas, which averaged 34 death sentences a year in the 1990s and had 9 this year. Vic Wisner, a former assistant district attorney in Houston, said a “constant media drumbeat” about suspect convictions and exonerations “has really changed the attitude of jurors.”

Mr. Wisner said that while polls showed continued general support for capital punishment, “there is a real worry by jurors of, ‘I believe in it, but what if we later find out it was someone else and it’s too late to do anything about it?’ ”

In 2005, Texas juries were given the option of sentencing defendants to life without parole.

While death sentences are in decline, executions rose in the past year, according to the new report. Fifty-two prisoners have been put to death in 2009, compared with 42 in 2007 and 37 in 2008.

The report also noted that in 2009 New Mexico became the 15th state to repeal the death penalty, in part because of budget considerations and the high cost of death penalty appeals, which Gov. Bill Richardson called “a valid reason” for eliminating the ultimate sanction “in this era of austerity and tight budgets.”

But Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, which supports capital punishment, argued that the decline in death sentences also corresponded to a decline in the murder rate, and criticized efforts to use cost arguments against the death penalty. The government could “knock a large chunk off of the cost” of execution by streamlining the review process, he said.

Douglas A. Berman, an expert on sentencing law at Ohio State University, suggested that the rise in executions was due to last year’s relatively low number, as states grappled with the implications of a major 2008 Supreme Court decision on lethal injection.

In that case, Baze v. Rees, the court ended what amounted to a moratorium of several months, beginning in 2007, on lethal injection executions by proclaiming that the procedure used in Kentucky and other states with similar methods did not violate the constitutional prohibition against cruel and unusual punishment.

This “post-Baze echo” in the figures, Mr. Berman said, can be seen in the execution in Ohio this month of Kenneth Biros. It came after a legal challenge to Ohio’s protocol, a botched execution under the state’s three-drug method for another prisoner, and a shift to a one-drug execution method. While other court challenges to lethal injection are proceeding around the country, he said, Ohio’s action suggests that “states are moving forward.”

Death Sentences Dropped, but Executions Rose in ’09, NYT, 18.12.2009, http://www.nytimes.com/2009/12/18/us/18death.html

New Execution Method Is Used in Ohio

December 9, 2009
The New York Times
By IAN URBINA

Ohio prison officials executed a death row inmate, Kenneth Biros, Tuesday with a one-drug intravenous lethal injection, a method never before used on a human.

The new method, which involved a large dose of anesthesia, akin to how animals are euthanized, has been hailed by most experts as painless and an improvement over the three-drug cocktail used in most states, but it is unlikely to settle the debate over the death penalty.

While praising the shift to a single drug, death penalty opponents argue that Ohio’s new method, and specifically its backup plan of using intra-muscular injection, has not been properly vetted by legal and medical experts and that since it has never been tried out on humans before, it is the equivalent of human experimentation.

But the United States Supreme Court refused to intervene on Tuesday morning, and the procedure went largely as planned.

Mr. Biros, 51, died at 11:47 a.m., holding a white scarf. The scarf, which symbolizes a blessing, was given to Mr. Biros by two Buddhist spiritual advisers that Mr. Biros had consulted in recent weeks.

Ohio became the first state to adopt the one-drug method after prison officials postponed an execution in September. During that execution attempt, they could not find a usable vein to inject three chemicals in the inmate, Romell Broom, 53, who was convicted of the 1984 abduction, rape and murder of a 14-year-old girl.

Mr. Biros was convicted of killing Tami Engstrom, 22, near Warren, in northeastern Ohio, in 1991 after offering to drive her home from a bar, then scattered her body parts in Ohio and Pennsylvania. He acknowledged killing her but said it was done during a drunken rage.

Ms. Engstrom’s mother, brother and sister attended the execution, as did one of Mr. Biros’s lawyers, John Parker, and two of Mr. Biros’s friends.

As Ms. Engstrom’s family members entered the prison Tuesday, a reporter asked if they were ready. “We’ve been ready for 18 years,” one of the Engstroms said, according to The Columbus Dispatch.

Shortly before the execution, Mr. Biros gave his personal belongings — seven CDs, an address book, a portable CD player, a rosary and a notebook — to his siblings.

It was the second trip to the holding cell for Mr. Biros, who spent a day and night there in March 2007 as his lawyers scrambled to halt his execution. The Supreme Court intervened that time because of challenges over the use of the three-drug cocktail.

Opponents of the death penalty have long argued that using a single drug is more humane than the three-drug cocktail, which involves a short-acting barbiturate to render the inmate unconscious, followed by a paralytic and then a chemical to stop the heart.

Still, death penalty opponents criticized the state for not allowing more time for closer scrutiny of the new protocol.

“The key is due process,” said Richard C. Dieter, executive director of the Death Penalty Information Center in Washington. He said that, for example, when New York introduced the electric chair in 1890, the case went to the Supreme Court, which decided that the punishment might be more humane than hanging.

“The court held that death row prisoner received due process because the New York Legislature had considered the punishment method carefully,” he added. “In this case, however, everyone has taken the Ohio Department of Corrections at their word, without an adversarial debate.”

Deborah W. Denno, a Fordham University law professor who is an expert on the death penalty and lethal injection, added that she believed the constitutionality of the new state protocol could be challenged if it is found not to be “substantially similar” to the three-drug method used by the state of Kentucky, which the court approved last year.

A federal judge in Ohio disagreed, however, and on Monday he denied a request from Mr. Biros to delay his execution until lawyers could conduct a review of the new protocol.

The judge, Gregory L. Frost of United States District Court, said that Mr. Biros had not demonstrated “at this juncture” that the new protocol is unconstitutional.

But the judge also said “It does not foreclose the possibility that additional evidence will indeed prove that the problems with Ohio’s policies and practice rise to a constitutional error.”

On Monday night, Mr. Biros’s lawyers filed an emergency request with the Supreme Court asking for his execution to be stopped.

Tim Sweeney, one of Mr. Biros’s lawyers, said that while the shift to a single-drug cocktail was a positive development, many concerns remained.

The state still relies on unqualified executioners who may not know how to find a usable vein, and the new protocol does not clearly set a limit on how long prison officials will keep sticking the patient with a needle if veins are collapsed before they transition to the backup plan, he said. The drug used in the backup plan has demonstrated side effects — nausea, vomiting, severe disorientation — which may make the experience more painful than prison officials realize, he added.

Mr. Biros was moved to the holding area for death row inmates about 15 feet from the death chamber at the Southern Ohio Correctional Facility in Lucasville on Monday morning, prison officials said.

In the afternoon, he had a snack of peanut butter and jelly sandwiches. At night, he was to be served a meal of cheese pizza, onion rings, fried mushrooms, Doritos chips, French onion dip, blueberry ice cream, cherry pie and Dr Pepper soda, they said.

On Tuesday, Mr. Biros received communion and seemed calm as he awaited his fate, prison officials said.

New Execution Method Is Used in Ohio, NYT, 9.12.2009, http://www.nytimes.com/2009/12/09/us/09ohio.html

Killer With Low I.Q. Executed in Texas

December 4, 2009
The New York Times
By JAMES C. McKINLEY Jr.

HOUSTON — Bobby Wayne Woods was executed Thursday evening in Texas after his lawyers lost a battle to persuade the courts that he was too mentally impaired to qualify for capital punishment.

Mr. Woods, 44, was convicted of raping and killing an 11-year-old girl in 1997. He received a lethal injection and was pronounced dead at 6:48 p.m. in the death chamber at a state prison in Huntsville, Tex., after the United States Supreme Court denied a request from his lawyers to stay his execution. His last words, at 6:40, were: “Bye. I am ready.”

Tests administered to Mr. Woods over the years placed his I.Q. between 68 and 86, prompting a bitter debate between his lawyers and the state over whether he was too impaired to face execution. The state and federal courts repeatedly sided with prosecutors.

The debate reflects the gray area left by the Supreme Court in 2002, when it ruled that the mentally impaired were not eligible for the death penalty but left it up to state courts to interpret which inmates qualified as impaired.

Mr. Woods’s lawyers argued that his intelligence scores were low enough that he should be spared because of the Supreme Court ban in Atkins v. Virginia. Maurie Levin, a University of Texas law professor who represented Mr. Woods, said in a pleading that “his I.Q. hovers around 70, the magical cutoff point for determining whether someone is mentally retarded.”

“He’s transparently childlike and simple,” she said before the execution. “It’s a travesty.”

In its 2002 ruling, the Supreme Court said that to demonstrate that someone is mentally retarded, one must prove that the person has had low I.Q. scores and a lack of fundamental skills from a young age. The court said a score on intelligence tests of “around 70” indicated mental retardation.

But that standard has been applied unevenly by state courts, according to a study by Cornell law professors. Some state courts in Alabama, Mississippi and Texas have held that inmates with scores as low as 66 are not impaired, while an inmate in California with a score of 84 was declared mentally retarded.

Courts in Texas repeatedly rejected Mr. Woods’s claims of impairment, although the state’s highest criminal court halted his execution last year to allow more hearings. That reprieve was lifted in October, and this week, the Texas Board of Pardons and Paroles voted unanimously to reject a clemency request.

As a child, Mr. Woods struggled in school and dropped out in the seventh grade. He was barely literate and had to copy words from a spelling list to write the simple notes he sent his family.

His intelligence was tested twice in grade school, and he received scores of 80 and 78, but defense lawyers argued that those scores should be adjusted downward to account for the age of the tests. As an adult, he was tested just before his trial and scored 70. A second full-scale test done in prison in 2002 showed him with an I.Q. of 68. He scored higher on two short-form tests.

Still, the Texas attorney general, Greg Abbott, argued in a motion before the Supreme Court that the only times Mr. Woods had scored under 70 was when the test was administered by an expert for the defense. He also pointed out that Mr. Woods had successfully held jobs as a short order cook and a roofer.

“The only experts to ever conclude that Woods was mentally retarded did so after he had committed this murder and had motivation to underperform,” Mr. Abbott wrote in his brief.

Mr. Woods was convicted of killing his former girlfriend’s daughter. A jury determined he had abducted the 11-year-old girl, Sarah Patterson, along with her brother, Cody, from the family’s home in Granbury, Tex.. The girl was raped before her throat was slit. The boy was severely beaten and left for dead, but he survived.

    Killer With Low I.Q. Executed in Texas, NYT, 4.12.2009, http://www.nytimes.com/2009/12/04/us/04execute.html

Inmate With Low I.Q.

Nears Execution in Texas

December 4, 2009
The New York Times
By JAMES C. McKINLEY Jr.

HOUSTON — A 44-year-man whose lawyers claim he is mentally retarded is scheduled to be executed Thursday evening in Huntsville, Tex., unless the United States Supreme Court agrees to hear his case.

The man, Bobby Wayne Woods, whose I.Q. hovers around the level of a mildly retarded person’s, was convicted of the brutal killing of an 11-year-old girl in 1997 and sentenced to death.

The debate over whether he should be executed reflects the gray area left by the Supreme Court in 2002, when it ruled the mentally impaired were not eligible for the death penalty but left it up to state courts to interpret which inmates qualified as impaired.

Mr. Woods’s lawyers argue that his intelligence scores are low enough that he should be spared because of the Supreme Court ban in Atkins v. Virginia. But several courts have rejected that claim.

Maurie Levin, a University of Texas law professor who represents Mr. Woods, said in a pleading that “his I.Q. hovers around 70, the magical cutoff point for determining whether someone is mentally retarded.”

“He’s transparently childlike and simple,” she said. “It’s a travesty.”

In its 2002 ruling, the Supreme Court said that to demonstrate that someone is mentally retarded, one must prove that the person has had low I.Q. scores and a lack of fundamental skills from a young age. The court said a score on intelligence tests of “around 70” indicated mental retardation.

But that standard has been applied unevenly by state courts, according to a study by Cornell law professors. Some state courts in Mississippi, Alabama and Texas have held that inmates with scores as low as 66 are not impaired, while an inmate in California with a score of 84 was declared mentally retarded.

Courts in Texas repeatedly rejected Mr. Wood’s claims of mental impairment, although the state’s highest criminal court last year halted his execution to allow more hearings on the matter. That reprieve was lifted in October and this week, the Texas Board of Pardons and Paroles voted unanimously to reject a clemency request.

As a child, Mr. Woods struggled in school and eventually dropped out in the seventh grade. He was barely literate and had to copy words from a spelling list to write the simple notes he sent his family.

His intelligence was tested twice in grade school, and he received scores of 80 and 78, but defense lawyers argued that those scores should be adjusted downward to account for the age of the tests. As an adult, he was tested just before his trial and scored 70. A second test done in prison in 2002 showed him with an I.Q. of 68.

Mr. Woods, 44, was convicted of killing his former girlfriend’s daughter in April 1997. A jury determined he had abducted the 11-year old girl, Sarah Patterson, along with her brother, Cody, from the family’s home in Granbury, Tex., about 35 miles southwest of Fort Worth. The girl was raped before her throat was slit. The boy was severely beaten and left for dead near a cemetery, but he survived.

The outcry in Hood County over the crime was so intense the trial was moved 125 away miles, to Llano County, where a jury voted to condemn Mr. Woods to death. At the trial, Cody Patterson identified Mr. Woods as the man who had kidnapped them and killed his sister. Genetic traces on the murder weapon were also linked to Mr. Woods.

Mr. Woods initially told the police he had killed the girl by accident — he said he was holding a knife to her throat to keep her quiet when she started to struggle and jerk. Later, he said, the confession had been coerced and he blamed the murder on a cousin, who hanged himself in the weeks after the abductions. Prosecutors claimed there was no evidence of a second man at the scene.

The prosecution also submitted Sarah’s diary to the jury, in which she professed hatred for Mr. Woods. Evidence was presented that the girl had been molested and had contracted a sexually transmitted disease that Mr. Woods also had.

The children’s mother, Schwanna Patterson, had kicked Mr. Woods out of her home just days before her children were attacked. She was convicted in 1998 of injury to her children though neglect, because, prosecutors said, she did nothing to stop the kidnapping. She served eight years in prison.

The question of Mr. Woods’s intelligence and whether he was mentally impaired did not come up during the trial.

The application of the Atkins rule varies widely from state to state. North Carolina courts, for instance, heard 21 Atkins claims and ruled in the inmate’s favor 17 times. Alabama courts heard 26 claims and ruled for the inmate three times.

    Inmate With Low I.Q. Nears Execution in Texas, NYT, 4.11.2009, http://www.nytimes.com/2009/12/04/us/04execute.html

Selective Empathy

December 3, 2009, 9:11 pm
The New York Times
By LINDA GREENHOUSE

Linda Greenhouse on the Supreme Court and the law.

In overturning a death sentence this week of a Korean War veteran whose lawyer failed to inform the jury about the man’s combat-related traumatic stress disorder, the Supreme Court drew cheers from veterans’ groups and death-penalty opponents. But it also raised a question:

Is selective empathy better than no empathy at all?

Related Series
Home Fires: Writing by Veterans »

The veteran, George Porter Jr., was 53 years old when, after a night of drinking, he shot his former girlfriend and her new lover to death. It was 1986, and the Korean War had been over for 33 years. Mr. Porter saw heavy combat in Korea, and his life when he came home was a mess. It was evidently a mess before Korea as well: he escaped his violent and abusive family by joining the Army at the age of 17.

Sentenced to death in 1988 by a Florida judge for one of the murders, Mr. Porter filed two rounds of unsuccessful appeals in the Florida courts. He then turned to the federal courts, seeking to overturn his sentence by means of a writ of habeas corpus. His claim was that his lawyer’s failure to inform the sentencing jury about his wartime experience and its aftermath fell below the Constitution’s minimum standards for adequate representation.

“Ineffective assistance of counsel” is an exceptionally difficult claim on which to succeed. The Supreme Court has found ineffective assistance only a handful of times since it raised the bar in a 1984 case, Strickland v. Washington. That decision requires defendants to prove two elements: that the lawyer’s performance “fell below an objective standard of reasonableness” and that there was a “reasonable probability” that the outcome would have been different if not for the bad lawyering.

The second prong is a special challenge for death-sentenced defendants, who must demonstrate that an adequate lawyer would have provided the sentencing jury with enough mitigating evidence to overcome the weight of the prosecution’s “aggravating evidence.” An abundance of aggravating evidence is often the reason the prosecution is seeking the death penalty in the first place.

When the ineffective-assistance claim is made in a habeas corpus petition in federal court, the bar is even higher. Under a 1996 federal law, the defendant must show that the state court’s decision was not simply mistaken on its own terms, but that it “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States” — in other words, that the state court had all but defied controlling Supreme Court precedent. The federal appeals court in Atlanta ruled that Mr. Porter was not entitled to habeas corpus because even if the Florida courts were wrong to regard his lawyer as adequate, they were not so wrong as to be unreasonably wrong.

That was the decision the Supreme Court overturned. It was “objectively unreasonable,” the justices said, to discount the possibility that a decent lawyer, presenting a convincing narrative of Mr. Porter’s military service and lingering trauma, could have persuaded the jury to spare his life. The court then provided such a narrative itself, with a vivid recitation of the battles Mr. Porter’s unit had fought “under extreme hardship and gruesome conditions.” The opinion observed that “our nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did.”

There were several notable features to this decision, Porter v. McCollum. The most obvious was that the 15-page opinion was unanimous and unsigned, labeled simply “per curiam,” meaning “by the court.” The court had not heard argument in the case and never formally accepted it for decision. Evidently the justices concluded that the right decision was so obvious that they could dispense with the formality of further briefing and argument.

Beyond those procedural niceties, the most notable feature of all was the sympathy that all nine justices displayed for a man who, in the fullness of his adulthood and after promising a friend that she would soon be reading about him in the newspaper, stole another friend’s gun and shot two people to death in cold blood.

Just last month, the same nine justices, also per curiam and also unanimously, sent chills down the spine of death-penalty opponents by overturning a different federal appeals court’s grant of habeas corpus to an Ohio death-row inmate who also claimed ineffective assistance of counsel. The inmate, Robert J. Van Hook, robbed and murdered a man he picked up in a gay bar. He is also a military veteran, but one whose service was terminated because of alcohol and drug abuse.

The appeals court found that his trial lawyer had conducted only a perfunctory, last-minute search for mitigating evidence, and failed to inform the jury of such “unsettling and potentially mitigating” details as the fact that Mr. Van Hook had a history of mental illness; that his parents had repeatedly beaten him; that his father tried to kill his mother several times in his presence; and that his mother was committed to a psychiatric hospital when he was a young child. Introducing this evidence “could certainly have tipped the scales in favor of his life,” the appeals court said in overturning the death sentence.

In its unsigned opinion reversing that decision, Bobby v. Van Hook, the Supreme Court parsed the evidence that was presented and concluded that the lawyer’s decision “not to seek more” fell “well within the range of professionally reasonable judgments.” The American Bar Association standards in effect at the time of trial required no more, the opinion said.

Justice Samuel A. Alito added a concurring paragraph to observe that the A.B.A. “is, after all, a private group with limited membership,” and its views should not be given “special relevance” in determining whether a lawyer’s performance meets constitutional standards.

The paragraph was not only gratuitous. It also was a chilling reminder of how the court has changed since the retirement of the justice whom Justice Alito replaced, Sandra Day O’Connor. In a 2003 majority opinion, Wiggins v. Smith, Justice O’Connor cited the bar association’s standards in concluding that a lawyer’s representation of a Maryland death-row inmate had been constitutionally deficient. William H. Rehnquist, then the chief justice, joined that opinion; only Justices Antonin Scalia and Clarence Thomas dissented.

Setting the Porter and the Van Hook cases side by side, what strikes me is how similarly horrific the two men’s childhoods were — indeed, how common such childhoods were among the hundreds of death-row inmates whose appeals I have read over the years and, I have to assume, among the 3,300 people on death row today. It is fanciful to suppose that each of these defendants had lawyers who made the effort to dig up the details and offer these sorry life stories to the jurors who would weigh their fate.

I don’t make that observation to excuse the crimes of those on death row, but only to underscore the anomaly of the mercy the court bestowed this week on one of that number. Am I glad that a hapless 77-year-old man won’t be put to death by the State of Florida? Yes, I am. Am I concerned about a Supreme Court that dispenses empathy so selectively? Also yes.

    Selective Empathy, NYT, 3.12.2009, http://opinionator.blogs.nytimes.com/2009/12/03/selective-empathy/

Justices Say Capital Cases Must Weigh War Trauma

December 1, 2009
The New York Times
By ADAM LIPTAK

WASHINGTON — A death penalty lawyer’s failure to present evidence of the trauma his client suffered in combat in the Korean War requires a new sentencing hearing, the Supreme Court ruled unanimously on Monday.

The decision makes clear that lawyers for clients facing the death penalty must present evidence of post-traumatic stress disorder resulting from military service if it is available.

The unsigned 15-page decision displayed unusual solicitude for a death-row inmate, noting that “our nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines.”

The defendant, George Porter Jr., was convicted in 1987 of murdering his former girlfriend, Evelyn Williams, and her boyfriend, Walter Burrows, in Melbourne, Fla., the previous year. Mr. Porter represented himself for part of his trial and then decided to plead guilty.

He turned to a court-appointed lawyer, Sam Bardwell, to represent him in the sentencing hearing. Mr. Bardwell, who had never represented a defendant in a capital sentencing proceeding, did not interview any of his client’s relatives and did not obtain any school, medical or military service records. He presented only one witness, Mr. Porter’s ex-wife.

Mr. Bardwell’s investigation, Monday’s decision said, was not “even cursory.” Mr. Bardwell has explained that his client had been fatalistic and uncooperative. He did not respond to a message seeking comment on Monday.

Mr. Bardwell’s conduct “did not reflect reasonable professional judgment,” the decision said. “Had Porter’s counsel been effective, the judge and jury would have learned,” among other things, “about Porter’s heroic military service in two of the most critical — and horrific — battles of the Korean War.”

At a 1995 state-court hearing on whether Mr. Porter was entitled to a new sentencing, his company commander testified about the “ horrifying experiences” Mr. Porter had endured, including a “fierce hand-to-hand fight with the Chinese” and a two-day battle in which his company suffered casualties of more than 50 percent.

“After his discharge,” the decision said, Mr. Porter “suffered dreadful nightmares and would attempt to climb his bedroom walls with knives at night.”

Florida state courts turned down Mr. Porter’s request for a new sentencing hearing. The state trial judge relied heavily on the fact that Mr. Porter had been absent without leave in both Korea and the United States, saying that reduced the value of Mr. Porter’s military service to “inconsequential proportions.”

A federal trial judge granted Mr. Porter a new sentencing hearing in 2007, but the United States Court of Appeals for the Eleventh Circuit, in Atlanta, reversed that decision, saying it would defer to the state rulings.

That was a mistake, the Supreme Court ruled on Monday in Porter v. McCollum, No. 08-10537. The Florida Supreme Court had “unreasonably discounted the evidence of Porter’s childhood abuse and military service,” the decision said.

“The relevance of Porter’s extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions,” the decision said, “but also that the jury might find mitigating the intense stress and emotional toll that combat took on Porter.”

    Justices Say Capital Cases Must Weigh War Trauma, NYT, 1.12.2009, http://www.nytimes.com/2009/12/01/us/01penalty.html

Sidebar

Bright Lines Blur in Juvenile Sentencing

November 24, 2009
The New York Times
By ADAM LIPTAK

WASHINGTON

The law is made up of rules and standards.

Here is an example of a rule, established by the Supreme Court in Roper v. Simmons in 2005: If you commit murder even hours before your 18th birthday, you cannot be put to death for your crime. The same killing a few hours later may be a capital offense. The court drew a bright-line rule at 18.

Here is an example of a standard, one proposed by Chief Justice John G. Roberts Jr. this month at Supreme Court arguments over whether juvenile offenders may be sentenced to life without the possibility of parole: Why not, the chief justice asked, interpret the Eighth Amendment’s ban on cruel and unusual punishment to require sentencing judges to consider the defendant’s age on a case-by-case basis?

“If you do have a case where it’s the 17-year-old who is one week shy of his 18th birthday and it is the most grievous crime spree you can imagine, you can determine that in that case life without parole may not be disproportionate,” Chief Justice Roberts said. “If it’s a less grievous crime and there is, for example, a younger defendant involved, then in that case maybe it is disproportionate.”

The lawyers in the two cases the court heard — one involving a rape committed at 13, the other an armed burglary at 16 — had at least two answers to the chief justice’s proposal. One was that it is too soon to tell at sentencing whether unformed teenagers will later change for the better. The other was that states already take age into account but do so in very different ways.

According to a report from researchers at Florida State University, just two states, Florida and Louisiana, have imprisoned 94 of the nation’s roughly 110 juvenile offenders sentenced to die in prison for crimes in which no one was killed.

But there is a third possible retort, one that draws on the Supreme Court’s 2002 decision in Atkins v. Virginia barring the execution of the mentally retarded. That sounds like a rule, in that it made an entire class of people categorically ineligible for the death penalty. But it turns out to be a standard.

Proving age is pretty straightforward, and inmates who were under 18 when they committed the crimes that sent them to death row promptly had their sentences commuted after the court’s decision in Roper. The Atkins decision, on the other hand, “has spawned extensive, intricate and bitterly contested litigation,” Carol S. Steiker and Jordan M. Steiker wrote in the DePaul Law Review last year.

The Supreme Court in Atkins said mental retardation requires proof of three things: “subaverage intellectual functioning,” meaning low IQ scores; a lack of fundamental social and practical skills; and that both conditions were present before age 18. The court said IQ scores under “approximately 70” typically indicate retardation.

How has this standard been applied in practice?

A new study from three law professors at Cornell, one that resonates with potential lessons for juvenile life without parole, shows that states making case-by-case determinations have taken wildly different approaches.

The study, conducted by John H. Blume, Sheri Lynn Johnson and Christopher Seeds, tried to collect all determinations concerning retardation in capital cases in the six years after Atkins, finding 234. That means about 7 percent of the nation’s roughly 3,200 death row inmates have claimed to be mentally retarded.

Nationwide, the claims have succeeded about 38 percent of the time. But state success rates vary widely.

North Carolina courts heard 21 Atkins claims and ruled in the inmate’s favor 17 times. Alabama courts heard 26 claims and ruled for the inmate 3 times.

Recall that the Supreme Court said an IQ of “approximately 70” should usually satisfy the first part of the test. In Alabama, Mississippi and Texas, four inmates with IQ scores of 66 and 67 were held not to be retarded. But in Pennsylvania, an inmate whose score ranged from 70 to 75 won an Atkins claim. In California, a score of 84 did the trick.

Professor Johnson said there was a lesson here.

“If you look at Atkins, which is supposed to be a categorical rule but has some play in the definitions, you get enormous pushback from the states that don’t want to do it,” she said. Were the court to adopt Chief Justice Roberts’s approach for juvenile life without parole, she added, “the problem of Atkins’s application would be greatly magnified.”

Yet there is an obvious appeal to the chief justice’s suggestion.

“If you go down on a case-by-case basis, there are no line-drawing problems,” he said at the arguments this month. “You just simply say age has to be considered as a matter of the Eighth Amendment.”

Justice Antonin Scalia objected. He had dissented in Atkins and Roper, and he was not brimming with sympathy for the two juvenile offenders in the cases before the court.

His problem with Chief Justice Roberts’s proposal was grounded in a preference for easily applied binary rules over mushy standards that give judges too much power.

“And then we apply a totality-of-the-circumstances test,” Justice Scalia said dismissively of the chief justice’s proposal, “which means, ‘whatever seems like a good idea.’ ”

    Bright Lines Blur in Juvenile Sentencing, NYT, 24.11.2009, http://www.nytimes.com/2009/11/24/us/24bar.html

D.C. sniper executed in Virginia

10 November 2009
USA TODAY
By Kevin Johnson
 

JARRATT, Va. — John Muhammad was executed Tuesday, seven years after carrying out sniper attacks that terrorized the nation's capital for weeks and left 10 people dead.

Muhammad, 48, died in five minutes at 9:11 p.m. from a lethal injection at the Greensville Correctional Center. He said nothing as relatives of his victims looked on behind mirrored glass.

One of those in attendance was Milton Perry, a co-worker of bus driver Conrad Johnson, 35, who was shot in the chest at a bus stop in Maryland.

"I'm here because Conrad was the real deal," he said.

BACKGROUND: Pending execution reopens victims' wounds

A Gulf War veteran and Muslim convert, Muhammad never revealed why he stalked and shot people getting gas or shopping at stores.

His accomplice, Lee Malvo, 24, said Muhammad hoped to extort $10 million from the government to set up a camp where children would be trained as terrorists.

The death penalty was ruled out for Malvo, who was 17 at the time of the murders and committed some of them, after the U.S. Supreme Court decided in 2005 that juvenile offenders cannot be executed.

For three weeks in October 2002, Muhammad and Malvo created panic in Washington and its suburbs.

Many fretted that the shootings were an al-Qaeda plot, coming as they did so close to the one-year anniversary of the Sept. 11 terror attacks. People avoided going outside and avoided self-serve gas stations.

Police got a break when they found Malvo's fingerprint at one of the shooting scenes and learned he was with Muhammad, and that Muhammad owned a blue Chevrolet Caprice. A truck driver spotted the car Oct. 22 at a highway rest stop in Maryland and police arrested the sleeping killers inside.

The car had been modified so someone could shoot from inside the trunk.

Muhammad and Malvo were convicted of six Maryland murders, for which they received life terms. In Virginia, a jury in 2003 sentenced Muhammad to death for the murder of Dean Harold Meyers, 53, killed while pumping gas at a Sunoco station in Manassas.

Defense lawyers argued that Muhammad was not mentally competent to stand trial. Courts disagreed.

Muhammad, divorced with five children, spent his final hours meeting with members of his family. He ate a last meal of chicken with red sauce.

His lawyer, Jon Sheldon, said that in the hours before his death Muhammad remained "obsessed in his belief that the government was conspiring against him because of his race."

    D.C. sniper executed in Virginia, 10.11.2009, http://www.usatoday.com/news/nation/2009-11-10-sniper_N.htm

Virginia Governor Will Not Stay Sniper Execution

November 11, 2009
The New York Times
By IAN URBINA

WASHINGTON — Gov. Tim Kaine of Virginia said he would not stay the scheduled execution Tuesday night of John Allen Muhammad, the man known as the D.C. Sniper whose murderous shooting spree in the fall of 2002 left at least 10 dead.

In a written statement on Tuesday, Mr. Kaine said: “I find no compelling reason to set aside the sentence that was recommended by the jury and then imposed and affirmed by the courts. Accordingly, I decline to intervene.”

On Monday, the Supreme Court refused to intervene in the case involving Mr. Muhammad, 48, who was sentenced to die for the killing of Dean H. Meyers, an engineer who was shot in the head at a gasoline station in Manassas, Va.

Mr. Meyers was one of 10 people killed in Maryland, Virginia and Washington over three weeks in October 2002. Mr. Muhammad’s accomplice, Lee Boyd Malvo, who was 17 at the time, was sentenced to life in prison without parole. The two are also suspected of fatal shootings in Alabama, Arizona and Louisiana.

The execution will bring to a close a case that has fixated the region ever since local residents were gunned down while doing the most mundane tasks, like shopping or pumping gas. The random nature of the shootings left people fearful and led many to remain indoors as much as possible to avoid becoming a target.

When the police announced that witnesses had reported having spotted white box trucks near the sniper shootings, the public became obsessed with the ubiquitous work vehicles and a sense of panic often beset anyone sitting at an intersection near the trucks. After a teenager was shot outside his Maryland school, local officials decided to keep schoolchildren inside at recess and they began drilling on duck-and-cover techniques.

Mr. Muhammad’s execution will also end a hard-fought legal battle.

His current lawyers lodged a last set of emergency appeals with the Supreme Court last week, arguing that Mr. Muhammad suffers from severe mental illness and brain damage, caused partly by childhood beatings. The lawyers have also argued that the case has moved too quickly.

While the Supreme Court did not comment in refusing to hear Mr. Muhammad’s appeal, three justices objected to the relative haste accompanying the execution.

Justice John Paul Stevens complained that “under our normal practice,” Mr. Muhammad’s petition for the court to take his case would have been discussed at the justices’ conference scheduled for Nov. 24. But because Virginia scheduled the execution for Tuesday, the judicial process was rushed, Justice Stevens said in a statement joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.

Justice Stevens wrote that he did not disagree with the majority’s decision to decline the case. However, in declining to stay the execution, he said, “we have allowed Virginia to truncate our deliberative process on a matter — involving a death row inmate — that demands the most careful attention.”

After Mr. Muhammad was sentenced to death in Virginia for shooting Mr. Meyers, Maryland prosecutors arranged to have him tried again for the six murders in Montgomery County. At that trial, Mr. Malvo, who is now 24, testified at length. Throughout both trials and a number of subsequent appeals, Mr. Muhammad continued to profess his innocence.

A soldier-turned-auto-mechanic, Mr. Muhammad held a deep grudge against his ex-wife and society. During the Maryland trial, Mr. Malvo testified that the intent of their shooting spree was to create havoc to cover for Mr. Muhammad’s plans to kidnap his three children.

The longer-term goal, Mr. Malvo said, was to extort law enforcement to stop the shootings, after which Mr. Muhammad would take the money and move to Canada with Mr. Malvo and his three children. There, Mr. Malvo said, Mr. Muhammad planned to create a training ground for 140 young homeless men whom he would send out to wreak similar havoc and to “shut things down” in cities across the United States.

Although Governor Kaine, a Democrat, has said in the past that he is personally opposed to the death penalty, he has allowed a number of executions to take place since he took office in 2006. Virginia has the nation’s second-busiest death chamber, behind Texas.

Prison officials said the execution process will begin around 8:30 p.m. at Greensville Correctional Center, a state prison in Jarratt. An execution team will strap Mr. Muhammad to a gurney, attach him to a heart monitor and connect an intravenous catheter to each arm.

Prison officials will then open a curtain so witnesses in an adjoining room can watch the proceedings. Shortly after 9 p.m., the executioners will inject Mr. Muhammad with a series of chemicals, ending with a fatal dose of potassium chloride, according to prison officials.

Under Virginia law, a prisoner is allowed to choose the method by which he or she will be put to death — either lethal injection or the electric chair. Because Mr. Muhammad declined to select a method, by law he will receive a lethal injection.

    Virginia Governor Will Not Stay Sniper Execution, NYT, 11.11.2009, http://www.nytimes.com/2009/11/11/us/11sniper.html

D.C. Sniper Is to Be Executed on Tuesday

November 10, 2009
The New York Times
By DAVID STOUT

WASHINGTON — The Supreme Court on Monday declined to block the execution of John A. Muhammad, the sniper who terrorized the Washington area seven years ago. The step cleared the way for Mr. Muhammad to be put to death on Tuesday unless Gov. Tim Kaine of Virginia intervenes.

The court did not comment in refusing to hear Mr. Muhammad’s appeal, but three justices objected to the relative haste accompanying the execution.

Justice John Paul Stevens complained that “under our normal practice,” Mr. Muhammad’s petition for the court to take his case would have been discussed at the justices’ conference scheduled for Nov. 24. But because Virginia scheduled the execution for Tuesday, the judicial process was rushed, Justice Stevens said in a statement joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.

Justice Stevens wrote that, having reviewed Mr. Muhammad’s argument, he did not disagree with the majority’s decision to decline the case. Nevertheless, he said, because the court declined to stay the execution, “we have allowed Virginia to truncate our deliberative process on a matter — involving a death row inmate — that demands the most careful attention.”

The United States Court of Appeals for the Fourth Circuit, in Richmond, Va., upheld the death sentence three months ago. In rejecting Mr. Muhammad’s appeal, that federal panel said it was “unable to find reversible error in the conclusions of the state and district courts.”

Unless Mr. Kaine stops the execution, Mr. Muhammad, 48, will be given a lethal injection on Tuesday night for the killing of Dean H. Meyers, an engineer who was shot in the head at a gas station in Manassas, Va.

Mr. Meyers was one of 10 people killed in Maryland, Virginia and Washington over three weeks in October 2002. Mr. Muhammad’s accomplice, Lee B. Malvo, who was 17 at the time, was sentenced to life in prison without parole. The two are also suspected of fatal shootings in Alabama, Arizona and Louisiana.

Mr. Kaine has promised to review Mr. Muhammad’s request but has signaled that he is not inclined to intervene.

The governor has said he is personally opposed to the death penalty, but he has allowed a number of executions to take place since he took office in 2006. Virginia has the nation’s second-busiest death chamber, behind Texas.

The jurors who convicted Mr. Muhammad in November 2003 cited the defendant’s apparent lack of remorse in deciding to impose the death penalty.

    D.C. Sniper Is to Be Executed on Tuesday, NYT, 10.11.2009, http://www.nytimes.com/2009/11/10/us/10sniper.html

One Reporter’s Lonely Beat, Witnessing Executions

October 21, 2009
The New York Times
By RICHARD PÉREZ-PEÑA

Of all the consequences of shrinking newsrooms, one of the oddest is this: Fewer journalists are available to watch people die. But Michael Graczyk has witnessed more than 300 deaths, and many of those were people he had come to know.

An Associated Press reporter based in Houston, Mr. Graczyk covers death penalty cases in Texas, the state that uses capital punishment far more than any other, and since the 1980s, he has attended nearly every execution the state has carried out — he has lost track of the precise count. Whenever possible, he has also interviewed the condemned killers and their victims’ families.

What makes his record all the more extraordinary is that often, Mr. Graczyk’s has been the only account of the execution given to the world at large. Covering executions was once considered an obligatory — if often ghoulish — part of what a newspaper did, like writing up school board meetings and printing box scores, but one by one, such dutiful traditions have fallen away.

A generation ago, he had plenty of company from other journalists at the prison at Huntsville, about an hour’s drive north of Houston, where executions in Texas are carried out. But then Texas executions went from rare to routine, and shrinking news organizations found it harder to justify the expense of what was, from most parts of the state, a long trip.

“There are times when I’m the only person present who doesn’t have a stake in the outcome,” he said.

Seeing inmates in the death chamber, strapped to a gurney and moments away from lethal injections, he has heard them greet him by name, confess to their crimes for the first time, sing, pray and, once, spit out a concealed handcuff key. He has stood shoulder to shoulder with other witnesses who stared, wept, fainted, turned their backs or, in one case, exchanged high-fives.

No reporter, warden, chaplain or guard has seen nearly as many executions as Mr. Graczyk, 59, Texas prison officials say. In fact, he has probably witnessed more than any other American. It could be emotionally and politically freighted work, but he takes it with a low-key, matter-of-fact lack of sentiment, refusing to hint at his own view of capital punishment.

Given a choice between the death chamber’s two viewing rooms, he usually chooses the one for the victim’s family rather than the side for the inmate’s, partly “because I can get out faster and file the story faster.”

“My job is to tell a story and tell what’s going on, and if I tell you that I get emotional on one side or another, I open myself to criticism,” he said.

The A.P. attends every execution, a policy that newspapers around the state encourage.

“Our staff is half the size it was three years ago, and so it’s just much more difficult to send somebody,” said Jim Witt, executive editor of The Fort Worth Star-Telegram. “But we know we can depend on The A.P., so I can send my reporters to something else.”

Newspapers sometimes use The A.P.’s reporting rather than their own — or they do not cover the executions at all. What was once a statewide story has become of strictly local interest.

A few papers, like The Houston Chronicle, still routinely cover executions in cases from their home counties, but not those from other parts of the state. Only one paper regularly covers executions no matter which part of the state the cases come from: The Huntsville Item, a small publication based near the prison.

This year, the state has put to death five inmates in cases from Tarrant County, which includes Fort Worth. The Star-Telegram covered one, wrote about two other cases in the days before the executions, and on the remaining two did not publish any articles, either its own or The A.P.’s.

“It depends on whether the crime was particularly newsworthy,” Mr. Witt said.

This year, a case from El Paso County resulted in an execution for that county for the first time in 22 years, but rather than send a reporter to Huntsville, some 650 miles away, The El Paso Times quoted extensively from Mr. Graczyk’s report.

“We actually put in to attend that one, and we were granted a spot, but when the editors explained the case to me, and the local connection was minimal, I said it wasn’t a compelling enough case,” said Chris V. Lopez, editor of The Times.

He said the expense of traveling to Huntsville was not a major consideration, but “it has to be a case that has a lot of local impact,” adding that the paper plans to attend a scheduled execution in a more prominent case.

Mr. Graczyk, who also writes on a wide range of other topics, developed his unusual specialty in the mid-1980s, a few years after Texas resumed executions after a long hiatus. He often covers the crimes, the trials and the appeals, immersed in details so gruesome it is hard to imagine they are real.

At first there were just a handful of executions each year, but the pace of capital punishment in Texas stepped up sharply through the next decade. The state has put 441 inmates to death since 1982, more than the next six states combined. That includes 334 since the start of 1997, a period in which Texas accounted for 41 percent of the national total.

“The act is very clinical, almost anticlimactic,” Mr. Graczyk said. “When we get into the chamber here in Texas, the inmate has already been strapped to the gurney and the needle is already in his arm.”

Witnesses are mostly subdued, he said, and while “some are in tears, outright jubilation or breakdowns are really rare.”

They stand on the other side of a barrier of plexiglass and bars, able to hear the prisoner through speakers. And the only sound regularly heard during the execution itself, is of all things, snoring. A three-drug cocktail puts the inmate to sleep within seconds, while death takes a few minutes. Victims’ family members often remark that the killer’s death seems too peaceful.

But before the drugs flow, the inmate is allowed to make a last statement, giving Mr. Graczyk what even he acknowledges are some lasting, eerie memories.

One inmate “sang ‘Silent Night,’ even though it wasn’t anywhere near Christmas,” Mr. Graczyk said. “I can’t hear that song without thinking about it. That one really stuck with me.”

    One Reporter’s Lonely Beat, Witnessing Executions, NYT, 21.10.2009, http://www.nytimes.com/2009/10/21/business/media/21execute.html

Texas Governor: Executed Inmate Was 'a Monster'

October 15, 2009
Filed at 12:43 a.m. ET
The New York Times
By THE ASSOCIATED PRESS


AUSTIN, Texas (AP) -- A man put to death in 2004 for killing his three children was ''a monster,'' and suggestions that he may have been innocent are anti-death penalty propaganda, Gov. Rick Perry said Wednesday.

Cameron Todd Willingham's convictions were upheld several times before he was put to death, and recent media reports looking into whether Willingham may have been innocent glossed over evidence that showed he murdered his children, Perry told reporters after addressing Texas Association of Realtors members at a luncheon.

''Willingham was a monster. He was a guy who murdered his three children, who tried to beat his wife into an abortion so that he wouldn't have those kids. Person after person has stood up and testified to facts of this case that quite frankly you all aren't covering,'' Perry said.

Willingham was convicted of capital murder for the 1991 deaths of his children, 2-year-old Amber and 1-year-old twins Karmon and Kameron. Prosecutors said he set fire to the family's Corsicana home while the children were inside.

Forensic scientists have called into question arson evidence used to convict Willingham, who maintained his innocence until his death. John Jackson, the Navarro County prosecutor who argued the case, still believes Willingham is guilty, but acknowledges it would have been hard to win a death sentence without the arson finding.

The governor has been criticized for replacing members of the Texas Forensic Science Commission just before they were to review a new report critical of the arson science used to convict Willingham. If the evidence ultimately proves Willingham did not kill his children, it would be the first known wrongful execution in Texas.

Perry dismissed suggestions he was trying to influence the commission's findings, calling the commission members' replacement a matter of ''process.'' He said capable new members of the panel will move forward with the investigation.

Sen. Kay Bailey Hutchison, Perry's rival for the Republican nomination for governor in 2010, has said that while she supports the death penalty, she disagrees with Perry's decision to replace the commission members.

She told The Associated Press on Wednesday in Houston that Perry should have allowed the panel's investigation to go forward to ensure that Willingham was in fact guilty.

''I don't have the facts. I'm not taking up for Mr. Willingham because I have no idea. I'm taking up for the process, for the criminal justice system in our state,'' Hutchison said.

Hutchison, repeating a point her campaign has been pressing for days, said Perry's actions were heavy-handed, much like his decision to replace appointees on university regent boards who didn't back him.

''I think the majority of Texans believe the death penalty is an appropriate punishment for the crimes that are the state law for the death penalty. I think every one of the people who believe in the death penalty would want to know we are using DNA evidence and the best technology in all the fields to determine if a person is rightfully convicted,'' Hutchison said.

Hutchison's campaign issued a statement saying Perry's handling of the commission has given liberals ammunition to discredit the death penalty.

A state fire marshal, now deceased, and a local fire investigator ruled the Willingham case was arson. The investigator stands by the findings.

But a Baltimore-based arson expert hired by the Forensic Science Commission to study the case, Craig Beyler, concluded that the arson findings were not scientifically supported and that investigators at the scene had ''poor understandings of fire science.''

Beyler blasted Perry late Wednesday, accusing the governor of ''unethical'' behavior in the case, The Dallas Morning News reported. Beyler said via e-mail that the governor had a conflict of interest because he approved Willingham's execution.

''His failure to recuse himself is both unethical and injurious to the cause of justice,'' Beyler wrote in a note intended for the Forensic Science Commission and forwarded to several reporters with his permission.

Beyler, a contractor to the state commission, called on the new appointees to step down and seek the reinstatement of the people they replaced. He could not be reached to elaborate, the newspaper reported.

Perry's spokeswoman, Allison Castle, said the comments called into question Beyler's report and his motives.

''This statement demonstrates that he was never an objective scientist looking only at forensic facts,'' Castle said. ''He clearly had another agenda.''

Perry said he wanted to remind the public of all the facts in the case, not ''one piece of study that everyone is glomming onto and saying 'Ah-ha.'''

''Getting all tied up in the process here frankly is a deflection of what people across this state and this country need to be looking at,'' Perry said.

At trial, Willingham's wife, Stacy, testified for him during the punishment phase, denying he ever hurt her. Acquaintances, however, said she told them he'd beaten her several times, even while she was pregnant.

The commission doesn't have the power to rule on Willingham's guilt or innocence, but was expected to release a report next year on the validity of the arson investigation.

------

Michael Graczyk reported from Houston.

    Texas Governor: Executed Inmate Was 'a Monster', NYT, 15.10.2009, http://www.nytimes.com/aponline/2009/10/15/us/AP-US-Texas-Governor-Death-Penalty.html

In Aftermath of Failed Execution, Ohio Governor Orders Postponement of 2 Others

October 6, 2009
The New York Times
By BOB DRIEHAUS

CINCINNATI — In continuing fallout from a failed execution last month, Gov. Ted Strickland on Monday postponed two other executions to give corrections officials more time to revise lethal injection procedures.

The announcement came just hours after a federal appeals court indefinitely delayed one of those executions, which had been scheduled for Thursday, because of similar concerns about procedures.

The state is looking into backup procedures in case the standard execution techniques fail, as they did on Sept. 15, when technicians at the state prison in Lucasville tried for over two hours to maintain an intravenous connection in order to inject Romell Broom with lethal drugs for the abduction, rape and murder of a teenage girl in 1984. A hearing to consider whether Mr. Broom can be executed in conformity with constitutional requirements is scheduled for Nov. 30.

“More research and evaluation of backup or alternative procedures is necessary before one or more can be selected,” Mr. Strickland said in his order.

The state expects to have backup procedures in place in time to execute another inmate, Kenneth Biros, on Dec. 8, he said.

A federal appeals court panel in Cincinnati voted 2 to 1 on Monday morning to delay the execution of Lawrence R. Reynolds Jr., 43, who was convicted of the 1994 killing of a woman in the Cleveland area.

The Ohio Supreme Court rejected a similar appeal last week, but the majority on the panel of United States Court of Appeals for the Sixth Circuit said the failed execution of Mr. Broom, coupled with the troubled executions of two other inmates since 2006, raised important questions about Ohio’s protocols and its ability to carry them out effectively.

Richard Cordray, the state attorney general, appealed to the United States Supreme Court on Monday to overturn the stay, arguing that it undercut Ohio’s authority to respond to problems with executions.

“The panel majority’s issuance of a stay to Reynolds, based merely on the possibility that ‘something could go wrong,’ in accessing his veins, effectively amounts to a judicially imposed moratorium on Ohio’s death penalty,” the appeal said.

In a statement issued late Monday, Mr. Cordray said the appeal would continue despite the governor’s decision to postpone the executions.

Mr. Reynolds’s execution was rescheduled for March 9, 2010. The execution of Darryl Durr was postponed to April 20, 2010, from Nov. 10. He was convicted of the kidnap, rape and murder of a 16-year-old girl in 1988.

Douglas A. Berman, an Ohio State University law professor and death penalty expert, agreed that the appellate ruling amounted to a moratorium, which compelled the state to appeal.

“The stakes are not just preserving this execution date but whether they can continue to administer the death penalty over the next few months,” Professor Berman said.

    In Aftermath of Failed Execution, Ohio Governor Orders Postponement of 2 Others, NYT, 6.10.2009, http://www.nytimes.com/2009/10/06/us/06ohio.html

Texas Governor Defends Shakeup of Commission

October 2, 2009
The New York Times
By JAMES C. McKINLEY Jr.

HOUSTON — Just before he was executed in 2004 for setting a fire that killed his three children, Cameron T. Willingham declared, “I am an innocent man convicted of a crime I did not commit.” Now his words seem to be echoing in the race for governor of Texas.

In what some opponents say looks like a political move and Gov. Rick Perry says was “business as usual,” the governor replaced the head of the Texas Forensic Science Commission and two other members on Wednesday, just 48 hours before the commission was to hear testimony from an arson expert who believes that Mr. Willingham was convicted on faulty testimony, a conclusion that has been supported by other experts in the field.

Mr. Perry’s decision to shake up the commission and put one of his political allies in charge has, at the least, delayed the inquiry into the Willingham case. While Mr. Perry says he has no political motive for the move, his opponents have called for the commission to finish its inquiry.

“If a mistake was made in this case, we need to know it,” Tom Schieffer, a Fort Worth businessman and a Democratic candidate for governor, said in a statement. “No one in public life should ever be afraid of the truth.”

Mr. Perry’s opponent in the Republican primary, Senator Kay Bailey Hutchison, also questioned what harm the hearing could do. “I am for the death penalty,” Ms. Hutchison told The Dallas Morning News, “but always with the absolute assurance that you have the ability to be sure, with the technology that we have, that a person is guilty.”

Mr. Perry denied Thursday that the changes he had made at the commission were intended to quash the investigation. At a news conference for his re-election campaign, he said, “Those individuals’ terms were up, so we’re replacing them.”

He said the commission was “going to take a look at any new information that anybody has,” adding that “to make a statement now that it was not arson is a little premature.”

The governor was in office when Mr. Willingham was executed on Feb. 17, 2004. He denied the condemned man a reprieve even after a detailed report by an arson expert said the evidence that Mr. Willingham had set the fire was flimsy and inconclusive.

Last month, Mr. Perry expressed confidence that Mr. Willingham was guilty and played down reports casting doubt on the original investigation, calling the authors “supposed experts,” while making a quotes gesture with his fingers.

Mr. Perry, facing the primary challenge from Ms. Hutchison, has been working to shore up his support among conservatives, who usually decide the Republican primary here.

Mr. Willingham, an unemployed auto mechanic with a history of petty crime, was convicted of setting his house in Corsicana on fire in 1991. His three small daughters died in the blaze, and he maintained right up to his death that he had tried to save them. The police doubted his story partly because his bare feet had not been burned.

Local arson investigators testified at his trial that, judging by the charring and fracture patterns of broken glass left by the blaze, someone had poured a flammable liquid under the children’s beds, along the hallway and out the front door. The jury took less than an hour to convict Mr. Willingham.

In 2004, however, Gerald L. Hurst, an Austin scientist and fire investigator working in Mr. Willingham’s behalf, reviewed the evidence and determined the investigators had relied on several outdated and discredited methods to reach their conclusions. Most of the evidence could be explained by an accidental fire, Dr. Hurst said.

That conclusion was confirmed six weeks ago by an independent arson expert hired by the Forensic Science Commission, which was created in 2005 to investigate mistakes in crime laboratories after scandals rocked the one in Houston. The expert, Craig L. Beyler, of Baltimore, said in his August report that “the investigators had a poor understanding of fire science” and that the evidence they cited did not support a finding of arson.

Mr. Beyler was to testify before the commission in Dallas on Friday. But the newly appointed chairman, John M. Bradley, the district attorney in Williamson County, canceled the hearing, saying he did not know enough about the inquiry. “I felt I had been asked to take a final exam without having an opportunity to study for it,” he said.

Mr. Bradley said he did not know if he would continue the inquiry into the Willingham conviction that his predecessor had started. He said he wanted to consult with the lawmakers who created the commission about its mission.

The former chairman, Sam Bassett, an Austin lawyer whom Mr. Perry had twice appointed to the commission — and could have reappointed — said the governor had not told him why he was replaced. Mr. Bassett said he had hoped to produce a definitive report on the case by next spring.

“I hope they continue and complete the Willingham investigation,” he said. “It’s important for the future of criminal justice in Texas to make sure good science is being used in the courtroom.”

    Texas Governor Defends Shakeup of Commission, NYT, 2.10.2009, http://www.nytimes.com/2009/10/02/us/02texas.html

Va. Gov: No Reason to Stop Sniper Execution

September 29, 2009
Filed at 12:52 p.m. ET
The New York Times
By THE ASSOCIATED PRESS

RICHMOND, Va. (AP) -- Virginia Gov. Timothy M. Kaine said Monday he can't think of any reason he would stop the execution of Washington, D.C.-area sniper John Allen Muhammad.

Muhammad is scheduled to be executed Nov. 10 for the October 2002 killing spree that left 10 dead in the nation's capital, Virginia and Maryland.

''I know of nothing in this case now that would suggest that there is any credible claim of innocence or that there was anything procedurally wrong with the prosecution,'' Kaine said on his monthly call-in radio show on WTOP.

Kaine said he would review Muhammad's petition for clemency when he gets it.

Muhammad attorney Jon Sheldon said there were ''huge procedural errors in the case'' that he plans to raise in the clemency petition he expects to file in mid-October, and other issues he'll raise in a motion with the U.S. Supreme Court in early November.

Muhammad was sentenced to death for the slaying of Dean Meyers, who was shot at a Manassas gas station. Myers was one of 10 people killed over a three-week period in 2002 by Muhammad and his teenage accomplice Lee Boyd Malvo. Malvo is serving a life sentence.

In August, a three-judge panel of the 4th U.S. Circuit Court of Appeals unanimously rejected Muhammad's claims that prosecutors withheld critical evidence and that Muhammad should not have been allowed to act as his own attorney for part of his trial.

Muhammad made his own opening statement and questioned 18 witnesses before turning his defense over to court-appointed attorneys. During oral arguments in May, Sheldon argued that Muhammad's trial lawyers failed to tell the judge that he was too mentally impaired to represent himself.

Muhammad also claimed prosecutors withheld thousands of pages of documents that could have helped him, including ballistics reports, witness interviews and an FBI profiler's report that the shootings probably were the work of a lone gunman.

Judge Roger Gregory wrote in the opinion that the court did not condone the state's actions, adding that the prosecution should err on the side of disclosure -- especially when the defendant is facing a possible death sentence.

''Yet, at this stage of the criminal process, we deal only with actions that were clear violations of the Constitution. While not admirable, the Commonwealth's actions did not violate the Constitution,'' Gregory wrote.

Sheldon said death shouldn't be allowed because of fuzziness between the degrees of constitutional violation.

''So not only was it improper, but it apparently was likely a violation of the constitution, just not a 'clear violation,''' he said in an e-mail to The Associated Press. ''I'd call that affirming a death sentence on a technicality.''

Kaine usually does not act on clemency petitions until after the courts have denied a condemned inmate's request.

Kaine, a Roman Catholic, is opposed to the death penalty, but has allowed nine executions and commuted one sentence since he took office in 2006. Virginia has the nation's second busiest death chamber behind Texas.

    Va. Gov: No Reason to Stop Sniper Execution, NYT, 29.9.2009, http://www.nytimes.com/aponline/2009/09/29/us/AP-US-Sniper-Execution.html

Editorial

High Cost of Death Row

September 28, 2009
The New York Times

To the many excellent reasons to abolish the death penalty — it’s immoral, does not deter murder and affects minorities disproportionately — we can add one more. It’s an economic drain on governments with already badly depleted budgets.

It is far from a national trend, but some legislators have begun to have second thoughts about the high cost of death row. Others would do well to consider evidence gathered by the Death Penalty Information Center, a research organization that opposes capital punishment.

States waste millions of dollars on winning death penalty verdicts, which require an expensive second trial, new witnesses and long jury selections. Death rows require extra security and maintenance costs.

There is also a 15-to-20-year appeals process, but simply getting rid of it would be undemocratic and would increase the number of innocent people put to death. Besides, the majority of costs are in the pretrial and trial.

According to the organization, keeping inmates on death row in Florida costs taxpayers $51 million a year more than holding them for life without parole. North Carolina has put 43 people to death since 1976 at $2.16 million per execution. The eventual cost to taxpayers in Maryland for pursuing capital cases between 1978 and 1999 is estimated to be $186 million for five executions.

Perhaps the most extreme example is California, whose death row costs taxpayers $114 million a year beyond the cost of imprisoning convicts for life. The state has executed 13 people since 1976 for a total of about $250 million per execution. This is a state whose prisons are filled to bursting (unconstitutionally so, the courts say) and whose government has imposed doomsday-level cuts to social services, health care, schools and parks.

Money spent on death rows could be spent on police officers, courts, public defenders, legal service agencies and prison cells. Some lawmakers, heeding law-enforcement officials who have declared capital punishment a low priority, have introduced bills to abolish it.

A Republican state senator in Kansas, Carolyn McGinn, pointed out that her state, which restored the death penalty in 1994, had not executed anybody in more than 40 years. In February, she introduced a bill to replace capital punishment with life without parole. The bill gained considerable attention but stalled. Similar arguments were made, unsuccessfully, in states such as New Hampshire and Maryland. Colorado considered a bill to end capital punishment and spend the money saved on solving cold cases. But this year, only New Mexico went all the way, abolishing executions in March.

If lawmakers cannot find the moral courage to abolish the death penalty, perhaps the economic case will persuade them to follow the lead of New Mexico.

    High Cost of Death Row, NYT, 28.9.2009, http://www.nytimes.com/2009/09/28/opinion/28mon3.html

Texas Panel Reviews Ruling That Led to Execution

September 26, 2009
Filed at 1:21 p.m. ET
The New York Times
By THE ASSOCIATED PRESS

CORSICANA, Texas (AP) -- More than five years after Cameron Todd Willingham offered a profanity-filled tirade as his final act from the Texas death chamber, his murder case refuses to die.

Willingham was executed in 2004 for the deaths of his three young daughters in a 1991 fire at their Corsicana home.

An arson finding by investigators was key to his conviction.

The Innocence Project, which investigates possible wrongful convictions, questioned Willingham's guilt. Now the Texas Forensic Science Commission will review a report Friday from an expert it hired who concluded the arson ruling was faulty.

Willingham's prosecutor still believes in Willingham's guilt. But Innocence Project co-director Barry Scheck says there's no longer any doubt an innocent person was executed.

    Texas Panel Reviews Ruling That Led to Execution, NYT, 26.9.2009, http://www.nytimes.com/aponline/2009/09/26/us/AP-US-Texas-Execution-Arson.html

Texas executes hit man in Houston triple slayings


Tuesday, September 22, 2009
8:36 p.m.
The Associated Press
By MICHAEL GRACZYK

HUNTSVILLE, Texas — A convicted hit man was executed Tuesday evening for a triple slaying in Houston nearly 14 years ago.

Christopher Coleman, 37, was condemned for his part in a scheme by a Colombian man who hoped to eliminate a drug debt by staging a robbery. Four people were shot in a car on a dead-end street. Three of them, including a 3-year-old boy, died.

Coleman was pronounced dead at 6:22 p.m. CDT, eight minutes after lethal drugs began flowing into his arms.

The lethal injection, the 18th this year in Texas, was carried out after Coleman's lawyers lost last-day appeals to the U.S. Supreme Court.

Coleman was one of three men convicted in the case. The other two, Enrique Andrade Mosquera, 44, and Derrick Graham, 40, received life in prison.

Prosecutors said Mosquera owed $80,000 for four kilos of cocaine he received from Hurtado Heinar Prado, 34, but didn't want to pay. Instead, he hired Coleman and Graham to stage a robbery during the payoff.

Hurtado Heinar Prado was in the front seat of a car driven by Jose Mario Garcia-Castro, 33, when they met the three men on Dec. 14, 1995. Elsie Prado, Prado's sister and Garcia-Castro's girlfriend, and her son, Danny Giraldo, were in the back seat.

Testimony showed Coleman approached the car's passenger side, said something to the two men in the front and opened fire. Only Elsie Prado survived. She identified Coleman as the gunman.

Coleman was arrested at a Lawrenceburg, Tenn., motel a week later. He told police he was at the shooting scene but denied being the gunman.

His execution was one of two scheduled this week in Texas. Kenneth Mosley, 51, was scheduled to die Thursday for fatally shooting a police officer in a Dallas suburb in 1997.

___

On the Net:

Texas Department of Criminal Justice execution schedule http://www.tdcj.state.tx.us/stat/scheduledexecutions.htm

___

September 22, 2009 08:36 PM EDT

    Texas executes hit man in Houston triple slayings, AJC.com, 22.9.2009, http://www.ajc.com/news/nation-world/texas-executes-hit-man-144294.html

Romell Broom to face execution next week following botched lethal injection

• Romell Broom convicted of rape and murder of teenager
• Case raises question about Texas man facing execution

Thursday 17 September 2009
17.31 BST
Guardian.co.uk
Chris McGreal in Washington
This article was first published on guardian.co.uk at 17.31 BST on Thursday 17 September 2009.
It was last updated at 17.31 BST on Thursday 17 September 2009.

Ohio is to try again to execute a man convicted of murder after his death by lethal injection was botched earlier this week when technicians spent two hours in a futile hunt for a vein able to take a needle.

At one point, Romell Broom, who was convicted of rape and murder of a teenage girl 25 years ago, tried to help prison officers find a suitable vein by moving around and flexing his muscles. The prison governor later thanked him for his cooperation.

What critics of the death penalty are describing as the "virtually unprecedented" failure of the attempt to execute Broom, 53, has again raised questions over its continued use in the US. Concerns have also been raised over a case in Texas in which a man is facing execution despite an admission by the judge and prosecutor in his trial that they were lovers.

Prison officers described how, after about an hour of hunting for a suitable vein, Broom helped them by turning on to his side, by moving rubber tubing along his arm and by flexing his hand and muscles. At one point, technicians found what appeared to be a suitable vein but it collapsed as they inserted a needle, apparently because of past drug use.

Broom, who was convicted of kidnapping, raping and killing 14-year-old Tryna Middleton, became so distressed that he lay on his back and covered his face with both hands. One of the execution team handed him a toilet roll to wipe away tears.

The prison director, Terry Collins, contacted Ohio's governor, Ted Strickland, to tell him of the difficulties. The governor issued a temporary reprieve.
Collins later thanked the condemned man for what he said was the respect he showed toward the execution team and for the way he endured the ordeal.

One of Broom's lawyers, Adele Shank, who witnessed the failed execution, said her client was clearly in pain.

"It was obviously a flawed process," she said. "He survived this execution attempt, and they really can't do it again. It was cruel and unusual punishment."

Broom's legal team has now asked Ohio's supreme court to cancel the execution but state officials today said they will attempt it again next week.

The Death Penalty Information Centre in Washington said that the botched attempt is the first of its kind since the electric chair failed to kill a murderer, Willie Francis, in Louisiana in 1946. Francis argued that a second attempt to execute him would be unconstitutional but the supreme court ruled otherwise and he was electrocuted the following year.

"This is virtually unprecedented," said the DPIC's director, Richard Dieter, said of the Broom case. "The public in the US are increasingly jaded about the death penalty. There is evidence of innocent people executed, prosecutors sleeping with judges and being ignored, failed executions. At some point enough is going to be enough and even people who support the death penalty are going to let it go".

There are fresh questions about the legal process around the death penalty in Texas, which carries out by far the largest number of executions in the US. The state's court of criminal appeals has turned down an appeal from a man on the brink of execution who said there were questions over the fairness of his trial after it was revealed that the judge and prosecutor kept secret that they were lovers. Charles Hood was convicted of the 1989 robbery and murder of two people.

The appeals court said that the defence should have raised the issue of the affair at the original appeal. But defence lawyers said that it was no more than a rumour at the time and was only confirmed by another official in the prosecutor's office hours before Hood was originally to have been executed last year. The two people involved later confirmed their affair.

One of Hood's lawyers, David Dow, called the decision "gutless" and the American Bar Association ethics committee described it as a "blot on the Texas judiciary".

Texas is also grappling with revelations that it may have executed an innocent man five years ago after he was convicted of murdering his three children through arson on the basis of deeply flawed "scientific" evidence that has been compared to the stuff of witch trials.

    Romell Broom to face execution next week following botched lethal injection, NYT, 17.9.2009, http://www.guardian.co.uk/world/2009/sep/17/ohio-death-penalty-lethal-injection

Ohio Plans to Try Again as Execution Goes Wrong

September 17, 2009
The New York Times
By BOB DRIEHAUS

CINCINNATI — The State of Ohio plans to try again next week to execute a convicted rapist-murderer, after a team of technicians spent two hours on Tuesday in an unsuccessful effort to inject him with lethal drugs.

This is the first time an execution by lethal injection in the United States has failed and then been rescheduled, according to Richard C. Dieter, executive director of the Death Penalty Information Center, in Washington.

The only similar case in modern times, Mr. Dieter said, occurred in Louisiana in 1946, when electric shock failed to kill a convicted murderer, Willie Francis. He was electrocuted the next year, after the United States Supreme Court ruled that executing a prisoner in the wake of a failed first attempt was constitutional.

Tuesday’s one-week postponement was ordered by Gov. Ted Strickland after he was alerted by the Ohio corrections department that technicians at the state prison in Lucasville, some 70 miles east of Cincinnati, had struggled for more than two hours to find a suitable vein in either the arms or the legs of the inmate, Romell Broom, 53.

In a log reviewed by The Associated Press, the executioners attributed their troubles to past intravenous drug use by Mr. Broom. Amanda Wurst, a spokeswoman for the governor, said that Mr. Broom had once told officials he had been an IV drug user but that he had later recanted. His lawyers said they were not aware of any IV drug use.

Mr. Broom was convicted of the 1984 abduction, rape and killing of Tryna Middleton, 14, who had been walking home from a football game in Cleveland with two friends.

His lawyers described what happened Tuesday as torture and said they would try to block the execution. One of them, Adele Shank, said: “He survived this execution attempt, and they really can’t do it again. It was cruel and unusual punishment.”

Ms. Shank watched Tuesday’s procedure on closed-circuit television. “I could see him on the screen,” she said, “and it was apparent to me that he was wincing with pain.”

The Ohio chapter of the American Civil Liberties Union said Wednesday that the state must abolish lethal injection.

“This is the third screwed-up execution in three years,” said Jeffrey M. Gamso of the A.C.L.U. of Ohio. “They keep tweaking their protocol, but it takes more than tweaks. They don’t know how to do this competently, and they need to stop.”

In referring to two previous troubled executions in Ohio, Mr. Gamso was speaking of the death of Joseph Clark in 2006, delayed more than an hour because of problems with IV placement, and the 2007 execution of Christopher Newton, also delayed more than an hour while technicians tried at least 10 times to insert the IV.

The director of the state corrections department, Terry J. Collins, said he and his staff were seeking the advice of doctors and others to plan for a successful execution next Tuesday.

“I won’t have discussions about ‘what if it doesn’t work next week’ at this point,” Mr. Collins said, “because I have confidence that my team will be able to do its job.”

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which supports the death penalty, said problems with veins were inevitable in lethal injection by IV.

Mr. Scheidegger said he favored execution methods involving intramuscular injection or a return to gas chambers, but with a poison other than cyanide, which was long under attack because of the suffering it can inflict.

Mr. Dieter, of the Death Penalty Information Center, said that given the likelihood of legal appeals, there was little chance that Mr. Broom would be put to death next Tuesday.

“The question of whether this is still an acceptable punishment in our society,” he said of executions generally, “is compounded by this mistake.”

 

John Schwartz contributed reporting from New York.

    Ohio Plans to Try Again as Execution Goes Wrong, NYT, 17.9.2009, http://www.nytimes.com/2009/09/17/us/17ohio.html

Lethal injection for killer Romell Broom delayed after botched execution

September 16, 2009
From The Times
Giles Whittell

An execution in Ohio was delayed for a week last night after prison technicians failed to find veins suitable for a lethal injection in the arms of a convicted child killer.

Romell Broom, sentenced to death for raping and murdering a 14-year-old girl in 1984, was due to die yesterday afternoon at Lucasville prison in southern Ohio. The state’s governor intervened after a two-hour struggle to insert the intravenous tubes required for a lethal injection into his arms.

The botched execution will refocus activists’ attention on a method used in 36 out of 37 states that have the death penalty — a method challenged in the US Supreme Court last year as inhumane.

Governor Ted Strickland had turned down a petition for clemency from Broom’s lawyers earlier in the day. He called off the execution shortly after 4pm in the third last-minute reprieve on Ohio’s death row since the state resumed executions in 1999, after a 36-year moratorium. Another murderer, Jay Scott, was granted two stays shortly before his execution in 2001.

Broom, 53, was convicted of abducting, raping and stabbing to death Tryna Middleton as she walked home from an evening high school football game in Cleveland in September 1984. He claimed to have been wrongly convicted on the basis of DNA tests that his lawyers said were inconclusive, but prison officials said that he was calm and co-operative in the hours before his scheduled execution.

Ohio announced shortly before 9.30am that it had stopped short of inserting tubes into Broom’s arms for the lethal injection. Julie Walburn, a prison spokeswoman, said about three hours later that preparations had resumed and would take about an hour.

She said Broom spent the hours during the delay while his plea for clemency was being considered reading, listening to the radio and watching television. He also talked to a lawyer for about an hour. He sat on his bed and began eating a prison lunch after he learned his final appeal request had been denied. Technicians went to work on his arms shortly after 2pm and gave up two hours later.

Most US states that carry out executions by lethal injection use the same three-drug cocktail preceded by a saline drip. Ohio published a new 13-step execution protocol last year. Step one reads “Hang Bag”. Step 13 states: “Remove IV drip”.

The Ohio Department of Rehabilitation and Correction will reschedule the execution for next week. It has put 32 prisoners to death, all men, in the past ten years.

    Lethal injection for killer Romell Broom delayed after botched execution, Ts, 16.9.2009, http://www.timesonline.co.uk/tol/news/world/us_and_americas/article6836399.ece

Op-Ed Columnist

Innocent but Dead

September 1, 2009
The New York Times
By BOB HERBERT

There is a long and remarkable article in the current New Yorker about a man who was executed in Texas in 2004 for deliberately setting a fire that killed his three small children. Rigorous scientific analysis has since shown that there was no evidence that the fire in a one-story, wood frame house in Corsicana was the result of arson, as the authorities had alleged.

In other words, it was an accident. No crime had occurred.

Cameron Todd Willingham, who refused to accept a guilty plea that would have spared his life, and who insisted until his last painful breath that he was innocent, had in fact been telling the truth all along.

It was inevitable that some case in which a clearly innocent person had been put to death would come to light. It was far from inevitable that this case would be the one. “I was extremely skeptical in the beginning,” said the New Yorker reporter, David Grann, who began investigating the case last December.

The fire broke out on the morning of Dec. 23, 1991. Willingham was awakened by the cries of his 2-year-old daughter, Amber. Also in the house were his year-old twin girls, Karmon and Kameron. The family was poor, and Willingham’s wife, Stacy, had gone out to pick up a Christmas present for the children from the Salvation Army.

Willingham said he tried to rescue the kids but was driven back by smoke and flames. At one point his hair caught fire. As the heat intensified, the windows of the children’s room exploded and flames leapt out. Willingham, who was 23 at the time, had to be restrained and eventually handcuffed as he tried again to get into the room.

There was no reason to believe at first that the fire was anything other than a horrible accident. But fire investigators, moving slowly through the ruined house, began seeing things (not unlike someone viewing a Rorschach pattern) that they interpreted as evidence of arson.

They noticed deep charring at the base of some of the walls and patterns of soot that made them suspicious. They noticed what they felt were ominous fracture patterns in pieces of broken window glass. They had no motive, but they were convinced the fire had been set. And if it had been set, who else but Willingham would have set it?

With no real motive in sight, the local district attorney, Pat Batchelor, was quoted as saying, “The children were interfering with his beer drinking and dart throwing.”

Willingham was arrested and charged with capital murder.

When official suspicion fell on Willingham, eyewitness testimony began to change. Whereas initially he was described by neighbors as screaming and hysterical — “My babies are burning up!” — and desperate to have the children saved, he now was described as behaving oddly, and not having made enough of an effort to get to the girls.

And you could almost have guaranteed that a jailhouse snitch would emerge. They almost always do. This time his name was Johnny Webb, a jumpy individual with a lengthy arrest record who would later admit to being “mentally impaired” and on medication, and who had started taking illegal drugs at the age of 9.

The jury took barely an hour to return a guilty verdict, and Willingham was sentenced to death.

He remained on death row for 12 years, but it was only in the weeks leading up to his execution that convincing scientific evidence of his innocence began to emerge. A renowned scientist and arson investigator, Gerald Hurst, educated at Cambridge and widely recognized as a brilliant chemist, reviewed the evidence in the Willingham case and began systematically knocking down every indication of arson.

The authorities were unmoved. Willingham was executed by lethal injection on Feb. 17, 2004.

Now comes a report on the case from another noted scientist, Craig Beyler, who was hired by a special commission, established by the state of Texas to investigate errors and misconduct in the handling of forensic evidence.

The report is devastating, the kind of disclosure that should send a tremor through one’s conscience. There was absolutely no scientific basis for determining that the fire was arson, said Beyler. No basis at all. He added that the state fire marshal who investigated the case and testified against Willingham “seems to be wholly without any realistic understanding of fires.” He said the marshal’s approach seemed to lack “rational reasoning” and he likened it to the practices “of mystics or psychics.”

Grann told me on Monday that when he recently informed the jailhouse snitch, Johnny Webb, that new scientific evidence would show that the fire wasn’t arson and that an innocent man had been killed, Webb seemed taken aback. “Nothing can save me now,” he said.

    Innocent but Dead, NYT, 1.9.2009, http://www.nytimes.com/2009/09/01/opinion/01herbert.html

A Texas Judge on Trial: Closed to a Death-Row Appeal?

Thursday, Aug. 13, 2009
Time
By Hilary Hylton / Austin

Soft-spoken and a devout Christian, Judge Sharon Keller presides as chief justice of Texas' highest criminal court. She's also known as "Sharon Killer" by her opponents, who are going to see her in court next week on charges of judicial misconduct. They charge that Keller refused a condemned man a last-minute appeal in 2007. Now she faces a trial in a San Antonio courtroom that could lead to her removal and will certainly focus wide attention on Texas' enthusiasm for the death penalty.

Keller finds herself at this pass because of a four-word sentence she uttered on Sept. 25, 2007: "We close at 5." According to a newspaper interview with Keller in October 2007 and pretrial testimony last year, she said those words to Ed Marty, general counsel for the Texas Court of Criminal Appeals (CCA). As the court's logistics officer, Marty had called the judge at the behest of lawyers for Michael Richard, 49, who had been on death row for two decades and whose execution was scheduled for that evening. The lawyers were allegedly having computer trouble and problems getting last-minute paperwork to the Austin court. Keller was reportedly at her home dealing with a repairman that afternoon when she got the request — and made her reply. Richard's lawyers failed to meet the deadline, and at 8:23 p.m. Richard was declared dead following a lethal injection. (Read a brief history of lethal injection.)

An outcry followed. "This execution proceeded because the highest criminal court couldn't be bothered to stay an extra 20 minutes on the night of an execution," Andrea Keilen, executive director of Texas Defender Service, told ABC News in 2007. Not only did Texas defense attorneys quickly file complaints with the state's judicial oversight commission, in an unprecedented move, the National Association of Criminal Defense Lawyers joined the filing. Newspapers across the state and nation weighed in with scathing editorials, and anti–death penalty campaigns went on the attack. The Texas Moratorium Network set up sharonkiller.com.

A year and a half later, in February, Keller was charged by the State Commission on Judicial Conduct with "willful and persistent" failure to follow the CCA's protocols for last-minute appeals and for bringing public discredit on the court. Opponents say her actions displayed a dogmatic affinity for the death penalty. But her supporters, some of whom do not share her conservative views, contend that she was following the rules and was not responsible for the shortcomings of defense attorneys. They also point to Keller's work doubling the number of public defenders' offices in Texas and boosting their budget from $19 million to $60 million. (Read about the debate over the death penalty.)

A special master — a judge named by the state supreme court for the occasion — has been appointed to preside over the fact-finding trial. San Antonio District Judge David Berchelman Jr., a former member of the CCA, can either recommend to the commission that the charges be dismissed or that Judge Keller be reprimanded or even removed from office by the state supreme court.

Though she handily won her elections to the bench, Keller exhibited little interest in politics during college, friends say. The bright daughter of a Dallas entrepreneur and famed restaurateur "Cactus" Jack Keller, she excelled in school and studied philosophy at Rice, then law at Southern Methodist University. But 1994, while working as an appellate attorney in the Dallas prosecutor's office, she ran for a spot on the CCA and, thanks to a Republican landslide on the coattails of George W. Bush, won her seat. In her second term, she ran successfully for the top slot, the court's presiding judge. Keller has consistently been part of the court's conservative voting bloc and has said she saw her election as an opportunity to balance the high court after several decades of domination by judges inclined toward the defense bar. (However, there has always been a high degree of support for the death penalty in Texas, even among Democratic judges.)

The genteel-looking Keller is expected to put up a fight, even though she has been silent thus far on the upcoming trial. In a written response to the charges, she derided the defense attorneys' claims that computer trouble delayed their paperwork: "It did not take a computer to prepare and timely file ... it could have been handwritten and the court would have accepted it as Judge Keller informed the Commission."

She will also defend herself by discussing the man she is accused of wronging: the executed Michael Richard. Richard had a long legal history and a criminal record that evokes little sympathy. "By the time he was executed," Keller wrote in her response to the charges, "Richard had two trials, two direct appeals (including to the United States Supreme Court), two state habeas corpus proceedings and three federal habeas corpus hearings or motions." She added that the charge against her that Richard was not accorded access to open courts or the right to be heard "is patently without merit."

In 1986, two months after being released from his second prison term, Richard killed Marguerite Lucille Dixon, 53, a nurse and mother of seven. Dixon had invited him in for a cold glass of water after Richard had knocked on her front door and asked if her van was for sale. Two of her children found her. She had been sexually assaulted before being killed, and her van and television were stolen. A year later, Richard was on death row. After confessing, Richard claimed he was innocent, but his appeal centered on a history of alleged family abuse and his supposed IQ of 64. He told reporters that he had learned to read and write on death row.

But the handling of Richard's appeals process is what is being contested by Keller's opponents. Richard won a new trial from the CCA because the alleged abuse he had suffered at the hands of his father had not been considered in his first trial, according to the appellate record. But Richard was convicted again in 1995 and once again given the death penalty, even after his mother and sister were allowed to testify about the alleged abuse during the punishment phase of the trial. Following a U.S. Supreme Court ruling prohibiting the execution of mentally retarded prisoners, his lawyers appealed for another trial based on his alleged IQ level. The CCA turned him down and that appeal was ongoing when the Supreme Court suddenly opened a new avenue for appeal on the day Richard was scheduled to die.

The high court announced that it had agreed to hear arguments in Baze v. Rees to determine whether Kentucky's use of lethal injections (the same method Texas uses) violated constitutional proscriptions against cruel and unusual punishment. Richard's attorneys with the Texas Defender Service hoped to use the Baze case to win a delay, but they would have to go through the CCA in Austin first before approaching the Supreme Court for a stay and, as the execution was looming, they would have to act quickly. Frantically trying to assemble their paperwork — at the time, the CCA did not permit e-mail filings, though it now does — lawyers in Houston and Austin conferred over the phone, back and forth. They claimed that they were further slowed by computer failures, an issue on which experts on both sides are expected to testify.

One issue is whether Keller was emphatically rejecting any pleadings to the court, or simply noting that the clerk's office closed at 5 p.m., as required by state law. Keller's attorneys will most likely argue the latter, saying everyone knows that Texas appellate law provides for after-hours filings directly to judges. Friends say Keller was bewildered by the fallout. In the days just after the event, she told the Austin American-Statesman that she was not informed why the attorneys wanted the clerk's office to stay open. "They did not tell us they had computer failure, and given the late request, and with no reason given, I just said, 'We close at 5.' I didn't really think of it as a decision as much as a statement," the newspaper quoted Keller as saying.

Keller has turned to noted defense attorney Charles "Chip" Babcock — he represented Oprah Winfrey in 1998 when the talk-show host was unsuccessfully sued for slander by Texas cattlemen. Babcock told the American-Statesman that he will question the "myth" of the computer problem and the last-minute actions of Richard's appellate lawyers. "I think our version is going to be that they just didn't do their job that day," Babcock said. It is a tactic that Neal Manne, representing the Texas Defender Service, rejects as a "sideshow" designed to deflect from the real issue — Judge Keller's actions that afternoon.

One sobering what-if: even if the U.S. Supreme Court had accepted Richard's appeal, he most likely would have extended his life by only eight months. The high court eventually upheld the constitutionality of Kentucky's use of lethal injections.

    A Texas Judge on Trial: Closed to a Death-Row Appeal?, Time, 13.8.2009, http://www.time.com/time/nation/article/0,8599,1915814,00.html

In ’98, Hints From Sotomayor on Death Penalty

June 25, 2009
The New York Times
By BENJAMIN WEISER

As a drug kingpin and his bodyguard, both black, faced the first death penalty trial in Manhattan since the days of the Rosenbergs, their lawyers argued that the practice of capital punishment was racist.

“We’re doing what the death penalty has always done historically, which is target minority people,” one of the lawyers said in 1998 as he asked a Federal District Court judge to declare the penalty unconstitutional.

That judge was Sonia Sotomayor — a Bronx-born woman of Puerto Rican descent who as a young lawyer had leveled much the same attack on capital punishment. And as she listened to the arguments that day, she acknowledged there were many unresolved “tensions” surrounding the death penalty.

But she flatly told the lawyers she had no power to resolve them. “I don’t as a judge,” she said. “They are not up to me. Ultimately, they are up to Congress and the Supreme Court.”

Judge Sotomayor, of course, is now up for a seat on the Supreme Court, and her nomination has sparked questions about her early advocacy and whether that might flavor her performance as a justice.

The 1998 case, the only death penalty matter she appears to have handled on the federal bench, offers some answers. Transcripts provide a revealing look at the judge, acting as an official arbiter on an issue she once addressed strongly — and weighing the lives of two men.

The case record shows she was curious enough about the defense arguments that she ordered prosecutors to produce data on the race of defendants considered for the death penalty. But it also shows she was tough on defense lawyers, repeatedly challenging their claims that minority defendants were disproportionately singled out.

She even rejected the same kind of statistical argument against capital punishment that she had made years earlier as a lawyer, saying it was not sufficient to prove discrimination.

“We gave her enough ammunition that she could have struck down the death penalty,” recalled David A. Ruhnke, a defense lawyer in the case. “Whether it would have stood up in the U.S. Supreme Court, who knows? But we gave her enough room to do it — had she wanted to reach out and do it — and she didn’t.”

In the end, Judge Sotomayor never ruled on the merits of the death penalty, even though her remarks made clear that she was unlikely to find it unconstitutional. Some two years into the case, she was elevated to the federal appellate bench in New York, and the case was handed to another judge, who declined to strike down the law. Both defendants pleaded guilty and avoided execution.

But Judge Sotomayor conducted three lively pretrial hearings that explored the death penalty. In more than 100 pages of transcripts, she emerges as deeply engaged, vocal and demanding, scrutinizing both sides and sometimes floating provocative ideas.

At one point, pressed by defense lawyers to resolve the death penalty’s inequities, she advised them to be careful what they wished for.

“As my law clerk said to me the other day, what is the remedy? Should we just have more people sentenced to capital punishment? That’s as effective a remedy as having fewer people sentenced to capital punishment if we find that we need to remedy some overall societal inequity.”

Judge Sotomayor, who turns 55 on Thursday, has spoken very little publicly about the death penalty during her long career, which included about five years as an assistant district attorney in Manhattan. But conservatives who oppose her nomination have seized on a 1981 internal memo signed by her and two other directors of the Puerto Rican Legal Defense and Education Fund recommending that the organization oppose restoration of the death penalty in New York State.

The memo said capital punishment was “associated with evident racism in our society” and cited statistics to show that “the number of minorities and the poor executed or awaiting execution is out of proportion to their numbers in the population.”

Seventeen years later, she heard a similar argument on behalf of two defendants charged with multiple murders: Clarence Heatley, who led a multimillion-dollar crack-cocaine operation based in the Bronx, and his bodyguard, John Cuff, a former New York City housing police officer.

In 1997, Mary Jo White, the United States attorney in Manhattan, received authorization from Attorney General Janet Reno to seek the death penalty against both men. Congress had reinstituted the federal death penalty in recent years, and Ms. White’s office had considered a dozen other cases before settling on Mr. Heatley’s and Mr. Cuff’s.

Before the men could be tried, however, Judge Sotomayor had to consider their lawyers’ challenge to the law. They presented data showing that since 1988, the federal government had authorized 119 capital cases, with 79 percent involving minority defendants. Of the 16 men who had been sentenced to death, 13 were members of minorities.

But the judge agreed with prosecutors that the numbers alone did not prove discrimination in this case. The high percentage of minority defendants, she said, “tells me nothing about the pool from which that number comes from.” She said the defense had to offer more — “some actual proof of discrimination besides statistical evidence, because it can be manipulated.”

The defense had, indeed, tried to get more evidence, asking the judge to order the government to produce information on federal defendants across the country who had been considered for capital punishment, and on how each decision had been reached.

Judge Sotomayor balked. “The only way that we can end up with your getting anything that would be admissible,” she said, “is if we literally redid all of the deliberative processes in every single case that was eligible for the death penalty.”

Ultimately, she agreed to order data on the racial and ethnic composition of the pool of defendants.

“I would like to see the numbers myself,” she said. “I do agree with you that the death population in the federal system is so disparately different from the general population that one look more should be done, at least an initial inquiry.”

The judge also seemed open to the idea of allowing the defense, during a possible future sentencing hearing, to tell the jury that other murderers had been spared the death penalty.

She said: “You can very well see a potential argument by the defense that says, If Joe Blow, who kills his wife, 10 children, his mother, and didn’t get the death penalty, why should my client? Why shouldn’t society put to death murderers of more heinous crimes? These are drug dealers killing drug dealers.”

Judge Sotomayor was not shy about asserting a personal opinion. She allowed that in the past five years, she had noticed “a sea change” in Manhattan federal prosecutors’ handling of the death penalty — an apparent reference to an increase in cases considered for capital punishment and new policies on how such decisions were made. But she dismissed the defense’s claim that racial bias was the cause.

“It may be based on politics,” she said, “since it’s the only explanation that could justify the sea change. But I have no basis to believe, in what you presented me with or otherwise, that it’s based on race.”

Whatever her own feelings on capital punishment, the judge showed a willingness to understand and apply the death penalty law, even if the result could be two executions. When the prosecutor, Andrew S. Dember, seemed to ask for too much legal leeway on one point, she cautioned that his approach could lead to a reversal of any verdict.

“Remember two things,” she told him. “A conviction is important. Surviving conviction is more important.”

She also had a pointed word for the defense: Do not expect the Supreme Court to abolish capital punishment anytime soon.

Mr. Ruhnke, the defense lawyer, had suggested that in 50 years there might not be a death penalty. He asserted that the Supreme Court almost struck down capital punishment in a 1987 case involving racial disparities. The author of the 5-to-4 ruling, Justice Lewis F. Powell Jr., later said he regretted his vote.

“It was that close to being no death penalty,” Mr. Ruhnke said.

Judge Sotomayor suggested that the Supreme Court of 1998 was even less likely to overturn the penalty than the court had been in 1987.

“Unfortunately for your client, regardless of what the makeup of the decision-making will be 50 years from now, in the short run,” she said, the death penalty “will still be here.”

    In ’98, Hints From Sotomayor on Death Penalty, NYT, 25.6.2009, http://www.nytimes.com/2009/06/25/us/politics/25death.html?hp

Letters

Troy Davis and the Death Penalty

June 5, 2009
The New York Times
 

To the Editor:

Bob Barr’s June 1 Op-Ed article, “Death Penalty Disgrace,” is a kaleidoscope of irony. He laments the possibility that Troy Davis’s execution may be the ultimate denial of his “rights and protections guaranteed by the Constitution,” yet Mr. Barr seems to have no second thoughts about his firm belief in the death penalty.

It might have occurred to him at the time he wrote a piece of legislation called the Anti-Terrorism and Effective Death Penalty Act that the death penalty has always been effective at one thing in particular: foreclosing the courts from reviewing new evidence of a convicted man’s innocence. The disgrace is in the death penalty itself, yet another bit of irony to escape Mr. Barr’s reasoning.

Les Morsillo
Brooklyn, June 1, 2009

•

To the Editor:

As a member of Chapter 48 of Amnesty International, I was most gratified to read former Representative Bob Barr’s article about the case of Troy Davis.

I am adamantly opposed to the death penalty under any circumstances, believing it to be an immoral act of revenge and completely ineffective as a deterrent to heinous crimes. But I also concur with Mr. Barr’s arguments against its imposition in the case of Troy Davis.

In view of the fact that seven of nine witnesses have recanted their testimony regarding Mr. Davis’s alleged murder of a police officer, and that Mr. Davis’s claim of innocence has never been heard before a judge or jury, this requires that his case be remanded to a federal district court, where witnesses are subject to cross-examination.

To do otherwise is to risk an inexcusable miscarriage of justice and the unlawful taking of a human life.

Marylou Noble
Portland, Ore., June 1, 2009

•

To the Editor:

I disagree with Bob Barr on the issue of the death penalty, but am heartened by his article on behalf of Troy Davis.

Mr. Davis’s day in court had all of the substance of what without a stretch of the imagination would be a kangaroo court, replete with sham legal proceedings. What does “beyond a reasonable doubt” mean when rights are trampled on and evidence is knowingly obscured?

All reasonable doubts are simply quashed in an effort to clear the caseload with the execution of Troy Davis. It is sickening that these barbaric arguments still exist, but thank you, Mr. Barr, for your efforts.

Marilyn Schiffmann
Hamden, N.Y., June 1, 2009

•

To the Editor:

While mourning the possibility that Troy Davis might be prevented from pursuing habeas corpus relief, Bob Barr doesn’t acknowledge that this is precisely a result he and his colleagues demanded when they passed the Anti-Terrorism and Effective Death Penalty Act.

The law erects procedural barriers to those seeking habeas corpus relief and was specifically intended to limit the number of petitions inmates are permitted to file, even those relying upon claims of actual innocence.

What is striking about Mr. Davis’s case is that in addition to the seven prosecution witnesses who recanted their trial testimony, three individuals have sworn that the person who pointed investigators toward Mr. Davis in the first instance has since confessed to the crime.

One can only hope that Mr. Davis’s case will lead not only to a reversal but also to recognition that Congress should never prevent death-row inmates from introducing evidence of actual innocence simply because they did not comply with procedural technicalities. The consequence of such barriers threatens an execution that would do violence to the principles our Constitution was intended to instill.

Michael S. Hiller
Brooklyn, June 1, 2009

The writer is an adjunct professor of criminal law at the John Jay College of Criminal Justice.

•

To the Editor:

Bob Barr, in his impassioned plea for the right of Troy Davis to make his claim of innocence in an evidentiary hearing, states, “I am a firm believer in the death penalty, but I am an equally firm believer in the rights and protections guaranteed by the Constitution.”

By its very nature, though, the death penalty — which makes it possible for the state to execute the innocent — imperils exactly those rights and protections the Constitution seeks to guarantee.

Leslie Garisto Pfaff
Nutley, N.J., June 1, 2009

    Troy Davis and the Death Penalty, NYT, 6.6.2009, http://www.nytimes.com/2009/06/05/opinion/l05death.html?hpw

Court to Hear Case on Inmate’s Retardation

June 2, 2009
The New York Times
By ADAM LIPTAK

WASHINGTON — Elaborating on its 2002 decision banning the execution of the mentally retarded, the Supreme Court unanimously ruled on Monday that prosecutors in Ohio should have a new opportunity to prove that a death row inmate there was not retarded and thus was eligible to be executed. The prosecutors were not bound, the court said, by statements in court decisions issued before 2002 saying that he was retarded.

The inmate, Michael Bies, was convicted in 1992 of kidnapping and murdering a 10-year-old boy. At the time, mental retardation was a factor that juries could consider in deciding on the proper sentence.

During the sentencing hearing in Mr. Bies’s case, the jury heard testimony from a psychiatrist who said Mr. Bies was “mildly mentally retarded to borderline mentally retarded.” The psychiatrist said that Mr. Bies’s I.Q. was in the “65 to 75 range” and that he “carries out the activities of daily life fairly independently.”

The jury recommended a death sentence without indicating what role the evidence about retardation had played in its decision, and the trial judge accepted that recommendation.

In affirming Mr. Bies’s conviction and sentence, state courts in Ohio said he suffered “mild to borderline mental retardation” that warranted some weight in determining the proper sentence. But they found that other factors were more important and justified a death sentence.

When the Supreme Court banned the execution of retarded offenders in Atkins v. Virginia in 2002, it did not specify how states were to determine retardation. The Ohio Supreme Court later ruled that defendants claiming retardation must prove three things: “significantly sub-average intellectual functioning,” which would be presumed if the defendant’s I.Q. was under 70; a lack of two or more fundamental social and practical skills; and that both conditions were present before age 18.

Last year, a unanimous panel of the United States Court of Appeals for the Sixth Circuit, in Cincinnati, said prosecutors had “litigated and lost the issue of petitioner’s mental retardation” and could not reopen the question. The court ordered that Mr. Bies be “resentenced to receive a sentence other than death.”

But Justice Ruth Bader Ginsburg, writing for the Supreme Court in the case, Bobby v. Bies, No. 08-598, said the state courts had not “devoted detailed attention to the issue of mental retardation.”

“No court found, for instance,” Justice Ginsburg wrote, “that Bies suffered ‘significant limitation in two or more adaptive skills.’ ”

Mr. Bies’s lawyers argued that requiring a new hearing on the question of retardation would subject their client to a form of double jeopardy. Justice Ginsburg said double-jeopardy protection was unavailable to Mr. Bies because he had not prevailed at his trial and because the court determinations concerning retardation were not necessary to the outcomes in the earlier proceedings.

The lower federal courts should have allowed the state court to go forward with a hearing on whether Mr. Bies was indeed retarded, Justice Ginsburg concluded. “Recourse first to Ohio’s courts is just what this court envisioned,” she wrote, “in remitting to the states responsibility for implementing the Atkins decision.”

    Court to Hear Case on Inmate’s Retardation, NYT, 2.6.2009, http://www.nytimes.com/2009/06/02/us/02scotus.html?hp

Op-Ed Contributor

Death Penalty Disgrace

June 1, 2009
The New York Times
By BOB BARR

THERE is no abuse of government power more egregious than executing an innocent man. But that is exactly what may happen if the United States Supreme Court fails to intervene on behalf of Troy Davis.

Mr. Davis is facing execution for the 1989 murder of an off-duty police officer in Savannah, Ga., even though seven of the nine witnesses have recanted their testimony against him. Many of these witnesses now say they were pressured into testifying falsely against him by police officers who were understandably eager to convict someone for killing a comrade. No court has ever heard the evidence of Mr. Davis’s innocence.

After the United States Court of Appeals for the 11th Circuit barred Mr. Davis from raising his claims of innocence, his attorneys last month petitioned the Supreme Court for an original writ of habeas corpus. This would be an extraordinary procedure — provided for by the Constitution but granted only a handful of times since 1900. However, absent this, Mr. Davis faces an extraordinary and obviously final injustice.

This threat of injustice has come about because the lower courts have misread the Anti-Terrorism and Effective Death Penalty Act of 1996, a law I helped write when I was in Congress. As a member of the House Judiciary Committee in the 1990s, I wanted to stop the unfounded and abusive delays in capital cases that tend to undermine our criminal justice system.

With the effective death penalty act, Congress limited the number of habeas corpus petitions that a defendant could file, and set a time after which those petitions could no longer be filed. But nothing in the statute should have left the courts with the impression that they were barred from hearing claims of actual innocence like Troy Davis’s.

It would seem in everyone’s interest to find out as best we can what really happened that night 20 years ago in a dim parking lot where Officer Mark MacPhail was shot dead. With no murder weapon, surveillance videotape or DNA evidence left behind, the jury that judged Mr. Davis had to weigh the conflicting testimony of several eyewitnesses to sift out the gunman from the onlookers who had nothing to do with the heinous crime.

A litany of affidavits from prosecution witnesses now tell of an investigation that was focused not on scrutinizing all suspects, but on building a case against Mr. Davis. One witness, for instance, has said she testified against Mr. Davis because she was on parole and was afraid the police would send her back to prison if she did not cooperate.

So far, the federal courts have said it is enough that the state courts reviewed the affidavits of the witnesses who recanted their testimony. This reasoning is misplaced in a capital case. Reading an affidavit is a far cry from seeing a witness testify in open court.

Because Mr. Davis’s claim of innocence has never been heard in a court, the Supreme Court should remand his case to a federal district court and order an evidentiary hearing. (I was among those who signed an amicus brief in support of Mr. Davis.) Only a hearing where witnesses are subject to cross-examination will put this case to rest.

Although the Supreme Court issued a stay of execution last fall, the court declined to review the case itself, and its intervention still has not provided an opportunity for Mr. Davis to have a hearing on new evidence. This has become a matter of no small urgency: Georgia could set an execution date at any time.

I am a firm believer in the death penalty, but I am an equally firm believer in the rights and protections guaranteed by the Constitution. To execute Troy Davis without having a court hear the evidence of his innocence would be unconscionable and unconstitutional.
 

Bob Barr served in the House of Representatives from 1995 to 2003 and was the United States attorney for the Northern District of Georgia from 1986 to 1990.

    Death Penalty Disgrace, NYT, 31.5.2009, http://www.nytimes.com/2009/06/01/opinion/01barr.html

Executions Debated as Missouri Plans One

May 19, 2009
The New York Times
By MONICA DAVEY

KANSAS CITY, Mo. — Officials in this state are preparing to execute a prisoner for the first time since 2005, when criticisms about the state’s lethal injection method emerged and one doctor who carried out executions acknowledged being dyslexic and sometimes “improvising” when it came to the amounts of chemicals he administered.

That doctor will no longer take part, and a United States Supreme Court ruling last year upheld a lethal injection procedure similar to the one Missouri will use, but some lawmakers, including some prominent Republicans, say they have lingering questions about the state’s system of capital punishment.

The focus of those questions has shifted some, no longer centering on the method of execution but turning toward which prisoners are condemned and which are not, and whether those choices make sense.

“I still favor the death penalty, but I just want to make sure we put the right people to death,” said State Representative Bill Deeken, a Republican, explaining why he last week proposed delaying the death penalty for two years more until a study can determine whether it is meted out fairly in this state. “At this point, we just do not know.”

In 2006, a federal judge had found the state’s methods so chilling that he ordered a stop to executions — and a remaking of the system here — until state officials issued a protocol for lethal injection that satisfied him.

At 12:01 a.m. Wednesday, Dennis J. Skillicorn is to be executed for his role in the murder of Richard Drummond, a businessman who had offered help to Mr. Skillicorn and two others when he saw their car broken down on the side of a road one night in August 1994. Mr. Drummond was forced to drive to a remote area, then was shot and killed, and the men drove away in his car.

In the final days of the state legislative session in Jefferson City last week, a death penalty moratorium was rejected, but the House, which Republicans control, passed a provision calling for a commission to study the question. The Senate, also controlled by Republicans, did not vote on the issue.

House leaders say their chamber’s vote sent a signal to Gov. Jay Nixon, a Democrat in his first term, who has yet to issue a decision on Mr. Skillicorn’s request for clemency.

People here are deeply split over Mr. Skillicorn. His supporters say that while he participated in robbing Mr. Drummond and was convicted of murder, another man (now also awaiting execution) was the one who fired the gun that killed Mr. Drummond. They point to Mr. Skillicorn’s work in prison leading a hospice program, editing a magazine for death row inmates, and, in the view of even some prison workers, helping to create a calmer, safer atmosphere behind bars.

“He is not the one who actually killed the person, and that just says to me: ‘Whoa! Let’s take a step back,’ ” said State Representative Steven Tilley, the Republican leader. “Look, I’m not soft on crime, but we can’t redo this once we’ve executed this person,” Mr. Tilley said, adding that he has been a supporter of the death penalty, but fears it is flawed as it is being carried out.

But State Representative Bob Nance of Excelsior Springs, the community not far from Kansas City where Mr. Drummond had lived, said Mr. Skillicorn “should hardly be held up as a poster child for what’s wrong with the death penalty.”

Mr. Skillicorn was implicated for his involvement in other murders — though never, he says, as the gunman. He was convicted of second-degree murder in a 1979 burglary with accomplices in which a farmer was killed. And in the days after Mr. Drummond’s death, he and his accomplice went on a cross- country spree and, the authorities say, his accomplice shot and killed an Arizona couple. Mr. Skillicorn pleaded guilty to murder in that case.

“When we look back on our lives, it is the sum of all the stories,” Mr. Nance said, “and frankly, it’s hard to believe someone would be at the wrong place at the wrong time so many different times.”

On Monday, the State Supreme Court rejected a request for a stay, and lawyers for Mr. Skillicorn filed a similar request with the United States Supreme Court. They have three other appeals pending in the federal courts, and met on Monday with counsel to Mr. Nixon, who previously served as attorney general.

Mr. Nixon declined interview requests. His aides said he was giving Mr. Skillicorn’s clemency request “a full and fair review.”

Mr. Skillicorn, 49, had by last week been transferred to the facility at Bonne Terre where executions take place. In a telephone interview, he said he was sorry for his drug-addled behavior of years past, but that he considered his death sentence arbitrary in a way, and said that he was not the worst of the worst. “I was there,” he said, “But in my case, I didn’t kill anybody.”

He said he was drawing strength from his wife, a former reporter for The Kansas City Star who met him after he was behind bars, and from his religious faith, a notion he was quick to note some people will find phony. “What good would it do me now,” Mr. Skillicorn said of his faith, “if it wasn’t real to me?”

    Executions Debated as Missouri Plans One, NYT, 19.4.2009, http://www.nytimes.com/2009/05/19/us/19death.html

NM Senate Committee OKs Death Penalty Repeal

March 10, 2009
Filed at 6:01 a.m. ET
The New York Times
By THE ASSOCIATED PRESS

SANTA FE, N.M. (AP) -- Legislation abolishing New Mexico's death penalty has cleared the Senate Judiciary Committee -- its highest hurdle yet -- and is headed to the full Senate for a vote.

It already has passed the House, so if it were approved by the Senate without change, it would go to the governor for his signature.

The bill replaces capital punishment with a sentence of life in prison without the possibility of parole. There have been serious repeal efforts in New Mexico over the past decade, but no bill has gotten this far.

''It's been a long time coming,'' Michelle Giger, a founder of Murder Victims' Families for Reconciliation, said Monday after the judiciary panel's 6-5 vote.

''We don't want it. We don't need it. It doesn't work. So let's get rid of it,'' added Giger, whose father was fatally shot by a drifter in Santa Rosa in 1984.

New Mexico has executed one person since 1960. There are two men on death row whose sentences would be unaffected by the repeal.

Gov. Bill Richardson has supported the death penalty in the past but has said he would consider signing a repeal bill if it reached his desk.

Sam Millsap, a former prosecutor from Texas, told the judiciary panel he no longer supports the death penalty because the judicial system is too imperfect to ensure that the innocent are always protected. New Mexico courts, like those of Texas, ''are not infallible,'' he told lawmakers.

District attorneys oppose the repeal, arguing that the death penalty is a deterrent to murder.

Senate Republican Whip William Payne, of Albuquerque, said life-without-parole sentences could endanger the correctional officers who must oversee convicted murderers.

''We may lock them up for life, but we don't lock them away from people for life,'' he said.

Another repeal opponent, Sen. Richard Martinez, D-Espanola, said there is no evidence any innocent person has been executed in New Mexico.

Under the repeal proposal, convicted murders may be imprisoned ''but they're alive and they're doing as they please,'' Martinez said.

------

On the Net:

New Mexico Legislature: http://www.nmlegis.gov

    NM Senate Committee OKs Death Penalty Repeal, NYT, 10.3.2009, http://www.nytimes.com/aponline/2009/03/10/us/AP-New-Mexico-Death-Penalty.html

US Lawyer: Court Ruling Won't Affect Executions

January 18, 2009
Filed at 1:01 p.m. ET
The New York Times
By THE ASSOCIATED PRESS

THE HAGUE, Netherlands (AP) -- The International Court of Justice is due to rule Monday on a complaint that the United States defied the court when it executed a Mexican convicted rapist and murderer last year.

But the U.S. State Department's chief advocate said Sunday the ruling will not help other inmates on death row because Washington cannot force individual states to comply.

Mexico has asked the U.N.'s highest court to affirm its ruling that death sentences for more than 50 Mexican citizens should be reviewed because they were denied consular access when they were arrested.

They were entitled to the consulate's help according to an international treaty, but they were never informed of that right, Mexico said.

The United States has asked the court to dismiss the Mexican complaint, saying it agrees with Mexico but is powerless to act because the prison system is in the hands of the states.

President George W. Bush issued a directive to the states in 2005 to comply with the order of the U.N. court in The Hague, also known as the World Court. But Texas refused, and the U.S. Supreme Court ruled in a 6-3 decision last year that Bush lacked the authority to overrule the state legal process in Texas.

Three weeks after the World Court issued an emergency ruling intended to halt pending executions last July, Texas gave a lethal injection to Jose Medellin, convicted of the rape and murder of two teenage girls.

State Department legal adviser John Bellinger III said Bush had done all he could, and it was up to Congress to enact legislation giving precedence to international law over U.S. state law.

''A further ruling reaffirming its decision cannot give more power to the president,'' Bellinger said.

Mexico has asked the international tribunal to rule that ''the United States breached the court's order'' by executing Medellin.

If the court rules for the U.S., Bellinger said, it would simply acknowledge that the Bush administration did its best to carry out the court's order, but it would have no immediate practical effect for other death row prisoners.

A ruling for Mexico would not amount to a rebuke, he said.

''The court has no enforcement powers,'' he told a small group of reporters. ''It is not the role of the court'' to issue a reprimand.

Mexico has asked the court to spell out the meaning of its earlier ruling, arguing that the United States must take practical measures to fulfill the court's demand that the death sentences should undergo judicial review.

It said international law must apply not only to the United States but also to its individual states.

    US Lawyer: Court Ruling Won't Affect Executions, NYT, 18.1.2009, http://www.nytimes.com/aponline/2009/01/18/world/AP-EU-World-Court-US-Mexico.html