Austin, Apr. 27th—Texas conducted its fourth execution of the year this week, an event now so routine that the state’s major newspapers didn’t even send reporters.   It was left to the Associated Press to tell the story they missed.  Here in the state capital, the report was buried in the second section of the local paper.

29-year-old Richard Cobb was put to death for a 2002 murder. The United States Supreme Court had turned down his last appeal two hours earlier.  According to AP reporter Michael Graczyk, when Cobb was offered the opportunity for a last statement he said, “Life is too short to harbor feelings of hatred and anger.  That’s it, warden.”

But, as Graczyk noted, that wasn’t it.  After the lethal chemicals were administered, Cobb turned his head, looked up at the warden and said loudly, “Wow! That is great. That is awesome.  Thank you, warden!”  He then slumped and died.  (I’ve been following death penalty cases for years, and Cobb’s  positive reaction is a definite first.)

The drug used in Texas is pentobarbital, a barbiturate that has been withdrawn by its Danish maker, which will not sell it for use in executions.  That decision has several capital punishment states scrambling for a new supply, but the Texas Department of Criminal Justice apparently stocked up before the ban.  According to Austin’s American Statesman, the agency may have spent as much as $50,000 on execution chemicals and supplies.

Cobb’s execution was the 496th in Texas since 1976.  It is the nation’s undisputed leader in capital punishment; runner-up Virginia put to death only 110 inmates in the same period.  The state’s pharmacy is stocked and ready to continue the pace.

Around here, it is simply routine.

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The fear and anger in Boston churned for five days last week before extraordinary law-enforcement cooperation delivered one suspect to the morgue and another to a critical-care unit.  Ten years ago, the “D.C. Sniper” case terrorized the nation’s capital and its two neighboring states for three weeks, and was finally solved despite festering dysfunctions in law enforcement.

In the Boston manhunt, cooperation among the myriad agencies involved — from the highest levels of the Department of Justice to the subway cops of the local transit police — was seamless.  Over 100 top representatives of federal, state and local jurisdictions worked elbow-to-elbow at a command center cobbled together in a hotel ballroom.  They shared intelligence, mapped their next moves, bridged gaps in both information and manpower.

There were no glory hounds in Boston.  Huge egos — and a look at the cast of characters leaves no doubt about the ego sizes involved — were sublimated to the job at hand.  Governor Deval Patrick, Boston Police Commissioner Ed Davis, U. S. Attorney Carmen Ortiz and State Police Colonel Timothy Alben were among the unshrinking violets involved.

But there was no jostling for position at the microphone banks, no war of press releases.  The officials parading before cameras in the Friday night press conference wrapping up the manhunt took pains to thank and praise their law enforcement colleagues; no one took any unseemly bows.

Contrast that with the search for the DC snipers. There was acrimony and back-biting at almost every meeting of law enforcement officials. The hardheaded and headline-grabbing leader of a suburban Maryland police department, Chief Charles Moose of Montgomery County, became the public face of an investigation marred by communication failures and mistrust.

Even after the sniper suspects were captured, official jockeying for position continued.  John Allen Muhammad and Lee Boyd Malvo were arrested in Maryland, but jurisdictions in Virginia, Alabama and the District of Columbia also had murder claims to prosecute.  Availability of the death penalty would become the deciding factor.

U. S. Attorney General John Ashcroft wrested the case away from prosecutors in Maryland, where capital punishment was rarely meted out, and moved it to Virginia, which has a history of applying it often and swiftly.  “It is imperative that the ultimate sanction be available for those who have committed these crimes,” Ashcroft said.  Muhammed was condemned to death by a Virginia jury and executed; Malvo was sentenced to life in prison without parole.

Fast-forward to this weekend.  Sen. Charles Schumer (D-NY), who can always be counted on to get to cameras well ahead of the pack, appeared on CNN to urge that Dzhokar Tsarnaev, the suspect arrested Friday, be moved from intensive care, should he survive, to a federal courtroom where he would face the death penalty.  “Given the facts that I’ve seen, it would be appropriate to use the death penalty in this case,” Schumer said.

The Commonwealth of Massachusetts, which had a valid claim to prosecute Tsarnaev, does not have capital punishment.  State officials deferred to U.S. Attorney Ortiz, who had been a part of the command center team from the beginning. She moved quickly to arraign Tsarnaev in his hospital room on federal charges that could bring the death penalty.

The arrests in the Boston case were relatively swift, while the rampage of the D.C. snipers continued for weeks. There were enormous differences between the two cases — but it’s hard to believe that the levels of law enforcement cooperation and mutual trust didn’t affect the timetables of each one.

 

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The Oregon Supreme Court is considering a death penalty appeal like no other. The condemned man wants his sentence carried out, while the state’s governor is determined that will not happen on his watch. The inmate, Gary Haugen, has asked the court to overrule the governor.

Haugen has been on death row since 2007, since his conviction for the jailhouse murder of another inmate. The victim was bludgeoned and suffered a crushed skull; he’d also been stabbed. At the time, Haugen was serving a life sentence for beating his girlfriend’s mother to death in 1981.

Two weeks before Haugen’s scheduled execution by lethal injection in 2011, Gov. John Kitzhaber issued a reprieve. Kitzhauber, who opposes the death penalty, announced that as long as he was in office, Haugen would not be executed. Kitzhaber’s current term extends through 2014.

The Supreme Court is not considering the death penalty, per se. This case concerns the limits, if any, on the governor’s powers to issue reprieves and modify death sentences.

Haugen contends he has a “constitutional right” to be executed, and that the governor is violating that right. His lawyer told the Supreme Court justices last week that his client must accept any form of clemency for it to be valid, and that the state constitution “trumps (Kitzhaber’s) moral views.” Oregon’s Solicitor General Anna Joyce argued that only the governor can make decisions on clemency, that the matter was beyond the Court’s reach. “No other branch of government,” she told the justices, “is entitled to question the reasons or the motive.” The court is expected to rule on the case before the end of the year.

Gov. Kitzhaber is a popular politician who has moved into Oregon’s executive mansion twice. He served two terms from 1995 to 2003, and became the first Oregonian ever to be elected governor three times when he ran again in 2011. He has asked Oregon’s legislature to put abolition of the death penalty before the state’s voters. If his push is successful, a referendum would appear on the ballot in 2014.

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Maryland legislators voted on Friday to repeal the death penalty, a move that could finally mark the end of a debate over capital punishment that stretches back to Maryland’s colonial days. But there’s a chance that the issue may not be settled; supporters of the death penalty threaten a challenge by referendum.

Early Maryland settlers, despite opposition from some members of the clergy, applied the death penalty liberally: for murder, rape, burglary, arson, horse-theft and even such white-collar crimes as counterfeiting.  Colonial courts had no difficulty passing out death sentences, but getting someone to carry them out was more difficult.

Sheriffs were charged with seeing that the executions were carried out, but records indicate they usually farmed out the job — sometimes to convicted murderers.  John Dandy was the first; he became Maryland’s official executioner in 1649 in exchange for a pardon that spared him from the gallows.  But he eventually found the other end of the rope.  Dandy was convicted of murdering again eight years later, and died with his heels in the air.

After statehood, the Maryland General Assembly met in Annapolis to codify what had become a patchwork skein of justice concerning the death penalty.  The members convened under the same shimmering State House dome that housed Friday’s vote for repeal, but their task was to formulate a clear capital punishment law — one that would endure, in one form or another, for more than two hundred years.

The lawmakers wanted to bring order to a haphazard system that had, up to that point, put to death 55 men and four women for crimes ranging from burglary to treason, jail-breaking to murder. One of the women was hanged for witchcraft.

The legislators defined a new category of First Degree Murder as “any kind of wilful, deliberate and premeditated killing,” and set the penalty as death.  The state’s hangmen had steady work under the new statute, averaging three to four executions a year. They were huge public events with rowdy, often alcohol-fueled crowds.

State officials were offended by what they called “the curious mobs that frequent hangings taking place in the counties of this State, and who attempt to make public affairs of the same,” and by 1923 executions had been moved indoors, to the state penitentiary.

H.L. Mencken, then writing for the Baltimore Sun, witnessed nine hangings at the penitentiary. He famously wrote: “Hanging one scoundrel, it appears, does not deter the next. Well, what of it? The first one is at least disposed of.”

Death was the mandatory penalty for first degree murder for 99 years, but in 1908 judges were given the option of imposing a life sentence. Executions continued, but at a slowing pace. In fact, after the 1961 execution of Baltimore killer-rapist Nathaniel Lipscomb, there was a lull of 33 years — mirroring a trend nationwide, and reinforced by a four-year Supreme Court ban on executions.

On May 17th, 1994, John Frederick Thanos, a thuggish and unrepentant killer of three teenagers, was put to death in a new execution chamber in that old state penitentiary.  He was the first Maryland inmate to die by lethal injection. There were only two other executions before Gov. Paris Glendenning ordered a moratorium in 2002.

Glendening called a halt to allow the University of Maryland to conduct a study of how the death penalty was being administered.  The conclusions were damning: the study found economic and racial disparities, and recommended that the death penalty be abolished. The legislature did not act, however, and Glendening’s successor, Robert Ehrlich, gave the go-ahead for two more executions, Steven Oken in 2004 and Eugene Baker in 2005. Baker’s was the 404th execution in Maryland.

There has not been another execution since, because of developments in the Statehouse and in the courts.

In 2006, the Maryland Court of Appeals found that the state’s regulations governing executions were technically defective. Executions could not go forward without the defect being corrected, the court said, and the incoming administration of Gov. Martin O’Malley was in no rush to correct it.

O’Malley spurred an unsuccessful effort in the legislature to repeal the death penalty in 2007, and renewed his campaign two years later. The General Assembly created a commission to conduct another major study, and that report also unequivocally called for repeal. But instead of doing away with it, lawmakers limited the death penalty to cases in which there was DNA evidence, evidence caught on videotape, or a videotaped confession.

That is the law that finally yielded to O’Malley’s persistence on Friday.  The debate in both chambers of the legislature was at times both intense and emotional. Supporters of repeal, backed by the Catholic Church and the NAACP, were ubiquitous in the capitol’s galleries, hallways and offices.  Individuals with powerful stories told them around the State House to anyone who would listen.

Vicki Schieber, who lost a daughter to rape and murder, has been coming to Annapolis for a decade to argue against the death penalty.  “Vengeance can destroy you,” she says.  “It doesn’t hurt my daughter’s killer at all.”

Schieber and the ranks of death-penalty opponents were joined by a 52-year-old man who almost lost his life in Maryland’s death chamber.  Kirk Bloodsworth, who was convicted of murder and sentenced to death in 1985, was alive to lobby lawmakers because DNA evidence cleared him. He was freed in 1993, the first Death Row inmate to be exonerated through post-conviction DNA testing.

The repeal effort finally succeeded when the state’s House of Delegates voted to approve a bill passed earlier by the Senate.  Governor O’Malley is poised to sign the new law.

But opponents are already planning their next move — a drive to compel a referendum on the issue. Maryland law requires only about 50-thousand signatures to force a referendum on the ballot -– a goal easily attainable in the internet age, as demonstrated by referenda last year on gay marriage and casino gambling, with enough financial backing.  Money will be key to any referendum drive.

Polls on the death penalty show public opinion very much divided: a majority of Maryland voters favors keeping capital punishment on the books, according to the pollsters, but most respondents also do not believe it deters criminals.

The House of Delegates will be voting in a matter of days; citizens of Maryland may be faced with this life-or-death decision in their voting booths next year.

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Seven accused thieves were executed in a public square on Wednesday in the city of Abha, located in Saudi Arabia’s southern region of Asir.  According to witnesses, the executions were carried out by a firing squad — a departure from the traditional Saudi practice of beheadings.

Wednesday’s deaths bring the year’s total of executions so far to 23.  Saudi Arabia executed 76 people last year, and 79 in 2011.  That’s a rate about twice that of the United States.

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The machinery of death was already in motion for Warren Hill: the warrant validated, a sedative coursing through his veins to calm him for execution, a mortician standing by to claim his body.  Hill was within 40 minutes of being strapped to a gurney and sent to his Maker when a federal court intervened on the evening of February 19th.

It was the key legal decision in a day of fevered activity by lawyers and judges in four different courthouses to determine whether Hill would die by lethal injection. That last-minute legal maneuvering, the day’s legal dance of death, reveals a great deal about the vagaries and complexities of administering capital punishment in today’s America.

Warren Lee Hill is no angel. He murdered his girlfriend in 1985 and, while serving a life sentence for that homicide, killed a fellow inmate five years later by battering him with a nail-studded board. That’s the crime for which he was sentenced to death.

Medically, Hill was not playing with a full deck. The recurring argument throughout the legal battle over his fate was not whether Warren Hill was mentally handicapped, but to what extent he was. That would become the central question in the echoing courtroom duels of February 19th.

The other issue in play that day was whether Georgia’s protocols for lethal injection were legal. The state Circuit Court of Appeals found merit in arguments from Hill’s lawyers that use of a controlled substance, the barbiturate pentobarbital, required the prescription of a doctor — whether it was being used in a medical procedure to extend life or a legal procedure to end one. State authorities, of course, had been unable to get a physician’s prescription for the lethal cocktail; the Hippocratic Oath intervened.

The arguments over the drug issue became a game of legal ping-pong. It started the previous day in Fulton County Superior Court, which bounced the ball up to the Supreme Court of Georgia which in turn passed it back down to the Circuit Court of Appeals, which issued a stay of execution late on what would have been Hill’s last day.  At that point, Georgia’s Attorney General picked up a paddle, using it to persuade the state Supreme Court to take the case back and to dissolve the stay.  Follow the ball?  Hill lost that game.

Less than a mile north of the state courtrooms, a panel of three judges at the U.S. Court of Appeals for the 11th Circuit faced a question over which even jaded lifetime appointees might easily lose sleep: in a case of life or death, could they allow new evidence on an issue that had already been decided? The issue was the degree of Warren Hill’s mental retardation, and the new evidence was a 180-degree turnabout by the three psychiatrists who had testified for the prosecution.

The three had submitted affidavits stating that their testimony at Hill’s trial was based on a rushed evaluation, and that medical science and their own professional experience concerning mental retardation had advanced significantly in the past dozen years. Based on today’s knowledge, they said, Hill — with an IQ of 70 — met the medical criteria of mild retardation.

The 11th Circuit judges had several Solomon-like decisions to make. Was this new testimony grounds for reconsideration – was it so compelling as to overcome the legal system’s need for finality in a case that had been thoroughly litigated?  Would the new testimony have swayed a jury?  Was it sufficient to grant a stay of execution to allow further study?

In the end, with less than an hour on the clock, the Court answered only the last question in the affirmative.  But that was enough to give Warren Hill another thirty days of life; the executioner and the undertaker would have to wait.

Hill’s team, led by the indefatigable Brian Kammer of the Georgia Research Center, has a tough road ahead and a lot of convincing to do. The legal system has historically leaned toward respecting prior proceedings and the notion of judicial finality — concepts less abstract than ethereal notions of justice or fairness.

The legal paradoxes in our patchwork system of capital punishment go way beyond precedent and procedure. They can be found even on a label.  Remember that supply of pentobarbital and the argument over prescriptions? The drug in Georgia’s pharmacy reached its expiration date on March 1st, and the state has yet to find a new supply or even a supplier.

There are 94 inmates now on Georgia’s death row. Stand by for new challenges from them saying, in essence, “You can’t kill me with an outdated drug!”

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Martin Clancy is the co-author, with Tim O’Brien, of a new book about the death penalty, Murder at the Supreme Court – Lethal Crimes and Landmark Cases (Prometheus Books)

[This article was originally published in the Huffington Post – http://www.huffingtonpost.com/martin-clancy/anatomy-of-a-close-call-a_b_2837406.html?utm_hp_ref=crime]

 

 

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Ohio marked its 50th execution this week since it resumed administering capital punishment 14 years ago.  Frederick Treesh died by lethal injection on Tuesday for a murder committed during a multi-state crime spree in 1994.  He was executed at the Southern Ohio Correctional Facility, in the same small death chamber used for all 50 executions.

Treesh

In his final statement, Treesh blamed his downfall on drugs.  “This is where cocaine will lead you,” he said.  Minutes later, Treesh, 48, was dead from a powerful dose of the drug pentobarbital.  Ohio, like several other states, has converted its execution protocol to a single barbiturate from the three-drug cocktail used in earlier lethal injections.  A critical component of that mixture is no longer manufactured.

The 1999 resumption of capital punishment came after a 33-year gap in Ohio executions.  Four more executions are on the state’s calendar this year, five in 2014.

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Mar
06

Maryland: Repeal vs. Storm

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Weather permitting, the Maryland Senate is expected to vote for repeal of the state’s death penalty later today.  Supporters believe they have the votes, and are expected to cast them despite a forecast of heavy snow for Annapolis, the state capital. There is a possibility the weather could force a delay.

The vote in the Senate, where opposition has been strong in the past, would represent a significant victory for Gov. Martin O’Malley.  O’Malley led legislative initiatives to repeal the death penalty twice before, in 2007 and 2009, and was unable to get the necessary Senate votes.

Assuming Senate passage, the repeal measure will move to the House of Delegates, where approval is expected.

PM POSTSCRIPT:

The storm passed, and so did repeal. The Senate vote was 27 – 20; the bill now moves to the House of Delegates, where support is stronger. If it passes and is signed into law, however, it could face a challenge in the form of a referendum. Opponents would have to gather about 60-thousand signatures to force the issue onto next November’s ballot.

 

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For the second time in a week, the U.S. Court of Appeals for the 11th Circuit, based in Atlanta, has stayed an impending execution.  Paul Augustus Howell was scheduled to die in Florida’s execution chamber on Tuesday.  He had been convicted of the 1992 pipe-bomb murder of a state trooper.  The appeals judges granted the stay just a day before the execution, to allow time for Howell’s attorneys to pursue a claim that he was improperly denied an opportunity for an earlier federal review.

Howell’s original post-conviction attorney missed a critical federal court deadline to file a claim for a habeus corpus review. In an immediate appeal of the circuit court ruling to the U.S. Supreme Court, Florida’s Attorney General argued that this amounted to “garden-variety negligence” on the lawyer’s part, and was not a legally significant reason to stay the execution.  That application was presented to Justice Clarence Thomas, who oversees the 11th Circuit territory, and circulated it to the other Justices.  They declined to intervene.

Less than a week before the Howell ruling, the 11th Circuit stayed the execution of a Louisiana prisoner, Warren Lee Hill, within an hour of a scheduled lethal injection.  The Hill stay was granted to allow further examination of claims that Hill should be spared the death penalty because of mental retardation.

 

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Advocates of death-penalty repeal in Maryland were reminded again today that they are ahead of public opinion — a new Washington Post poll showed that a majority of the state’s residents favor maintaining capital punishment.  The breakdown shows 60%  in favor of leaving the death penalty on the books, 36% favoring abolition. (Details at http://www.washingtonpost.com/politics/polling/majority-supports-death-penalty-maryland-despite/2013/02/26/f87c059c-8048-11e2-a671-0307392de8de_page.html)

The new numbers come as the State Senate is about to vote on Governor Martin O’Malley’s bill to repeal the death penalty.  Initial headcounts showed the Governor having the votes this time, after failures in 2007 and 2009.  He has stronger support in the House.

Whether this new poll could affect Senate action is unclear.  The Post numbers are consistent with its polling results on the issue over the past several years, so in that sense it’s not big news. But digging into the numbers reveals a degree of complexity, and possible soft spots, in the top numbers: 61% of the poll’s respondents did not believe the death penalty was a deterrent to murder, and only 43% said capital punishment has been applied fairly in the state.

Other polling has showed support for capital punishment in the state to be on the wane.  The respected Gonzalez Research poll, which issued its latest results last month, indicates that while support is strong, opposition to the death penalty has increased over the past two years, from 36% in 2011 to 44% in 2013.  The supporters won out this year, with 49% in favor — but that represented a decline from 56% two years ago.  (Details at http://www.wbaltv.com/blob/view/-/18239006/data/2/-/66txfez/-/1-23-2012-Gonzales-poll.pdf)

The polling data overall could be a harbinger of the future, even if the death penalty is repealed in this session of the General Assembly.  Supporters are promising a campaign to force a referendum — and given the ease with which gay marriage and casino gambling made last year’s Maryland ballot, an internet push for enough signatures is a distinct possibility   The death penalty may face the ultimate public poll at the ballot box in 2014.

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