2017-04-24 14:35:40 UTC
Orange County death penalty trial begins Monday
Opening statements are scheduled Monday morning in the murder trial of a man
accused of killing an 83-year-old Orange County woman.
Juan Rosario is accused of beating Elena Ortega to death and setting her house
on Turnbull Drive on fire Sept. 18, 2013.
Rosario is already in prison serving a 18-year sentence in a separate burglary
case, records show.
If convicted, Rosario faces the death penalty.
The death penalty is back on the table after Florida Gov. Rick Scott reassigned
the case from Orange-Osceola County State Attorney Aramis Ayala to State
Attorney Brad King.
Rosario's case was 1 of more than 20 reassigned to King after Ayala announced
March that her office would not consider the death penalty in any cases.
During jury selection last week, not only were jurors asked about their stance
on the death penalty, but also their thoughts on Ayala's views.
(source: WFTV news)
On death warrants, Florida governor's 'awesome moral responsibility'
When former Florida Gov. LeRoy Collins was nominated in 1964 to head the
nation's new Community Relations Service, South Carolina Senator Strom Thurmond
opposed him aggressively because Collins had renounced racial segregation.
"...I hope that as long as the good Lord lets me live on this earth I will
continue to grow and to recognize changes and to meet the new responsibility as
changes require," Collins said.
The widely-reported confrontation prompted Dessie Horne Williams, a Miami
schoolteacher, to write to Collins, recalling a meeting with him 5 years
earlier at the governor's office.
"(W)e have always thought of you as a kind, understanding man, who feels
compassion for human suffering no matter what color the skin of the sufferer
may be," she wrote ... You, Governor Collins, are a true" Southern gentleman.
May God keep you through the coming trials."
Collins's courtesy to anyone he met was legendary. Even so, the Williams letter
On the occasion she described, she and her parents were pleading for the life
of her brother, Willie Horne Jr., who was condemned to die for rape. Collins
commuted 10 of the 39 death sentences that came to him, but not Horne's. The
prisoner was executed in January 1959. However, Collins had given his family
his personal attention and a full measure of compassionate respect.
At the time, though, Ms. Williams had asked a question that struck his heart:
"Do you think that my brother is going to die because he is black?" But the
governor's conscience was troubled. He knew that had the victim been black or
both parties white, the jury almost certainly would have recommended mercy. He
tasked his staff to find reasons to repeal the death penalty, and when the
Legislature convened a few months later he asked that it do so.
The House committee that killed the bill said that without the possibility of a
death penalty, a resumption of lynchings "can certainly be anticipated."
It was a rare if unwitting acknowledgment of the profound racism that accounts
for the South's peculiar and persistent obsession with the death penalty.
It clearly matters more to the politicians than to the voters. A Florida survey
by Public Policy Polling last year found that only 35 % of respondents favored
execution over life without parole. The question was asked in the abstract
however, without a politician waving some bloody shirt in the background.
Collins confronted the racism.
"By far the great majority of those to be executed were Negroes," he said, "and
yet only 17 % of the state's population were colored. It was a gross travesty
on the principle of equal protection."
Whites are now the majority on Florida's death row, but blacks are still
disproportionately represented. Florida has never executed a white for a crime
against a black but 1 appeal is pending. As of last October, blacks were still
the majorities on 12 other death rows, 9 of them in the South.
Although the death penalty remains in force outside the South, it is in near
disuse except in Florida and other former slave states. The South accounts for
1,180 of the 1,448 U.S. executions since the Supreme Court reinstated capital
punishment 41 years ago, according to the Death Penalty Information Center in
Washington. That's 81 %. Florida is 4th highest on the list with 92. Texas
leads with a staggering 542. Outside the South, however, there haven't been any
since 2014, except for 1 in Oklahoma.
Race bias was evident in how Florida governors and the state pardon board
commuted death sentences between 1924, when Florida first began to keep track
of them, and 1964, when executions paused for 15 years.
In a paper published in 1993, Margaret Vandiver, a criminology professor at the
University of Memphis, found that blacks condemned for crimes against whites in
Florida were executed in 90 of 95 cases. On the other hand, whites whose
victims were white received clemency in 22 of 83 cases. Blacks on death row
whose victims were black were spared nearly 1/2 the time, in 27 of 61 cases.
There were no death sentences, hence no commutations, for whites convicted of
crimes against blacks.
The disparity was greatest in convictions for rape, which is no longer a
capital crime. Of the 40 black men condemned for raping white women during the
40 years Vandiver reviewed, only 2 got clemency. 1 was Willie Irvin, of the
"Groveland 4," who had been framed by a racist sheriff. The Florida House of
Representatives formally apologized to their families last week. Irvin had
exhausted his appeals when Collins drew vehement criticism for commuting his
sentence in 1955.
The point is that Collins did commute his sentence, doubting his guilt, and
spared nine other men as well. No Florida governor has commuted a sentence
since Bob Graham last did so in 1983. In another glaring departure, Florida
governors apparently are no longer willing to face or hear from the families of
condemned prisoners, as Collins did every time.
I have been trying with scant success to find out how Gov. Rick Scott considers
clemency in comparison to how Collins did it. Among the questions I sent his
press secretary, Lauren Schenone: Does he accept comments from lawyers for
death row inmates? Does he consider each case himself or does he accept the
decisions made by former governors whose death warrants were stayed in the
courts? Does he consider the trial and appeal process to be essentially
Her answer was terse, said little, but was revealing in 1 important respect.
"Signing death warrants is one of the Governor's most solemn duties. His
foremost concerns are consideration for the families of the victims and the
finality of judgments. (Emphasis supplied.)
"Our office follows procedures outlined in Rule 15 of the Rules for Executive
Clemency on this process," she said.
Rule 15 shrouds all the process in secrecy and says that the Commission on
Offender Review "may" - not shall - conduct an investigation in each case.
There is no data on how often it does so. The rule also provides that the
Governor and Cabinet may schedule a public discussion, but that practice ceased
during Jeb Bush's term.
The words in italics, "finality of judgment," suggest that Scott doesn't care,
as Collins did, that the courts might make mistakes with fatal consequences.
His conscience is dead to that possibility. Once the legal case is over, that's
That is a profound abdication of a governor's most awesome moral
(source: Martin Dyckman is a retired associate editor of the Tampa Bay Times
and author of "Floridian of His Century: The Courage of Gov. LeRoy Collins,"
published by the University Press of Florida----floirdapolitics.com)
Supreme Court To Decide If Prosecution, Defense Can Share Experts in Capital
In a time of high drama over executions in Arkansas, the U.S. Supreme Court
hears arguments Monday in a case that could determine the fate of 2 of the
condemned men in the Razorback state, as well as others on death row elsewhere.
At issue is whether an indigent defendant whose sanity is a significant factor
in his trial, is entitled to assistance from a mental health expert witness who
is independent of the prosecutors.
In 1986 James McWilliams was convicted of the rape and murder of a store clerk
in Tuscaloosa, Ala. It is not his conviction that is before the court, but his
A swift conviction and harsh sentence
McWilliams has been on death row for more than 30 years. His guilt regarding
the 1984 rape and murder of Patricia Reynolds was not much debated -
eyewitnesses saw him at the scene of the crime, and he was caught driving a
stolen car with the murder weapon.
At his trial, a jury heard testimony from McWilliams' mother about his
behavioral problems following a traumatic brain injury when he was a child. In
rebuttal, the state put on a psychiatrist and a psychologist who testified that
McWilliams suffered from no serious mental illness but tried to fake illness in
And the jury, by a vote of 10-to-2 recommended he be put to death.
Under Alabama law, however, a jury recommendation is not binding on the judge.
The critical sentencing hearing in McWilliams' case took place six weeks later
and after the defense requested a neuropsychological evaluation of the
The report on that evaluation - produced 2 days before the hearing - stated
that McWilliams had "organic brain dysfunction" as a result of head injuries
sustained as a child.
As the hearing was about to begin, the state further produced the defendant's
prison mental health records - 1,200 pages long - showing, among other things,
that McWilliams was being treated with psychotropic drugs.
The defense lawyer asked for a continuance; he said he needed the help of an
expert witness, independent of the state, to evaluate those records and tests.
The judge denied the continuance and, concluding the defendant was faking his
mental illness, sentenced McWilliams to death.
Key to McWilliams' Supreme Court case is the judge's decision that because the
author of the neuropsychological report was a "neutral" expert, the defense
lawyer didn't need the help of another expert to explain the report or make a
case of mental illness.
Final fight at the Supreme Court
The defense appealed all the way to the Supreme Court, arguing that McWilliams
was entitled to that independent expert witness under a Supreme Court decision
handed down a year before the McWilliams trial. In that case, the justices, by
an 8-to-1 vote, ruled that when an indigent defendant can show that his sanity
is a significant factor at trial, the defense is entitled, at minimum, to have
"access" to an expert witness to help in the preparation of the mental health
Alabama contends the expert witness does not have to be independent of the
prosecution, but can be a "neutral" witness reporting to both sides.
Stephen Bright, who is representing McWilliams at Monday's oral arguments, says
"so much of what happens in the criminal courts depends on experts." Mental
health is one of those areas where it comes up most often, he says. And, as
exemplified by this very case, there are often discrepancies between experts'
The vast majority of death penalty states already provide such independent
expert witness help for an indigent defendant.
Berkeley County delegate to push for death penalty study
A West Virginia state senator will push for the state to conduct a study on how
other states conduct the death penalty during the interim legislative session.
Delegate John Overington, R-Berkeley, has introduced multiple bills to allow
capital punishment in West Virginia. The practice was abolished in 1965.
"30 of those (years) have been when Democrats had control," Overington said
recently on MetroNews "Talkline."
"Even though many Democrats support it, leadership has never been willing to
take it up or put it on the agenda. When Republicans took over 3 years ago, our
focus for the first 2 years was jobs and economic development."
Overington said he knows getting through the budget process will be emotional,
but hopes the legislature will have the opportunity to review capital
punishment in other states.
"This would give us the chance to see which states' versions work the best, how
its most effective, which ones have safeguards to make sure no mistakes are
made," he said. "I think if we study it, we should be in a good position to
take it up next year and for West Virginia to adopt it."
31 states have the death penalty, and the federal government and U.S. military
also conduct the practice.
Death penalty has been the subject of national debate over recent weeks;
Arkansas conducted its 1st execution Thursday since 2005. Ledell Lee, who was
convicted in 1995 for the murder of Debra Reese, died through means of lethal
The state planned to conduct 8 executions over 11 days beginning on April 17,
but that was halted due to a April 19 temporary restraining order granted to a
company who manufactures to drugs used in the legal injection procedure.
McKesson Medical Surgical argued its drug, vecuronium bromide, was not intended
to be used in lethal injections. The company added the Arkansas Department of
Correction failed to disclose the drug's intended purpose.
The State Supreme Court reversed the order on April 21, the same day Lee was
executed. The U.S. Supreme Court voted 5-4 Thursday to deny a stay request.
The state has said the 8 people have to be executed before April 30 because of
the expiration date of the drugs used in lethal injections.
2 inmates are scheduled to be executed Monday.
Overington said the punishments that could be considered are the electric chair
and the firing squad, noting the problems with the lethal injection procedure
Arkansas is facing.
Overington said the procedure can bring closure to the families of victims.
"Of all the tasks of government, the most basic is to protect its citizens from
violence," he said, quoting former U.S. Secretary of State John Foster Dulles.
Dulles served in the Eisenhower administration from 1953 to 1959.
Overington said there are recent situations where the death penalty could have
been considered. He said the "poster child" Ronald Williams, who killed a
Beckley police officer and was serving a life term at West Virginia State
Penitentiary when he escaped in 1979.
He killed an off-duty state trooper during his escape, and murdered an Arizona
man during his 18-month run from authorities.
Overington said the death penalty could have also been an option in the case
involving Emmaleigh Barringer, a 10-month-old from Jackson County who died of a
Benjamin Taylor was indicted Oct. 25 on charges related to the crime, including
1st-degree murder and 1st-degree sexual assault.
Overington said the polls that he has seen, including those he has done, show
high support for bringing back capital punishment.
"Anywhere between 70 to 90 % of West Virginians support it in certain
circumstances," he said.
During the regular legislative session, Overington sponsored House Bill 2408 to
change the state code to allow juries to consider capital punishment as an
option. The bill was submitted to the House Judiciary Committee, where it did
(source: West Virginia Metro News)
Arkansas prepares for 1st double execution since 2000
2 condemned Arkansas killers who admit they're guilty but fear their poor
health could lead to extreme pain during lethal injections set for Monday might
become the first inmates put to death in a double execution in the US in more
than 16 years.
Jack Jones and Marcel Williams are set to die in what would be the 2nd and 3rd
Arkansas inmates executed this month as part of the state's aggressive plan to
execute several inmates before one of its lethal injection drugs expires.
The state executed Ledell Lee last week in the state's 1st use of capital
punishment since 2005.
Governor Asa Hutchinson originally scheduled four double executions over an
11-day period in April. The eight executions would have been the most by a
state in such a compressed period since the US Supreme Court reinstated the
death penalty in 1976. The state said the executions needed to be carried out
before its supply of the sedative midazolam expires on April 30.
The last time that a state put more than 1 inmate to death on the same day was
when Texas executed 2 condemned killers in August of 2000.
Williams was sent to death row for the 1994 rape and killing of 22-year-old
Stacy Errickson. He had kidnapped her from a fuel station in central Arkansas.
Authorities said Williams abducted and raped 2 other women in the days before
he was arrested in Errickson's death. Williams told the state Parole Board last
month he took responsibility for his crime.
"I wish I could take it back, but I can't," Williams told the board.
Jones was given the death penalty for the 1995 rape and killing of Mary
Phillips. He strangled her with the cord to a coffee pot.
In a letter earlier this month, Jones said he was ready to be killed by the
"I forgive my executioners; somebody has to do it," wrote Jones, who had a leg
amputated in prison because of diabetes and uses a wheelchair.
The letter, which his attorney read aloud at his clemency hearing, went on to
say: "I shall not ask to be forgiven, for I haven't the right."
The inmates have suffered several legal setbacks as the executions near. A
federal judge on Friday rejected their request to stop the executions over
their health concerns.
2 federal judges on Sunday ruled against the inmates in separate cases. One
denied a stay of execution to Williams, saying that the 8th Circuit Court of
Appeals has jurisdiction in the case. Another federal judge denied the inmates'
request for changes to the rules for witnesses to view the executions.
After the setback in a lower court, both inmates on Sunday asked the appeals
court to halt their executions based on their poor health.
Lawyers for Jones' say he suffers from diabetes and is on insulin, has high
blood pressure, neuropathy and had one leg amputated below the knee. He is on
heavy doses of drugs they say could prevent the lethal injection drug midazolam
from working and lead to a "tortuous death".
Williams' lawyers say he weighs 180kg and it will be difficult to find a vein
for lethal injunction, so the drugs are unlikely to work as intended.
Arkansas Plans To Execute 2 Convicted Killers On Monday----The last time a
state executed 2 inmates on the same day was 2000 in Texas.
The state of Arkansas plans to execute 2 inmates on Monday evening, which would
make it the 1st U.S. state in 17 years to put a pair of convicts to death on
the same day.
A flurry of last-minute legal appeals at both the state and federal level are
expected, though their likelihood of success may have diminished with the
recent appointment of conservative U.S. Supreme Court Justice Neil Gorsuch.
The high court cleared the way last week for Arkansas to hold its 1st execution
in 12 years and the state carried out the death penalty on convicted murderer
Jack Jones, who raped and killed a woman and attempted to murder her
11-year-old daughter, is scheduled to die by lethal injection on Monday.
Jack Jones, sentenced in 1996 for raping and strangling Mary Phillips and
attempting to murder her 11-year-old daughter, is scheduled to be put to death
at 7 p.m at the Cummins Unit prison, about 75 miles southeast of the state
capital of Little Rock. Jones was also convicted of rape and murder in Florida.
At 8:15 p.m., the state is tentatively scheduled to execute Marcel Williams,
who was sentenced to death in 1997 for kidnapping, raping and murdering Stacy
Errickson. He also abducted and raped 2 other women.
Marcel Williams is also scheduled for execution on Monday. He was sentenced to
death for t he kidnapping, rape and murder of Stacy Errickson. He also abducted
and raped 2 other women.
The last time a state executed 2 inmates on the same day was 2000 in Texas.
The condemned pair were among 8 inmates that Arkansas had initially planned to
execute in the span of 11 days, a compressed schedule prompted by the impending
expiration date of supplies of a sedative used as part of the 3-drug lethal
The drug in question, midazolam, was employed in flawed executions in Oklahoma
and Arizona, where witnesses said the inmates writhed in apparent pain on the
gurney. No problems were reported in Lee's execution on Thursday.
4 of the planned executions have already been placed on hold by court order.
The unprecedented schedule generated a wave of criticism and legal challenges,
including a lawsuit from the company that makes 1 of the drugs. The company
claimed that the state obtained its supplies under false pretenses, but the
state's Supreme Court threw out that lawsuit last week.
On Friday, a federal judge in Little Rock rejected an appeal from Jones and
Williams that obesity and related conditions made it more likely that midazolam
would fail to render them unconscious.
More court challenges are a virtual certainty as the hour of execution
Death penalty push opens new fight for Arkansas Supreme Court
The legal chaos surrounding Arkansas' 1st execution in nearly a dozen years and
its compromised effort to put 8 men to death before the month's end is unlikely
to cause any political fallout for the state's Republican governor, attorney
general or any other officials backing the lethal injection plan. That's not
the case for Arkansas Supreme Court, which is facing a rift within its ranks,
as well as with the Legislature over a series of decisions preventing the first
The stays issued for Bruce Ward, Don Davis and Stacey Johnson put the spotlight
on a court that had shifted to the right after conservative groups spent big on
a pair of high court races, and it puts the spotlight on the court early into
the term of its new chief justice. Ledell Lee became the first inmate executed
by Arkansas since 2005 on Thursday night, an hour after the court denied his
request for a stay. Another inmate scheduled for execution this week has
received a stay from a federal court.
The 3 remaining executions begin Monday night, with inmates Jack Jones and
Marcel Williams scheduled to die, but other legal challenges remain.
The 4-3 majority that issued the stays last week has drawn the ire of death
penalty proponents, with 1 state lawmaker tweeting the cellphone number of
Chief Justice Dan Kemp in response. Republican U.S. Sen. Tom Cotton also vented
frustration with the court's majority. Part of the frustration among
conservatives stems from the lack of any explanation beyond a 1-page order
issued in each inmates' stay without elaboration.
1 of the 3 dissenting judges issued a blistering criticism of Monday's ruling
sparing the first 2 condemned inmates.
"The families are entitled to closure and finality of the law," wrote Justice
Shawn Womack, a former Republican legislator whose rival last year was also
targeted by conservative groups. "It is inconceivable that this court, with the
facts and the law well established, stays these executions over speculation
that the (U.S.) Supreme Court might change the law."
Another justice objecting to the rulings, Rhonda Wood, wrote in a dissent that
Wednesday's stay "gives uncertainty to any case ever truly being final in the
Arkansas Supreme Court." The state's late chief justice, Jim Hannah, and former
Associate Justice Paul Danielson accused the court's majority then of delaying
its handling of the case, which was dismissed hours after the U.S. Supreme
Court legalized same-sex marriage.
The fight with legislators, however, could end up rivaling the ire the court
drew during its handling of the Lake View school funding lawsuit. Legislators
and other top officials regularly complained publicly about the court
overstepping its bounds with rulings striking down the school funding system.
The case ended in 2007 when justices said Arkansas had adequately funded its
The split on death penalty cases, however, isn't as clear cut as critics of the
court suggest. Justices paved the way for Lee's execution last week by lifting
a judge's order preventing the state from using a lethal injection drug a
company says it was duped into selling Arkansas, not realizing it would be used
for executions. The court also rejected a stay for Lee for additional testing,
despite halting Johnson???s execution on similar grounds.
"I am at a loss to explain this court's dissimilar treatment of similarly
situated litigants," Justice Josephine Linker Hart wrote in a dissent to Lee's
stay denial. "The court's error in denying the motion for stay will not be
capable of correction."
Along with clarifying the future of Arkansas' death penalty system, the coming
week may also show where the fault lines remain on this new court.
(source: Associated Press)
The judge calling for a return to the guillotine----Provocative Judge Alex
Kozinski says executions should be brutal. So why did he save a mom from death
row, even though he admits she may be guilty?
Ninth Circuit Appeals Court Judge Alex Kozinski holds provocative views on the
death penalty. In an interview with Lesley Stahl this week, he advocates for
the firing squad - even the guillotine.
"It's 100 % effective, and it leaves no doubt that what we are doing is a
violent thing," he tells Stahl on the broadcast.
But look past the shocking sentiment and French Revolution imagery and see
Judge Kozinski's broader notion: killing a person - no matter how it's carried
out and how legally justified courts deem it - is vicious.
"If we're going to take human life, if we're going to execute people, if the
state is going to snuff out a human being," he says, "we should not fool
ourselves into thinking that it's anything but a violent, brutal act."
He first spoke to 60 Minutes about his perspective in 2015, in a story about
the execution of Joseph Wood. Wood's July 2014 execution in Arizona was
supposed to take about 10 minutes. But after executioners injected Wood with an
experimental new combination of drugs, it took almost 2 hours for him to die,
making it the longest execution in U.S. history.
"The death penalty is barbaric," he told correspondent Bill Whitaker at the
time, "and I think we as a society need to come face-to-face with that. If
we're not willing to face up to the cruelty, we ought not to be doing it.
Kozinski is not anti-capital punishment; he told Stahl that sometimes the death
penalty is "deserved." But as an appellate judge, he has had reservations about
how several cases were handled by the prosecutors involved.
The case of Debra Milke - also a capital punishment case in Arizona - is one
example. Milke had spent 22 years on death row, convicted of conspiring with 2
other men to kill her son. When her appeal came before Judge Kozinski in 2013,
he overturned the conviction. Milke became the 2nd woman in the United States
to be exonerated from death row.
"Judge Kozinski, he saved my life," Milke tells Stahl.
Milke's conviction, Judge Kozinski decided, was a product of prosecutorial
misconduct. The prosecution's case depended on the testimony of a seasoned
detective, Armando Saldate, who said Milke confessed to the crime to him - even
though there was no recording, signed document, or witness to corroborate the
confession. Milke said she had not.
The trial became Milke's word against Saldate's, and the jury believed Saldate.
Milke was convicted and sentenced to death. She says she went through a dry run
of her execution, even telling the warden what she wanted her last meal to be.
But her appeal attorneys discovered that Saldate's personnel record showed
instances of misconduct in other cases, including lying under oath. Kozinski
says the prosecutors withheld this information from the jury, violating a rule
requiring the prosecution to turn over all exculpatory evidence to the defense.
"For them to put on somebody like that when they darn well know that he has
lied in other cases is unacceptable," Judge Kozinski tells Stahl.
But while Judge Kozinski threw out Milke's conviction, he didn't rule on her
guilt or innocence. "Milke may well be guilty, even if Saldate made up her
confession out of whole cloth," he wrote in his court opinion.
What Judge Kozinski is sure of is that the Constitution requires a fair trial.
And as he wrote, "This never happened in Milke's case..."
(source: CBS News)
Good Lawyers Are Killing the Death Penalty----Attorneys saved 4 lives last week
during the Arkansas's execution mania. By driving up the cost of killing, they
will save many more across the country.
Last Thursday, Arkansas executed Ledell Lee for murder, the 1st execution in
the state since 2005. It was also the 1st of 8 scheduled executions the state
originally planned to carry out before its supply of one of its lethal
injection drugs expires on April 30.
The biggest news, however, is not that Arkansas carried out one execution, but
that lawyers managed to stop 4 others. Last Monday, the Supreme Court of
Arkansas stayed the executions of Bruce Ward and Don Davis for independent
mental health evaluations. On Thursday, Stacey Johnson won a stay to allow
additional testing of potential DNA evidence. Separately, Jason McGehee's
execution, scheduled for April 27, was reprieved following a recommendation for
clemency by the Arkansas Parole Board.
Undoubtedly, Lee's crimes were serious. He was a serial rapist who murdered
26-year-Debra Reese in her home with a tire pressure gauge. However, about 130
murders are committed in the state each year. Arkansas has a death row
population of 32. Did Lee's crimes really represent the "worst of the worst?"
This is to say nothing of Lee's claim of innocence, supported by
as-yet-untested DNA evidence, and his claim that his post-conviction lawyer was
The executions in Arkansas have shown that the death penalty is lawless.
Officials with complete discretion over the process claim they are bound by
"the law" and have no choice in the matter. In every case across the country,
chance and geography, not the seriousness of the crime, determine who lives and
who dies. The expiration date of the state's supply of midazolam dictated the
outcome in Lee's case. When the U.S. Supreme Court denied the prisoners' appeal
on Thursday night, Justice Stephen Breyer dissented (PDF), calling the decision
to execute before the drug's "use by" date expired 'close to random."
The prisoners who were not executed last week benefited from that same game of
chance. The lesson is that death penalty defense lawyers have become better at
playing the odds. Every lawsuit or appeal filed, every new psychiatric
evaluation or DNA test ordered, has the consequence of driving up the
structural costs of execution. Every delay makes it less likely that the
executions will be carried out at all.
The slow attrition of the death penalty has reached a tipping point. Today,
prosecutors rarely seek the death penalty in the first place: Only 30 new death
sentences were passed in 2016, 1/10 of the number passed in 1998. The Supreme
Court continues to chip away at the death penalty, most recently invalidating
state laws that allowed a judge to impose a death sentence over the objections
of a jury. Imports of lethal injection drugs are halted at the border, with no
refund for state taxpayers who footed the bill. Even clemency may be more
promising than it used to be. Last week, Virginia Governor Terry McAuliffe
commuted the death sentence of Ivan Teleguz amidst surprisingly little
controversy. Arkansas's overreach gave him cover.
The reason for this success? Lawyers. Lawyers intervene in capital cases sooner
than ever and stay in the case longer. They appeal more frequently, file more
pleadings, and cultivate new challenges. They do not always win. But the
cumulative effect of constructing more barriers to an execution - an extra
clemency petition, 1 more "Hail Mary" stay request - renders the entire
"machinery of death" unsustainable in the long term.
Conservative commentator Jonah Goldberg defended the Arkansas executions,
alleging that anti-death penalty advocates were disingenuous in driving up the
cost of executions and then complaining about the death penalty's expense. The
strategy may be cynical, but it is successful. The death penalty has become so
rare that it is handicapped by its own arbitrariness. It has always been
"cruel." It is now "unusual."
The most unprecedented aspect of the Arkansas executions is the direct
involvement of the drug companies. McKesson, the distributor of the paralytic
agent, sued Arkansas directly, and the manufacturers of all 3 drugs in the
lethal injection cocktail filed briefs in both the prisoners' claims and
McKesson's lawsuit. McKesson claims that the drugs were obtained by deceit. The
first 2 drugs in Arkansas's lethal injection protocol are in nationwide
shortage with hospitals on a waiting list. At present, there are no more
FDA-approved suppliers left in the United States that are willing to sell drugs
to corrections facilities.
If drug companies continue to directly intervene in death penalty cases, lethal
injections will become even more difficult to carry out. The Arkansas attorney
general's office is outgunned. McKesson is represented by Covington and
Burling, the largest and most prestigious law firm in Washington, D.C., and
supported by strong local counsel. States seeking to carry out executions face
more formidable opponents than ever before.
More clashes are certain. Arkansas plans to execute 3 more inmates this week.
Jack Jones and Marcel Williams are scheduled for execution on Monday night, and
Kenneth Williams is scheduled for Thursday. Although a state and federal trial
court denied stay requests based on the defendants' health claims this weekend,
a wave of challenges remain pending and will continue until the time the
executions begin. A novel challenge, pending in federal court, is to Arkansas's
execution protocol, which is unclear as to whether the curtains in the viewing
room must be opened when the inmates enter the execution chamber or when the
drugs are first administered.
Any delay, no matter how trivial, is a small victory. The prisoners' executions
are scheduled beginning at 7 p.m. each night and the death warrants expire at
midnight. If the clock runs out on the death warrants, Arkansas will not be
able to reschedule the executions before the midazolam supply expires at the
end of the month. The reality is stark: If these executions are not carried out
this week, they likely never will be.
The truth is that the death penalty will die because it simply is not worth the
effort. The structural costs of execution, which far exceed those of life
without parole (itself a very costly sentence), outweigh any social benefit to
victims or the broader community. The sheer randomness of executions undermines
any marginal deterrence value of the death penalty over life imprisonment.
This is not evidence that our criminal justice system is "broken." To the
contrary, this sensitivity to cost is economically rational. In short, our
system works exactly as it is supposed to, and we can thank lawyers for that.
(source: Andrew Novak is term assistant professor of Criminology, Law, and
Society at George Mason University----The Daily Beast)
The 2016 Election Could Have Killed the Death Penalty----Instead, our broken
system may well be entrenched for more than a generation.
Neil Gorsuch's 1st public vote as a Supreme Court justice was a sobering
reminder that elections have life-or-death consequences. Gorsuch joined a 5-4
majority to deny a stay on the 1st of several executions the state of Arkansas
is rushing to carry out, before the expiration of one of the chemicals it uses
to administer lethal injections. Just before midnight on Thursday, Ledell Lee
was executed. More executions are scheduled for Monday and Thursday of this
This proposed rush of executions is troubling in itself, as it represents many
of the worst aspects of capital punishment. And taking a longer view, the
outcome is outright tragic. 4 justices on the Supreme Court are clearly poised
to further limit capital punishment and may well be open to arguments that it
is simply unconstitutional. But the presence of President Donald Trump in the
White House may well entrench a broken death penalty system for more than a
It's telling that Lee was the 1st to be executed, since his case was
particularly problematic. Lee, who was also convicted of multiple rapes, is not
a sympathetic defendant, and it's certainly possible that he was guilty of the
brutal murder he was executed for. But his death sentence was not issued with
appropriate procedural safeguards. Arkansas refused his request for a DNA test
of some of the forensic evidence that was used to convict him, although it has
granted similar requests by other defendants.
The lethal injection system, like many previous attempts to develop a "humane"
method of execution, has failed.
But this is just the beginning. The trial that convicted Lee was more
consistent with an implausible legal thriller than with a court of law capable
of applying the death penalty. As Liliana Segura observes at The Intercept,
Lee's "trial judge was having an affair with the prosecutor," and "records show
shocking failures of his defense attorneys, both at trial and post-conviction,
which were compounded by egregious conflicts of interest."
That the judge was literally in bed with the prosecutor would make it
remarkable for any conviction to be allowed to stand, let alone a capital
conviction. A bigger issue was Lee's incompetent legal representation, which is
a far more common plight of defendants in the court system. As Justice Ruth
Bader Ginsburg once pointed out, "People who are well represented at trial do
not get the death penalty."
Beyond the individual issues with these cases, this proposed group of
executions is problematic for a reason that affects the death penalty wherever
it's used in the United States. The lethal injection system, like many previous
attempts to develop a "humane" method of execution, has failed. The method used
by most states, developed without sound scientific basis and administered by
unqualified personnel, has resulted in people being tortured to death. As a
result, states like Arkansas are having trouble acquiring the requisite
chemicals - which is why Arkansas is rushing to carry out multiple executions,
procedurally sound or not, before the current stock expires.
But for a bare majority of the Supreme Court, including its newest addition,
this was all good enough. Sadly, it didn???t have to be this way. Had Hillary
Clinton been able to fill the vacancy on the Supreme Court left by Mitch
McConnell's blockade of Barack Obama's nominee Merrick Garland, it is unlikely
that these executions would have proceeded. Indeed, capital punishment might
been struck down altogether.
For all intents and purposes, no more than two justices at a time have held the
view that the death penalty is categorically unconstitutional under the Eight
and Fourteenth Amendments, which forbid cruel and unusual punishment and
guarantee due process, respectively. (A 5-4 majority of the Court in 1972 did
hold that the particular death penalty statutes in place at the time were
unconstitutional, before upholding new statutory regimes in 1976.) The liberal
lions William Brennan and Thurgood Marshall believed the death penalty was
inherently unconstitutional. The liberal Republicans Harry Blackmun and John
Paul Stevens ultimately reached the same conclusion, but only as they were
about to leave the Court. In 2015, Justice Stephen Breyer wrote a dissent
joined by Ruth Bader Ginsburg strongly implying that he agreed with the
Brennan/Marshall position. But while Obama's Supreme Court nominees Sonia
Sotomayor and Elena Kagan have yet to join them, the context has changed.
What is particularly encouraging is that it's Justice Breyer who has taken the
lead. Breyer has been a fine justice, but he's also in many respects a liberal
from the Clinton era - in general he is much more wary about pushing the law in
innovative directions that Warren Court-era liberals. Breyer concluding that
the death penalty is categorically unconstitutional would reflect a real change
in mainstream Democratic opinion, and would make it likely that any Democratic
nominee will be open to arguments that the death penalty is unconstitutional.
If Donald Trump gets another nomination the Court could become even more
lenient on death penalty issues.
Another way that the death penalty is vulnerable is that executions have become
overwhelmingly concentrated in a few jurisdictions. As Justice Ginsburg pointed
out in a 2014 interview at Duke Law School, "Last year, I think 43 of the
states of the United States had no executions, only seven did, and the
executions that took place tended to be concentrated in certain counties in
certain states." This is important not only because it underscores the
arbitrary nature of the death penalty as practiced in the United States, but
because, all things being equal, the Supreme Court is more likely to rule a
practice unconstitutional if it's a regional outlier than if it is more
This isn't to say that a Supreme Court with a Democratic median vote would have
immediately ruled the death penalty unconstitutional. But it likely would have
acted to further restrict its use, paving the way for a broader ruling.
Instead, the Court will remain where it is, and if Donald Trump gets another
nomination it could become even more lenient on death penalty issues. Justice
Anthony Kennedy is normally a conservative vote on the death penalty, but has
sporadically voted with the Court's liberal wing to rule the death penalty
unconstitutional in certain circumstances: executions of minors, of people with
severe mental limitations, and for sexual assault. If another justice like
Gorsuch replaces Kennedy, states will have more leeway to apply the death
penalty, not less. And if there is a 6- or 7-justice Republican majority, it
will be a long time before there's a majority open to holding the death penalty
The 2016 presidential election could have been the death knell for the death
penalty. Instead, it may well result in the death penalty being entrenched in
certain states, and in less federal supervision of an arbitrary and unjust
system. It's yet another way that Donald Trump's victory was a disaster for the
(source: Scott Lemieux is a Guardian U.S. contributing opinion writer, an
instructor at SUNY Albany----newrepublic.com)
A service courtesy of Washburn University School of Law www.washburnlaw.edu
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