CrimProf Blog

New Mexico Repeals Death Penalty

As the New York Times reported yesterday, New Mexico became the second State in eighteen months to repeal the death penalty.  Thirty-five States now authorize the death penalty while fifteen States and the District of Columbia do not [Mike Mannheimer].

Death Row Inmate Offers Help to Victim's Family

From MSNBC.com: "COLUMBIA, S.C. - Monica Caison figured it was worth a shot, so she fired off a letter, a single paragraph, to the man on death row for kidnapping and killing Alice Donovan during a two-week, 2,300-mile crime spree.

“You say you want to do the right thing,” wrote Caison, the founder of a group that searches for missing people. “I’m here and I’m listening.”

She received Chadrick Fulks’ reply two months later: a map, color photos of the area where he says he left Donovan’s body six years ago, and instructions to look where searchers had not ventured before." Full Story from MSNBC.com... [Michele Berry]

Tennessee Law Review Death Penalty Colloquium

The Tennessee Law Review is preparing to host an exciting colloquium entitled "The Past, Present, and Future ofthe Death Penalty." The Colloquium will take place next month, February 6-7, at the University of Tennessee College of Law.

The lineup includes nationally known experts, such as Dwight Aarons,David Baldus, Hugo Adam Bedau, Steve Bright, Deborah Denno, Lyn Entzeroth, the Honorable Gilbert S. Merritt, and Penny White.

The event's full schedule is available at http://www.law.utk.edu/cle/09DeathPenalty.shtml.

At the website, registration is open as well. The Colloquium is freeto the public, though we're asking everyone to register so we can estimate how many attendees to expect. For attorneys seeking CLE
credit, the Colloquium has been approved for 6 hours of general credit, with registration at $150.

Additionally, the Tennessee Law Review will publish articles from many of the Colloquium speakers in a special Spring 2009 Symposium Issue onthe Death Penalty. Copies may be preordered by mailing a check payable to the Tennessee Law Review for $13 ($10 cost, $3 postage) to Micki Fox, Business Manager, Tennessee Law Review, 1505 W. Cumberland Ave., Knoxville, TN, 37996.

For additional information about the Colloquium or special issue, your readers are welcome to contact CLE Coordinator Micki Fox at 865-974-4464 or mfox2@utk.edu or me at kt.parham@gmail.com, and we'll respond right away. [Kathryn T. Parham] [Mark Godsey]

Is Texas Changing Its Mind About the Death Penalty?

Texas has executed prisoners with a regularity and in record numbers that has earned the state worldwide attention. But, while Texas still led the U.S. in executions in 2008, juries in the state appear to have began to turn away from the ultimate punishment even for the most heinous crimes.

Ten men and one woman were sentenced to death in Texas in 2008, according to the Texas Coalition to Abolish the Death Penalty. It was the lowest annual figure since the 1976 reinstatement of the death penalty. Texas handed out more than 20 death sentences in each of 2003 and 2004. In 2005, the number fell to 14, and it has not risen above that annual figure since. "The need for revenge, for vengeance is being curbed, the appetite is no longer there," contends Robert Hirschorn, a nationally known Texas attorney and jury consultant who has helped pick juries for many prominent clients, including, most recently, millionaire real estate mogul Robert Durst, who was found not guilty of killing and dismembering his neighbor. 

"The tide has changed," Hirschorn says. "It used to be fashionable to say, 'I support the death penalty.' It used to be unfashionable to say, 'I am against the death penalty.'"

Nationwide, and particularly in Texas, anti-death penalty sentiment has usually been centered on college campuses and within the Catholic Church, Hirschorn says, but is expanding beyond those communities — a trend he sees reflected in his jury questionnaires as well as in nationwide political polls.

The number of people sentenced to death has been falling nationally since a peak of about 300 a year in the 1990s, according to the Death Penalty Information Center, to 115 people in 2007. The reduction comes as more states, such as New York, New Jersey and Illinois have passed death penalty moratoriums; while some, like Maryland, are considering whether to abolish executions altogether. [Mark Godsey]

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Lethal Injection and the Problem of Constitutional Remedies

Many states' lethal injection procedures contain serious flaws that create a significant risk of excruciating pain, but, more often that not, courts uphold those procedures against Eighth Amendment challenges. This Article argues that remedial concerns significantly shape - and misdirect - courts' approaches to lethal injection. Many courts, including the U.S. Supreme Court in Baze v. Rees, fear that any lethal injection remedy would unduly burden the state and interfere with executions. Accordingly, they sharply limit the underlying Eighth Amendment right.

This Article contends that these remedial anxieties are misplaced here. Lethal injection procedures are not only dangerous but also the product of troubling political process failures. Accordingly, far from deserving judicial deference, states' systemic lack of attention, transparency, and democratic deliberation require court oversight. Moreover, contrary to common wisdom, lethal injection actions seek only modest relief that would make executions much safer without interfering excessively in state affairs.

In allowing mistaken remedial concerns to dissuade real engagement with the merits in these cases, judges are abdicating their constitutional responsibility to oversee state practices threatening individual rights. Courts may instinctively look to remedial issues when determining the scope of a constitutional right, but, given that they do so, they should consider those issues more carefully. As criticisms of public law injunctions have increased, some judges have overlooked their obligation to hold states accountable for unconstitutional procedures, particularly when state officials insulate those procedures from democratic processes. Until courts adopt a more nuanced approach to constitutional remedies, they will continue to under-enforce some constitutional rights and effectively bless inhumane practices.[Eric Berger]  [Mark Godsey]

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Judges stay Dec. 3 execution of Wash. inmate

Federal and state judges have indefinitely delayed the scheduled Dec. 3 execution of Darold Stenson for the 1993 shooting deaths of his wife and a business partner in Clallam County.

The separate stays were issued Tuesday by judges in federal court in Yakima and in Clallam County Superior Court.

U.S. District Judge Lonny Suko issued his order in a conference call with lawyers. State Attorney General Rob McKenna said his office was asking an appeals court to vacate Suko's order and allow the execution to proceed as scheduled.

Stenson's lawyers this week asked Suko for a temporary restraining order blocking the execution on the grounds that the state last month revised its procedure for administering lethal injections, without previously announcing any changes or going through a rule-making process.

Furthermore, they argued that their client has Type 2 diabetes with veins that are difficult to access, making it more likely that he would suffer pain that constitutes unlawful cruel and unusual punishment.

Without the judge's intervention, they argued, Stenson "will die at the hands of an unreviewed, untested, never-before-implemented lethal injection policy which is likely to cause him severe pain."

McKenna argued that Stenson is "using every means at his disposal to avoid execution." [Mark Godsey]

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Repeal of death penalty urged

state commission reviewing capital punishment recommended last night an end to executions in Maryland, prompting hope among death penalty opponents that the General Assembly could soon abolish the 30-year practice.

The Maryland Commission on Capital Punishment voted 13-7 to make the recommendation. It found that the death penalty carries the "real possibility" of executing innocent people and may be biased against blacks.

The final report of the 23-member commission is expected to provide additional ammunition to Gov. Martin O'Malley and other death penalty opponents in their uphill fight to stop state executions. Previous repeal efforts have narrowly failed despite high-profile campaigns by O'Malley, a Roman Catholic and ardent opponent of capital punishment.

An O'Malley spokesman said last night that the Democratic governor looks forward to reading the final report, which is due next month. The governor has lobbied for a death-penalty repeal and vowed to sign it if the legislature passes it. [Mark Godsey]

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Case Raising Victim Impact Evidence Issue Falls One Vote Short of Cert.

On Monday, the U.S. Supreme Court denied certiorari in a case raising the issue of how far prosecutors can go in capital prosecutions in introducing victim impact evidence.  At issue was a video presentation introduced by the prosecutors at trial, incorporating photographs and video footage of the victim from birth to the age of 19 (when she was murdered), and narrated by her mother.  Both Justice Stevens and Justice Breyer issued dissents from the denial of cert., and Justice Souter also indicated his dissent from the disposition, leaving the petitioner one vote shy of the four needed for the Court to review the case.  The video itself was attached to the dissents and can be accessed here in both Real Player and Windows Media Player formats [Mike Mannheimer]

Davis backers come in all stripes

In his Oct. 21 op-ed about the Troy Davis death penalty case, Spencer Lawton, the district attorney who prosecuted the case in 1991, asserts that: “The only information the public has had in the 17 years since Troy Davis’ conviction has been generated by people ideologically opposed to the death penalty, regardless of the guilt or innocence of the accused.” That is simply not true.

And the fact that it is not true matters, just as the fact that Davis, whose execution has been stayed by the 11th U.S. Circuit Court of Appeals, may be innocent matters.

Neither Libertarian presidential candidate Bob Barr nor former FBI Director William Sessions can be characterized as ideologically opposed to the death penalty. That shoe does not fit. Nor does it fit the many citizens of Georgia who simply want to hold the Board of Pardons and Paroles to its word: “[We] will not allow an execution to proceed … unless and until its members are convinced that there is no doubt as to the guilt of the accused.”

Lawton is resorting to ad hominem attack on the moral integrity of the concerned members of the public who have stepped forward to challenge the legitimacy of using the power of the state to execute Davis.

Certainly, many are categorically opposed to the death penalty. But that does not mean they are not especially concerned and aggrieved when that power is wielded without due regard for the weakness of the case against the accused.

Nor does that approach recognize that many, myself included, who oppose the death penalty do so not on the grounds that it is morally untenable in all cases, but rather out of the well-founded concern that it is too awesome a power to be wielded by human hands. We know too well the truth of the oft-recalled adage: “To err is human.”

Many of us can imagine a crime that would, in our judgment, justify the use of the death penalty. No one, however, or at least no one guided by any moral precepts, can justify the use of the death penalty when there is significant question as to guilt. [Mark Godsey]

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The European Legislature is Protesting the Scheduled Execution of Troy Davis

From AP.com: The European parliament is strongly protesting plans to execute a man in the United States who has been sentenced to death for killing a police officer.

Troy Davis is scheduled to be executed in Georgia on Oct. 27, despite calls from his supporters to reconsider because seven of nine key witnesses against him have recanted their testimony.

EU parliament head Hans-Gert Poettering says all executions are violations of human rights. He says the condemned American symbolizes the fate of all death row inmates, and vows the EU legislature "will fight against the death penalty under any circumstances everywhere in the world."

The 40-year-old Davis was sentenced to death for the 1989 murder of 27-year-old Savannah police officer Mark MacPhail. His case has also attracted support from former U.S. President Jimmy Carter and South Africa Archbishop Desmond Tutu.[Bobbi Madonna]

Why Abolition of the Death Penalty was Important

I wrote the introduction to today's topic, "Why abolishing the Death Penalty in New Jersey was Important" weeks ago, before the market crash and fear of a depression engulfed our country. It's understandable that everyone is focused on keeping their homes, their jobs and preserving their retirement savings. Not Troy Davis however. Troy Davis is waiting on death row in Georgia to be executed for a crime he likely did not commit. If he is executed and if he is innocent, he won't be the first innocent person put to death in the United States. And until the death penalty is repealed in 36 more states and by the federal government, he likely won't be the last.

Why was abolishing the death penalty in New Jersey so important? After all, no one has been put to death in New Jersey since 1963.

Let me count the ways the death penalty was harmful to New Jersey and our residents:

1. It hurt the families of murder victims.

Sixty-three family members of murder victims stated, in a letter to the New Jersey Legislature:

We are family members and loved ones of murder victims. We desperately miss the parents, children, siblings, and spouses we have lost. We live with the pain and heartbreak of their absence every day and would do anything to have them back. We have been touched by the criminal justice system in ways we never imagined and would never wish on anyone. Our experience compels us to speak out for change.

Though we share different perspectives on the death penalty, every one of us agrees that New Jersey's capital punishment system doesn't work, and that our state is better off without it.

Or more specifically stated by Vicki Schieber whose daughter, Shannon, was murdered in 1998, "The death penalty is a harmful policy that exacerbates the pain for murdered victims' families." [Mark Godsey]

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Killer Cooey is executed

LUCASVILLE, Ohio -- Richard Wade Cooey III was executed this morning, forever silencing his personal argument that lethal injection is a cruel and flawed process that can cause an agonizing death.

Cooey, 41, was pronounced dead at 10:28 a.m., only a few minutes after being injected with a lethal flow of three drugs at the Southern Ohio Correctional Facility.

"You (expletive) haven't paid any attention to anything I've said in the last 22 years, why would you pay any attention to anything I said now?" Cooey said with his final words

His execution came just over 22 years after Cooey and a juvenile friend abducted, raped and brutally murdered Wendy Jo Offredo, 21, and Dawn McCreery, 20. The two University of Akron coeds died in a deserted area near Norton, Ohio, an Akron suburb.

He was the first Ohioan put to death in 18 months following a prolonged national debate on lethal injection that ended earlier this year when the U.S. Supreme Court found it constitutional.

On his last night, Cooey ordered a last meal consisting of a T-bone steak with A-1 sauce, french fries and onion rings, four eggs over-easy, hash browns, buttered toast, bear claw pastries, a pint of Rocky Road ice cream and Mountain Dew to drink.

The prison waived its system-wide nonsmoking policy to allow him to smoke in his cell in the Death House.

The Ohio Supreme Court yesterday rejected Cooey's appeal that his execution should be delayed while the court considered his request to use a single massive dose of sodium thiopental, an anesthetic, to kill him instead of the three-drug cocktail used by Ohio and most all other states. The other drugs used are pancuronium bromide, which causes paralysis, and potassium chloride, which causes cardiac arrest.

Cooey based his appeal on a June ruling by Lorain County Common Pleas Court Judge James M. Burge's that the three-drug protocol could cause an "agonizing and painful death," rendering the process unconstitutional.

Earlier today, the U.S. Supreme Court turned down that argument without comment, clearing the way for the execution. [Mark Godsey]

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Supreme Court Rejects Obesity Appeal

The U.S. Supreme Court has rejected an appeal from an Ohio prisoner who argued he is too obese to be executed. Richard Cooey is scheduled to be put to death Tuesday.

The court denied his request for a stay without comment Monday. Cooey is 5-foot-7 and weighs 267 pounds.

State officials said prison staff examined Cooey's veins and found no problems that would interfere with the execution.

Read full article here. [Brooks Holland]

Assessing Capital Punishment Trends In The U.S.

This week, the U.S. Supreme Court rejected an appeal for a new trial for Mumia Abu-Jamal and said it needed more time to consider the fate of Troy Anthony Davis.

Davis was granted a stay of execution just hours before he was scheduled to be put to death.

For analysis, Farai Chideya discusses the Constitution and the death penalty with Carl Tobias, professor of law at the University of Richmond. [Mark Godsey]

Listen to  Assessing Capital Punishment Trends In The U.S.

U.S. Supreme Court Denies Rehearing in Kennedy v. Louisiana Opinion

On October 1, the U.S. Supreme Court denied Louisiana's request for a rehearing of the Court's ruling striking down the death penalty for non-homicidal offenses against individuals. Louisiana contended that a recent adjustment to military law that continued to allow the death penalty for child rape should have been taken into account by the Court, resulting in a different opinion. The Court slightly modified both the majority and dissenting opinions to include reference to the military code. The Court issued a statement, leaving intact its decision not only reversing Patrick Kennedy's death sentence for child rape, but also holding that the death penalty would be disproportionate for any crime against an individual in which the victim is not killed.  The statement said, in part:

[A]uthorization of the death penalty in the military sphere does not indicate that the penalty is constitutional in the civilian context. The military death penalty for rape was in effect before the decisions in Furman v. Georgia, 408 U. S. 238 (1972) (per curiam), and Coker v. Georgia, 433 U. S. 584 (1977); and when the Court surveyed state and federal law in Coker, it made no mention of the military penalty.

. . .

That the Manual for Courts-Martial retains the death penalty for rape of a child or an adult when committed by a member of the military does not draw into question our conclusions that there is a consensus against the death penalty for the crime in the civilian context and that the penalty here is unconstitutional. [Mark Godsey]

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International Law Experts Question Supreme Court Decision in Medellin Case

Notable international law experts cited in a recent article in the Washington Lawyer criticized the Supreme Court’s 2008 decision on whether an international treaty was binding on Texas in the case of death row inmate Jose Medellin. Carolyn Lamm, an attorney at White & Case specializing in international dispute resolution, stated that "[T]he failure to compel our state court organs to comply with the decision of the ICJ [International Court of Justice] is regrettable, and the dissenting opinion that the language was self-executing is correct.” In August 2008, Texas executed Medellin despite the judgment of the ICJ that his rights and those of 50 other foreign nationals on death row were violated under the Vienna Convention of Consular Relations due to a failure to inform the inmates of their right to contact their country’s consulate for assistance upon arrest.

In March 2008, however, the U.S. Supreme Court ruled that although the United States had an obligation to honor the treaty, Texas was not required to comply. In making its decision, the Court determined that the protocol on enforcing the Vienna Convention through the ICJ was not self-executing, and thus, in the absence of Congressional legislation compelling the state of Texas to comply with the ICJ ruling, Texas was not required to hold a hearing for Medellin as ordered in the ruling. Even an order from President George Bush was insufficient to require Texas courts to asses whether the treaty violation had impinged on Medellin's trial and sentencing.  Michael Socarras, head of the international dispute resolution practice at McDermott Will & Emery, said the Court should have recognized that "Texas is a sovereign state, and that all sovereign states are bound by the universal practice followed among nations, and that ICJ decisions and the Vienna Convention are helpful authorities on universal practice. Texas had a duty to follow universal consular practice." [Mark Godsey]

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Execution halted amid rumors of affair between judge, D.A.

McKINNEY, Texas (AP) -- A death row inmate whose lawyers argued a secret romantic relationship between the judge and prosecutor tainted his trial has won a reprieve -- but not because of the alleged affair.

The Texas Court of Criminal Appeals postponed Charles Dean Hood's execution, scheduled for Wednesday, because it wanted to reconsider whether the jury instructions were flawed.

At the same time, the court dismissed claims Hood's attorneys filed that he was denied a fair trial because of what would be a legally unethical relationship between retired Judge Verla Sue Holland and former Collin County District Attorney Tom O'Connell.

The reprieve came around the time Hood's lawyers sent Gov. Rick Perry a letter saying that Holland and O'Connell "admitted under oath that they had an intimate sexual relationship for many years."

"The intimate sexual relationship between the judge and the district attorney began several years prior to the trial of Mr. Hood," lawyer Greg Wiercioch said in his letter to the governor re-emphasizing his earlier petition for a 30-day reprieve.

"While Mr. O'Connell and Judge Holland have different recollections as to when the affair ceased containing an intimate sexual component, there is no doubt that the relationship was sexual in the years immediately leading up to the time that Judge Holland had jurisdiction over the case." [Mark Godsey]

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Executing Justice in the Texas Courts

By Lawrence J. Fox

Word count: 668

They did not execute Charles Hood on June 17.  On that night, the State of Texas did the right thing for the wrong reason.  The execution was postponed not to cure a grave injustice, simply because the State of Texas ran out of time.  But the aroma of injustice remains just as strong as it did on that date.  Mr. Hood now faces execution on September 10, and if allowed to go forward, that execution will place a black mark on the ethics of the judiciary and the rule of law, one that can never be erased.

How could this be?  Because until a lawyer in the office that prosecuted Charles Hood came forward just days before the original execution date, there was no proof of what had been long rumored and this lawyer now confirmed: Thomas O'Connell, the chief prosecutor of Mr. Hood was – at that time – engaged in a personal relationship with Verla Sue Holland, the judge who presided at the trial.

Our canons of judicial ethics say that judges must avoid even the appearance of impropriety.  But this conduct is judicial impropriety itself.  Judges who are no more than close social friends with lawyers will recuse themselves from their friends' cases.  The relationship that occurred here, of course, was so much more serious and objectivity-destroying than that example.  No one can look at a case in which a judge is involved romantically with one of the lawyers and conclude that the judge is not biased.  And that universal principle – echoed by dozens of ethics scholars who have looked into the Hood case – applies to every matter, from a garden variety civil suit involving mere money to a defendant who stands trial for a capital crime.

Then how, once this serious ethics violation was revealed, can the state of Texas proceed to execute Mr. Hood?  Because the prosecution argues this issue should have been raised sooner.

Talk about placing the blame on the wrong party! The judge had a duty to disclose this juicy fact to Mr. Hood.  If the judge failed, then the duty fell to the prosecutor, no matter how embarrassed he might be.  But the two of them apparently were in an 18-year conspiracy of silence that permitted the judge to preside over who knows how many of O'Connell's cases.  Yet these two public officials pay no price for their transgressions while Mr. Hood faces execution next month based on a hopelessly flawed trial.

Holland and O'Connell's silence remains deafening.  To date, they have refused to discuss their relationship.  And no one has heard their sworn testimony or conducted any discovery on the topic, steps that cry out to be accomplished before any execution can proceed. 

Mr. Hood's attorneys filed a petition in August to compel the alleged lovers to testify under oath.  After months of inaction, a district court judge finally ordered Holland and O'Connell to appear in court this Monday prepared to give testimony should the court grant Mr. Hood's petition. This presents the first real opportunity to bring down the wall of silence surrounding Holland and O'Connell's relationship. They must be compelled to disclose the truth. Were there any gifts?  Any intimate dinners?  Any faraway vacations on sandy beaches?  We do not know.

We are obviously going to continue to have the death penalty in the United States.  But if we are, we must do everything in our power to assure that every defendant who faces death (indeed, every litigant who appears in court) receives a fair trial before an impartial judge.  Having Mr. Hood facing execution following a trial in which we are now told the judge was sleeping with the prosecutor makes a mockery of that standard and cries out for granting Mr. Hood a new trial.

There is a lot more at stake here than justice for one man.  Our entire system of justice and our byzantine death penalty jurisprudence is put to the test by these revelations.  Let us hope we pass. [Mark Godsey]

Petition Preview: Enya, the Death Penalty, and Video Victim Impact Evidence

Nearly two decades ago, in Payne v. Tennessee (1991), the Supreme Court held that the Eighth Amendment did not bar the introduction of “victim impact evidence” at the penalty phase of capital trials. The Court held that just as the Constitution gave defendants the right to present evidence designed to avoid imposition of the death penalty, it did not forbid testimony designed to show the victim was a unique human being whose loss left an impact on the survivors and society at large.

At the opening conference at the end of September, the Justices will decide whether to grant review in a case involving whether the Constitution nonetheless places limits on how such evidence may be presented. The petition in Kelly v. California (07-11073) asks whether the presentation of what might be called video scrapbooks – containing photographs and home movie footage of the victim, and, in this case, set to background music – can so prejudice the jury as to deprive the defendant of a fair trial in violation of the Due Process Clause of the Fourteenth Amendment, or create an arbitrary risk of capital punishment in violation of the Eighth Amendment.

The case stems from the capital murder trial of Douglas Oliver Kelly, whom a

California

jury convicted in the 1993 killing of Sarah Weir, a 19-year-old he had befriended at a local gym. According to an autopsy, the victim — whose body was found naked — had been stabbed twenty-nine times with a pair of scissors. Less than three months later, authorities arrested the defendant as he attempted to re-enter the country through

Mexico

, finding two of the victim’s personal checks, containing what appeared to be her signature, in his possession. [Mark Godsey]

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Execution delayed to test inmate's competency

HUNTSVILLE — A federal judge on Thursday delayed the execution of a condemned Texas inmate so he can be tested to determine whether he's mentally competent to understand why he would be put to death.

Jeffery Wood was set to be executed Thursday for taking part in a 1996 robbery of a Hill Country store in which a clerk was fatally shot.

But U.S. District Judge Orlando Garcia in San Antonio granted a request by Wood's attorneys to delay his execution so they could hire a mental health expert to pursue their arguments that he is incompetent to be executed. Texas courts had previously refused similar appeals.

Wood's "motion presents non-frivolous arguments suggesting (he) currently lacks a rational understanding of the connection between his role in his offense and the punishment imposed upon him," Garcia wrote in his 20-page order.

Although the evidence was far from compelling, Garcia said, there were enough facts to conclude Wood had made a "substantial threshold showing of insanity."

Garcia wrote that his decision was based on the state trial court's refusal to afford Wood fundamental due process protections mandated by a U.S. Supreme Court decision last year. That ruling blocked the execution of a mentally ill Texas murderer because lower courts failed to consider whether he had a rational understanding of why he was to be killed.

"We applaud the (court) for upholding Jeff Wood's rudimentary due process right to have his competency evaluated," said Andrea Keilen, executive director of Texas Defender Service, a legal group also representing Wood.

The attorney general's office, which argued that Wood had failed to show he was incompetent to be executed, said in an e-mail statement that "our attorneys are reviewing the order and will make a decision whether to appeal." [Mark Godsey]

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