The Supreme Court has tacitly approved a practice in Alabama that gives judges the authority to override jury decisions on the death penalty.  The Court turned away a case in which a trial judge had overturned the jury’s sentence of life without parole; he changed the sentence to death.

Judges have that authority under Alabama law, and the Supreme Court affirmed it.  There is a political component that Justice Sonia Sotomayor found disturbing: judges in law-and-order Alabama are elected, and are sensitive to the political winds.  Given choices of life or death, judges have chosen death by a margin of more than 10 to 1.  (95 changes of a life sentence to death; nine overrides of a death sentence to life.)

Sotomayor found only one explanation: “Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures.”

The Court refused to hear the Alabama appeal.  Sotomayor’s comments came in unusual public dissent of the turndown.

(More from an excellent Adam Liptak piece: http://www.nytimes.com/2013/11/19/us/alabama-judges-retain-the-right-to-override-juries-in-capital-sentencing.html)

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Nov
14

Gift of Life — New Frontier?

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Ronald Phillips will not receive a lethal injection today in Lucasville, Ohio.  The scheduled execution was postponed by Gov. John Kasich after Phillips asked to donate vital organs before his death.  Prison officials had rejected the request, but Kasich delayed the execution to allow time for a feasibility study.

Phillips, 40, had been slated to die today for the 1993 rape and murder of a three-year-old.  He had requested the organ harvesting to benefit his mother, who has kidney disease, and his sister, who has a heart condition.  His attorney said Phillips would be willing to donate organs to others in need, if he couldn’t help his relatives.

The attorney, Lisa Lagos, said the offer was an effort by his client to do good, rather than a delaying tactic.  Phillips has exhausted all other appeals.

(More at http://www.cleveland.com/open/index.ssf/2013/11/governor_john_kasich_delays_ro.html)

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Warren HillThe U.S. Supreme Court has refused to hear the appeal of Georgia death-row inmate Warren Hill on the grounds of mental incapacity.  Hill’s lawyers had presented new evidence in lower courts to buttress claims of mental retardation, but those courts ruled that the evidence could not be considered; the high court declined to intervene.  It is the latest setback for Hill, who came within 40 minutes of receiving a lethal injection earlier this year.

The new evidence presented on Hill’s behalf included complete turnarounds on the part of three mental health professionals who had previously testified for the prosecution that Hill did not meet Georgia’s standard of mental retardation.  In February affidavits, the three experts based their reversals on newly-discovered elementary school testing records and on “access to new science” in the dozen years since they had examined Hill.  In presenting Hill’s case to the U.S. Court of Appeals for the Eleventh Circuit his lawyers argued that he should be protected by a 2002 Supreme Court ruling that mentally incapacitated individuals could not be executed (Atkins v. Virginia).

The appeals judges ruled against Hill 2-to-1, saying their hands were tied by legal precedents and by statute: the evidence might be new, but the claim of mental retardation had been made before and could not be heard again.  Furthermore, the ruling said, under federal law the new evidence would have to be excluded anyway because it affected only Hill’s sentence, not the verdict.   His life, not his guilt.

Hill’s lawyers had hoped the Supreme Court would untangle this procedural morass, heeding the eloquent dissent of Eleventh Circuit Judge Rosemary Barkett: “The idea that courts are not permitted to acknowledge that a mistake has been made which would bar an execution is quite incredible for a country  that not only prides itself on having the quintessential system of justice but attempts to export it to the world as a model of fairness.”

But the Court declined to intervene. Hill’s case was on a list of rejected appeals released this morning.

Hill’s fate now rests with the Supreme Court of Georgia, which is considering a different and unusual element of his case — how the state plans to kill him.  Georgia’s high court will consider claims that new legislation providing a cloak of legal secrecy over the manufacture and composition of lethal chemicals to be used in executions violates Hill’s constitutional rights.  (For more background on the legislation, see my earlier POLITICO piecehttp://www.politico.com/story/2013/04/lethal-secret-georgias-unusual-effort-to-supply-its-executions-90035.html)

The Georgia court will hear arguments in the Spring. As Warren Hill’s unyielding attorney, Brian Kammer told me today, “He’s not dead yet.”

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Marshall Lee GoreThe stop-and-go execution of Marshall Lee Gore went forward in Florida yesterday.  He died after a lethal injection at the Florida State Prison in Starke.

Gore, sentenced to death for the 1988 murder of an exotic dancer, had four execution dates this year.  The first two were delayed by appeals, the third — and you can’t make this stuff up! — because it conflicted with a campaign fund-raiser by the state’s attorney general.

Pam Bondi, who is running for re-election as the state’s top law officer, asked Gov. Rick Scott to postpone a scheduled Sept. 10th execution because she had set her campaign kickoff party for the same date.  Questioned later by reporters, Scott said, “When another Cabinet officer asks for something, we try to work with them.”

On Monday, the U.S. Supreme Court denied Gore’s petition for a writ of certiorari.  On Tuesday, Gore’s execution went forward on schedule.  He was pronounced dead at 6:12 pm.

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Over the course of the next week, the Supreme Court will announce the new cases it has accepted for its Fall term, which begins next Monday.  The nine Justices started making the final selections in secret session yesterday, meeting in the Court’s ornate and secluded conference room

One of the tasks before them involves a legal Gordian knot, a massive clash of institutional good intentions.  At stake is a man’s life.

The Justices have to decide whether to accept the case of Warren Hill, a condemned Georgia inmate whose lawyers have exhausted all other appeals to spare him from execution on the grounds of his mental capacity.  There’s no doubt that Warren Hill is a killer — juries in two trials came to that conclusion easily —  and there is also no doubt that he is intellectually disabled and should be protected from execution by a 2002 Supreme Court ruling.  He has an IQ of 70.  The Catch-22 in the Hill case is whether the convincing evidence of his mental incapacity, which only recently became available, can be legally considered.

Unless the Supreme Court acts, Warren Hill may die because federal courts are trying to do a better job.  They have tightened appeals access, severely limiting the admission of evidence and claims, in an attempt to weed out frivolous cases.  The rules have had undeniably beneficial effects on court caseloads, but unintended and grave consequences in the Hill case.

Warren Hill was already serving a life sentence for the murder of his girlfriend when he bludgeoned a fellow inmate to death with a nail-studded board in 1990.  His court-appointed lawyers unknowingly missed vital evidence of Hill’s mental incapacity at the time of his trial; they didn’t have the funds to send an investigator to Hill’s elementary school, so they relied on records mailed to them.  Those records did not include IQ tests showing Hill was functioning at the level of mild mental retardation.  The jurors who sentenced Warren Hill to die heard no evidence of retardation.

The school records had still not surfaced at the time of a post-conviction hearing in 2000.  Hill’s lawyers made a claim of mental retardation at that time, bolstered by the testimony of four mental health professionals who had examined Hill.  Three other expert witnesses, however, testified that Hill was not retarded.  The numerical advantage wasn’t sufficient: Georgia requires mental retardation to be proved “beyond a reasonable doubt,” and 4-to-3 didn’t tip the state’s scales of justice far enough.

But if those scales had a “Tilt” light, it would have flashed brightly earlier this year.  Hill’s defense team unearthed the elementary school records, and had them examined by the experts who had testified at the 2000 hearing.  The three doubters rethought their conclusions in the light of the early documentation of Hill’s mental deficiencies, and because of what one of them called “access to better science” in the intervening years.  Now the tally was 7-to-o; every one of the mental health professionals who had examined Warren Hill concluded that, from childhood, he had met the legal requirements of intellectual disability.

It was unanimous — but not good enough for the U.S. Court of Appeals for the 11th Circuit.  In April, the court ruled that the evidence from the experts might be new, but Hill’s claim of retardation was not: it had been raised in previous appeals and could not be considered again.

Two members of the three-judge panel said that their hands were tied, both by legal precedents closing the floodgates on appeals and by federal legislation designed to “ensure greater finality” in death-penalty convictions.  They also delivered this double-whammy: Hill’s new evidence “does not establish a miscarriage of justice” because it affects only his sentence, not his guilt or innocence.  Only his life, in other words.

When the Justices met this week, their challenge was to untie the Gordean legal knot presented by the Hill case.

It is a challenge perhaps best expressed by the lone dissenter on the 11th Circuit panel, Judge Rosemary Barkett.  She wrote, “The idea that courts are not permitted to acknowledge that a mistake has been made which would bar an execution is quite incredible for a country  that not only prides itself on having the quintessential system of justice but attempts to export it to the world as a model of fairness.”

Hill’s case was not on the first list of those accepted by the Court, released this morning, but the Justices are wading through a huge caseload for this term.  More announcements are expected.

We will learn shortly whether or not the Justices are able to met Judge Barkett’s challenge.

(An earlier version of this article appeared as a column in USA TODAY on September 30th)

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Aug
29

Hasan Will Die — But How?

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It took his jurors less than two hours to decide that Nidal Malik Hasan should die by lethal injection at Forth Leavenworth, Kansas.  But his case is sure to drag on for years, and the odds are that Hasan will die in Leavenworth of natural causes.

As we point our in our book, old age is the biggest killer on Death Row.  Lengthy appeals, changing public opinion and legislative pullbacks have slowed executions nationally, though stalwart states such as Texas and Georgia maintain their pace.

Military executions have been at a halt for 50 years, since the hanging of Army private John A.Bennett on April 13th, 1961, for rape and murder.

Hasan will join five other convicted murderers on Leavenworth’s Death Row.  But all six of the condemned men are statistically more likely to have a final appointment with a gerontologist or oncologist rather than an executioner.

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Jun
26

Texas Does It By The Numbers

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Barring a legal miracle, Kimberly McCarthy will die tonight in the execution chamber of the Texas State Prison in Huntsville.  Her death will be a macabre milestone: the 500th execution in a state that leads the nation in the capital punishment sweepstakes.

Texas has come by its leadership the old-fashioned way — one death at a time, an average recently of one every three weeks.  The Huntsville staff conducts each execution in a drill so well-practiced that it has become routine. “In another state you live with that for a long time,” said Jim Willett, who became warden at the Huntsville Unit in 1998 and oversaw 89 executions. “Here in Texas, another one is coming a few days later and you’ve forgotten that one before,”  Willett told the Associated Press.

McCarthy will die for the 1997 brutal stabbing death of a retired college professor.  McCarthy is black; her victim was white, as were all but one of the 12 jurors who condemned her.  Appeals based upon jury selection have failed; in fact, all of McCarthy’s  legal options are apparently exhausted.  “If there was something to appeal, I would,” said McCarthy’s attorney, Maurie Levin.

Nationally, the death penalty seems to be losing ground; in May, Maryland became the 18th state to ban it.  But in Texas, polls show it has overwhelming public support.  And Governor Rick Perry, under whom more than half of the state’s executions have been carried out, is fiercely unapologetic about the pace.  “I think our process works just fine,” Perry said last year. “You may not agree with them, but we believe in our form of justice.”

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Republicans in North Carolina are flexing their newfound political muscle in the legislature, and the results are bad news for 152 residents of the state’s death row. Last week, the legislators repealed a law that has been the only barrier between many of those inmates and the execution chamber in Raleigh’s Central Prison. In the process, the lawmakers turned their back on a unique effort by the state to overcome its tarnished history of racism.

The law they took off the books, entitled the Racial Justice Act, was passed by a Democratic legislature in 2009 to compensate for what was perceived to be pervasive racial bias in the application of the death penalty. The law allowed condemned murderers to seek a sentence reduction to life imprisonment if they could prove that race played a major role in their cases. Appeals under the law have contributed to a virtual moratorium on capital punishment; North Carolina’s last execution was in 2006.

Supporters of the Racial Justice Act saw it as a historic measure that addressed a long history of injustice. As the Winston-Salem Journal noted in an editorial, some examples were blatant: a black defendant who got the death penalty in Stanly County being <a href=”http://www.journalnow.com/opinion/editorials/article_666c5ebc-90de-11e2-9221-001a4bcf6878.html” target=”_hplink”>referred to in trial testimony</a>z as a “nigger from Wadesboro”; a juror in a Randolph County case who said after the trial in which he voted for death for the black defendant that “blacks do not care as much about living as whites do.”

A study by Michigan State University researchers determined that over the two decades preceding passage of the Racial Justice Act, North Carolina prosecutors rejected twice as many blacks as potential jurors than they did whites; the rejection rate was even higher in cases where the defendant was black.

“Repealing this law in the face of clear evidence that it is still much needed in our court rooms comes perilously close to institutionalized discrimination in our justice system,” said the <em>Wilmington Star-News</em>.

Republicans now wield more political cloat in North Carolina than they have for generations. They captured control of the legislature in 2010 for the first time in a century, then broadened their majority while also capturing the governorship in 2012.

The Racial Justice Act was one of the issues prompting weekly demonstrations against Republican efforts to roll back fiscal and social measures put in place by their predecessors. Dubbed “Moral Mondays,” the six weeks of demonstrations at the state Capitol have so far resulted in over 380 arrests.

But neither the editorials nor the protests have deterred the powerful Republican majorities in both houses of the General Assembly. They not only repealed the Racial Justice Act, but also conferred legal protection on medical professionals who might assist in executions. Doctors, nurses and technicians would not be liable to regulators or ethics boards for their participation in administering lethal injections. So much for the Hippocratic oath to “do no harm.”

There was a sense of glee among the statehouse victors that bordered on the bloodthirsty. Senator Thom Goolsby, who led the repeal forces, seemed to be almost rubbing his hands together at the prospect of executions resuming: “We’re going to see that the laws of this state are carried out in their finality,” he said.

Let’s be clear about what’s at issue here — it is finality. There is no appeal from the grave. North Carolina’s legislators in the 2009 session faced up to a troublesome past and its enduring legacy in passing the Racial Justice Act. It was an attempt to provide some balance in a system historically and demonstrably weighted against equal application of the law. The legislators didn’t propose that murderers walk free; they provided for life behind bars instead of execution for those who could prove their sentences were corrupted by racism.

The current crop of legislators have turned their backs on that attempt at fairness. “It’s incredibly sad,” said Democratic representative Rick Glazier of Fayetteville, a supporter of the law at its inception and at its death. “If you can’t face up to your history and make sure it’s not repeated,” he said, “it lends itself to being repeated.”

North Carolina had executed 827 people — by hanging, electrocution, poison gas and lethal injection — when the clock stopped in 2006. That clock is ticking again.

 

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A Georgia inmate named Warren Hill, who came within forty minutes of a lethal injection in February, is in legal limbo today.  His case represents a “perfect storm” of the seemingly insurmountableproblems that beset courts and state legislatures in applying the death penalty.

Warren Hill has killed twice.  He murdered his girlfriend in 1985 and then six years later, bludgeoned his cellmate to death using a board studded with nails.  He was sentenced to death for that second murder.

The never-ending appeals of Hill’s death sentence have cost society many multiples of the meager amount paid to court-appointed lawyers to represent Hill at his trial.  The lack of defense resources, typical in capital punishment cases, has had serious consequences.

The defense didn’t have enough money to send an investigator to Hill’s elementary school to examine his student file, which would have revealed that Hill even as a child suffered serious mental impairment.  The U.S. Supreme Court has held that states may not execute mentally retarded offenders, but allows the states to set their own standards of impairment.   Georgia, alone among the thirty-two states that still have capital punishment, requires defense lawyers to prove their client retarded beyond a reasonable doubt, a very high standard of proof.

Four expert defense witnesses told Hill’s jury that he was retarded; three prosecution experts testified that he was not.  None of them knew about the childhood records that unambiguously documented his impairment, and without that evidence the defense could not meet its burden of proof.  On Aug. 2, 1991, Warren Hill was sentenced to death.

Fast-forward to 2013. The complete school records were made available to the three prosecution experts, and all of them changed their findings. On the basis of the early tests, they concluded that Hill was indeed retarded, with an IQ of 70. It was an astonishing turn of events.

At this point, with an execution date fast approaching, Hill’s attorneys were pursuing two avenues of appeal. The first attack was on the lethal chemicals the state of Georgia intended to inject into Warren Hill’s veins. His lawyers argued in state court that the drugs could not legally be used without a prescription — which doctors could not ethically write. They lost on that issue, but were simultaneously appealing to the U.S. Court of Appeals for the 11th Circuit on the basis of the new expert testimony.

On the evening of February 19th, Warren Hill was being prepared for execution.  A mortician was standing by to receive his body. The “strap-down team” was just about to escort him to the death chamber when the 11th Circuit halted the execution so it could examine the case.

On April 22nd, in a 2-to-1 decision, the Court ruled against Hill, saying that new evidence could not be considered because the claim was not new.  Hill had claimed to be mentally retarded in previous appeals, the judges reasoned, so new evidence on that claim could not be admitted.  Catch-22.  Or, as the lone dissenting justice, Rosemary Barkett, put it: “The idea that courts are not permitted to acknowledge that a mistake has been made which would bar an execution is quite incredible.”  An appeal to the U.S. Supreme Court is in the works.

Meanwhile, Georgia’s legislature was taking no chances about being ready for another chance to execute Hill.  The state’s vials of lethal chemicals “expired” on March 1st — ironically, they couldn’t be used even to cause death — and manufacturers had shut down the supply. But the lawmakers would not be thwarted.

On March 26th, they passed a law that would provide a shield of secrecy to companies that could cook up new lethal chemicals.  It would protect the suppliers’ identities as “state secrets,” and grant the same status to any doctors who might participate in the process. Violations of the Hippocratic Oath? Who would know?

The legislative jiu-jitsu in Atlanta is a symbol of frustration, the latest example of the myriad difficulties nationwide in administering the death penalty.

The issues of adequate defense, post-conviction evidence and legal yardsticks for mental competence raised in the Hill case, compounded by racial and economic disparities in capital cases around the country — all of these raise practical barriers to equitable decisions about life or death.  The process is arbitrary and capricious to the point of being a crapshoot.

The death penalty may well be constitutional, and there may be truly evil people who deserve it.

But how do we decide who they are?

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Gov. Martin O’Malley signed legislation today making Maryland the 18th state to eliminate capital punishment.  It was a significant victory for O’Malley, who has been trying to get a repeal bill through the state legislature for six years.

“Evidence shows that the death penalty is not a deterrent,” O’Malley said in a statement. “It cannot be administered without racial bias, and it costs three times as much as life in prison without parole.  Furthermore, there is no way to reverse a mistake if an innocent person is put to death.”

Today’s signing took place in a ceremony witnessed by death-penalty opponents, including Kirk Bloodworth, the first person in the U.S. freed from death row by DNA evidence.  Supporters of capital punishment could attempt to overturn the legislation by forcing a referendum.

Maryland’s last execution was in 2005.  The five condemned inmates currently on death row are not affected by today’s repeal; O’Malley has said he will consider possible commutation of their sentences on a case-by-case basis.

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