The StandDown Texas Project

Delaware PDs See Case Loads Reduced

"State's public defenders see fewer cases," is the title of J.L. Miller's report in the Wilmington News Journal.

The Public Defender's Office won't seek a budget increase this year, thanks to a puzzling trend in the number of cases the agency handles.

Public Defender Brendan O'Neill said in his agency's budget hearing Thursday that there has been "a very slight downward trend" in the number of cases in which cash-strapped defendants require representation by his lawyers.

"At this point it looks like we're not in a growth industry, and that's a good thing," O'Neill said. He said he expects his office to handle around 49,000 cases this fiscal year and the same number the following year.

But O'Neill, whose office employs 71 assistant public defenders, was at a loss to explain why the caseload hasn't gone up. Conventional wisdom would be that crime goes up in an economic downturn, and thus more people would require representation in court.

"We're really not sure," O'Neill said in response to a question by Ann Visalli, head of the Office of Management and Budget. "It's a puzzle to us."

Regardless of the cause, the trend means the office can hold its budget request steady at $14.6 million -- at a time when declining state revenues make larger budgets nearly impossible.

About 94 percent of the office's budget is in personnel costs, making budget cuts more difficult than in some other agencies. That's complicated by the fact that in order to comply with the Constitution, the state must provide representation to defendants facing imprisonment if they cannot afford an attorney.

"We really can't get stretched too much further," O'Neill said.

As it is, the agency's attorneys have their work cut out for them. In Superior Court, assistant public defenders are averaging 220 cases a year. The American Bar Association's optimal caseload standard is 150 cases.

The situation is much the same in Family Court, where the lawyers handle 408 cases a year. The ABA standard is 200.

And in Court of Common Pleas, the agency's lawyers handle 904 cases a year. The ABA standard is 400.

"This is significantly above what the ABA standards call for," O'Neill said. However, he added that this does not put the state "at risk of any malpractice or any kind of liability."

Related posts are in the indigent defense category index.

Massachusetts AG Criticized for Wood v. Allen Position

"Death penalty foes rip Coakley for signing brief," is the title of Matt Viser's report in today's Boston Globe. The amicus brief is here, in Adobe .pdf format.

Attorney General Martha Coakley, who says she is firmly against capital punishment, has drawn the ire of some death penalty opponents by urging the US Supreme Court to limit federal review of state court decisions, which opponents say could make it harder for defendants on death row to challenge their sentences.

Coakley, along with 18 other attorneys general, signed a friend-of-the-court brief in September asking that the nation’s highest court maintain restrictions on intervention by federal courts. Death penalty opponents, who are watching the case closely, say if Coakley’s arguments prevail it could be more difficult for federal courts to overturn death sentences, as well as other criminal punishments, handed down in state courts.

The case, which comes as Coakley is battling for votes in the Democratic Senate primary, involves a convicted murderer from Alabama who has appealed his case to the Supreme Court, on the grounds that his state-assigned lawyer failed to introduce crucial evidence that he is mentally retarded.

“There’s no way this kid should be killed,’’ said Stephen B. Bright, president and senior counsel at the Southern Center for Human Rights, an organization that opposes the death penalty. “It’s old-fashioned Southern states’ rights. I was shocked to see that she and the state of Massachusetts had joined that brief.’’

Many of the other attorneys general who signed the brief were from more conservative states in the South and Midwest. All but three states that signed it - Iowa, Massachusetts, and New Mexico - allow the death penalty.

“At the end of the day, if the state of Alabama wins, this kid with an IQ in the 60s will be executed,’’ said Bright, who teaches at Yale and Georgetown law schools.

Coakley and her aides argue that her signing the brief had nothing to do with the death penalty and that they were purely concerned with the legal implications of allowing federal courts more discretion in reviewing decisions that state courts have already made, which Coakley asserts would take additional time, money, and resources.

Coakley said that the brief she signed, though it is attached to a death penalty case, is limited in scope and is designed to address only the question of what role federal courts should have in reviewing state court decisions. The brief makes no mention of capital punishment.

“This, from our point of view, is unrelated to a death penalty or any of the issues around that,’’ Coakley said. “A real concern was that we get a clear determination from the Supreme Court on what is the standard of review of a federal court looking at a state court decision.’’

The case illustrates the tension between Coakley’s role as the state’s top law enforcement official and her political ambition. Her involvement in the case could have political implications in a highly charged Senate race in which her past support for the death penalty has already come under fire.

And:

At issue is the interpretation of the Antiterrorism and Effective Death Penalty Act of 1996, which in most instances bars federal reconsideration of legal and factual issues on which state courts have already ruled. A Supreme Court ruling in Alabama’s favor could result in federal courts having to defer to state judgments in many instances. Death penalty cases from the states are among those frequently challenged in federal court.

“If you’re concerned about the death penalty, then you have to be concerned about people being able to have their case reviewed in federal court,’’ said Bryan Stevenson, executive director of the Equal Justice Initiative of Alabama, which opposes capital punishment. “The error rate, in my judgment, is shockingly high, so high that you want federal courts to be able to review these cases without a lot of restrictions.’’

In this case, Stevenson added, “Mr. Wood will be executed in a matter of weeks . . . It is not theoretical in Alabama.’’

In their brief, Coakley, and other states that signed onto it argued that the decisions already made by state courts should not be overridden.

“States have an obligation to protect the finality of the judgments entered by their courts - an obligation that is even more compelling when it involves criminal judgments,’’ their brief reads. “Undoing finality in habeas corpus litigation in the federal courts can undermine the states’ interests in ensuring safety, deterring crime, and rehabilitating criminal offenders.’’

Otherwise, Massachusetts and every other state would have to go to federal court and defend what it did in state courts, the attorneys general argue.

Over the past year, there were about 100 new federal cases challenging state criminal convictions in Massachusetts, according to the attorney general’s office.

Coakley said those numbers would probably rise if the Supreme Court rules against the states.

Tracey Maclin, a law professor at Boston University, said it “makes perfect sense’’ for Coakley to weigh in on this case.

“I’m against the death penalty, but it would be bordering on incompetence for an attorney general not to sign this case,’’ he said. “If the Supreme Court makes it harder, that’s more work that they would have to do. Unless she wants to make more work for her office, she has a vested interest.’’

Earlier coverage of Wood v. Allen begins here.

U.S. Lawmaker Pushes Death Penalty Appeals Overhaul

That's the title of a news report from AFP, via Google News.  LINK

A US lawmaker has introduced legislation to end "inhumane and unconstitutional" rules that prevent death row inmates from presenting newly discovered evidence to dispute their guilt.

"We've got folks on death row with no opportunity to show compelling new evidence of innocence," Democratic Representative Hank Johnson of Georgia said upon unveiling his proposal this week.

Johnson's measure, hailed by human rights group Amnesty International, would allow federal courts to give death row prisoners more opportunities to present newly discovered evidence that demonstrates probable innocence.

It would also let inmates file more habeas corpus appeals challenging their detention if and only if they offer new evidence that a panel of federal judges rules may be reasonably expected to demonstrate innocence.

If a federal court were to grant a habeas corpus petition, the case would likely return to the court where it was first tried for a retrial, supporters of the legislation say.

Underlining that current restrictions on appeals may lead to innocent people being executed, Johnson warned: "The status quo is inhumane and unconstitutional."

The bill is H.R. 3968, the Effective Death Penalty Appeals Act.  You can view the text via the Library of Congress.  The bill is co-sponsored by: Constitution Subcommittee Chairman Jerrold Nadler (D-NY), Judiciary Committee Chairman John Conyers [D-MI], Crime Subcommittee Chairman Bobby Scott [D-VA], Rep. Anthony Weiner [D-NY] , Rep. Sheila Jackson Lee [D-TX], and Ways and Means Subcommittee Chairman John Lewis [D-GA]

Congressman Johnson's office has issued a news release, "Hank: Bill to protect innocent Americans from execution."

Under current law, an inmate on death row can be stranded with no procedural options to appeal a conviction, even if there is compelling new evidence that he or she is innocent.

The Effective Death Penalty Appeals Act would:

(1) empower federal courts to grant habeas corpus relief for a prisoner on death row who presents newly discovered evidence that demonstrates probable innocence; and

(2) allow prisoners on death row to file successive federal habeas petitions if, and only if, they present newly discovered evidence that a panel of federal judges rules may be reasonably expected to demonstrate innocence.

If a federal court were to grant such a habeas corpus petition, the case would likely return to its original jurisdiction for retrial.

“We’ve got folks on death row with no opportunity to show compelling new evidence of innocence,” said Johnson, Chairman of the Court and Competition Policy Subcommittee. “The status quo is inhumane and unconstitutional.”

“The Effective Death Penalty Appeals Act would prevent the execution of possibly innocent people where there is new evidence of innocence,” said Constitution Subcommittee Chairman Nadler. “If the death penalty remains the law of the land, then, at the very least, our legal system must never ignore evidence that could exonerate the accused. Death is different from all other penalties; it is irreversible. Those on death row must have the opportunity to bring forward all of the available evidence.”

“Unfortunately, errors in death penalty cases are not discovered until after the defendant is already incarcerated,” said Judiciary Committee Chairman Conyers. “In some terrible cases, the system may well be allowing some innocent defendants to be executed.”

“We have learned in Georgia,” said Rep. Lewis, “from the injustice of cases like that of Troy Anthony Davis, where legal technicalities prohibit new, important evidence from being heard. The value of a human life overrides any inconvenience of law. We have a duty and an obligation to ensure that those who may be innocent have every opportunity to be heard.”

“When it comes to a human life, the courts must always be able to take a closer look at evidence that supports claims of innocence,” said Johnson. “We should never put someone to death if there are innumerable doubts or omissions.”

And:

Two cases – one present, one past – demonstrate the necessity of this legislation.

Today, Troy Anthony Davis sits on death row in Georgia. He was convicted of murder in 1991, but nine of eleven eyewitnesses have subsequently recanted their testimony. Because Davis has exhausted his appeals at the state level and federal law offers him no path to relief, he is unable to present the new evidence that might exonerate him. 

The Supreme Court has relied upon its original jurisdiction to order the U.S. District Court for the Southern District of Georgia to grant Mr. Davis an evidentiary hearing.  However, the law in its current form does not necessarily give the District Court authority to grant Mr. Davis’ habeas petition, even if they find that the new evidence supports his innocence claim.

And:

In 2004, Cameron Willingham was executed by the State of Texas for the murder of his children by arson. After Willingham’s conviction, a widely-respected forensics expert reviewed the case and concluded in a report that there was “no evidence of arson.”  The report was sent to Governor Rick Perry and the Texas Board of Pardons and Paroles with Willingham's appeal for clemency. Willingham was executed anyway. Subsequent investigations have cast even more doubt upon the conviction. Newly discovered evidence never got the full hearing it deserved.

Related articles are in the federal legislation index.  Earlier coverage of Troy Davis is here; Todd Willingham, here.

John Bradley on the Forensic Science Commission

"Fired Up," is the title of Mary Alice Robbins' report for Texas Lawyer.  It gives us the most detailed look at John Bradley's plans as the new Chairman of the Texas Forensic Science Commission.

The prosecutor heading a commission at the center of a political firestorm will recommend ways to improve the panel’s operations at a Senate Criminal Justice Committee hearing Nov. 10. The controversy ignited in September when Gov. Rick Perry abruptly replaced two commission members two days before they were to review an arson expert’s report in the case of Cameron Todd Willingham, a death-row inmate executed in 2004 after Perry declined to grant him a 30-day reprieve.

Anti-death penalty activists have contended that Willingham was innocent and that Perry replaced the commission members to block a review of a report questioning whether the fire Willingham was accused of starting was arson.

Williamson County District Attorney John Bradley, the new chairman of the Texas Forensic Science commission, says he will recommend, among other things at the Senate committee hearing, that during an ongoing investigation, the commission should be allowed to meet in private to discuss the matter being investigated and that reports to the commission on an investigation be withheld from public release until the commission concludes its deliberations.

“It’s not a good idea to conduct an investigation in a public forum,” Bradley says.

Other agencies that have an investigative function, including those in law enforcement, are protected from the Texas Open Meetings Act and the Public Information Act during their deliberations, Bradley says. When investigations are conducted in public, it is difficult to protect them from outside influences, he says.

Bradley says he also will suggest that commission members be appointed for three-year terms, not the two years currently provided under Texas Code of Criminal Procedure Article 38.01, so that there is time to train members to carry out the commission’s mission.

“The commission’s work is focused on investigating and then deliberating on allegations of negligence and misconduct in the forensic science field,” Bradley says.

Bradley says that when people act as investigators and judges, they typically should have some background in that work. Most members of the commission don’t do investigative work and need training, he says.

One of the things the commission needs to do, Bradley says, is to develop and adopt written policies and procedures, which it has never had.

But Bradley’s proposed changes come as the commission’s former chairman says the governor replaced him when the commission started looking into the science that helped convict a man of starting a fire that killed his three young daughters.

Perry appointed Bradley to the commission and named him chairman on Sept. 30 — two days before the commission was scheduled to review the findings of an arson expert hired by the commission to evaluate the methods and procedures used by fire investigators in the arson case against Willingham. The Willingham case is one of three the commission has looked into, but it is the first one to reach the report stage.

And:

State Sen. John Whitmire, D-Houston, chairs the criminal justice committee and was a sponsor of H.B. 1068, the 2005 measure that created the Texas Forensic Science Commission. Whitmire, of counsel at Locke Lord Bissell & Liddell, says he will ask Bradley at the Nov. 10 hearing for a status report on the commission and for Bradley’s assessment of the scope and parameters of the commission’s authority.

But Whitmire says he will also ask Bradley, “Oh, by the way, are you going to hear from Beyler?”

Whitmire says he is not troubled by Perry’s replacement of the commission members.

“My position is: He is the governor,” Whitmire says. “He makes appointments.”

But Whitmire says the timing of Perry’s decision to replace these commission members was unfortunate.

“If he had made the decision a month earlier, this situation wouldn’t be the way it is,” Whitmire says.

Whitmire says the situation does not prevent a new set of members from doing their work, which he says is “critical.” He says the important thing is to learn from the forensics and move forward.

Earlier coverage of the Todd Willingham case begins with this post.  All coverage is also available through the Todd Willingham category index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format. David Grann's New Yorker article is noted here.  The Innocence Project's Todd Willingham resource page provides a concise overview of the Willingham case with links to all relevant documents.  Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

Texas Execution

Texas carried out its 20th execution of 2009, tonight in Huntsville.  It was the state's 443rd execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's post-Furman executions.  To date, there have been 43 executions in the nation this year; 1,179 since 1977.

AP's Michael Graczyk files, "Texas man executed for beating death," via Google News.

A man convicted of fatally beating and shooting an East Texas man during a burglary almost 12 years ago was executed Thursday, in a case that gained notoriety because jurors may have consulted a Bible to justify his death sentence.

Khristian Oliver, 32, was pronounced dead by lethal injection at 6:18 p.m.

He told his victim's children, who watched through a window a few feet away, that he wished them the best. After telling his parents, watching through an adjacent window, that he loved them, he started reciting the 23rd Psalm, getting through several verses before the drugs took effect.

And:

The 5th U.S. Circuit Court of Appeals said evidence was contradictory on whether jurors consulted the Bible before or after deliberations and that several jurors testified that the Bible "was not a focus of their discussions."

Houston Chronicle columnist Lisa Gray's must-read column, "Life, death and the prodigal son," appeared in today's edition.

Every death penalty case raises big, Biblical themes: vengeance versus mercy, punishment versus redemption, the Old Testament versus the New.

But never have those themes been plainer than they are in the case of 32-year-old Khristian Oliver, who — pending a last-minute stay of execution — will be executed this evening.

During his murder trial in Nacogdoches, jurors brought four Bibles into the jury room. To decide his fate, they turned to the Old Testament, to eye-for-an-eye verses including Numbers 35:19: The revenger of blood shall himself slay the murderer; when he meeteth him, he shall slay him.

Of course, jurors are supposed to interpret state law, not the Bible. The 5th U.S. Circuit Court of Appeals ruled that those jurors “had crossed an important line” by using specific Bible verses to decide whether Oliver would live or die, that the U.S. Constitution prohibits that sort of “external influence.” And last month, Amnesty International called to have Khristian's sentence commuted.

But so far, the Old Testament penalty stands.

Biblical themes have long been the domain of Khristian's father, Kermit Oliver, a well-known painter and the first African-American artist represented by a major Houston gallery.

Kermit often used his family as models in his allegorical paintings: His fans recognize his wife, Katie, who is also a painter, and their three children. Khristian, the youngest, is the blond one, the boy who looks white, lighter-skinned even than his light-skinned parents. Not long after his birth, he was the central figure in Young Mitras in Gown Designed for His Presentation to the Temple.

And:

In his 10 years on death row, Khristian earned a paralegal degree. He illustrated books for his daughter. And he began reading the classics that his father loves: the works of Plato, the Dead Sea Scrolls.

Significantly, the once rebellious son of painters began to paint, working with the cheap watercolor sets available in prison. On visits, his parents would give him “challenges” to sharpen his skills.

Alvia Wardlaw, who curated Kermit Oliver's 2005 retrospective at the Museum of Fine Arts, Houston, says that as Khristian developed as a painter his works filled with color and light. Like Kermit, he began to paint the allegories.

Supporters have sent letters to Gov. Rick Perry pleading for a stay of execution — time to run DNA tests on the rifle — or that his sentence be changed to life in prison.

On Wednesday, Houston friends of the family were considering where they could gather to wait for tonight's news. One possibility was Trinity Episcopal Church's Morrow Chapel, where the altarpiece is a painting Kermit made a few years after Khristian's trial. Resurrection is one of his most powerful works.

A photograph of the painting is at the LINK

According to TDCJ, five additional executions are scheduled in Texas during 2009.  The next scheduled execution is November 10, followed by execution dates on the 17th, 18th, and 19th.  The final Texas execution of 2009 is set for December 3rd.  Four execution dates have already been set in the state for 2010. 

Kansas Abolition Debate Front & Center for 2010

The Lawrence Journal-World reports, "Death penalty repeal set for debate next session."  It's written by Scott Rothschild.

A proposal to abolish the Kansas death penalty will be considered by lawmakers during the second week of the 2010 legislative session, the committee chair said Wednesday.

State Sen. Thomas “Tim” Owens, R-Overland Park, and chair of the Senate Judiciary Committee, said hearings on the proposal will start Jan. 19.

“We are going to have a complete and thorough discussion of death penalty abolition,” Owens said.

Efforts to repeal the death penalty failed in the Senate during the last legislative session. Some opposed the repeal while others said they were concerned that the way the legislation was written it would have also done away with the life-without-parole sentence for murder.

Kansas has not executed anyone since 1965.

Coverage of Kansas' 2009 legislative debate begins with this post.

Ohio

Andrew Welsh-Huggins has filed, "Ohio GOP lawmakers: Execution process can be fixed," for AP.  It's available via Google News and the New York Times.

Two Republican lawmakers advising Ohio's Democratic governor on changes to the state's lethal injection process say it shouldn't be hard to fix the system.

The lawmakers, both proponents of capital punishment, are among state legislators helping Gov. Ted Strickland find medical personnel willing to help the state improve its injection process. Both say they got involved to make sure recent problems with lethal injection don't lead to attempts to eliminate the death penalty.

"We want to make sure our well-established judicial rights to administer capital punishment in appropriate cases are preserved and will not be defeated by new and ingenious means of dodging the executioner," Sen. Bill Seitz, of Cincinnati, said Wednesday.

Seitz said he's talked to lawyers and doctors but has yet to find anyone willing to come forward. But his conversations have suggested changes Ohio could adopt, ranging from using a retired doctor during executions to requiring that inmates drink enough liquids before an execution to keep their veins healthy.

Sen. Tim Grendell has contacted current and retired doctors looking for advice.

"I find it difficult to believe there isn't a functional solution to this problem," said Grendell, of Chesterland.

The death penalty is temporarily on hold in Ohio while the state develops the new policies. The update follows a botched execution on Sept. 15 that was halted when executioners couldn't find a suitable vein on inmate Romell Broom.

And:

The state said in a court filing last month it was having a hard time finding medical personnel willing to consult about injection because of professional and ethical rules. The rules — which generally prohibit doctors, nurses and others from involvement in capital punishment — are deterring such personnel from speaking publicly or privately about alternatives to the state's lethal injection process.

Among the changes the state is considering: injecting lethal drugs into inmates' bone marrow or muscles as an alternative to — or a backup for — the traditional intravenous execution procedure.

Welsh-Huggins also reported, "Ohio Supreme Court sets 2 new execution dates," also via Google News.

The Ohio Supreme Court on Wednesday set two new execution dates even as the state continues to rework its procedures for putting condemned inmates to death by injection.

The execution dates are the first in four and a half months set by the court, which had been scheduling executions about once a month.

The death penalty is temporarily on hold in Ohio while the state develops the new policies. The update follows a botched execution on Sept. 15 that was halted after two hours when executioners couldn't find a usable vein on inmate Rommel Broom.

The court's decision Wednesday set a May 13 execution date for Michael Beuke, 47, convicted of the 1983 murder of Robert Craig, a man he met while hitchhiking on Interstate 275 in southwest Ohio.

And:

The court also set a June 10 execution date for Richard Nields, 59, sentenced to die for the 1997 death of his girlfriend, 59-year-old Patricia Newsome, at their home in Finneytown in southwest Ohio.

The article also notes:

The decision by Gov. Ted Strickland to stop Broom's execution was unprecedented since the United States resumed executions in the 1970s.

U.S. District Judge Gregory Frost further delayed Broom's execution pending a hearing on the inmate's request that the state not be allowed to try to put him to death again.

Strickland, a Democrat, then granted five-month reprieves to inmates scheduled to die this month and next, and Frost delayed a December execution while the state revises its injection policies.

Earlier coverage from Ohio begins here.

News Coverage of Wood v. Allen & Prosecutorial Immunity Case

You can read the transcripts in Pottawattamie County v. McGhee and Wood v. Allen, via the Court's website.

Adam Liptak writes, "Justices, in Aftermath of 2 Murder Cases, Hear Claims of a Process Gone Wrong," for today's New York Times.

The Supreme Court heard arguments Wednesday in two cases involving claims that the criminal justice system had gone badly awry.

In one, Iowa prosecutors are accused of fabricating evidence that sent two innocent men to life imprisonment for murder. In the other, an Alabama prisoner attributed his death sentence to an appointed defense lawyer’s failure to present evidence at the sentencing phase of his trial.

In the Iowa case, Curtis W. McGhee Jr. and Terry J. Harrington, having spent 25 years in prison, were freed after the Iowa Supreme Court’s determination in 2003 that the main witness against them was “a liar and a perjurer.”

The two men then sued Joseph Hrvol and David Richter, prosecutors in Pottawattamie County, accusing them of coaching and coercing the witness into providing false testimony. For purposes of their appeal to the Supreme Court from a lower court ruling allowing the suit to go forward, the prosecutors accepted the truth of the accusations against them and argued instead that they were entitled to complete immunity from being sued.

It is well established that prosecutors cannot be sued for anything they do during trial, including knowingly submitting false evidence. The question in the Iowa case, Pottawattamie County v. McGhee, No. 08-1065, is whether that immunity extends to prosecutors’ pretrial conduct.

Stephen S. Sanders, a lawyer for the Iowa prosecutors, acknowledged that police officers can be sued for fabricating evidence later used to obtain a conviction. So too, Mr. Sanders said, can prosecutors who had nothing to do with presenting the fabricated evidence at trial. But trial prosecutors, he said, should enjoy complete immunity for anything they do before or during trial.

Justice Anthony M. Kennedy, who is often the swing vote in cases concerning the scope of the Constitution’s due process clause, appeared troubled by the distinction.

“So the law is, the more deeply you’re involved in the wrong, the more likely you are to be immune?” Justice Kennedy said. “That’s a strange proposition.”

And:

The Alabama case, Wood v. Allen, No. 08-9156, arose from the appointment of a lawyer who was less than a year out of law school to help defend Holly Wood, convicted in 1994 of murdering his former girlfriend. The lawyer, Kenneth B. Trotter, failed to pursue or present evidence that Mr. Wood was mentally retarded, though he had a competency report in hand that said as much.

Wednesday’s argument in the case was almost entirely concerned with a 1996 law that limits the claims federal courts can hear from death row inmates.

“It is just repetitive, and it gets people mixed up,” Justice Stephen G. Breyer said of two seemingly duplicative provisions of the law, the Antiterrorism and Effective Death Penalty Act.

Justice Kennedy was also frustrated. “So I have a choice of something that is counterintuitive or superfluous,” he said, “and I don’t know which one to take.”

Various solutions were proposed about how to harmonize the two provisions, but they seemed only to complicate matters further.

Adopting one of those solutions, Justice Breyer said, would lead to confusion and litigation in equal measures. “There will only be four professors in the country who understand which is which,” he said, “and they will each say different things.”

It was not clear, though, that any answer to the question of how to read the dueling provisions would be of help to Mr. Wood.

Some justices said his best argument, under yet a third provision of the law, was not properly before the court. Others said Mr. Wood would have been no better off had his defense worked harder.

"High Court Justices Weigh Tradition of Prosecutorial Immunity Against Potential Civil Rights Violations," is the title of Tony Mauro's report for National Law Journal.

Police who manipulate evidence have only qualified immunity, but prosecutors have long enjoyed absolute immunity, at least for their actions at trial. At issue in the Iowa case is the scope of immunity for prosecutors who are performing police-like duties before trial and then either participate or don't participate in the trial where they would acquire full immunity. County Attorney David Richter and an assistant county attorney, Joseph Hrvol, were targeted in the lawsuit, which alleges prosecutorial wrongdoing through the investigation that carried into the trial.

Several justices appeared disturbed by the facts of the case and unwilling to let prosecutors completely off the hook. But the long tradition of strong prosecutorial immunity also seemed to tug at the Court. "We're worried about the chilling effect on the prosecutors," said Chief Justice John Roberts Jr. at one point.

The former Iowa inmates had an unusual advocate making their case Wednesday: former Bush administration Solicitor General Paul Clement, who represented the Bush Justice Department in 49 previous arguments before the Court.

Now with King & Spalding, Clement agreed to represent the two pro bono to make the point that even prosecutorial immunity has its limits, and that the Iowa prosecutors' misdeeds were beyond the pale.

"The police officer that engages in this misconduct has committed a grave, grave constitutional violation and ought to be liable," Clement told the Court. "I think the prosecutor who engages in the pretrial misconduct and then doesn't participate in the trial is just as liable as that police officer, and I can't think of a single reason why the only reason a prosecutor would get absolute immunity is if they not only participated in the pretrial misconduct but completed the scheme by committing further misconduct at trial."

Clement added that it would be "really perverse" to have a system where police acting alone could be sued for fabricating evidence, but the misdeeds would be immunized from suit if a prosecutor joins in the wrongdoing.

But Clement, along with the justices, struggled to define the point at which prosecutors doing police-like investigative work at early stages of a case are transformed into prosecutors whose actions should not be challenged.

For their part, the lawyers arguing in favor of immunity said the Court needed to hold the line on lawsuits against prosecutors, to prevent litigation by every disgruntled defendant who can poke holes in the government's case.

Jurist posts, "Supreme Court hears arguments in prosecutorial immunity, capital cases," by Jaclyn Belczyk.

In Wood v. Allen, the Court heard arguments on whether the state court erred in concluding that during the sentencing phase of a capital case the defense attorney's failure to present the defendant's impaired mental functioning did not constitute ineffective counsel and whether the circuit court erred in its application of the Antiterrorism and Effective Death Penalty Act (AEDPA) to the review of the state court decision. The US Court of Appeals for the Eleventh Circuit reversed a district court decision that had granted the defendant Holly Wood's habeas petition. Counsel for the petitioner Wood argued, "that there was no strategic decision here, that in fact it was a failure to investigate in violation of this Court." Counsel for the respondents argued that the AEDPA was applied correctly.

Earlier coverage begins with this post.  All briefing is at the ScotusWiki pages for Pottawattamie County v. McGhee and Wood v. Allen.

Texas Execution

Texas is scheduled to carry out its 20th execution of 2009, tonight in Huntsville.  It would b the state's 443rd execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's post-Furman executions.  To date, there have been 42 executions in the nation this year; 1,178 since 1977.

AP's Michael Graczyk files, "Bible at issue in Texas execution case," via the Houston Chronicle.

A 32-year-old man convicted of using a rifle to fatally beat and shoot an East Texas man during a burglary is headed to the death chamber.

It's a case where lawyers questioned whether jurors in their deliberations may have improperly used a Bible to justify their decisions.

State and federal courts, including the U.S. Supreme Court, have upheld the conviction and death sentence of Khristian Oliver. He's condemned for the 1998 slaying of 64-year-old Joe Collins at his home outside Nacogdoches.

Chronicle columnist Lisa Gray writes a must-read, "Life, death and the prodigal son."

Every death penalty case raises big, Biblical themes: vengeance versus mercy, punishment versus redemption, the Old Testament versus the New.

But never have those themes been plainer than they are in the case of 32-year-old Khristian Oliver, who — pending a last-minute stay of execution — will be executed this evening.

During his murder trial in Nacogdoches, jurors brought four Bibles into the jury room. To decide his fate, they turned to the Old Testament, to eye-for-an-eye verses including Numbers 35:19: The revenger of blood shall himself slay the murderer; when he meeteth him, he shall slay him.

Of course, jurors are supposed to interpret state law, not the Bible. The 5th U.S. Circuit Court of Appeals ruled that those jurors “had crossed an important line” by using specific Bible verses to decide whether Oliver would live or die, that the U.S. Constitution prohibits that sort of “external influence.” And last month, Amnesty International called to have Khristian's sentence commuted.

But so far, the Old Testament penalty stands.

Biblical themes have long been the domain of Khristian's father, Kermit Oliver, a well-known painter and the first African-American artist represented by a major Houston gallery.

Kermit often used his family as models in his allegorical paintings: His fans recognize his wife, Katie, who is also a painter, and their three children. Khristian, the youngest, is the blond one, the boy who looks white, lighter-skinned even than his light-skinned parents. Not long after his birth, he was the central figure in Young Mitras in Gown Designed for His Presentation to the Temple.

And:

In his 10 years on death row, Khristian earned a paralegal degree. He illustrated books for his daughter. And he began reading the classics that his father loves: the works of Plato, the Dead Sea Scrolls.

Significantly, the once rebellious son of painters began to paint, working with the cheap watercolor sets available in prison. On visits, his parents would give him “challenges” to sharpen his skills.

Alvia Wardlaw, who curated Kermit Oliver's 2005 retrospective at the Museum of Fine Arts, Houston, says that as Khristian developed as a painter his works filled with color and light. Like Kermit, he began to paint the allegories.

Supporters have sent letters to Gov. Rick Perry pleading for a stay of execution — time to run DNA tests on the rifle — or that his sentence be changed to life in prison.

On Wednesday, Houston friends of the family were considering where they could gather to wait for tonight's news. One possibility was Trinity Episcopal Church's Morrow Chapel, where the altarpiece is a painting Kermit made a few years after Khristian's trial. Resurrection is one of his most powerful works.

A photograph of the painting is at the LINK

The Nacogdoches Daily Sentinel reports, "Khristian Oliver set to die by lethal injection." It's written by Christy Wooten.

According to TDCJ, five additional executions are scheduled in Texas during 2009.  Four execution dates have already been set for 2010 in Texas.

Houston's KPFT-FM will host Execution Watch on the web and it's HD radio broadcast signal beginning at 6:00 p.m. (CDT), tonight.

Texas is scheduled to carry out its 20th execution of 2009, tonight in Huntsville.  It would b the state's 443rd execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's post-Furman executions.  To date, there have been 42 executions in the nation this year; 1,178 since 1977.

AP's Michael Graczyk files, "Bible at issue in Texas execution case," via the Houston Chronicle.

A 32-year-old man convicted of using a rifle to fatally beat and shoot an East Texas man during a burglary is headed to the death chamber.

It's a case where lawyers questioned whether jurors in their deliberations may have improperly used a Bible to justify their decisions.

State and federal courts, including the U.S. Supreme Court, have upheld the conviction and death sentence of Khristian Oliver. He's condemned for the 1998 slaying of 64-year-old Joe Collins at his home outside Nacogdoches.

Chronicle columnist Lisa Gray writes a must-read, "Life, death and the prodigal son."

Every death penalty case raises big, Biblical themes: vengeance versus mercy, punishment versus redemption, the Old Testament versus the New.

But never have those themes been plainer than they are in the case of 32-year-old Khristian Oliver, who — pending a last-minute stay of execution — will be executed this evening.

During his murder trial in Nacogdoches, jurors brought four Bibles into the jury room. To decide his fate, they turned to the Old Testament, to eye-for-an-eye verses including Numbers 35:19: The revenger of blood shall himself slay the murderer; when he meeteth him, he shall slay him.

Of course, jurors are supposed to interpret state law, not the Bible. The 5th U.S. Circuit Court of Appeals ruled that those jurors “had crossed an important line” by using specific Bible verses to decide whether Oliver would live or die, that the U.S. Constitution prohibits that sort of “external influence.” And last month, Amnesty International called to have Khristian's sentence commuted.

But so far, the Old Testament penalty stands.

Biblical themes have long been the domain of Khristian's father, Kermit Oliver, a well-known painter and the first African-American artist represented by a major Houston gallery.

Kermit often used his family as models in his allegorical paintings: His fans recognize his wife, Katie, who is also a painter, and their three children. Khristian, the youngest, is the blond one, the boy who looks white, lighter-skinned even than his light-skinned parents. Not long after his birth, he was the central figure in Young Mitras in Gown Designed for His Presentation to the Temple.

And:

In his 10 years on death row, Khristian earned a paralegal degree. He illustrated books for his daughter. And he began reading the classics that his father loves: the works of Plato, the Dead Sea Scrolls.

Significantly, the once rebellious son of painters began to paint, working with the cheap watercolor sets available in prison. On visits, his parents would give him “challenges” to sharpen his skills.

Alvia Wardlaw, who curated Kermit Oliver's 2005 retrospective at the Museum of Fine Arts, Houston, says that as Khristian developed as a painter his works filled with color and light. Like Kermit, he began to paint the allegories.

Supporters have sent letters to Gov. Rick Perry pleading for a stay of execution — time to run DNA tests on the rifle — or that his sentence be changed to life in prison.

On Wednesday, Houston friends of the family were considering where they could gather to wait for tonight's news. One possibility was Trinity Episcopal Church's Morrow Chapel, where the altarpiece is a painting Kermit made a few years after Khristian's trial. Resurrection is one of his most powerful works.

A photograph of the painting is at the LINK

The Nacogdoches Daily Sentinel reports, "Khristian Oliver set to die by lethal injection." It's written by Christy Wooten.

According to TDCJ, five additional executions are scheduled in Texas during 2009.  Four execution dates have already been set for 2010 in Texas.

Houston's KPFT-FM will host Execution Watch on the web and it's HD radio broadcast signal beginning at 6:00 p.m. (CDT), tonight.

An Update on Scent Lineups

The Court of Criminal Appeals will be looking at one of the cases involved in scent lineups, that of Richard Lynn Winfrey from San Jacinto County.  His petition for discretionary review was granted by the Court today.  The appellant's brief is due December 4th.

Today's New York Times article is here.

Texas Tribune Up and Breaking News

As noted earlier, the Texas Tribune went live yesterday.  Today, Emily Ramshaw is breaking news on the criminal justice front with, "TYC: Mentally ill offenders won't be discharged without proper services."  Here's an excerpt:

The Texas Youth Commission will stop releasing young offenders who are too mentally ill to rehabilitate until the agency is sure they’re receiving proper treatment in the community, officials said Tuesday.

Dozens of juvenile offenders with serious mental illness are released from TYC lock-ups every year because they’re too sick to treat — not because they’re no longer a threat to the community. In the last five years, the agency has discharged hundreds of youth under this mental illness statute.

One was a schizophrenic and psychotic 16-year-old who fatally stabbed a Tyler high school teacher in September, just months after his release from the TYC.

TYC officials say state law requires them to discharge juveniles who are mentally ill or profoundly disabled if they’ve completed their minimum sentence and aren’t benefiting from rehabilitation programs. Of the 206 youth offenders they’ve released under this provision since 2005, 20 percent have been recommitted to either the TYC or an adult lock-up. 

Until this spring, a youth discharged for mental illness wasn’t eligible for specialized psychiatric services in the community. Enter Rep. Jim McReynolds, D-Lufkin, who last session shepherded a bill providing reentry services and health care referrals to youths discharged for mental illness. That care is being provided by the Texas Correctional Office of Offenders with Medical or Mental Impairment (TCOOMMI).

New Hampshire Legislators Seek to Expand Death Penalty

"Mont Vernon legislators: Home invasion murderers deserve death penalty," by Tom Fahey is in the New Hampshire Union Leader.

Two Mont Vernon lawmakers want to expand the state's death penalty law to include murders during home invasions.

Their town was the scene of the shocking murder on Oct. 4 of 42-year-old Kimberly Cates. Four teenagers have been charged in connection with the home invasion in which police say Cates was killed in a machete attack that left her 11-year-old daughter seriously injured.

Prosecutors say the teens targeted the home at random, with a plan to kill anyone inside. Two face first-degree murder charges.

Rep. William O'Brien and Rep. Robert Mead, both Republicans, are asking that their bill be called the Kimberly L. Cates Law. They have asked the House Rules Committee to let them bring forward their proposed bill, even though the deadline for new legislation has passed. The two also hope to have a bill introduced in the Senate, which is still accepting new legislation

And:

If the law were changed, the new standards would not apply to the teens charged in the Mont Vernon murder.

A year-long study of the death penalty is just getting organized in the Legislature. That study could produce recommendations to expand or eliminate the death penalty. O'Brien said he expects some resistance while the full study is under way, but he will push for passage when lawmakers return in January.

The Boston Globe carries the AP report, "NH bill to make home raid killings capital crime," written by Norma Love.

Under O'Brien's bill, prosecutors would have to prove home invaders entered with the specific intent to kill the occupants of the house for the crime to be punishable by the death penalty.

New Hampshire's death penalty law has more restrictions than any state that allows capital punishment. New Hampshire allows capital punishment for six types of crimes, including killing a police officer.

Last year, a man was sentenced to die for killing a police officer -- New Hampshire's first death sentence in 50 years. The state's last execution took place in 1939.

The U.S. Supreme Court halted executions in 1972 and lifted the ban four years later. Of the 36 states that allow capital punishment, only New Hampshire and Kansas have had no executions since 1976, according to the Death Penalty Information Center in Washington, D.C.

Earlier coverage from New Hampshire begins with this post.

Wood v. Allen at Supreme Court

The Supreme Court hears the Alabama death penalty today.  All briefing is at the ScotusWiki page for Wood v. Allen.

"Application of AEDPA to Review of State Determinations of Fact (Wood v. Allen Argument Preview)," is at SCOTUS Blog.  The preview is written by Tiffany Cartwright.

On November 4^th, the Court will hear arguments in Wood v. Allen, a capital habeas case that questions how a federal court should review the facts determined in a state criminal proceeding under the Antiterrorism and Effective Death Penalty Act (AEDPA).

Petitioner Holly Wood was convicted in Alabama of murdering his former girlfriend.  Two of Wood’s appointed attorneys were experienced criminal trial lawyers; the third was a novice with no criminal experience. The less experienced lawyer handled the penalty phase, during which he failed to present mitigation evidence, obtained from a competency evaluation, of Wood’s significant mental impairments. By a vote of ten to two, the jury recommended a death sentence, which the trial judge imposed.

Wood’s conviction and sentence were affirmed on direct appeal.  The state courts rejected his petition for post-conviction relief, in which he alleged that his trial counsel’s failure to investigate and present evidence of his mental impairments at the penalty phase constituted ineffective assistance.  Instead, the state court held, the failure to present evidence of Wood’s mental impairments was a strategic decision made by Wood’s more experienced counsel.

Wood then filed a federal habeas petition under 28 U.S.C. § 2254, the section of AEDPA that governs petitions by state prisoners.  Section 2254 contains two subsections that relate to state court factual findings:  subsection (d)(2), which precludes relief unless the state court proceeding “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding”; and subsection (e)(1), which creates a presumption that “a determination of a factual issue made by a state court” is correct unless rebutted by clear and convincing evidence.

The district court granted relief, concluding that a “finding by the state courts that a strategic decision was made not to investigate or introduce . . . evidence of mental retardation is an unreasonable determination of the facts in light of the clear and convincing evidence presented in the record.”  The court found that Wood’s less experienced lawyer was left unsupervised to investigate mitigating evidence; moreover, the failure to introduce evidence of Wood’s mental impairments stemmed from his counsel’s inexperience rather than a strategic decision.

On appeal, a divided panel of the Eleventh Circuit reversed. 

At the ACS Blog Emily Garcia Uhrig of the McGeorge School of Law posts, "SCOTUS Preview: Wood v. Allen."

Mr. Wood's challenge stems from defense counsel's failure to investigate and develop mitigation evidence for the penalty phase of his trial based on his substantial mental deficiencies. (To begin with, Mr. Wood has an IQ estimated in the 60s.) Mr. Wood was represented by three attorneys - two, experienced and one, just out of law school. Experienced counsel assumed responsibility for the guilt phase of Mr. Wood's trial and put new counsel, who had no prior criminal trial or capital case experience, in charge of the penalty phase.

Defense counsel learned from a pretrial competency evaluation that Mr. Wood functioned "in the borderline range of intellect." But despite the fact that issues pertaining to mental capacity often provide fertile ground for mitigation during the penalty phase of capital cases, counsel did not investigate further Mr. Wood's limited intellectual functioning nor introduce any evidence on the subject during the penalty phase. The jury recommended death by a 10-2 margin, the statutory minimum for such recommendation in Alabama. The judge abided by the jury's recommendation and sentenced Mr. Wood to death by electrocution.

Mr. Wood challenged his sentence in state post-conviction proceedings on the ground that he had received ineffective assistance of counsel under Strickland v. Washington during the penalty phase of his trial, in violation of the Sixth and Fourteenth Amendments. He argued that (1) defense counsel was deficient in failing to develop and introduce the mitigation evidence; and (2) there was a reasonable probability that but-for that deficiency, he would not have received a death sentence. The evidence adduced at two state evidentiary hearings on the claim strongly suggested that counsel's omission was due more to professional inexperience and poor communication among defense counsel, than a calculated, tactical decision by the defense team. (Experienced defense counsel's testimony was largely unhelpful in this regard in that, due to the passage of time, they recalled little, if any, of the actual tactical decisions made during the penalty phase.)

And:

In granting certiorari, the Supreme Court agreed to evaluate the merits of the Eleventh Circuit's ruling. But in order to do so, the Court also agreed to consider a threshold issue regarding the level of deference federal courts must give to state factual findings in resolving federal habeas petitions. This issue of statutory interpretation has vexed and divided lower federal courts since the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") rewrote the standards that govern federal habeas review. Remarkably, until now, the Court has not provided guidance on the matter.

The debate on the level of deference centers on the interaction of two sections of AEDPA, 28 U.S.C. §§ 2254(d)(2) and 2254(e)(1). Section 2254(d)(2) provides that a federal court may grant a writ of habeas corpus where the state court's adjudication of the claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Section 2254(e)(1), by contrast, provides that "a determination of a factual issue made by a State court shall be presumed to be correct" by a federal court and "the applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." The parties, as well as circuit courts, disagree as to how to reconcile these two provisions.

And:

The issue is a tricky one, with both parties finding support from the canons of statutory interpretation. Guidance from the Court on the issue is long overdue and, though seemingly academic, may have a significant impact on litigants such as Mr. Wood: While the state courts' factual finding that defense counsel's decision not to investigate evidence of his mental deficiencies was tactical may qualify as "unreasonable" under § 2254(d)(2), it may be a more difficult task to rebut that finding by clear and convincing evidence under § 2254(e)(1), particularly where defense counsel, themselves no longer recall their own decision-making. Thus, for Mr. Wood and others like him, the availability of habeas relief - a literal matter of life or death - may ultimately turn on the level of deference given to state court factual findings, as articulated by the relationship between these two statutory provisions.

The Wisonsin Law Journal takes up the case, with others, at, "U.S. Supreme Court scrutinizing lawyers," written by Kimberly Atkins.

The Court is not done examining how lawyers do their jobs. On Nov. 4, the justices will hear oral arguments in a case dealing with the alleged bad deeds of prosecutors. Pottawattamie County v. McGhee asks whether a prosecutor may be held civilly liable for wrongful conviction and incarceration for allegedly procuring false testimony during a criminal investigation, and then introducing that same testimony against a criminal defendant at trial.

The same day, in Wood v. Allen, the Court will consider whether a defense attorney’s failure to present evidence of the defendant’s impaired mental functioning in a capital case constituted ineffective assistance of counsel.

Decisions in all of these cases are expected this term.

Earlier coverage of the case begins with this post.

Attorneys for DC Sniper Appeal to Supreme Court

"Supreme Court is asked to spare sniper," is the report in today's Washington Post.  It's written by Maria Glod and Josh White.

Attorneys for sniper John Allen Muhammad, mastermind of the terrifying 2002 Washington area shooting spree, asked the U.S. Supreme Court on Tuesday to halt their client's execution, saying he was paranoid and delusional during his trial.

Muhammad, 48, who teamed up with Lee Boyd Malvo, now 24, in a series of random shootings that left 10 people dead, suffers from mental illness and brain damage caused partly by childhood beatings, defense attorney Jonathan P. Sheldon and others on the defense team wrote.

As he prepared for his 2003 trial, Muhammad was "amnesic of the events surrounding the crimes" and thought he was being framed in an elaborate scheme, the attorneys wrote. He believed that he was a prophet and said Malvo discovered an herbal cure for AIDS. He also said the military had trained him in "urban warfare" at "secret schools." The attorneys said that because of Muhammad's brain damage, he has trouble following a logical line of thought and "lacks sufficient ability to distinguish truth from falsity."

The argument to the Supreme Court contends that attorneys Peter D. Greenspun and Jonathan Shapiro were ineffective because they failed to object to Muhammad's demand to represent himself at trial. Had the pair argued that Muhammad's mental problems made him unfit to present his own defense, there is a "reasonable probability" that the judge would have found Muhammad incompetent to stand trial altogether, Sheldon wrote.

"Trial counsel knew that Muhammad had been diagnosed with severe mental illness, and personally observed Muhammad's struggle with severe psychiatric disorders prior to the start of the trial," the attorneys wrote. "Muhammad's trial attorneys had a duty to request a competency evaluation, and their failure to do so was unreasonable and below prevailing professional norms."

"Plea to delay execution in sniper case," is the title of Lyle Denniston's post at SCOTUS Blog.

Seeking to slow down the famed “rocket docket” in federal trial courts in Virginia, at least when a death-row inmate is testing his state conviction and sentence, attorneys for John Allen Muhammad asked the Supreme Court on Tuesday to delay his execution and then hear and decide his challenges.  Muhammad faces execution in one week, on Nov. 10,  for a Manassas, Va., murder that was one of ten he and a youthful compansion allegedly carried out in a wave of 16 sniper shootings in the Washington area seven years ago.

Besides testing a practice in the Virginia federal district courts of shortening the time to file an initial federal habeas plea, Muhammad’s counsel are challenging lower courts’ rulings that he was not harmed legally by representing himself for part of his trial, even though lawyers advising him knew of evidence that would indicate he was not mentally competent to understand what was happening at the trial.

His stay application (09A423) is here.  Along with it, he filed a petition for review (Muhammad v. Kelly, 09-7328).  The papers were filed initially with Chief Justice John G. Roberts, Jr., who is the Circuit Justice for emergency orders in the federal Fourth Circuit, which includes Virginia.  He has the authority to act alone or share action with his colleages on the stay application.  The full Court will consider the certiorari petition.

In seeking to put off the Nov. 10 execution, Muhammad’s attorneys argued that “Virginia is alone in its practice of always setting an execution date just prior to the Supreme Court’s consideration of a petition for a writ of certiorari from an appeal of a first habeas petition.”  The application noted that Justices John Paul Stevens and Ruth Bader Ginsburg protested that practice two years ago.  That complaint is separate from the challenge to the federal district courts’ refusal, on first habeas petitions like Muhammad’s, to allow the full year to file that is specified under federal law.

Because the execution date would fall 20 days before Muhammad’s petition would even be due in the Supreme Court under normal scheduling, his lawyers filed it at the same time as their stay application.   The application argued that the Court should adopt as a routine practice the staying of all executions that a state schedules before the Supreme Court has a chance to complete review of a first federal habeas case.

Today's Allentown Morning Call, in Pennsylvania, carries an OpEd by Brian Gilmore, "D.C. sniper should not be executed."  Gilmore is a writer for Progressive Media Project.

John Allen Muhammad, the infamous Washington sniper, should not be put to death.

But Muhammad will die on Nov. 10 by lethal injection. He will be executed under the laws of the state of Virginia. No one will save him. Not the U.S. Supreme Court. Not Virginia Gov. Tim Kaine. Not President Obama. Each could do so but won't.

I understand why families of Muhammad's victims want him to die: He terrorized a city, he ruined lives and he destroyed futures. I was living in Washington at the time, and I can still recall my own fear for myself, my family and my friends that there was a random shooter on the loose.

But the justified anger of the victims' kin does not justify state-sponsored killing.

Capital punishment is morally wrong and irrational.

Idaho Prosecutors Opting Not to Seek Death Penalty

That's the title of Patrick Orr's report in the Idaho Statesman of Boise.  It's subtitled, "Only 2 Idaho counties have asked for the death penalty in murder cases since 2003, and Ada hasn’t pursued it since being denied twice in 2005."

For Elmore County prosecutor Kristina Schindele, the decision was simple: The only way Mexico would extradite accused triple-murderer Jorge Orozco to Idaho was if the county agreed not to pursue the death penalty.

But as Ada County Prosecutor Greg Bower faced one of the most high-profile murder cases in his decades-long career, the call was much tougher.

He ultimately wouldn't detail "the many legal and factual reasons" why he is not seeking the death penalty for Daniel Ehrlick and Melissa Jenkins, saying he didn't want to prejudice the jury pool.

But trying to predict exactly what that jury will do is likely a major factor why Bower won't seek the death penalty in the beating and murder of 8-year-old Robert Manwill.

Because in death penalty cases in Idaho since 2003, the jury is the ultimate arbiter. And rather than take death penalty cases to juries, prosecutors across the state are opting not to pursue executions at all or are agreeing to plea deals that put killers in prison for life.

Prosecutors have to weigh the high costs of pursuing the death penalty and the suffering of victims' families through years of appeals against a sentence that is largely symbolic.

Just one person in half a century has been executed in Idaho - double-murderer Keith Eugene Wells, who dropped all appeals and demanded a lethal injection in 1994.

And since the U.S. Supreme Court in 2002 said that juries, not judges, must issue the death penalty, prosecutors around the state have been forced into a guessing game: Even if jurors believe the accused committed the crime, will they pass a death sentence?

So far, only Ada and Canyon counties have asked juries to issue the death penalty, and less than half of those cases resulted in death sentences. Not one of Idaho's 42 other counties has taken a death penalty case to trial.

Of the four attempts in Ada County, juries sentenced two men to death and spared the lives of two others - including one in a child-death case with many similarities to the Manwill case.

And:

To impose the death penalty, a jury must unanimously find that the aggravating factors - such as whether the defendant showed an utter disregard for human life or a propensity to commit murder - outweigh the mitigating factors offered by the defense.

Mitigation is not as strictly defined. Defense attorneys can offer evidence of whatever they say may have contributed to what happened. Common mitigating factors include mental health issues or a history of childhood trauma - including mental, physical and sexual abuse.

Today's Twin Falls Times-News carries the editorial, "Capital punishment may be gone for good in Idaho."

Is the death penalty a thing of the past inthe Gem State? Sure looks that way. Ada County Prosecutor Greg Bower's recent decision not to seek the death penalty against the mother and her boyfriend accused of killing 8-year-old Robert Manwill last summer shows just how difficult prosecutors believe it is to convince a jury to put a convicted person to death in Idaho.

And there are other considerations as well. Recession-battered small counties simply can't afford the hundreds of thousands of dollars that prosecuting a death penalty case requires.

In 2002, the U.S. Supreme Court ruled that juries - not judges - must impose capital punishment. For prosecutors, that's a much bigger hurdle.

To apply the death penalty, jurors must unanimously find that the aggravating factors - such as whether the defendant showed an utter disregard for human life or a propensity to commit murder - outweigh mitigating factors offered by the defense.

Mitigation is a murky concept. Defense attorneys can offer evidence of whatever they say may have contributed to what happened. Common mitigating factors include mental health issues or a history of childhood trauma.

Since juries took over deciding the death penalty, only two Idaho counties have asked for capital punishment in murder cases. Ada County - Idaho's biggest and most prosperous - hasn't pursued it since being denied twice in 2005.

And:

Polls have consistently shown that Idaho is one of the most pro-death penalty states in the nation, but just one person in half a century has been executed here - double-murderer Keith Eugene Wells, who dropped all appeals and demanded lethal injection in 1994.

Unless the Supreme Court changes the rules, capital punishment is the longest of longshots for Idaho prosecutors nowadays. And nobody in Idaho - not the governor, the Legislature, the attorney general nor prosecutors - is in a position to change that.

Earlier coverage from Idaho is here.

The Economist on the Todd Willingham Case

"From arson to politics," is the title of the article from the October 22nd issue.

Innocence is a recurrent claim in last statements. In Mr Willingham’s case, it may well have been true. Shortly before he was executed, an arson expert from Austin faxed a report to the governor, Rick Perry, arguing that the 1991 investigation was based on bad science and that there was no proof of arson. Half a dozen additional experts have come to the same conclusion. In August another report came from Craig Beyler, who had been hired by the Texas Forensic Science Commission (TFSC), an oversight board. Mr Beyler’s report gave a blistering assessment of the original investigation, saying its conclusions were “nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation.”

Two days before the commission was due to hold a hearing on the Beyler report, on September 30th, Mr Perry announced he was replacing three of his appointees to the TFSC, including its head, Sam Bassett. Several days later he said he would replace the fourth. Their terms had expired, the governor explained. That is true, but not especially convincing. “It certainly is bad timing for the continuity of these investigations,” says Mr Bassett, a criminal defence attorney in Austin. Had the commission concluded that the evidence did not point to arson, Mr Perry would have been faced with the grave possibility that Texas had executed an innocent person.

Even Republicans are concerned. The governor is up for re-election in 2010. Kay Bailey Hutchison, his chief opponent for the Republican nomination, announced that the business with the commission was just “giving liberals an argument to discredit the death penalty”.

Michelle Goldberg of the American Prospect writes, "The Execution of a Potentially Innocent Man Less Scandalous Than an Affair?" for AlterNet, today.

It's lucky for Gov. Rick Perry of Texas that he's not suspected of doing something truly shocking, like having an affair. Instead, it merely seems that he's helped cover up a homicide. Apparently that's not enough to make much of a national splash.

Last month, The New Yorker published a remarkable piece by David Grann about the case of Cameron Todd Willingham, who was executed in 2004 for a crime that all the evidence suggests he didn't commit. In 1991, Willingham's house caught on fire, burning his three daughters to death. Ill-trained investigators accused Willingham of arson. At his trial, a family therapist who had never met Willingham was called as an expert witness and suggested that Willingham's heavy metal posters indicated that he might be a satanist.

Because Willingham couldn't afford decent representation, it was many years before a friend of his managed to get qualified experts to take a look at the case. Grann described the investigation conducted by Gerald Hurst, one of the country's most acclaimed fire investigators: "Hurst concluded that there was no evidence of arson, and that a man who had already lost his three children and spent twelve years in jail was about to be executed based on 'junk science.'" If Perry read the report, which was submitted just weeks before Willingham was executed, he didn't act on it, refusing to grant a stay of execution.

Grann wasn't the first to probe the Willingham case. Ten months after Willingham was put to death, The Chicago Tribune published an important investigation by Steve Mills and Maurice Possley. Willingham, they wrote, "was prosecuted and convicted based primarily on arson theories that have since been repudiated by scientific advances. According to four fire experts consulted by the Tribune, the original investigation was flawed and it is even possible the fire was accidental."

And:

Perry's role in this continuing injustice should be cause for a national uproar at least as big as the one that attended Mark Sanford's dalliance in Argentina or Elliot Spitzer's patronage of prostitutes. What could be more sordid than hushing up an illegitimate state-sanctioned killing? What more obvious abuse of power exists? Yet one can easily read the country's major papers and faithfully watch TV news and barely hear a word about what's happening in Texas.

The state's press is covering it, of course, and both The Chicago Tribune and The New Yorker have been heroic. On Monday, the Tribune published its latest report under the blunt headline, "Texas execution: Statements by Gov. Rick Perry, others don't align with facts."

Still, the story, for all its drama, remains far from a hot topic. If ever a story were crying out for a journalistic pile-on, this one is. Yet there's no intimation that this could be a career-ending thing for Perry, no widespread sense of outrage. This should be the biggest scandal of the year. The fact that it's not is a scandal itself.

Earlier coverage of the Todd Willingham case begins with this post.  All coverage is also available through the Todd Willingham category index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format. David Grann's New Yorker article is noted here.  The Innocence Project's Todd Willingham resource page provides a concise overview of the Willingham case with links to all relevant documents.  Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

'Scent Lineup'

"Picked From a Lineup, on a Whiff of Evidence," is the title of John Schwartz' report in today's New York Times.  Here's an extended excerpt:

A dog’s sniff helped put Curvis Bickham in jail for eight months. Now that the case against him has been dropped, he wants to tell the world that the investigative technique that justified his arrest smells to high heaven.

The police told Mr. Bickham they had tied him to a triple homicide through a dog-scent lineup, in which dogs choose a suspect’s smell out of a group. The dogs are exposed to the scent from items found at crime scene, and are then walked by a series of containers with samples swabbed from a suspect and from others not involved in the crime. If the dog finds a can with a matching scent, it signals — stiffening, barking or giving some other alert its handler recognizes.

Dogs’ noses have long proved useful to track people, and the police rely on them to detect drugs and explosives, and to find the bodies of victims of crime and disaster. A 2004 report by the F.B.I. states that use of scent dogs, properly conducted, “has become a proven tool that can establish a connection to the crime.”

Scent lineups, however, are different. Critics say that the possibilities of cross-contamination of scent are great, and that the procedures are rarely well controlled. Nonetheless, although some courts have rejected evidence from them, the technique has been used in many states, including Alaska, Florida, New York and Texas, said Lawrence J. Myers, an associate professor of animal behavior at the Auburn University College of Veterinary Medicine.

In particular, the methods of the dog handler in Mr. Bickham’s case, and in a half-dozen others that are the basis of lawsuits, have come under fierce attack.

The handler, Deputy Keith A. Pikett of the Fort Bend County, Tex., Sheriff’s Department, is “a charlatan,” said Rex Easley, a lawyer in Victoria, Tex., who represents a man falsely accused by the police of murdering a neighbor. Deputy Pikett, the lawyer said, “devised an unreliable dog trick to justify local police agencies’ suspicions” for producing search warrants and arrests.

Deputy Pikett, who declined to be interviewed, works in the town of Richmond, southwest of Houston, but he has served as a busy consultant to law enforcement agencies around the state, using his home-trained bloodhounds — he has given them names that include Columbo, Quincy and Clue — to sniff out crime. A native of Buffalo, N.Y., he has by his own estimate in court testimony performed thousands of scent lineups since the 1990s. His lawyer said the techniques were effective.

Thomas Lintner, the chief of the F.B.I. laboratory’s evidence response team unit, said the agency used scents only to follow a trail to a suspect or to a place associated with him, and not to identify one person out of several. The 2004 F.B.I. report warned that dog scent work “should not be used as primary evidence,” but only to corroborate other evidence.

In several of the cases that were based on Deputy Pikett’s dogs, however, the scent lineups appear to have provided the primary evidence, even when contradictory evidence was readily available. Mr. Bickham spent eight months in jail after being identified in a scent lineup by Deputy Pikett’s dogs, until another man confessed to the killings. In an interview, Mr. Bickham scoffed at the accusation that he had taken part in three murders, noting that he has been hobbled by bone spurs and diabetes and is partially blind.

Ronald Curtis, another Houston man jailed on the basis of Deputy Pikett’s dogs, was released from jail nine months after being accused of a string of burglaries. Store videos showed that the burglar did not resemble him. “Nobody was listening,” Mr. Curtis said.

Both he and Mr. Bickham are filing civil lawsuits over their treatment in federal court on Wednesday.

The first person to file such a suit, in January, was Michael Buchanek, a retired captain with the Victoria County, Tex., Sheriff’s Department and a client of Mr. Easley. After Deputy Pikett’s dogs identified him, Mr. Buchanek said the police “just kept telling me, ‘the dogs don’t lie — we know you did it.’ ” After months of uncertainty, DNA evidence implicated another man who later confessed to the crime.

And:

Mr. Easley shared his findings with colleagues at the Innocence Project of Texas, a legal defense organization, which released a report last month that excoriated dog scent lineups as a “junk science injustice.” Jeff Blackburn, the chief counsel for the group, said Deputy Pickett merely gave the police the match they had hoped for.

Earlier coverage of the Deputy Pikett and his dogs begins with this post.

Cost an Issue in Spokane, Washington

Today's Spokesman-Review carries the editorial, "Death penalty cases costly; instead, seek life sentences."

Stevens County is balking at accepting the death penalty case of Christopher H. Devlin, because of the enormous costs associated with mounting such cases. It’s a valid concern, because the county is already facing a $1.2 million deficit.

“I have no doubt that the defense cost of Mr. Devlin and the costs to prosecute this case would be a serious blow to the solvency of Stevens County,” county prosecuting attorney Tim Rasmussen told The Spokesman-Review. He noted that a similar case cost Okanogan County $750,000.

While cost shouldn’t be the only concern in prosecutions, it’s become clear that a death penalty charge imposes a financial burden that isn’t worth it. That’s also true of larger counties, especially as they try to dig themselves out of deep budgetary holes. It can mean more pressure to reach plea agreements in other cases or employee layoffs or cutbacks in service.

And:

This financial hot potato shows why it is a wiser course to seek life sentences, with no possibility of parole, for defendants like Devlin. Despite popular misconception, it is cheaper to imprison and feed a “lifer” than it is seek an execution. Once such a conviction is obtained, a series of lengthy appeals will begin. Many more death row inmates die of natural causes than executions, but the delays are necessary because of the irreversible nature of the punishment.

Spokane County dodged a bill of $1 million or more when it decided against the death penalty for convicted serial killer Robert Lee Yates Jr. The same is true with Kootenai County in the case of Joseph Duncan.

We certainly do not weep for these killers, and if Devlin is guilty, we have no sympathy for him. But they will die in prison. Hastening that day just isn’t worth it.

Related articles are in the cost index

OpEds, Columns, and Commentary on the Florida Cases

"The Case Against Juvenile Life Without Parole: Good Policy and Good Law," is the title of Kristin Henning's commentary at FindLaw.com.  She's Co-Director of the Juvenile Justice Clinic at Georgetown University Law Center.

Many children in conflict with the law come to the same crossroads as Joe and Kareem. And there, the courts must decide: Should a juvenile convicted of a crime – even a violent crime – be sentenced to life and denied any meaningful opportunity for parole? In November, the United States Supreme Court will answer this question when it hears the cases of Joe Sullivan and Terrance Graham, another Florida juvenile who was sentenced to life without parole (LWOP).

The stories of Joe and Kareem demonstrate that the Court's answer should be no – both as a matter of policy and as a mandate of law. Where the paths of Joe and Kareem diverge, the paths of policy and law come together, leading to one conclusion: juvenile LWOP is a violation of the Eighth Amendment's prohibition of cruel and unusual punishment.

Both Kareem and Joe illustrate why eliminating juvenile LWOP is good policy. The overwhelming majority of juvenile offenders do not become chronic offenders. Instead, they follow Kareem's path, embracing the opportunity to reform and becoming productive members of society.

Children change over time. Juveniles who commit crimes are in the midst of their cognitive and psychological development. According to the American Medical Association, adolescents are more likely to engage in risky, sensation-seeking behavior because their brains are not fully developed. The frontal lobe of the brain, which controls our most advanced functions (like judging consequences and controlling impulses), continues to evolve into our early 20s.

The result? More often than not, a juvenile offender's propensity for impulsive (even criminal) behavior will dissipate in adulthood. The difference between a youth offender and an adult offender is clear: the child's identity is unformed, meaning that his "criminal" character is far less likely to be chiseled in stone. As the American Psychological Association tells us, juveniles have "greater changeability" and a strong capacity to reform.

Every time a child is sentenced to LWOP in our country, science collides with morality. We know from the soundest neurological and psychological research that youth offenders are not as competent or hardened as their adult counterparts. And yet, Joe Sullivan's formative and fluid identity met an irreversible fate when he was sentenced in 1991.

Florida's St. Petersburg Times carries the OpEd, "Myths of get-tough law," by Jeffrey Fagan & Franklin E. Zimring.  Fagen teaches law at Columbia; Zimring at UC Berkeley.

Florida Attorney General Bill McCollum is defending the state's life without possibility of parole sentences for 13- and 16-year-olds against constitutional attack. But this isn't the first time McCollum has made history in the politics of juvenile justice. As a member of Congress in the 1990s, he promised the United States a "coming storm" of superpredators as a result of a population surge of kids from fatherless homes.

His 1996 warning was a world-class mistake. Juvenile homicide arrests promptly dropped in the United States by half. Yet anyone who thinks that a catastrophic statistical error like a phony crime wave would slow down McCollum needs to think again. In his brief before the Supreme Court in Graham vs. Florida, a constitutional challenge to laws permitting life sentences without the possibility of parole for very young minors, the attorney general now asserts that Florida's 30 years of get-tough legislation are the reason juvenile crime rates have fallen since the mid 1990s.

But this month's claim for deterrence is as phony as last decade's crime scare.

And:

In a way, McCollum should be relieved that our careful analysis shows the life without parole policy has no effect. Taking the statistics presented in his brief seriously would suggest that Florida's celebrated crackdowns were reducing the crime decline benefits that other states are enjoying. The only bad effects we can demonstrate from Florida's brief in the Graham case are on legal argument and statistical logic.

"Don't give up on the kids," by R. Dwayne Betts appeared in Sunday's Baltimore Sun.  He's the author of A Question of Freedom.

Five years after my own release from prison - and months after delivering a commencement speech at the University of Maryland's graduation, speaking moments before CIA Director Leon Panetta - I found myself on an American Bar Association panel with lawyers and psychologists. A woman in the audience asked me what I thought should be done to a child who commits the kinds of crimes that end with life without the possibility of parole; I misheard her question and kept thinking that she had asked what I would do or say if the victim had been my family member.

As I began to answer her question, I thought about Rashid, and about how I couldn't escape the nightmare of being in a closed cell. I thought about my relatives, and how in my family tree there were both victims of violence and perpetrators. I thought about the judge reminding me of the life sentence I faced. And then I asked myself: What would I want if the victim were my daughter, or my sister? In my head there were two horrors, and I realized that the horror of life in prison and everything it means doesn't make right the horror of crimes I can't begin to imagine.

I told the woman that the justice system was not created to respond the way a family member would. We ask our justice system to do more than just act on impulse. We ask it to stand for more than vengeance. A system that didn't believe in the rehabilitation of young people would have left Alan K. Simpson a statistic and not given him room to mature to the point where he could become a United States senator. Charles S. Dutton wouldn't be a renowned actor. Many nameless men and women who are productive members of our society would still be in prison cells.

Harvard Law prof Charles Ogletree posts, "Supreme Court Should Apply Roper Reasoning to Upcoming Juvenile Life-Without-Parole Cases, at the ACS Blog.

Sullivan and Graham present an opportunity for the Court to affirm the reasoning put forth in Roper v. Simmons, which struck down capital punishment for juveniles. Roper established what every parent knows and what science confirms: adolescents are fundamentally different from adults in maturity and judgment.

The extensive body of research on adolescent development proves that adolescents have not reached the level of mental or emotional development that allows adults to make mature decisions, think through consequences, and control their impulses. This same developmental immaturity also makes adolescents the strongest candidates for rehabilitation as they grow older.

In Roper, the Court asserted that these significant developmental differences have direct bearing on the culpability of adolescents. The Court ruled that their immature judgment, impulsive decision-making, vulnerability to peer pressure, and inherent potential for rehabilitation reduce culpability such that sentencing them to death violates the Eighth Amendment.

These principles should be applied to the constitutionality of juvenile life-without-parole sentencing. The same transient qualities of adolescence that the Court relied upon in Roper make it similarly inappropriate to subject a teenager to a permanent punishment of life in prison without parole. It is cruel and inaccurate, as the Court has recognized, to pass a final and irreversible judgment on a person whose character is still forming and undergoing significant changes.

Linda White of Magnolia, Texas wrote, "Giving child offenders a chance," for the Washington Post.

I was deeply moved by former senator Alan K. Simpson's Oct. 23 Washington Forum commentary, "A sentence too cruel for children," although I might be an unexpected person to be so moved. Twenty-three years ago, my daughter, then pregnant, was murdered by two 15-year-old boys. But in the years since her death, I have come to believe that sentencing teenagers to life in prison without the possibility of parole does not serve victims, offenders or public safety.

There is no reason to deny child offenders the opportunity to have their sentences reviewed after they have served a significant amount of time to see whether they have changed and matured. Only those who have demonstrated their growth and proved they are rehabilitated would be considered for parole. As Mr. Simpson's personal story shows, the potential for growth is enormous.

My family experienced unimaginable loss, but I still believe that young people -- even those who have done terrible things -- can be reformed. A permanent sentence should not be imposed on children whose characters are still forming.

"The juvenile damned," is Lara Bazelon's National Law Journal commentary.  It appeared October 12.

Sullivan and Graham's argument — that adherence to Roper's teachings requires the abolition of life-without-parole sentences for adolescents — is strong and persuasively presented. A punishment is "cruel" if it is excessive and therefore contravenes the "basic precept of justice that punishment for crime should be graduated and proportional." A punishment is "unusual" if it is implemented so rarely "that a national consensus has developed against it." The petitioners have shown, relying in large part on empirical data, that permanently depriving adolescents of their liberty is both cruel and unusual.

In Roper, the Court found that capital punishment for juveniles was cruel in part because the inherent immaturity of child offenders makes their conduct "not as morally reprehensible as that of an adult." The Court noted that juvenile offenders have difficulty appreciating the long-term consequences of their actions and controlling their impulses. The short-sightedness and impetuosity of teenagers, combined with their greater susceptibility to the influences of their peers and their inability to extricate themselves from dangerous or negative surroundings, mean that juveniles have a "diminished capacity" that makes them less blameworthy — and thus less deserving of retribution — than their adult peers. Additionally, young adolescents are a work in progress — trying on and discarding a number of identities in the fraught and complicated process of growing up. Their adult selves may bear little physical or emotional resemblance to the angry, destructive teenagers they once were, undercutting the argument that they must be permanently removed from society.

The findings of neuroscientists and developmental psychologists lead to the same conclusion when applied to life-without-parole sentences for juvenile offenders like Sullivan and Graham: They are cruel within the meaning of the Eighth Amendment. Anyone who has ever raised a teenager, befriended one or been one knows the extent to which that teenager can be self-involved, present-oriented, misguided and overly influenced by a peer group. But it is also true that upwards of 90% of them outgrow it. An amicus brief filed by former juvenile offenders, who grew up to be a U.S. senator, an assistant U.S. attorney, a best-selling author and a Tony-nominated actor, makes this point powerfully. Life-without-parole sentences, had they been handed down in those cases, would have made these accomplished and productive lives impossible. By disallowing the great probability that young offenders will grow and change profoundly and for the better, life-without-parole sentences are not only pitiless, but are excessive in a way that the Eighth Amendment forbids.

"Sending children to prison for life," by Bernard Harcourt of the University of Chicago appeared in the October 5 issue of the Los Angeles Times.

To be sure, we might not always seek legal guidance abroad. But in this case, the international comparisons are telling. No country other than the United States incarcerates children for life without parole. We were the lone "no" vote against the 2006 U.N. General Assembly resolution calling on all nations to abolish such life sentences. Somalia is the only other nation that has not ratified Article 37 of the U.N. Convention of the Rights of the Child, prohibiting juvenile life-without-parole sentences.

The tough-on-crime rhetoric of "lock 'em up and throw away the key" is entirely inappropriate in the case of children. Children's brains, bodies and personalities are still in the process of growing and changing. And many experts in neuroscience and psychology believe that the same changeability that makes young people vulnerable to negative influences and peer pressure also makes them good candidates for reform and rehabilitation.

In all other areas, we recognize their vulnerabilities. Because of the relative immaturity and irresponsibility of minors, every state in the nation restricts them from voting, serving on juries, purchasing alcohol or marrying without parental consent. States further restrict young adolescents from activities that require more mature judgment, such as driving and consenting to sexual activity. In fact, the state of Florida, where Sullivan and Graham are incarcerated for life, does not even permit adolescents to get their ears pierced without parental consent.

So why should minors be treated like adults when it comes to sentencing?

Ironically, the same laws that are intended to protect children from exploitation and their own immature judgment -- including restrictions on driving, working and leaving school grounds -- prevent young teens from escaping an abusive parent, a violent household or a crime-ridden neighborhood. As the Supreme Court observed in the 2005 Roper decision, "juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment."

Earlier coverage begins with the preceding post.

Juvenile LWoP at Supreme Court Monday

Oral arguments in the two cases, Graham v. Florida and Sullivan v. Florida, are scheduled for Monday, November 9.  Robert Barnes has a preview in the Washington Post, and today's Philadelphia Inquirer carries an editorial.  There is also a great deal of commentary.

The Washington Post's Supreme Court reporter Robert Barnes writes, "Justices will scrutinize life sentences for youths." It's from last Thursday's edition.

It did not take long for the judge to determine that the convicted rapist in front of him was irredeemable.

"He is beyond help," Judge Nicholas Geeker said of Joe Harris Sullivan. "I'm going to try to send him away for as long as I can."

And then Geeker sentenced Sullivan to life in prison without the possibility of parole. At the time, Sullivan was 13 years old.

Now, 20 years after that sentencing in a courtroom in Pensacola, Fla., the Supreme Court will consider whether Sullivan's prison term -- and what his supporters say is an only-in-America phenomenon of extreme sentences for juveniles -- violates the Constitution's prohibition of cruel and unusual punishment.

The case -- which has drawn widespread notice and briefs from former senator Alan Simpson (R-Wyo.) and others describing their own youthful crimes -- is likely to be a cardinal criminal justice decision for the court this term.

It is a natural outgrowth of the court's bitterly divided ruling in 2005 that juveniles cannot be executed for murders they commit.

Those challenging sentences of life without parole for teenagers base their optimism on words in Justice Anthony M. Kennedy's majority opinion in that case: "The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. . . . It would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed."

Sullivan is represented by Bryan Stevenson of the Equal Justice Initiative in Alabama, who said his client's sentence is no different from the punishment the court found unconstitutional.

"They are both effectively death sentences," Stevenson said in an interview. "One is death by execution, and the other is death by incarceration, but they are both terminal sentences."

Only two 13-year-olds in the country have been sentenced to life without parole for crimes that were not homicides, Stevenson said, and both of them are held in Florida.

Florida officials would not discuss Sullivan's case before the November arguments, but their brief to the court said states are within their rights to lock up forever those thought to pose a perpetual threat to society.

"There is no consensus against life sentences for juveniles, particularly for heinous crimes such as sexual battery," Florida Solicitor General Scott Makar wrote.

Across the country, 111 people are serving life sentences without parole for crimes they committed as juveniles that did not result in a death, according to one report; 77 of them are locked up in Florida, for crimes including armed robbery and carjacking. The state took a get-tough approach in the 1990s in response to a crime wave that was "compromising the safety of residents, visitors, and international tourists, and threatening the state's bedrock tourism industry," Florida's brief to the court states.

That brief came in the case of Terrance Jamar Graham, a second petition the court accepted. Graham, of Jacksonville, received a life sentence after being part of a group that robbed a barbecue restaurant when he was 16; while on probation a year later, he was part of an armed burglary. Again, a judge doubted Graham's ability to ever change his ways; his accomplices served short sentences.

In accepting both cases and deciding to hear them separately, the court gives itself a wide range of issues to ponder. The justices may rule that such sentences are acceptable for 17-year-olds, for instance, but not 13-year-olds. They could look at the relative seriousness of the crimes, or differentiate the non-homicides in both cases with crimes in which someone is killed.

The Post also has this graphic.

"Throwing away the key," is the title of today's Philadelphia Inquirer editorial.

It is hoped that the high court will conclude that sending a minor away for life for a non-homicide offense violates the Constitution's prohibition against cruel and unusual punishment.

Indeed, the court ruled in 2005 that juveniles can't be executed for a murder conviction. At the time, the court cited a "national consensus" against the practice, along with medical and social-science evidence that the brains of teenagers are still evolving and that they are too immature to be held accountable for their crimes to the same extent as adults.

"From a moral standpoint, it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed," Justice Anthony M. Kennedy wrote in that 5-4 opinion for the court.

The same argument can be applied in considering whether a juvenile should be sent to prison for life. After all, isn't prison supposed to be about reform as well as punishment?

The United States already stands alone among developed countries in allowing such harsh penalties for juveniles.

In this nation, 111 people are serving life sentences for non-homicide crimes they were convicted of committing as juveniles. The large majority are in Florida.

Earlier coverage begins with this post.  More on Roper v. Simmons, the Court's 2005 ruling that outlawed the death penalty for juvenile offenders, is via Oyez.

The next post will include OpEds and columns on the topic.

The Murderous Society

Jill Lepore writes, "Why is American history so murderous?" for the November 9 edition of the New Yorker.

Every murder raises terrible questions that no trial, no law, no punishment can answer. What forces make it possible for one human being to take the life of another? Murders can be solved and even explained—at least, that’s the operating assumption of criminal investigation and the narrative logic behind every whodunit—but to think about a specific murder with any clarity, or for very long, can be difficult, and viscerally painful. Maybe the brisk trade in lurid violence as spectacle has something to do with it: one either watches or averts one’s eyes; dispassionate reflection rarely enters into it. Scholars ranging from theologians and psychologists to evolutionary biologists have offered theories about murder—theories of evil, theories of disease, theories of disposition—but the analytical burden placed on any general discussion of murder, freighted, as it is, with atrocity, is nearly unbearable. Nothing suffices, or can.

Between the convulsive emotional response to a single murder and an elusive general theory of murder lies another kind of contemplation: the study of the murderousness of nations. The United States has the highest homicide rate of any affluent democracy, nearly four times that of France and the United Kingdom, and six times that of Germany. Why? Historians haven’t often asked this question. Even historians who like to try to solve cold cases usually cede to sociologists and other social scientists the study of what makes murder rates rise and fall, or what might account for why one country is more murderous than another. Only in the nineteen-seventies did historians begin studying homicide in any systematic way. In the United States, that effort was led by Eric Monkkonen, who died in 2005, his promising work unfinished. Monkkonen’s research has been taken up by Randolph Roth, whose book “American Homicide” (Harvard; $45) offers a vast investigation of murder, in the aggregate, and over time. Roth’s argument is profoundly unsettling. There is and always has been, he claims, an American way of murder. It is the price of our politics.

And:

Pieter Spierenburg, a professor of historical criminology at Erasmus University, in Rotterdam, sifts through the evidence in “A History of Murder: Personal Violence in Europe from the Middle Ages to the Present” (Polity; $24.95). In Europe, homicide rates, conventionally represented as the number of murder victims per hundred thousand people in the population per year, have been falling for centuries. Spierenburg attributes this long decline to what the German sociologist Norbert Elias called the “civilizing process” (shorthand for a whole class of behaviors requiring physical restraint and self-control, right down to using a fork instead of eating with your hands or stabbing at your food with a knife), and to the growing power of the centralizing state to disarm civilians, control violence, enforce law and order, and, broadly, to hold a monopoly on the use of force. (Anthropologists sometimes talk about a related process, the replacement of a culture of honor with a culture of dignity.) In feuding medieval Europe, the murder rate hovered around thirty-five. Duels replaced feuds. Duels are more mannered; they also have a lower body count. By 1500, the murder rate in Western Europe had fallen to about twenty. Courts had replaced duels. By 1700, the murder rate had dropped to five. Today, that rate is generally well below two, where it has held steady, with minor fluctuations, for the past century.

The Velvet Glove

That's the title of a report in last week's Economist, datelined High Point, North Carolina.  It's subtitled, "Why the soft approach sometimes works."  Here's an excerpt from the beginning of this must-read:

LOOKING after small children is never easy. Many dribble; some bite. But for Joyce Chavis, the problem until a few years ago was that she could not let toddlers in her care step outside her house. The street was packed with prostitutes. Drug-dealers loitered aggressively with pit bulls at their heels. In the local playground the bushes concealed only some of the things that crack-addicted young women were doing to earn their next fix.

Until 2004 the West End neighbourhood in High Point, North Carolina, was an open-air drug market. Gun shots punctuated the night. Honest folk were scared to walk to the shops. Jim Summey, a local preacher, recalls a Sunday when his flock could not park because the street was jammed with johns seeking sex and drugs. When he remonstrated with the dealers, they smashed up his car and shot out 58 windows in his church.

Yet West End is now as peaceful as evensong. It is still poor, but thugs with dogs no longer menace passers-by. The prostitutes have gone, or gone indoors. The corners are quiet. What happened?

The High Point police used to deal with drug-dealers in the traditional manner. They would “come rolling in like an occupying army,” as Jim Fealy, the police chief, puts it. They would grab young men, pat them down and arrest the ones with drugs in their pockets. They sent many to jail, but never shut down the drug market for more than a few hours. African-Americans in neighbourhoods like West End detested the police, and the police grew frustrated that no one in these places called them to report crimes.

But then they tried something different. On the advice of David Kennedy, a professor at the John Jay College of Criminal Justice in New York, they started talking to community leaders in West End. They found out who the street drug-dealers were. There were fewer than they had expected: only 16, of whom three were habitually violent. Patiently, they compiled dossiers on each of them. Then they arrested and prosecuted the violent ones, and invited the rest in for a chat.

The young dealers were shown the evidence against them, and given a choice. If they stopped dealing drugs and carrying guns, they would not be prosecuted. A “community co-ordinator” sat down with each of them and asked him what he needed to go straight: a job? Drug treatment? A place to stay? An alarm clock to get to work on time? The community promised to help with all these things. The dealers’ neighbours and even grandmothers stood up and told them that what they were doing was wrong, and had to stop. Then prosecutors warned them that if they did not stop that day, they would be sent to jail, possibly for the rest of their lives.

It worked. Nearly all the dealers reformed, bar the odd bit of shoplifting. You can still buy drugs behind closed doors in High Point, but the intervention was never about drugs. It was about making the neighbourhood liveable again.

In Maryland

"Miller to propose death penalty changes," is the title of Douglas Tallman's report in Gaithersburg's Gazette.

Senate President Thomas V. Mike Miller Jr. said last week that he plans to introduce legislation in 2010 that would clarify last session's changes to the state's death penalty statute.

An effort to repeal capital punishment ended with a bill that restricts the death penalty to cases with certain kinds of evidence.

One kind was "biological evidence," and when the bill passed, lawmakers were unsure whether the term included fingerprints.

Miller's bill would spell out that fingerprint evidence would be sufficient.

The changes also called for videotaped evidence or confessions. Miller said Friday that his bill would allow photographic evidence, as well.

Miller (D-Dist. 27) of Chesapeake Beach said he thought the bill would pass the Senate, but he was unsure whether it would pass the House of Delegates.

Sen. Lisa A. Gladden, vice chairman of the Judicial Proceedings Committee and an advocate of a repeal of the death penalty, said she didn't think any changes should be passed yet.

Tallman's report is also noted in the Washington Post First Click -- Maryland blog:

Senate President Thomas V. Mike Miller Jr. plans to introduce legislation in 2010 that would clarify last session's changes to the state's death penalty statute. Miller's bill would spell out that fingerprint evidence would be sufficient, according to Douglas Tallman in the Gazette.

Earlier coverage from Maryland is here and here.

Chip Pitts on the Rule of Law

Last month, the noted human rights lawyer Chip Pitts spoke to the Texas Rule of Law Conference in Dallas.  Among other topics, he raised the case of Todd Willingham.

By special arrangement, we have the text of the speech here.  Pitts is the President of the Bill of Rights Defense Committee.

Here are two brief excerpts:

Let’s start with the definition proposed by the World Justice Project and its sponsors, including the American Bar Association.  The Rule of Law is seen as having four elements:

   1. A system of self-government in which all persons, including the government, are accountable under the law;
   2. A system based on fair, publicized, broadly understood and stable laws;
   3. A robust and accessible process in which rights and responsibilities based in law are enforced impartially; and
   4. Diverse, competent, independent and ethical lawyers and judges.

In sum:  (i) responsive accountability, (ii) substantively fair, objective, and transparent laws including protection for fundamental rights, (iii) procedural fairness and due process including access and impartial enforcement, and (iv) independent and ethical judges and lawyers.  Not a bad definition.

Some people think that it’s enough to have only the third element:  published laws of general applicability and formally fair procedures usually offering somewhat impartial enforcement.  They wouldn’t insist on self-government – which is so clearly lacking in countries like China – or human rights.  My argument today is that such a narrow conception of the rule of law is inadequate:  that systems worthy of the name must have the substance as well as form of justice.

And:

How many of you are familiar with the Willingham case?  It appears beyond reasonable doubt that Todd Willingham -- executed by Texas in 2004 -- was innocent.  Outdated analysis led investigators to call the house fire that killed his three young children arson.  If a father's grief was not enough, Todd Willingham was convicted of arson and sentenced to die for his children's deaths.  Shortly before his execution in early 2004 a noted Texas arson investigator wrote the governor, telling him that the evidence of arson was discredited and invalid.  Todd Willingham's attorney and the arson investigator Gerald Hurst appealed to the governor of Texas.  Rick Perry chose not to intervene.  He did not issue a reprieve for any review, and the Board of Pardons and Paroles chose not to hold a hearing and not to recommend any reprieve or commutation.  Since then, at least three separate examinations by respected scientists have all found no scientific basis to call that house fire arson.

In 2005, Texas created a Forensic Science Commission, in part because of questions raised by the Willingham case and problems in the Houston Police Department DNA Lab.  A month ago a report prepared for the Commission once again found no scientific basis for arson in the Willingham house fire.

Just as the Commission was set to meet, Governor Perry hastily replaced members, a meeting was pulled down, and the new Chair has not determined when it will meet next or what its next step will be.  The rule of law in the Willingham case appears, right now, to be on a long, slow side trip.  But the good news is that the world is watching.  Every major newspaper in this state has editorialized its concerns in this case. The rule of law has the force of integrity and power of time on its side.  I believe that in the end the rule of law will prevail, and we will all be better informed, and perhaps a bit safer, when that happens.

By contrast, your District Attorney here in Dallas, Craig Watkins, has chosen to respect the rule of law and honor his oath to do justice.  When it became apparent that innocent men had been convicted in Dallas County, Craig Watkins established an office of conviction integrity, and he worked cooperatively with the Innocence Project to review questionable cases.  Dallas County now holds the distinction of having more DNA exonerations than any other county in America.  That may because Dallas had properly stored evidence, and DNA could be tested years after the original conviction.  Craig Watkins knows that this is not simply about freeing an innocent person. It is also about apprehending the guilty.

Earlier coverage of the Todd Willingham case begins here.

Extraditions From Mexico

"Mexico reaches record 100 extraditions to US," is Mark Stevenson's national AP report, via Google News.  It's datelined Mexico City.

Mexico has extradited a record number of criminal suspects to the United States this year, underscoring a dramatic improvement in cross-border law enforcement cooperation — and an urgent attempt to clean up the country's crime-addled prisons.

Authorities reached the historic 100-person mark with the shipment north of 11 crime fugitives on Sunday, the eve of a visit by Mexican Attorney General Arturo Chavez to Washington. Previously, the most suspects sent from Mexico to the U.S. in a year was 95, the number extradited in 2008.

While it behooves Mexican justice officials to cooperate with their counterparts given a $1.4 billion, three-year aid package the U.S. has recently promised them, they stress their historic willingness to extradite criminals is more than a symbolic gesture.

Since he took office in December 2006, President Felipe Calderon has launched a nationwide crackdown against Mexico's ubiquitous and powerful drug traffickers, sending thousands of troops into practically every area of the country.

That effort has been undermined, however, by widespread corruption plaguing both law enforcement and the country's prisons, where bribed guards turn a blind eye as captured criminal kingpins continue to run their illegal operations behind bars.

In that context, getting the criminals out of the country is simply good law enforcement, said Leopoldo Velarde Ortiz, Mexico's deputy attorney general in charge of extraditions.

"It isn't a case of 'You give me something and I'll give you something,'" Velarde Ortiz told The Associated Press in a recent interview, referring to the promised U.S. crime aid. "There is no such negotiation. What there is, is a clear understanding that we cannot allow impunity, and that we have to stop crime."

Velarde Ortiz noted that top-level drug suspects often bitterly fight extradition through drawn-out appeals because in U.S. penitentiaries "they would lose the possibility of operating their activities from inside prison."

And:

Mexican authorities have extradited 284 fugitives to the U.S. since Calderon became president — more than in the previous 15 years all together.

The increase is a sign the two countries have laid to rest a long history of disputes in which Mexico traditionally treated extradition requests from the U.S. as threats to its sovereignty.

In 1990, relations between the two countries reached a low point when, after authorities refused to extradite a Mexican doctor wanted in connection with the slaying of a U.S. drug agent, U.S.-paid bounty hunters captured the suspect in Mexico and brought him back to Los Angeles for trial.

Mexico demanded the doctor's return and briefly suspended anti-drug cooperation with the United States as a result.

The Mexican government's resistance began to ease in the late 1990s, signaled by the 1996 extradition of a Mexican singer convicted of child molestation. In 1999, a Mexican man was extradited to face murder charges in the killing of a Florida woman. By 2000, the number of Mexicans extradited to the U.S. in one year had increased to nine.

"Each year since 2001, Mexico has increased the number of defendants it extradites to the United States," U.S. Attorney General Eric Holder said in a statement Sunday. "By ensuring that alleged criminals are held accountable, we send a strong message that fleeing across the border does not mean you will escape justice."

The 11 suspects extradited Sunday are wanted for murder, sex offenses, drug trafficking and money laundering in Texas, Washington, Florida, Indiana, California and Maryland.

"This is a great day for U.S.-Mexican partnership and cooperation. And obviously, a very bad day to be a bad guy," U.S. Embassy charge d'affaires John Feeley said in a statement. "This action by the government of Mexico demonstrates it will not allow its country to be a refuge and hiding place for criminals."

Authorities still refuse to extradite anyone who might face the death penalty, which is illegal in Mexico. U.S. prosecutors usually overcome that obstacle by promising to give the criminals life sentences instead.

Opinion Roundup

David Hamilton, Editorial Director of the Jackson Clarion Ledger in Mississippi, writes, "Death penalty just too costly." 

Some criminals in Hinds County who may have been headed to Death Row just got a reprieve.

There hasn't been any change of heart when it comes to using the death penalty. It's just a matter of money. Hinds County District Attorney Robert Shuler Smith says the county can't afford to prosecute death penalty cases.

When is a crime a crime deserving of death? When the county can afford it, of course.

Therein lies another reason why the death penalty is wrong.

Smith is no opponent of the death penalty. It is just reality of the county budget. It costs more, a lot more, to prosecute a death penalty case.

It's a matter of how much "justice" the county can afford. But if one county can "afford" to send someone to Death Row and another can't, isn't that another example of how inequitable the death penalty can be?

Death penalty supporters who argue that taxpayers shouldn't have to house a criminal for life might think again. According to an editorial in The New York Times, getting a criminal to the hangman is more expensive than locking him away.

It was estimated that it cost Florida $51 million more to kill prisoners than to keep the offenders locked up for life. In California, the costs are $114 million more. The Death Penalty Information Center estimated that California has spent $250 million each on the 13 people executed since 1976. North Carolina got a bargain. It only cost about $2.16 million per execution.

And:

This newspaper has long supported the death penalty. Polls show overwhelming support for it. Opposing the death penalty is not a popular position. But, I am opposed to the death penalty. Morally, I don't think the state should kill people. But I also don't think the death penalty is practical. It is not a deterrent to crime. It takes so long that any idea of timely justice is lost.

Some criminals certainly deserve it. All of us, including me, get so outraged over heinous crimes that we want the same for the criminal. It is a natural response.

But, is it the right response? The smart response? The best response?

The death penalty costs too much, literally and in many, many other ways.

"Death penalty? Yes and no," is the title of Waldo Proffitt's latest column in the Sarasota Herald-Tribune in Florida.

Thirty-five states have the death penalty. Florida is one of them. Here and in other states there is sporadic but perpetual debate about whether we should retain the death penalty. I should tell you at the outset that my opinion is yes and no.

But, before I explain that unsatisfactory answer, let me summarize the arguments usually cited for and against the death penalty. I plagiarize freely from assorted sources on the Internet.

And:

OK, back to my personal view. I have qualms about the death penalty, but I know that there are some crimes so heinous, so monstrous that a man or woman who committed them is so far outside the bounds of decent human behavior that we want no further contact with them and there is no reason not to remove them from amongst us.

Well, there is this one: Death is too easy on them. If hell exists, they are going to it, we should not strive to send them on their way quickly and painlessly.

Life in prison without hope of parole is a worse punishment. It goes on for decades. The convicts are constantly reminded of the hatred and contempt they inspire even among their fellow prisoners. They must be made to realize there is really no hope of parole, no hope for anything except living in disgrace by themselves in a cell. Why offer them the mercy of a quick death?

The Yogurt Shop Case: Injustice For All

That's the title of an Austin American-Statesman editorial.  LINK  It appeared in the Sunday edition.

When it comes to the yogurt shop slayings, calling our criminal justice system a system does great injustice to systems that actually work.

The case has gone on longer than any of the four victims lived.

For emphasis, let's put it this way: The parents of the four slain girls now have had to suffer through the botched investigation into their daughters' deaths longer than they were able to enjoy their daughter's lives.

And there still is no resolution.

After almost 18 years, several trials and untabulated costs, we again have little more than suspects in the horror that began on Dec. 6, 1991, when Austin Police Officer Troy Gay reported the fire that led to the discovery of the bodies of Jennifer Harbison, 17, her sister Sarah, 15, and their friends Eliza Thomas, 17, and Amy Ayers, 13, at the I Can't Believe It's Yogurt shop.

We can't believe this is justice for anybody involved, including the former defendants, who, as a result of the latest courtroom maneuvering, are back to being mere suspects.

The latest depressing twist in the case came Wednesday when Travis County District Attorney Rosemary Lehmberg, faced with little choice, dismissed the charges against Robert Springsteen IV, 34, and Michael Scott, 35, as part of a plan to retry them.

Springsteen, convicted in 2001, was sentenced to death, and Scott, convicted in 2002, was sentenced to life in prison. Both had confessed to the murders, but lawyers for both argued at trial that the confessions were coerced. Four years after the Springsteen conviction, his death sentence was changed to life in prison when the U.S. Supreme Court ruled it unconstitutional to execute people who were juveniles at the time of the offense.

Everything blew up for the prosecution when the Texas Court of Criminal Appeals threw out the convictions because the confessions of each defendant improperly were used at each other's trial.

And:

Fault? It has to all default to investigators who overzealously sought confessions and prosecutors who, to date, have been unable to successfully make the case.

Victims? Everybody for whom the system has not worked. Unfortunately, that's everybody involved, from the slain young girls to the defendants and suspects. The case is far from closed, and all involved are far from closure — if indeed such is possible in a case this horrific.

The victim list also includes everybody who counts on a functional criminal justice system. You can see one of those people in your bathroom mirror.

Earlier coverage begins with this post.

The Ninth Circuit

David Savage writes, "California killer's case back before Supreme Court," for today's Los Angeles Times.

The Supreme Court is considering, for the third time, the case of a California murderer who was sentenced to die in 1982 for the brutal killing of a young woman.

Twenty years ago, the California Supreme Court affirmed a death sentence for Fernando Belmontes, but since then his case has bounced back and forth in the federal courts. Three times in this decade, the U.S. 9th Circuit Court of Appeals has overturned his death sentence as flawed.

The case is the latest skirmish in the long-running war between California prosecutors and the 9th Circuit over the death penalty -- and it helps explain the oddity of capital punishment in California. Although death sentences are common, executions are rare.

California has by far the largest death row in the nation, with 685 inmates. Yet only 13 condemned prisoners have been executed since capital punishment was restored in 1977, far fewer than the 38 death row inmates who have died of natural causes.

By contrast, Texas has carried out 441 executions during the same period and has 358 inmates on death row. Virginia has executed 103 people during that time and has 18 inmates on death row. Among them is John Allen Muhammad, who is scheduled to die Nov. 10 for one of the deadly sniper attacks that terrorized the Washington area in fall 2002.

The stark differences in execution rates reflect the contrasting approaches of the regional U.S. courts of appeals.

In the South, the 4th Circuit in Richmond, Va., and the 5th Circuit in New Orleans are dominated by conservative judges who are inclined to reject appeals and to uphold death sentences.

The 9th Circuit, based in San Francisco, has a core of liberal judges who say it is their duty to carefully scrutinize capital cases.

"There is no greater burden that falls on a member of the judiciary than to sit in judgment on whether an individual shall live or die, and no greater responsibility than to make certain that every capital defendant receives the full protection to which he is entitled to under our Constitution and our laws," said Judge Stephen Reinhardt of Los Angeles, defending his decision to again set aside Belmontes' death sentence.

In a 2-1 decision last year, Reinhardt and Judge Richard Paez, also of Los Angeles, ruled that Belmontes' lawyer had provided "ineffective assistance of counsel" because he failed to tell the jury of the "traumas that Belmontes faced as a youth." Given this evidence, the jury might have spared his life, they said.

Eight conservative judges of the 9th Circuit dissented and said the full appeals court should reconsider the ruling. However, it takes a majority vote of the circuit's 27 judges to rehear such a case.

And:

Critics of the death penalty cite high costs and seemingly endless litigation as a good reason for abolishing capital punishment. Last year, the California Commission on the Fair Administration of Justice called the state's death penalty system "broken" and "dysfunctional," and estimated it costs the state $137 million a year.

The justices met Friday to discuss pending appeals, including the Belmontes case, and may act on the case as soon as today.

Wiggins v. Smith,  a 2003 Supreme Court ruling from Maryland, articulated a defense counsel's responsibility to present mitigating evidence in capital cases.

At the Supreme Court

Beard v. Kindler, a Pennsylvania case will be heard in the Supreme Court this afternoon.  Erin Miller writes a preview, "When Can States Preclude Federal Habeas Review?" for SCOTUS Blog.

Beard v. Kindler is a capital case with an unusual twist: the defendant appealing his sentence, Joseph Kindler, escaped twice from prison.  A Pennsylvania state court held, and the state supreme court agreed, that Kindler waived his right to appeal when he fled.  But the Third Circuit disagreed and affirmed the district court’s grant of habeas relief.

In Beard, the Court will consider when state courts have resolved an inmate’s claims on “adequate grounds” such that federal courts may not review that inmate’s habeas claims.  In particular, the Court will consider whether a state procedural default rule like Pennsylvania’s is “inadequate” solely because it is discretionary.

And:

In 1996, Kindler sought state post-conviction relief, but both the trial court and the state supreme court denied relief, holding that he had waived his right to post-conviction relief when he fled.  Kindler then sought federal habeas relief, which the district court granted.  It held that because the Commonwealth’s fugitive-forfeiture rule was discretionary, it was “inadequate” to bar federal review, and it then ruled in Kindler’s favor on the merits of his claims.  On appeal, the Third Circuit affirmed. The State filed a petition for certiorari, which the Court granted on May 18.

Fresh Willingham Commentary

There are new OpEds and columns this morning focusing on the Todd Willingham case.  Boyd Richie, Chair of the Texas Democratic Party, writes, "For Perry, it's self before service," for the Austin American-Statesman.

When Gov. Rick Perry took the oath of office, he swore to "preserve, protect and defend" the laws and people of Texas. The governor might as well have sworn to preserve, protect and defend his political interests at all costs, because every time he has to choose between doing what's best for Texans or his politics, Perry chooses himself.

This fall, Perry is at it again, spurring concerns about a political cover-up by abruptly replacing three Texas Forensic Science Commission members without warning just days before they were to conduct a hearing into evidence used in the Cameron Todd Willingham arson case. Apparently fearing revelations that might hurt his campaign, Perry's action forced the hearing to be postponed indefinitely, sealing the evidence in a conspiracy of silence.

As the millions who watch "CSI" know, advances in forensic science provide better evidence to make sure we convict and punish the bad guys and not the innocent. The central issue involved is not Willingham or the death penalty. When Willingham was executed five years ago, his case was closed, but respected experts had raised serious questions about the forensic evidence used to convict him.

And:

A Senate committee will hear testimony this month regarding the Texas Forensic Science Commission controversy. Unfortunately, it appears that public pressure and legislative action will be required to provide an independent review of the facts and prevent the same kind of neglect that occurred at the Texas Youth Commission and the Corpus Christi State School.

Time and again, Perry has tried to sweep embarrassing scandals under the rug. Perhaps he thinks a cover-up is good politics, but it's not good for Texans. By forcing the commission to at least delay an investigation, Perry's conspiracy of silence threatens the ability of our criminal justice system to use the best forensic science to protect, preserve and defend the laws of Texas. Texans deserve better.

Today's Amarillo Globe-News carries Enrique Rangel's Eye on Austin column, "Watchdog and the mouse."

State Rep. John Smithee recently recalled that, in the 1980s, Gov. Bill Clements walked into the House of Representatives and some reporters grilled him on an issue of the day. Upset by the questioning, an irate Clements responded, "My comment is, you can all go to hell."

Those were the days when most media companies in the U.S. made good money and covered statehouses aggressively. In Austin, more than 60 reporters covered the Capitol year-round, and when the Legislature was in session, some large publications assigned as many as 10 staffers to keep a close eye on lawmakers.

Not anymore. For most of this decade, the traditional media have been hurting financially, and this year, fewer than 30 journalists, including yours truly, covered the 81st Legislature regularly. Even before the 140-day session ended, some publications laid off veteran reporters, including a bureau chief with more than 35 years of experience.

The decreasing coverage worries veteran journalists like Ross Ramsey, an Amarillo native who believes that if there had been a strong Capitol press corps five years ago, some publications would have reported that the state was poised to execute an innocent person - a man convicted of setting his house on fire, killing his three small children.

The 2004 execution of Cameron Todd Willingham of Corsicana, which the Chicago Tribune has covered extensively, has dogged Gov. Rick Perry in recent weeks and has become an issue in the heated gubernatorial race.

"You just have to wonder how many other big stories we are not covering," Ramsey said.

This explains why Ramsey, along with Evan Smith, former editor of Texas Monthly magazine, soon will launch the Texas Tribune, a free online publication.

The Tribune will focus on state government and politics and will be funded largely by donations and foundations with no political agendas, said Ramsey, the managing editor.

"Our goal is to promote civic engagement, because the more the public becomes engaged, the better our democracy works," he said.

Sam Barr's Harvard Crimson column is, "A Texas-Sized Injustice."

This has been quite a year for Republican governors. First there was Mark Sanford of South Carolina, who spent five days crying in Argentina and came back to tell us that he just met a girl named Maria. Then there was Sarah Palin of Alaska, who resigned her post because she’s a point guard, gosh darn it, and she knows when to pass the ball of freedom so that America can dunk it into the basket of small government. And now there’s Rick Perry, governor of Texas, whose story is less scintillating but more jaw-droppingly, head-shakingly unethical.

The sad tale goes like this. In 2004, under Perry’s watch, Texas executed Cameron Todd Willingham for setting the 1991 fire that killed his three daughters. A few days before the execution, Perry and the Board of Pardons and Paroles received a report from independent fire expert Gerald Hurst, which said that there was not “a single item of physical evidence” to suggest arson. The governor and the board could have delayed the execution to find out more, but they didn’t.

In the last few years, Hurst’s findings have been confirmed by three other independent examinations of the forensic evidence, including one by Craig Beyler, a fire scientist hired by the Texas Forensic Science Commission. Beyler’s scathing report, released in August, concludes that the original investigation of the Willingham fire “did not comport with the scientific method” and was “more characteristic of mystics or psychics.” Days before Beyler was to present his findings before the commission, Perry fired three commissioners, including the chairman of the nine-member panel, and a fourth got the axe shortly thereafter. Perry’s replacement chairman, a conservative prosecutor, promptly canceled the hearings. Samuel Bassett, the former chairman, said that the governor and his lawyers repeatedly expressed their disapproval of the commission’s investigation and implied that its funding could be cut.

In short, Perry is fighting an audacious and losing battle to prevent a full, public recognition of the fact that Willingham was, in all likelihood, innocent. But talk of probabilities and likelihoods do death-penalty opponents little good. The legal reality is that Willingham should not have been executed; the doctrine of reasonable doubt establishes that much. But the moral reality is that we may never have, as Slate’s Dahlia Lithwick put it, a “sufficiently innocent criminal.” The biggest fans of the death penalty will always assume away the exonerating evidence and focus on the little things that help them sleep at night.

And:

Perhaps the most disturbing thing about Perry’s behavior is how little he seems to care for evidence. He insulted the skeptical fire scientists as “latter-day supposed experts” and called Willingham a “monster”—as if that settles the matter. Perry could have let the commission hold its hearings, and it would have been an embarrassment to him; he would have had to admit a mistake. Instead, he has bumblingly tried to cover his hide, demonstrating in the process that truth and evidence, guilt and innocence, just don’t matter to him.

Joshunda Sanders posted, "Morality and the Death Penalty," at the Austin American-Statesman Sacred and Secular blog on Friday afternoon.

The first thing I read about Cameron Todd Willingham was David Grann’s good piece in The New Yorker. But in the past two months, as Gov. Rick Perry has replaced four members of the Texas Forensic Science Commission and defended the state’s decision to execute him, Willingham’s case has gotten even more attention.

Last week, as I covered an anti-death penalty march at the Capitol, I noticed that Willingham, who was executed in 2004, was featured on a number of t-shirts. His stepmother, Eugenia Willingham, was scheduled to address the hundreds who showed up for the march, but she couldn’t make it. There were lawyers and activists, but I wondered where the religious leaders were. Is it just a given that people of faith believe the death penalty is immoral?

The Dallas Morning News posted a blog this week with commentary from various clergy from around the state that addresses this very issue.

And:

Is there a different moral code in place when a person has been found guilty in the absence of doubt? Should there be?

Earlier coverage of the Todd Willingham case begins with this post.  All coverage is also available through the Todd Willingham category index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format. David Grann's New Yorker article is noted here.  The Innocence Project's Todd Willingham resource page provides a concise overview of the Willingham case with links to all relevant documents.  Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

More on the Texas Tribune is here.

When Procedure Trumps Justice

That's the title of Bennett Gershman's commentary for the National Law Journal.  Gershman teaches at Pace Law School and the author of Prosecutorial Misconduct.  LINK

What could be worse than a capital murder trial in which the trial judge and the prosecutor are having a secret love affair and, working in tandem, cause a defendant to be found guilty of murder and face execution? That incredible scenario happened to Charles Hood. On trial for murder in a Texas courtroom, Hood claimed — correctly as it turns out — that the judge and the prosecutor were having a sexual relationship during his trial and that his right to a fair trial was thereby compromised. A lower court agreed to the extent of ordering a hearing, but the highest appeals court in Texas reversed. Why? Because Hood failed to raise the claim in earlier pleadings, as he could not substantiate the "rumors" of the affair with sufficient proof and, therefore, according to the Texas appellate court, was procedurally barred from raising the claim now. The Texas prosecutor hailed the decision "as a significant procedural victory."

Interestingly, the prosecutor did not say that the defendant's allegation lacked merit because the prosecutor knew otherwise. Indeed, the judge and the trial prosecutor — a different prosecutor from the appeals prosecutor — acknowledged the love affair in sworn depositions taken after Hood's trial. Nor did the prosecutor say that justice was served, which is the legal and ethical mandate of every prosecutor. The prosecutor could not say this, of course, because Hood's right to a fair trial was almost certainly prejudiced by the affair, and the pursuit of justice, at the very least, should have informed the prosecutor that a hearing was necessary, as the lower court had ordered. Nor did the prosecutor appear to be troubled by the fact that the trial judge was later elevated to the same appeals court, and she sat with many of the same judges who denied Hood the opportunity to prove his innocence.

Of all the gamesmanship that prosecutors routinely play, one of the most alarming is to aggressively raise ­hypertechnical and attenuated procedural obstacles and hurdles that a defendant must overcome in order to get a court to listen to his often meritorious claim that the prosecutor committed misconduct. Indeed, the U.S. Supreme Court has characterized such prosecutorial conduct as "gambling" and "playing the odds" with a defendant's rights, playing "hide and seek" to avoid disclosure of exonerating evidence, and requiring a defendant to engage in "scavenger hunts" to find exonerating evidence of which the prosecutor is secretly aware but has suppressed.

And:

Procedural gamesmanship by prosecutors is not a new phenomenon. But with the increasing demands by courts for enhanced and much more rigorous pleading requirements — for example, the Supreme Court's decision last term in Ashcroft v. Iqbal — defendants like Charles Hood are going to find the gateway to justice littered with procedural hoops and mazes of sufficient magnitude and complexity that a defendant may be barred from establishing on the merits that a prosecutor engaged in prejudicial misconduct, that a fair trial was denied and that the truth was lost. And some prosecutors, like the prosecutor of Hood, will champion this result as a big victory.

Earlier coverage of the Hood case begins with this post.

Mississippi Supreme Court Flags Post-Conviction Review

"Death row case delays flagged," is the report in the Jackson Clarion-Ledger.

The Mississippi Supreme Court has asked trial judges why they have not ruled on post-conviction claims of nine death row inmates.

At least four of the cases involve claims of mental disability.

The Supreme Court issued the orders Thursday. The justices said they want to know what is taking so long on the cases and if they should force on the trial judges a timetable to render decisions.

In a post-conviction petition, an inmate argues he has found new evidence - or a possible constitutional issue - that could persuade a court to order a new trial.

"The Court has undertaken a systematic review of all pending post-conviction death penalty cases and has sought information on the status of cases for which there appears to be a lack of activity," Chief Justice Bill Waller Jr. said.

He said the reviews will continue. "We will systematically review the status of death penalty post-conviction cases ... to assure that the fair and efficient administration of justice is being carried out."

The death row inmates with mental disability claims are Willie C. Russell in Sunflower County, Ricky Chase in Copiah County, Ronnie Lee Conner in Lauderdale County and Kevin Scott in Bolivar County.

Court records show the Supreme Court ordered a mental disability hearing for Russell in 2003. Similar hearings were ordered for Chase and Conner in 2004, and Scott in 2006.

In the other three cases, the justices want to know why no decision has been issued.

An Update on Hannah Overton

Hannah Overton's case has attracted a great deal of attention in the Corpus area.  Many believe she was wrongly convicted.

"Hannah Overton case upheld by appeals court," is the title of the report in the Corpus Christi Caller-Times.  It's written by Mary Ann Cavazos and Denise Malan.

A court has denied the appeal of Hannah Overton, whose conviction of capital murder in 2007 sparked medical and legal questions and outrage among many in the local Christian community.

Overton, 32, was found guilty of capital murder in the Oct. 3, 2006, death of 4-year-old Andrew Burd, a boy she was in the process of adopting.

She was sentenced to life in prison without possibility of parole.

The 13th Court of Appeals in a 95-page ruling handed down Thursday cited evidence that Andrew showed serious symptoms such as shock and losing consciousness after Overton gave him a mixture of Cajun spices and water. He suffered cardiac arrest before she and her husband drove him to a clinic about 1½ hours later. The two made several calls, none to 911, the opinion noted.

The instructions to the jury stated Overton could be found guilty either by intentionally or knowingly causing his death or by failing to seek medical care. All 12 jurors found her guilty by her failure to act.

Even though the jury found her guilty by omission, the appeals court found there was evidence that supported it was an intentional killing.

“We conclude that the evidence was legally sufficient to support a finding that Overton either intentionally or knowingly caused (Andrew’s) death,” according to the opinion.

Prosecutors argued Overton fed Andrew the mixture of Cajun spices and water as punishment. Overton testified that the mixture was meant to satiate the child’s huge appetite.

Overton appealed the conviction on several grounds, including errors in the indictment and jury charge, insufficient evidence, prosecutorial misconduct and a claim of newly discovered evidence. The defense also accused 214th District Judge Jose Longoria of abusing his discretion in allowing testimony from the medical examiner and a doctor who treated the boy. That, too, was overruled.

It’s unclear what the next step will be in Overton’s fight to have her conviction overturned. She could petition the appeals court to reconsider the issue or ask the Texas Court of Criminal Appeals to consider it.

Overton’s San Antonio-based appellate attorney Cynthia Orr couldn’t be reached for comment.

But her lead trial attorney, John Gilmore, said many people believe in her innocence and won’t give up until every remedy is exhausted.

“This isn’t the last stop. She’s got a lot of supporters,” he said. “They’re stronger than ever.”

He said those who believe it was a just conviction don’t know Overton.

And:

Overton’s church, Calvary Chapel Coastlands, came to her defense from the start. After the trial there was a “Free Hannah” campaign with a Web site and bumper stickers. The church since has formed In the Interest of Justice, a nonprofit organization with the goal of educating the public about the judicial system.

Doug Hoffman, Calvary assistant pastor, said the ruling merely restated circumstantial evidence from the trial.

“We are confident that Hannah will be released someday — not just released but found innocent, that she did not intentionally harm this child,” Hoffman said. The ruling “was a punch in the stomach, but it wasn’t totally unexpected from knowing how things are sometimes handled there.”

Hoffman said he had not talked with Hannah but touched base with her husband, Larry Overton. Last year, Larry Overton pleaded no contest to the lesser charge of criminally negligent homicide and received five years deferred adjudication probation and a $5,000 fine. He has been raising the couple’s five children.

“He summed it up best how he explained it to the kids,” Hoffman said. “God isn’t really done with this situation yet. He told the kids that God is using Mommy every day where she’s at.”

The Court's ruling is here.  Earlier coverage of her case begins with this post.

Today's Willingham Commentaries

There is fresh commentary today.  Let's begin with Eugenia Willingham's, "So many questions that refuse to go away,"  in today's Fort Worth Star-Telegram.  She is Todd Willingham's stepmother.

Nearly 18 years ago, a long nightmare began for my family. Every time we think the truth is finally coming to light, a new twist reopens old wounds.

In 1991 my stepson, Cameron Todd Willingham, woke up to discover his Corsicana house on fire. The events that followed have been twisted by people with their own agenda. I am speaking out now because it is time for the truth in this case.

The evidence that was used to convict Todd has been discredited by experts and witnesses. Since Todd’s execution in 2004, several independent experts have concluded that the forensic analysis at Todd’s trial was wrong.

Gov. Rick Perry ignored an expert’s report about the evidence and refused to delay Todd’s execution. Five years later, Perry has interfered with the Texas Forensic Science Commission’s investigation of the case. It’s not clear when the commission will resume its work, but our family hopes it happens soon.

Meanwhile, Perry and others — including the man who prosecuted Todd, the defense attorney from Todd’s trial who I think defended him very poorly, and some members of the media in Texas — have focused on Todd’s character. For weeks, my family and I have seen reports about what a "monster" Todd was. The truth is that Todd was sometimes difficult, and his marriage was not always a happy one. That’s not a crime punishable by lethal injection.

When Todd was 13 months old, I married his father and we raised him together. I found a boy who was angry and confused, but also smart and compassionate. I helped that boy grow into a man who did everything he could to provide for his family and fill his children’s lives with love.

Todd loved his children. We all did. I have always believed he was innocent, even before the recent revelations about the evidence that was used against him.

And:

People are entitled to their opinions about the death penalty. But we don’t execute people for having a bad marriage and a complicated personality.

My family has lost three beautiful little children and their loving father. We want answers. We want to know how the justice system got so badly off-track in Todd’s case, and we want to know how many other families have been devastated by erroneous evidence in arson cases in Texas.

Attacking my son won’t change the troubling lack of evidence in his case, and it won’t answer questions that refuse to go away.

Today's Houston Chronicle carries the OpEd, "Willingham case could improve forensic analysis," written by State Senator Rodney Ellis and Innocence Project Co-Director Barry Scheck.

Cameron Todd Willingham's case has captured attention across Texas and around the nation for the last two months, raising serious questions on a number of fronts. To some people, the case is about capital punishment; to others, it's about politics and transparency in state government.

But what brought the Willingham case into the spotlight — and what we cannot lose sight of — is what it can do to ensure quality forensic analysis in Texas' criminal justice system.

Willingham was convicted of murder by arson in 1992 and executed in 2004. His three young children died in a fire at the family's Corsicana home. The centerpiece of the case against him was the testimony of forensic analysts who said the fire was intentionally set. Without the forensic evidence, there would be no legitimate reason to find that a crime had occurred, and Willingham would not have been tried or convicted.

In 2006, the Innocence Project brought the Willingham case to Texas' Forensic Science Commission, which the state Legislature had created a year earlier. The Legislature created this commission to investigate allegations of negligence or misconduct that substantially affects the integrity of forensic analysis and recommend corrective action. The commission's charge is straightforward and clear, and the Willingham case fits squarely within it.

The filing that kicked off the commission's investigation didn't just focus on Willingham's case. It also included the case of Ernest Willis, who was convicted and sentenced to death for a nearly identical crime at around the same time — based on nearly identical forensic analysis — but was exonerated because the forensic evidence was so flawed. The Pecos County prosecutor who requested Willis' exoneration determined that the arson analysis was wrong because it relied on outdated and inaccurate forensic techniques. Willis was determined to be “actually innocent” and was compensated by the state of Texas.

The filing also noted that thousands of Texans are convicted of arson, and that the commission's investigation could help determine whether accurate, reliable forensic analysis is being used statewide. The Forensic Science Commission voted unanimously to move forward with an investigation comparing the Willis and Willingham cases and, by extension, determining whether there may be broader problems with other arson convictions.

This is the kind of work the Legislature had in mind when it created the commission. The legislation creating the commission passed in 2005, in the midst of the Houston Police Department crime lab scandal. Many legislators cited problems in the lab when debating whether to create the commission, and they also made it clear that we needed an independent commission to investigate other forensic issues that may come up.

And:

By looking at how outdated science was used in the Willis and Willingham cases, the Forensic Science Commission can determine how often this might have happened in other cases — and how we can be sure it doesn't happen in the future. That's not a political consideration or a mechanism for reviewing the death penalty. It's a critical safeguard for ensuring that our system of justice is accurate and reliable. It's what the state Legislature wanted when it created this commission, and it's what we must ensure the commission can continue doing.

The Star-Telegram also carries the OpEd, "What's the real agenda behind the Willingham brouhaha?" by Jane Jacobs, a Corsicana Daily Sun reporter.

When I moved back to Corsicana, I figured my dealings with the "big boys" in big media were over. I worked at a major metro daily once, and it was swell, but I was glad to get out, away from the office politics, the pressure and the big-city traffic.

But here I am, being attacked by the fellers at The New York Times, Chicago Tribune and any number of Web sites.

The reason is the Willingham story — an ongoing saga that lives on and on, like Elvis on crack.

Honestly, I don’t feel one way or another about Todd Willingham’s guilt or innocence. I wasn’t living here at the time of the fire or the trial. I never spoke to him and only learned his name this year.

I have spoken to the local investigators and a few witnesses, but I haven’t attempted to retry him, nor shall I.

You wouldn’t believe how weird this whole thing has gotten, though. If I write an article, I can expect a dozen or more e-mails and phone calls from around the country telling me that I’m either an ignorant country hick or a hero. If I don’t write an article, I’m still going to get two or three a week.

I can’t imagine what the people actually involved are enduring, but they have my sympathy.

However, questions have been asked about our coverage, so here are some answers:

No, the paper and I don’t have a bias, we have limited coverage. We write about Navarro County. The people we cover may have a bias, but it’s a legitimate one — and it’s just as legitimate as the one held by folks in New York, Chicago, Austin and Dallas. I suspect the reason people are calling us biased is because we’re not reporting their preferred bias.

I haven’t spoken to the arson expert, Craig Beyler, because he doesn’t return my phone calls. Same for Gov. Rick Perry and Willingham’s family and a dozen other people. The guy from The New Yorker quoted several people I didn’t because people evidently return his phone calls. Go figure.

Why haven’t we spent more time on such a big story? Because people in Navarro County have lives, and we go out and write about the stuff that affects them, such as what’s going on at City Hall and the local schools. This would not be a good local newspaper if all we wrote about was Todd Willingham.

And:

Perhaps one day we’ll write an article saying that Todd Willingham was wrongly executed. But I’d like to wait until it’s an actual fact, and not just what some people feel, you know, deep down, in a special kind of way, where it really matters to them and their pet psychics.

Ideally, more credit would be given to science, logic and the justice system than to emotional hand-wringing, politics and accusations.

But what do I know? I’m just an ignorant country hick.

Earlier coverage begins with this post.  All coverage is also available through the Todd Willingham category index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format. David Grann's New Yorker article is noted here.  The Innocence Project's Todd Willingham resource page provides a concise overview of the Willingham case with links to all relevant documents.  Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

Texas Tribune

The Texas Tribune goes live next week on November 3, so I'm adding it to the Texas news links.  Earlier coverage of the Trib's startup is here.

Florida Revises Death Penalty Jury Instruction

"Fla. justices respond to death penalty confusion," is the title of Bill Kaczor's AP report, via the Miami Herald.

The Florida Supreme Court revised standard jury instructions for death penalty cases Thursday in ways the justices hope will reduce widespread confusion among jurors disclosed by an American Bar Association survey.

An ABA team studying Florida's death penalty process three years ago found large percentages of jurors misunderstood the law and their role in deciding death cases.

About 35 percent didn't realize they could consider any evidence - not just examples cited in the instructions - that would mitigate against a death sentence. More than 36 percent wrongly believed they had to recommend death if they found a defendant's crime was "heinous, vile or depraved."

Also, 25 percent had the misconception they must recommend death if they thought a defendant would be a future danger to society. In reality, that's a factor they cannot consider.

The justices wrote in an unsigned unanimous opinion that such confusion was "a cause for concern."

The high court accepted recommendations from its steering and criminal jury instructions committees, including some also suggested by the ABA team.

"It is encouraging and certainly this is a step in the right direction," said ABA team member Mark R. Schlakman, senior program director at Florida State University's Center for the Advancement of Human Rights. "But there is more work to be done."

The justices acted six weeks after lawyers, current and retired judges, and a former death row inmate criticized Florida for ignoring the ABA team's 2006 recommendations during a forum at Florida State.

And:

One new instruction says jurors should not be influenced by racial or ethnic bias, but the justices rejected an ABA recommendation to also order that jurors report evidence of discrimination in their deliberations.

"We agree, of course, that racial discrimination has no role in the jury deliberation process, but we are hesitant to craft any special instructions in this area without first being presented with specific proposals" by the Supreme Court committees, the justices wrote.

They added they may be open to such an instruction in the future.

By a 4-3 split the justices also rejected proposals for juries to fill out two special verdict forms showing whether they found a defendant guilty of premeditated or felony murder - both punishable by death - and explaining why they recommend a death sentence.

A defendant who didn't actually kill someone can be convicted of felony murder if he or she participated in a felony that resulted in death.

The majority wrote that premeditated or felony murder forms could result in even more juror confusion. They added that judges still could have juries fill out such forms but declined to require them.

Juries must unanimously decide guilt or innocence, but they can recommend death by a simple majority vote. Sentencing is up to judges, but they must give great weight to jury recommendations.

The Court's order is here.  Earlier coverage from Florida begins with this post; more on the FSU Forum, here.

Arkansas State Supreme Court Upholds Lethal Injection Law

The Arkansas Supreme Court ruling in Arkansas Department of Correction v. Frank Williams, Jr. (08-1031) is in Adobe .pdf format.

"Ark. Supreme Court upholds lethal injection law," is Andrew DeMillo's AP report via the Pine Bluff Commercial.

The Arkansas Supreme Court on Thursday ordered a lower court to lift an injunction halting a death row inmate's execution, upholding a state law aimed at stopping his lawsuit challenging Arkansas' lethal injection procedures.

In a unanimous ruling, justices sided with the state and dismissed a death row inmate's complaint challenging a new law codifying Arkansas' execution procedures.

Federal public defenders filed the lawsuit on behalf of Frank Williams Jr., a death row inmate who had faced an execution date in 2008. His lawyers argued Arkansas' prison system failed to follow a rule requiring public hearings and notice when agencies change their policies.

The state Legislature passed a law earlier this year exempting execution procedures from the law.

Chief Deputy Attorney General Justin Allen said it would take a few weeks before the attorney general's office would be able to ask Gov. Mike Beebe to schedule an execution date for Williams. A call to the federal public defenders office Thursday morning was not immediately returned.

And:

In the opinion issued Thursday, justices agreed with the state that the act would not be retroactive because it would apply to anyone awaiting execution, regardless of the date of their conviction.

"Williams was sentenced to death for his crime, and Act 1296 did not change either his criminal liability or his sentence," Justice Jim Gunter wrote in the court's ruling. "Thus, there was no need for the General Assembly to state that the Act may be applied retroactively, because the act will not be retroactively applied but will instead apply to all executions held after the Act's enactment, including Williams's."

The Arkansas News Bureau posts, "Court clears way for Williams execution; AG in no rush," by John Lyon.

The state Supreme Court today ordered a lower court to dismiss a lawsuit that had effectively put executions on hold in Arkansas.

In a unanimous decision, the state’s highest court ruled that Frank Williams Jr.’s lawsuit against the Arkansas Department of Correction is moot and directed a Pulaski County circuit judge to dismiss the lawsuit and lift an injunction on Williams’ execution.

Chief Deputy Attorney General Justin Allen said today it may be a month or more before the attorney general’s office is ready to ask Gov. Mike Beebe to set an execution date for Williams. Allen said Williams could ask the state Supreme Court to reconsider its ruling or he could ask the U.S. Supreme Court to hear his case.

Jennifer Horan of the federal public defenders office in Little Rock said the office would have no comment on today’s ruling.

Williams, sentenced to die for the October 1992 slaying of Lafayette County farmer Clyde Spence, filed his lawsuit last year. He alleged the Department of Correction failed to comply with the Arkansas Administrative Procedures Act when it adopted rules regarding lethal injection without subjecting the rules to public review and accepting public comments, as required by the act.

And:

In its opinion today, the Supreme Court said retroactivity is not an issue.
“There was no need for the General Assembly to state that the act may be applied retroactively, because the act will not be ‘retroactively’ applied but will instead apply to all executions held after the act’s enactment, including Williams’,” Justice Jim Gunter wrote in the opinion.

Because it found that the law applies to Williams and renders his lawsuit moot, the court said it did not need to consider his other arguments.

And:

Williams and three other death-row inmates have an appeal pending before the 8th U.S. Circuit Court of Appeals that challenges the constitutionality of lethal injection in Arkansas, but no stays of execution have been imposed in that case, Allen said.

The case was heard earlier this month; coverage is here.

In Ohio

"Attorney general wants stay of execution lifted," is the title of Bobby Clarke's report for the Warren Tribune Chronicle. 

The Ohio attorney general has filed a motion with the U.S. Sixth Circuit Court of Appeals that seeks to lift a stay on the Dec. 8 execution of local death row inmate Kenneth Biros.

The motion filed Tuesday states that Gov. Ted Strickland already has the power and has in fact delayed other executions until Ohio develops a suitable protocol for executions by lethal injection. And an assistant attorney general also points out that Biros' attorneys have never made any claim that they are ''likely to succeed on the merits'' of their case - required criteria for a preliminary injunction.

Trumbull County Prosecutor Dennis Watkins has remained confident that Biros can be executed on time despite the stay earlier this month.

And:

The stay that Attorney General Richard Cordray wants to eliminate came after the Sept. 15 botched execution of death row inmate Romel Broom, which was also delayed by a federal judge until a back-up or alternative method of lethal injection could be designed.

Strickland has postponed until the spring the executions of two other men who were scheduled to die before Biros, Lawrence R. Reynolds Jr. and Darryl Durr. The state is considering ways to adjust its death chamber procedure after technicians couldn't locate suitable veins on Broom through which to administer lethal drugs.

''The constitution shouldn't protect him (Biros) from some pain,'' Watkins said.

AP distributed, "Ohio can't find doctors to offer execution advice," on Tuesday.  The report was written by Andrew Welsh-Huggins.

Ohio was on track this year to execute a record number of inmates. One botched execution and several lawsuits later, the death penalty is temporarily on hold.

The latest challenge: The state can't find medical professionals willing to advise it on the best way to put condemned inmates to death because of ethical and professional rules.

The rules — which generally prohibit doctors, nurses and others from involvement in capital punishment — are deterring those professionals from speaking publicly or privately about alternatives to the state's lethal injection process, Attorney General Richard Cordray said in a court filing.

"A small number of promising leads have emerged, but identifying qualified medical personnel willing and able to provide advice to the State regarding lethal injection options continues to be challenging and time-consuming," Cordray said in the Friday filing in U.S. District Court.

Executions have stopped while the state develops new injection policies following a Sept. 15 execution that was halted because the inmate had no suitable veins.

The state has reached out to judges, police and lawmakers for help in trying to find medical professionals willing to talk to the state, according to the filing written on Cordray's behalf by Charles Wille, head of Cordray's death penalty unit.

Cordray also said five lawmakers he didn't identify have agreed to try to find medical staff to help.

The state has a two-year, $33,200 contract with just one doctor, Mark Dershwitz of Massachusetts, a lethal injection expert who frequently testifies on behalf of states in lethal injection cases.

Dershwitz, an expert witness for Ohio at a March trial challenging the state's injection system, is the only doctor the state is currently talking to, said Julie Walburn, a prisons department spokeswoman.

Missouri encountered a similar problem in 2006 after a federal judge ordered the state to revamp its execution procedures, including using a board-certified anesthesiologist.

The Corrections Department met with resistance from anesthesiologists wary of crossing an ethical line that could cost them their practice.

The American Medical Association prohibits its members from participating in executions, including anything that would "contribute to the ability of another individual to directly cause the death of the condemned."

"The role of a physician is that of healer," Dr. Rebecca Patchin, the AMA board chairman, said Monday. "To be involved in capital punishment in any manner, even in an advisory capacity, undermines that role."

At Jurist, Virginia Sloan, President of the Constitution Project, writes, "Recent stay of execution signals problems with capital punishment in Ohio."

The recent uproar surrounding Ohio's failed attempt to execute Romell Broom, who was convicted of murdering Tryna Middleton, highlights the continuing problems with lethal injection in Ohio, and elsewhere around the country. If the state is to continue using the death penalty, the state must comply with the "quick and painless" standard mandated by Ohio state law, as well as the mandates of the US Constitution. Executions must not resume unless the state is able to guarantee that execution teams are properly trained to carry out their purpose and that a contingency plan is in place to address unexpected problems, including when – as was the case with Romell Broom - peripheral vein access becomes difficult or impossible.

The September 20th fiasco is the most recent of several botched executions in Ohio, which uses the controversial "three-drug cocktail" lethal injection. The executions of Joseph Clark in 2006, and that of Christopher Newton the following year, were ultimately successful but were delayed significantly because of difficulties in locating veins suitable for injection, an increasingly evident and inherent flaw in lethal injection protocols around the country. Following the Clark and Newton executions, Ohio officials vehemently defended the state's execution procedures and dismissed any need for improvements. The failed attempt to execute Mr. Broom on September 20th clearly demonstrates otherwise.

The recent stays of execution granted to Mr. Broom and Ohio death row inmates Kenneth Biros, Darryl Durr, and Lawrence Reynolds, are a step in the right direction. It is now clear that a thorough review must take place before the state decides whether to resume executions.

And:

The problems with capital punishment, including those in Ohio, are of concern not just to opponents of capital punishment. In 2005, the Constitution Project's bipartisan, blue-ribbon committee of death penalty supporters and opponents released Mandatory Justice: the Death Penalty Revisited [PDF file], an update to the 2001 ground-breaking report Mandatory Justice: Eighteen Reforms to the Death Penalty [PDF file]. Both addressed the profound risk of wrongful convictions and executions created by the country's capital punishment system, and crafted consensus recommendations for a variety of urgently-needed reforms. To learn more, please visit the Constitution Project's Death Penalty Committee.

Earlier coverage from Ohio begins here.

Wayne Slater's Conversations With Religious Leaders

The senior political writer of the Dallas Morning News has talked to a wide array of Texas religious leaders in, "Texas Faith: Are Texans immoral for supporting the death penalty?"  It appears at the Morning News Religion blog, and it's an absolute must read.

The storm over the Cameron Todd Willingham case has focused public attention on the death penalty and stirred debate in the Texas governor's race. Willingham was executed in 2004 for setting a fire that killed his three children. He maintained until his death that he was innocent, and evidence in the case presents a mixed picture. Several independent experts have challenged whether it was arson. The governor and the prosecutor are confident he was guilty.

In Texas, more than 400 people have been executed since capital punishment was reinstated by the Supreme Court in 1976. Ours is the busiest death chamber in the nation - and Texans overwhelmingly back the death penalty. Polls indicate that nearly three-quarters of Texans support capital punishment.

What is the moral dimension?

Here are several brief excerpts from Slater's extensive post:

JOE CLIFFORD, Pastor of First Presbyterian Church of Dallas

Jesus was once asked his opinion on the death penalty when a woman was caught in adultery, a capital offense in his day. (I've always wondered where the man was in this story!) Jesus responded, "Go ahead and stone her ... just let the one who is without sin cast the first stone." No one could; which is to say no one is moral enough to impose the death penalty.

Having said that, I could not tell the relatives of a murder victim they are immoral because they support the death penalty for the person who killed their loved one.

GEOFFREY DENNIS, Rabbi Congregation Kol Ami in Flower Mound

The Talmud understands the unique nature of capital punishment, that it is a penalty which, wrongly administered, cannot later be corrected or compensated. Given the now-well-documented record of false convictions in Texas, it seems to me the moral response is to suspend all executions until a fairer, bettered safe-guarded, radically reformed system can created. Which, the way things go, means an end to the death penalty for the foreseeable future.

CYNTHIA RIGBY, Professor of Theology, Austin Presbyterian Theological Seminary

I know my response to this question will be controversial, but I believe capital punishment is immoral. As a Christian believer, it is my conviction that God is a God of justice, but that the justice of God is grounded not in a literalistic "eye for an eye," but in God's grace and God's mercy. (Interestingly, btw, a strong case can be made that the "eye for an eye" rule of the Old Testament was not as much about demanding equitable retribution for crimes that had been committed, but for protecting the perpetrator from being OVERPENALIZED for his or her crime. In other words, if one person puts out the eye of another, the most that can be taken from the guilty one is an eye - not both eyes, not a leg, not a life, but "only" an eye).

While I am tempted to launch into a lengthy theological discourse about the relationship between justice and mercy in various New Testament texts, let me spare everyone and instead put forward two "scenes" from my own heritage and life that have fed my reflection on the death penalty.

LARRY BETHUNE, Senior Pastor University Baptist Church, Austin

I cannot speak from other religious points of view, but from a New Testament Christian point of view, the death penalty is immoral. It has no place in a tradition which emphasizes grace, mercy, and healing from violence. At the heart of the Christian message is the belief that no person is beyond redemption in the eyes of God. Vengeance belongs to God alone, and the justice of God is filled with mercy. The death penalty demeans the society which uses it and the persons required to apply it.

Related posts are in the religion category index.  The Pew Forum on Religion & Public Life has an excellent death penalty resource page.  It includes the full transcript of the Forum's 2002 conference at the University of Chicago School of Theology, "A Call for Reckoning: Religion and the Death Penalty."

How Do You Rectify the Ultimate Mistake?

That's the title of Gerry Gamel's signed editorial in the Mason County News.  LINK

Let's be clear at the outset - I am an advocate of the death penalty. I believe that some crimes are so heinous, so evil, that the only punishment that is appropriate is the ending of that life.

Let me also clarify that, though I've served on a number of juries, I've never been asked to make that determination, and I know that it would be difficult to offer up the death penalty if I did not feel absolutely certain it was the right punishment.

Recent events in Texas have also highlighted another problem with the death penalty.... What happens if you put someone to death, then find out you may have been in error?

That is the question that faces Governor Rick Perry. An investigation was scheduled to begin reexamining the evidence in the case by the Texas Forensic Science Board; but, the Governor dismissed the sitting members only days before they were to begin.

Everyone who has examined court transcripts agree that Cameron Todd Willingham had his share of problems. He was not an ideal husband. He was not a great father. To my knowledge, there are no laws in Texas to punish someone for those offenses.

And:

And now, years later, and five years after Cameron Todd Willingham was executed for the murder of his three children, fire experts from all over the state and nation have stood up to say a mistake was made.

They have used forensic science to discount the arson allegation, and now point to an electrical fire that was the most likely culprit. An accident.

Governor Perry's office received a report from Willingham's defense counsel prior to the execution date, presenting this new evidence and asking for a stay of execution. The Governor's office failed to act, and Willingham died by lethal injection, as scheduled.

What happens when you kill someone that may have actually been innocent? Do you dismiss the people investigating the case? Do you refer back to the bad behavior of the defendant, outside the specifics of the case? Do you refuse to accept the truth so that you can sleep at night?

Apparently, in Austin, that's exactly what you do.

If a mistake has been made, the family of Cameron Todd Willingham deserves to know that he was innocent. It's too late to rescue his life; but, it's never too late to rescue the truth, whatever that may reveal.

Earlier coverage of the Todd Willingham case begins with this post.  All coverage is also available through the Todd Willingham category index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format. David Grann's New Yorker article is noted here.  The Innocence Project's Todd Willingham resource page provides a concise overview of the Willingham case with links to all relevant documents.  Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

Charges Dismissed in Yogurt Shop Case

That's the title of a post at the Austin American-Statesman Austin Legal blog written by Steven Kreytak.  LINK

Travis County prosecutors moved to dismiss the murder indictments against the two remaining defendants in 1991 yogurt shop murders after announcing in court today that they are still looking for the person whose DNA was found last year in one of the four teenage victims.

Assistant District Attorney Efrain De La Fuente said in court that the decision came because state District Judge Mike Lynch has ordered that a continuance in the case to conduct further DNA testing would not be considered.

“We are still testing,” he said.

The packed courtroom was quiet after Lynch ordered the dismissals. Defendants Michael Scott and Robert Springsteen, who were once both convicted in the case, hugged their lawyers and supporters in court.

Outside, lawyers for the defendants called on authorities to find the real killers.

“Those men that did this back in 1991, they left DNA in there,” said Scott lawyer Carlos Garcia. .”And I don’t know if those guys are still alive …but we have your DNA and sooner or later we are going to match your face to it.”

Springsteen lawyer Joe James Sawyer said that he and his client believe that it is the families of the slain girls who have suffered the most.

“We should reserve our sympathy for the families of those girls,” Sawyer said. “That is paramount.”

Scott, gripping his wife’s hand, was reserved outside court.

“This has been a long time in coming,” he said. “I’m happy to be here.”

At a press conference following the hearing, Travis County District Attorney Rosemary Lehmberg issued a statement that said in part: “Make no mistake, this is a difficult decision and one I would rather not have to make. I believe it is the best legal and strategic course to take and is the one that leaves us in the best possible posture to ultimately retry both Springsteen and Scott.”

And:

In June, Lynch released the men from jail on their own recognizance after prosecutors said they wanted more time to identify the source of male DNA found in vaginal swabs taken from victim Amy Ayers, 13. The DNA did not match either defendant or previous co-defendants.

Prosecutors have not yet determined whose DNA that is, according to defense lawyers who have been kept apprised of the testing.

In a strongly worded order in written in August, Lynch said that the lawyers in the case must announce they are ready for trial today. “Extreme circumstances would be required to obtain a continuance,” he wrote.

If either party announces they are ready for trial and later asks for more time, Lynch wrote, “it would be a violation of this order” if there was no new reason for the continuance request.

Today’s hearing is the latest critical juncture for a case that has taken many turns since Dec. 6, 1991, when the bodies of Ayers, sisters Sarah and Jennifer Harbison, 17 and 15, and Eliza Thomas were found, each bound with their own clothing and shot in the head, at the I Can’t Believe It’s Yogurt Shop on West Anderson Lane.

In 1999, Scott and Springsteen confessed. Their lawyers later said those confessions were coerced under psychological pressure and lengthy interviews by police. Both were convicted but those convictions were overturned when the Texas Court of Criminal Appeals found that Scott’s confession was improperly used at Springsteen’s trial and Springsteen’s confession was improperly used at Scott’s trial.

Earlier coverage begins with this post.

Chronicle Sues Governor

"Chronicle sues Perry over clemency report," is the title of R.G. Ratcliffe's report in today's Houston Chronicle.

The Houston Chronicle and Hearst Newspapers LLC are suing Gov. Rick Perry in an effort to force the release of a clemency report Perry received before denying a stay of execution to Cameron Todd Willingham.

The report is a summary and status of the case against Willingham that was given to Perry at 11:30 a.m. on the day of Willingham's 2004 execution in the fire deaths of his three daughters. Anti-death penalty advocates say modern fire forensics show the blaze cannot be proven as arson.

Perry's office has refused to release the report, claiming it is a privileged document. The clemency document was used by Perry in the process of deciding whether to give Willingham a 30-day stay of execution.

“When it comes to human life, there is no place the governor should be more transparent in his decision-making,” said Jonathan Donnellan, an attorney for Hearst and the Chronicle.

“It should raise eyebrows that the governor is seeking to shield communications with his advisers as ‘legal advice,' when the very idea of executive clemency power is to make a policy decision after the legal process has run its course,” Donnellan said.

Willingham was put to death shortly after 6 p.m. on Feb. 17, 2004, just 88 minutes after the Governor's Office received an expert's report that the fire that killed Willingham's children could not be positively attributed to arson. It is unknown whether the report by Perry's general counsel included any mention of the arson controversy in the Willingham case.

In a statement e-mailed to the Chronicle, Perry spokeswoman Allison Castle said, “Todd Willingham was convicted and sentenced to death by a jury of his peers for murdering his three daughters, and that conviction was upheld by Texas courts and nine times by federal courts including four times by the U.S. Supreme Court. The governor reviewed all the facts in this case and agreed with jury and the courts that Willingham was guilty of murdering his three daughters. Our office has fully complied with the public information act.”

The Attorney General's Office has previously ruled that the specific documents that the Chronicle is referencing are not subject to disclosure under the Public Information Act.

Earlier coverage begins with the preceding post.

More on the State of Willingham Forensics

"Techniques used in Willingham case now seen as outdated," by Dave Montgomery appeared in the Sunday Dallas Morning News.

As a key witness in the capital murder trial of Cameron Todd Willingham, then-Deputy State Fire Marshal Manuel Vasquez testified that the fire that killed the defendant’s three daughters was "a crime of arson."

"In your opinion, could this fire have been started accidentally?" Vasquez was asked.

"No sir," he replied. "It was not accidental."

Seventeen years later — and five years after Willingham was executed in connection with the case — nine fire experts have raised the possibility that the blaze may have indeed been accidental, citing revised standards in arson investigations.

Some circumstances in the Willingham case were similar to those in the case of Ernest Ray Willis, who was convicted of setting a 1986 fire that killed two sleeping women in the small West Texas town of Iraan. Willis, who spent 17 years on Death Row, was released in 2004 after then-Pecos County District Attorney Ori White dropped the murder case after an inquiry that strongly suggested that the fire was an accident. Authorities were also accused of concealing evidence and giving Willis anti-psychotic drugs that left him dazed during his trial.

"The science of arson investigations was very different in the late 1980s than it was in the late 1990s," said White, who is now Pecos County attorney. "The scientific evidence exonerated him, and that’s why I dismissed the case."

The fire marshal’s arson finding was the dominant element in the prosecution’s case against Willingham, an unemployed mechanic who denied setting the blaze. Retired Judge John H. Jackson, who, as assistant district attorney at the time, prosecuted the case, said the finding unquestionably showed that the fire was deliberately set, despite "paper experts" who are now challenging the findings. Waco attorney David Martin, who represented Willingham and has since said he believes that his client was guilty, says an expert for the defense also concluded that the fire was arson.

But Craig Beyler, a fire scientist hired by the Texas Forensic Science Commission to review the case, has concluded that an arson finding "could not be sustained," saying Vasquez, who died in 1994, used concepts that "are often inconsistent with modern fire science."

The arson investigation into the Willingham case was conducted before the 1992 publication of what has since become the standard for arson science: NFPA 921, a Guide to Fire and Explosion Investigation, published by the National Fire Protection Association. Vasquez and Douglas Fogg, then assistant fire chief for Corsicana, cited more than 20 indicators to conclude that the fire was intentionally set. But several of those indicators have since come under question in light of the newer standards in NFPA 921.

Among them:

"Crazed glass," a weblike pattern earlier assumed to be caused by use of a liquid accelerant. Now it is also attributed to the rapid chilling of hot glass by water from fire hoses.

"Pour patterns," "trailers" and "puddles," markings suggesting that someone dumped accelerant. A "post-flashover fire" — which spread from single objects to engulf an entire room, reaching temperatures of more than 2,000 degrees — can also produce floor burn patterns that cannot be distinguished from those caused by liquid accelerants.

Multiple points of origin, which can indicate that a fire was deliberately ignited. But other causes, such as embers or drop-down burning, can produce the same effect, experts say.

Gerald Hurst, an Austin arson expert, also challenged the fire marshal’s investigation in a report that Willingham’s appeals attorney submitted to Gov. Rick Perry in 2004 in an unsuccessful bid to delay Willingham’s execution.

"On first reading, a contemporary fire origin and cause analyst might well wonder how anyone could make so many critical errors in interpreting the evidence," Hurst said. "However, when the report is looked at in the context of its time and in light of a few key advances that have been made in the fire investigation field in the last dozen years, it becomes obvious that the report more or less simply reflects the shortcomings in the state of the art prior to the beginning of serious efforts to introduce standards and to test old theories that had previously been accepted on faith."

Corsicana, in a response to Beyler’s report, noted that NFPA 921 wasn’t published until after the fire and Willingham’s trial and may not have been "universally acknowledged" until the late 1990s.

Today's Star-Telegram reports, "Corsicana questions state commission's jurisdiction in 1991 arson case," also by Montgomery.

Corsicana officials are questioning the Texas Forensic Science Commission’s inquiry into the arson investigation that led to the 2004 execution of Cameron Todd Willingham, saying the 4-year-old panel lacks the jurisdiction to the delve into the 1991 house fire that killed Willingham’s three children.

In another development Tuesday, Willingham’s stepmother challenged statements from his ex-wife, who said in a lengthy written account to the Star-Telegram that her former husband was guilty of setting the fire.

"I think she is not being truthful," said his stepmother, Eugenia Willingham of Ardmore, Okla. "I know Todd never confessed to her.  . . . Those were the only grandkids I had, and he would not take them from me."

But ex-wife Stacy Kuykendall said Tuesday in an e-mail that she stands by her statements over the weekend: "I wrote nothing but the truth. This man murdered my daughters and I am sick of people defending him."

In a previously unpublicized Oct. 5 letter to the forensic science commission, Corsicana City Attorney Terry Jacobson said the 2005 statute that created the agency "does not appear to give the Commission the authority to retroactively investigate forensic evidence" that is 18 years old.

However, Sen. John Whitmire, D-Houston, a leading sponsor of the legislation, said it gives the agency broad latitude to investigate forensic issues and does not preclude the inquiry into the Willingham case.

"I don’t think they’re prohibited from doing anything they want to do," said Whitmire, chairman of the Senate Criminal Justice Committee. The commission’s former chairman, Sam Bassett of Austin, also defended its jurisdictional authority in the case.

Whitmire’s committee has scheduled a Nov. 10 hearing to review the forensic science commission. Whitmire ordered the hearing after Gov. Rick Perry shook up the panel’s membership, stirring accusations that he was attempting to gut it to slow its inquiry into the Willingham case.

The Sunday Dallas Morning News reported, "Records: Willingham's innocence in fire unclear." This lengthy article is written by Steve McGonigle, Brooks Egerton and Gary Jacobson.

Willingham's 17-year-old case has suddenly become a popular symbol for those who wish to proclaim the brutality and unfairness of Texas capital punishment. National television networks have covered it in the last few weeks. The Sept. 7 issue of The New Yorker asked, in a story about Willingham, "Did Texas execute an innocent man?"

Substantial questions have been raised about Willingham's guilt. But so have serious questions about his claims of innocence.

Willingham was convicted in August 1992 of setting a Corsicana house fire that had killed his three young children two days before Christmas. He was executed in the Texas death chamber on Feb. 17, 2004.

Before and after his execution, several experts in fire science concluded that, based on the physical evidence, there should have been no finding of arson – and thus no guilty verdict.

Barry Scheck, co-director of the Innocence Project, a nationally known legal clinic devoted to exposing wrongful convictions, recently declared: "There can no longer be any doubt that an innocent person has been executed."

A review of trial testimony and investigative records shows that reality is far murkier – that Willingham, while never wavering in his denial of wrongdoing, did much that tended to incriminate him.

And:

The first scientific challenge to the arson finding did not surface until shortly before Willingham's execution.

Gerald Hurst, a Cambridge-educated chemist from Austin, began researching the fire evidence after being recruited in January 2004 by Patricia Ann Cox, a Willingham cousin. Hurst finished his report four days before the scheduled execution on Feb. 17.

His affidavit, filed in the trial court, said "most of the conclusions" reached by fire marshal Vasquez "would be considered invalid in light of current knowledge" in the fire investigation field. It said the finding of multiple origins – a persuasive sign of arson – "was inappropriate even in the context of the state of the art in 1991."

Hurst did not express an opinion about what caused the fire in the affidavit. However, in a letter sent to Perry on Feb. 13, 2004, requesting a 30-day reprieve for his client, Willingham's attorney stated "Dr. Hurst's opinion is that the fire was not intentionally set."

The Texas Court of Criminal Appeals, the 5th U.S. Circuit Court of Appeals and Perry also were presented with Hurst's report and declined to take steps to stop or delay Willingham's execution.

Cox, a nurse who lives in Ardmore, said one of Perry's assistant general counsels told her the day after the execution that the governor had decided that granting Willingham a stay "would just be delaying the inevitable."

Ten months after Willingham's death, the Chicago Tribune wrote a lengthy article that questioned the arson finding. The story relied in part on the opinions of Hurst and three additional fire scientists, each of whom called the original investigation flawed.

The Innocence Project followed in 2006 with a report by one of the Tribune's experts and four other scientists who found the Willingham fire was not arson.

Gary Jacobson posted, "'Unofficial rules' limited fire expert availability," as an addendum to the above report, Monday afternoon at the Dallas Morning News WatchDog blog. 

One question from Todd Willingham's 1992 trial is whether the defense could have found a fire expert in Texas to rebut the arson findings of investigators Manuel Vasquez and Doug Fogg?

At the time, the one expert defense attorneys approached agreed that is was arson.

During our reporting on the Willingham story that ran Sunday, we asked that question of Mark Goodson, a Denton engineer who was interviewed about reviewing the Willingham case by the Texas Forensic Science Commission, which eventually chose Craig Beyler.

Goodson's email response:

"There were experts in Texas in 1992 who could have rebutted the testimony of Mess'rs. Vasquez and Fogg. But, please read the phrase 'there were experts' carefully. While there were experts with this knowledge, many of them worked in public sector agencies, for which there were unofficial rules preventing testifying for the defense. Thus, while the many experts were out there, some were truly not available to testify for a defendant. If they did, their supervisor would receive a call from a most unhappy District Attorney, upset that there was an out of town interloper who was now helping a defendant."

Earlier coverage begins with the preceding post.

What Stacy Kuykendall Said

On Sunday, the Fort Worth Star-Telegram reported, "Stacy Kuykendall's statement about the 1991 fire."

Stacy Kuykendall, the ex-wife of Cameron Todd Willingham, offers her first detailed account of the 1991 fire that claimed the lives of her three daughters and led to Willingham’s execution in 2004. “Todd set our house on fire then stood outside and watched it burn,” Kuykendall asserts, saying she agrees with Gov. Rick Perry’s portrayal of her husband as “a monster.” Here is the full statement:

On October 18th I read that David Grann said that the Chicago Tribune reporters, Steve Mills and Maurice Possley, tracked me down and interviewed me about my ex-husband and if he in fact confessed to me. He wrote that I firmly said that Willingham had never done so. I have never been formally interviewed by any reporters. Mills, Possley and Grann have all come to my home uninvited to ask me questions about my ex-husband. I told them all that I no longer believe that Todd was innocent, that he did murder my daughters and I did not want to talk about that which had to deal with him. I was asked why I didn’t believe that he was innocent and my response was, after reading statements, mainly Todd’s, that first of all, he gave conflicting stories of what happened the day of the fire and secondly after visiting with him on death row that he was guilty. I was asked what was said the day I visited with my ex-husband. I told them that I believed that was personal and would not respond to the question. I asked them repeatedly to leave my property. 

And:

For all of this to be brought up again has been extremely painful for me and my family. How many more times do we have to see in detail that burned house were my daughter died! I have carried this pain for 18 years now and will for the rest of my life. I can say that I am a very strong women but having to listen to this every day again is starting to take its toll on me. I pray daily for my babies to have some peace and my family to stop being harassed.

Governor Rick Perry called Cameron Todd Willingham a "monster" and indeed he was. Nightline ran story titled "A Life Cut Too Short." There were three life's cut too short and their names are Amber Louise, Karmon Diane and Kameron Marie.

David Grann posts, "Stacy Speaks," for the New Yorker's News Desk blog.  

The case of Cameron Todd Willingham, who was executed in Texas in 2004 and whom I wrote about for The New Yorker last month, has taken another strange twist. Yesterday, Willingham’s former wife, Stacy Kuykendall, released a statement to the Fort Worth Star-Telegram saying that he secretly confessed to killing their three daughters, who died in a fire on December 23, 1991. Her statement directly contradicts numerous previous statements she has made: in interviews with police and fire investigators; in testimony during the trial; in letters to public officials and Willingham’s lawyers; and in her comments to the press.

And:

On February 8, 2004—the very day that Ronnie Kuykendall claimed his sister had told him that Willingham had confessed—the Corsicana Daily Sun published an interview with Stacy Kuykendall. She said that during her visit with Willingham in prison, he maintained that the fire was accidental and that their daughter Amber had likely caused it:

Willingham laid out the same theory to Kuykendall that he suggested during the Daily Sun interview—that Amber had accidentally set the fire. He said that he woke up to her cry of “Daddy, Daddy.” Willingham said he woke up and saw smoke hovering a few feet above him, then jumped up from the bed where Amber’s body would later be found, put on his pants and ran to the kids’ room where all he could see was fire. Willingham said that he never encountered Amber in those initial moments and theorized that Amber had left the kids’ room via a hall that led both to the front door and to another entrance to his bedroom and that’s how he missed her.

In that article, Kuykendall made it clear that she did not believe Willingham’s version of events. But she never mentioned a confession. While I was reporting my New Yorker article, I tried to talk to Stacy Kuykendall, but she said that she no longer wanted to discuss the case. I did ask her if she stood by her statements to the Tribune and to the Daily Sun. She said, “If I said it, then it’s true.”

In the course of reporting my story, I also spoke to John Jackson, who prosecuted Willingham. He spoke about the contradictions between Kuykendall’s public statements and her brother’s affidavit. “She’s given very different stories about what happened on this particular day right up to the date of his execution,” Jackson said. “It’s hard for me to make heads or tails of anything she said or didn’t say.”

Steve Mills writes, "Death penalty case: Ex-wife says convicted killer confessed," for the Chicago Tribune.

Willingham went to his death proclaiming his innocence.

And over the years, she has offered differing accounts.

A Tribune investigation in 2004 showed the indicators of arson that fire officials used had been disproved by scientific advances and no longer were valid.

The first word of a confession came just before the execution, when Kuykendall's brother signed an affidavit in which he said that she told the family that, during the prison visit about two weeks before the execution in 2004, Willingham made a confession.

But in a story in the local newspaper after the prison visit, she made no mention of a confession. In fact, she told the paper Willingham stuck to his story about his actions during the fire.

In a brief interview at her home in 2004, Kuykendall told the Tribune Willingham never made such an admission. She confirmed that this year to a reporter from the New Yorker magazine.

Her statement that he confessed -- and that he said he set the fire because she threatened to divorce him -- also conflicts with other accounts that she has provided.

Eight days after the fire, in an interview with fire investigators and police, Kuykendall said that she and Willingham had not argued for at least two weeks and she made no mention of a threat the night before the fire to divorce him. 

Earlier coverage begins with the preceding post.

More Todd Willingham Commentary

I'll be catching up today with news coverage of and commentary about the Todd Willingham case since Sunday.  Let's start with an editorial and column from the Dallas Morning News.

The editorial, "What the Willingham case is really about," is from the Tuesday edition.

The ex-wife of Cameron Todd Willingham now alleges that he confessed to murdering their three children in her last death row meeting with him, shortly before his 2004 execution. At last, the truth comes out in the high-profile case of a questionable arson-murder conviction. Right?

Not so fast. Stacy Kuykendall's dramatic statement published Sunday in the Fort Worth Star-Telegram does nothing to bolster the shaky arson evidence that led to Willingham's guilty verdict. As the Chicago Tribune's Steve Mills reported yesterday, Kuykendall told a newspaper after that final visit that her ex-husband stuck by his original story. Moreover, Kuykendall's new statement contradicts earlier ones made to investigators, and under oath.

Besides, the only person besides Kuykendall who knows what was said in that conversation is dead and buried.

We're not calling Kuykendall a liar. But her published remarks over the weekend, far from bringing clarity to the confounding case, only make it murkier.

On the other side, activists claiming that Texas executed a blameless man are risking their own credibility and helping to politicize what started as a scientific search for truth.

Fire expert Craig Beyler, whose report for the Texas Forensic Science Commission challenged conclusions in the state's arson investigation, did not rule out arson. He only said that the state had fallen far short of proving its case. That's an important difference.

All along, the issue at the center of the Texas Forensic Science Commission's review of this case has been the science used to help secure a conviction. How solid were the conclusions state arson investigators drew from the evidence? This is what the commission was going to discuss before Gov. Rick Perry shamelessly thwarted the investigation by sacking commission members, putting the probe in limbo.

Morning News editorial columnist Rod Dreher writes, "Willingham case a test of Perry's character."

Gov. Rick Perry is facing a character test in the matter of Cameron Todd Willingham. So far, it's been an epic fail for the governor. And if Texans let him get away with this brazen attempt to evade responsibility, we'll be party to a grave moral failure.

First things first: If Willingham really did kill his three daughters, he deserved his 2004 date with death at Huntsville. Anyone who takes the life of another in cold blood should pay for it with his own. But being found guilty by a jury is not the same as actually being guilty of the crime – which is why I reluctantly oppose the death penalty. This is no longer the Wild West. If we are going to send a man to his death, an irrevocable punishment, the margin of error must be vanishingly small.

And:

Perry is plainly afraid that his own investigators will discover that the state likely put a blameless man to death. But what is he afraid of? Political fallout? What is mere politics when the credibility of a system that might have killed an innocent man – and might yet kill other innocents – is at issue? Our skittish governor has taken to calling Willingham a "monster." Even if he was, we put men to death for their deeds, not their dispositions. He needed killin' is no rationale for execution.

A real leader – a brave and honorable one – would want to know the truth, so that if evidence requires it, he and others responsible for Willingham's death could make restitution and repent for shedding the blood of a blameless man railroaded to his execution. If hard-hearted Perry is so certain of Willingham's guilt, why object to an investigation?

More importantly, if Willingham was wrongly put to death, all decent capital punishment supporters should want strict measures taken to ensure that this catastrophe never happens again. If we are going to have the death penalty, we have the solemn duty to use it responsibly. Right? Surely we Texans aren't the kind of people so enamored of retribution that the actual guilt or innocence of those executed in our names is of no real concern.

This is not only a problem for Rick Perry. We live in a democracy. It's on all of us. If Texas really did kill an innocent man, that's a terrible tragedy. But if Texas and its governor lack the courage to face the truth and deal squarely with it, the tragic act will be magnified by deep and lasting disgrace, and we will all stand condemned by our collective moral cowardice.

It's much harder to live with painful truths than with comforting lies. But a people who would be on the side of right have no choice.

Earlier coverage of the Willingham case begins with this post. 

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format. David Grann's New Yorker article is noted here.  The Innocence Project's Todd Willingham resource page provides a concise overview of the Willingham case with links to all relevant documents.  Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

Texas Execution

Texas carried out its 19th execution of 2009, last night in Huntsville.  It was the state's 442nd execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's post-Furman executions.  To date, there have been 42 executions in the nation this year; 1,178 since 1977.

Michelle Mondo writes, "Condemned San Antonio murderer put to death," for the Express-News on the execution of Reginald Blanton.

Reginald Blanton, in his final words, thanked his supporters, told his victim's family that he understood their pain and decried the drugs used to put him to death.

Blanton was condemned to die for the robbery and shooting death of his acquaintance Carlos Garza, 22.

"Believe me, I shed plenty of tears behind Carlos," he said, looking towards five of Garza's relatives, including the victim's mother. "Carlos was my friend."

Irene Garza cried the moment she looked at Blanton strapped to the gurney in the death chamber at the Huntsville Unit.

Garza was flanked by her three daughters and her son's former wife.

Blanton was pronounced dead at 6:21 p.m., eight minutes after the lethal dose of drugs began flowing into his body.

According to TDCJ, six additional executions are scheduled in Texas during 2009.  Two execution dates have already been set for 2010 in Texas.

Tuesday

I'm traveling today.  Posts will resume this evening.  Visit the Daily Must Reads, Essential Law Blogs and other blogs in the left-column webroll.

Monday

I am in meetings today.  Posts will resume later today.  Please visit the Daily Must Reads and other blogs in the left-column webroll.

Juvenile Life Sentences

Oral arguments in Graham v. Florida and Smith v. Florida are scheduled for November 9.  The issue of life sentences for juvenile offenders is getting attention in anticipation of the Supreme Court's examination.

Former Republican U.S. Senator Alan Simpson wrote the OpEd, "A sentence too cruel for children."  It appeared in the Friday Washington Post.

Rather than serving in the U.S. Senate for almost 20 years, or having so many other wonderful life experiences, I could have served a longer sentence in prison for some of the stupid, reckless things I did as a teenager. I am grateful to have gotten a second chance -- and I believe our society should make a sustained investment in offering second chances to our youth.

When I was a teen, we rode aimlessly around town, shot things up, started fires and generally raised hell. It was only dumb luck that we never really hurt anyone. At 17, I was caught destroying federal property and was put on probation. For two years, my probation officer visited me and my friends at home, in the pool hall, at school and on the basketball court. He was a wonderful guy who listened and really cared. I did pretty well on probation. At 21, though, I got into a fight in a tough part of town and ended up in jail for hitting a police officer.

I spent only one night in jail, but that was enough. I remember thinking, "I don't need too much more of this."

I had a chance to turn my life around, and I took it. This term, the U.S. Supreme Court will decide whether other young people get that same chance.

On Nov. 9, the court will hold oral argument in Sullivan v. Florida and Graham v. Florida, two cases that will determine whether it is constitutional to sentence a teenager to life in prison without parole for a crime that did not involve the taking of a life. There is a simple reason the criminal justice system should treat juveniles and adults differently: Kids are a helluva lot dumber than adults. They do stupid things -- as I did -- and some even commit serious crimes, but youths don't really ever think through the consequences. It's for this reason that every state restricts children from such consequential actions as voting, serving on juries, purchasing alcohol or marrying without parental consent.

The Supreme Court recognized the differences between teenagers and adults when it held a few years ago, in Roper v. Simmons, that it was unconstitutional to impose the death penalty on defendants younger than 18. Locking up a youth for the rest of his life, with no hope for parole, is surely unconstitutional for the same reasons. The person you are at 13 or 17 is not the person you are at 30, 40 or 50. Everyone old enough to look back on his or her teenage years knows this.

Simpson's OpEd also appeared in the Miami Herald and the Salt Lake Tribune.

Rafael Johnson writes, "Second Chances, for the current Newsweek.

At 17 I was captain of my high-school football team and on my way to college. But in November 1992 I went to a birthday party with friends. We were tussling around, and the chaperones threw us out. One of them knocked me to the ground, and I felt ashamed and angry. My friend had a gun in his car. I got it, came back, and fired three shots, killing one of the chaperones. I was convicted of murder and given 10 to 25 years in prison.

I grew up in an area known for gun violence and drugs. Like a lot of boys, I looked up to tough men who could fight and had been in prison. My first arrest came when I was 12: I stole my grandmother's gun and took it to school. At 14 I was sent to a boys' home. I studied hard and won a full scholarship to attend the University of Detroit high school. I excelled there, but my thinking was twisted. I didn't know how to manage my anger. As a result, a man lost his life the night of that party.

On the day I was to begin Marygrove College, I started a prison term instead. I was 18 and had hope: I could be paroled when I was still a relatively young man. I spent six of my 12 years in prison in solitary confinement. I promised myself I would read 1,000 books. I read 1,300. I became certified as a carpenter, plumber, electrician, and paralegal.

I was released from prison in 2004 after my third parole hearing. I received bachelor's and master's degrees from University of Detroit Mercy. I started a motivational-speaking and fitness-training company. As a community-reintegration coordinator, I help other ex-offenders start anew. I'm proof that people, especially teens, can't be judged by the worst thing they ever did.

And:

Next month the Supreme Court will hear oral arguments in Sullivan v. Florida and Graham v. Florida, two cases that will decide if it's constitutional to sentence teens to life in prison without parole. The court should give people like me a reason to keep improving themselves. Individuals who have committed crimes as teens should be allowed to have their sentences reviewed. Teenagers change. Adolescents, even more than adults, have enormous capacity for redemption. I know.

Earlier coverage of the issue begins with this post.

Cost: A Continuing Issue in California

Guy Kovner writes, "Is Death Row worth the cost?  25-year process at $138 million a year has some questioning 'dysfunctional' system," for the Santa Rosa Press-Democrat.

Ramon Salcido, the Sonoma Valley winery worker who slashed and shot seven people to death in 1989, probably will be in his 60s before the state of California executes him — if it ever does.

Salcido, 48, like many of the other 680 convicted killers on Death Row at San Quentin State Prison, is likely to die behind bars of natural causes, rather than the lethal injection prescribed by a jury two decades ago.

Both he and Richard Allen Davis, 55, who snatched Polly Klaas from her Petaluma bedroom in 1993, are mired in a capital punishment system that costs taxpayers about $138 million a year and yields scant results.

Executions will remain on hold at least until next year, pending resolution of legal questions about California’s three-drug death cocktail. For now, only five inmates have exhausted the labyrinthine appeals process and are eligible for execution.

At its current pace — having carried out 13 executions in the past 31 years — California would take about 1,600 years to clear the current population on Death Row.

Salcido and Davis, two of the most notorious killers in modern California history, already lag years behind the 25-year timetable for moving from conviction to execution, and no one knows when it might be completed for either man.

“If they have not been executed then justice has not been served,” said Marc Klaas, Polly’s father, who heads a Sausalito-based foundation dedicated to child safety. “The sooner my daughter’s killer is executed the better I will feel.”

And:

A state blue ribbon commission report on criminal justice last year layered economic considerations onto the long-standing moral debate over capital punishment.

Citing the 25-year delay in implementing death sentences — twice the national average — the report labeled California’s death penalty law “dysfunctional,” calling it “the law in name only, and not in reality.”

The California Commission on the Fair Administration of Justice’s 196-page report noted that Death Row swelled from seven inmates in 1978 to 670 in 2007, while just 13 were executed.

It said: “The reality is that most California death sentences are actually sentences of lifetime incarceration. The defendant will die in prison before he or she is ever executed.”

For about $126 million a year less in costs for prosecution, incarceration and handling legal appeals, California could get the “same result” by sentencing murderers to life without the possibility of parole, the report said.

The only recent Death Row fatality was Thomas Francis Edwards, killer of a 12-year-old Orange County girl in 1981, who died of natural causes in February at age 65.

“The system simply isn’t working,” said former Attorney General John Van de Kamp, who chaired the commission and now advocates doing away with the death penalty.

Confinement on Death Row costs $90,000 a year more than normal incarceration, a premium that currently totals more than $60 million a year. Compounding the financial burden is Gov. Arnold Schwarzenegger’s push to build a $400 million expansion of Death Row, which critics say will be at capacity three years after it is built.

“It’s a staggering amount of money,” said Assemblyman Jared Huffman, D-San Rafael, who is fighting the proposed expansion. “I would argue we’re getting zero value. Permanent incarceration will keep us just as safe.”

Kovner also wrote, "Passalacqua hasn't pursued death penalty."

In seven years as Sonoma County district attorney, Stephan Passalacqua has not sought the death penalty.

Execution is a punishment reserved for “the worst of the worst,” said Passalacqua, a former prosecutor who was elected the county’s top law enforcement officer in 2002.

Four men are on San Quentin State Prison’s Death Row for murders committed in Sonoma County, convicted between 1990 and 1997.

Passalacqua said his office has prosecuted about a dozen homicides during his tenure involving “special circumstance” that carry the option of the death penalty. It is the district attorney’s decision whether to pursue the death penalty in such cases.

A state commission on criminal justice said last year that invoking capital punishment adds $500,000 to the cost of a murder trial, noting that two studies put the difference at more than $1million.

“Financial issues do not play a factor” in his decisions, Passalacqua said.

Prosecutors consult with the victim’s family and defense attorney before making a decision, he said.

His office is currently weighing whether to seek death sentences against six Santa Rosa men accused of shooting a witness, Vutha Au, 24, near Jenner in March 2008.

California’s long delay between conviction and execution — an average of 25 years, the commission said — is “disheartening,” Passalacqua said.

“It does not bring finality to a victim’s family,” he said.

Passalacqua, whose second term expires next year, declined to say whether he personally supports the death penalty. “That’s a decision the voters of California would have to make,” he said.

The Sacramento Bee carried the OpEd, "Death penalty hurts only taxpayers," by Bruce Maiman in the Saturday edition.

If the state of California provides a taxpayer-funded program no one is using, is it worth keeping? So why do we still have a death penalty?

A new nationwide study puts things in stark terms: The death penalty is a waste of money.

The study was done by the Death Penalty Information Center, a nonprofit information warehouse on capital punishment that also opposes the death penalty.

The center found that death penalty costs can average $10 million more per year per state than life sentences. The increased costs result from more expensive security requirements and guaranteed access to an often lengthy appellate process. States often must assign public defenders and pay for the costs of the prosecution as well. Cases are more costly to prosecute and can take more than four times longer to try, requiring additional money for lawyers, jurors, court personnel and other related costs.

States can't afford that, so cases take longer, executions are fewer (down from a record 98 a decade ago to 40 so far this year), and inmates remain on death row longer, where their incarceration is more expensive to maintain.

Some 3,300 inmates remain on death row in the 35 states where capital punishment remains on the books.

California has 678 death row inmates. We haven't executed anyone in four years. Since 1992, we've executed 13 people. From the time capital punishment was reinstated in 1978 until 1992, we executed … no one.

A death penalty in which no one is put to death is not a death penalty; it's life without parole, just a more expensive form of it.

More on the DPIC report is here.  Earlier coverage from California is here and here.  Earlier coverage of the California Commission on the Fair Administration of Justice is here.