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Kentucky Judge Rules Against Lethal Injection Protocol and Halts Execution

On September 10, Franklin County Circuit Judge Phillip Shepherd ruled that Kentucky’s new execution protocol is inconsistent with state law and does not provide safeguards to prevent an inmate who is intellectually disabled or criminally insane from being executed. As a result, Judge Shepherd stayed the September 16 execution of Gregory Wilson, stating, “Because the state's protocol doesn't include a mechanism to determine if someone is mentally retarded and there are serious questions about Wilson's mental state, the execution cannot go forward.” Wilson’s attorney has stated that the only mental test given to him showed an IQ of 62, well below the limit of 70 usually used as an indication of intellectual disability. Judge Shepherd wrote, “The Court finds there is a good faith basis to believe that Wilson may be ineligible for the death penalty,” and noted that "Mr. Wilson appears to be the only inmate on death row in Kentucky who had no lawyer at trial."  The judge also questioned why Kentucky's new protocol did not allow for a 1-drug lethal injection process since that is permitted under the state law.  The state is appealing the ruling.

RESOURCES: Free Online Educational Curricula for High School and College Students

As many schools are now beginning their new terms, the Death Penalty Information Center is proud to remind you of our two educational curricula on the death penalty. Our award-winning high school program, Educational Curriculum on the Death Penalty, includes 10-day lesson plans, interactive maps and exercises, and a presentation of pros and cons on the death penalty for discussion and debate. Our college-level curriculum, Capital Punishment in Context, contains detailed case studies of individuals who were sentenced to death in the United States. The curriculum provides a complete narrative of each case, including original resources such as homicide reports, affidavits, and transcripts of testimony from witnesses. The narratives are followed by a discussion of the issues raised by each case, enabling students to research further into a broad variety of topics.  Both curricula are widely used by educators across the country in the fields of sociology, civics, criminal justice and many other areas.

SUPREME COURT: Arguments Set in Three Death Penalty Cases in the Coming Term

The U.S. Supreme Court has set oral-argument dates in three death penalty-related cases for the upcoming 2010-2011 term. The Court begins its new term on Monday, October 4.  On October 6, the Court will hear Connick v. Thompson.  This case challenges an award of $14 million to John Thompson, who had been sentenced to death in New Orleans but was later acquitted of all charges. Lower courts had found that the district attorney's office failed to train its lawyers about so-called Brady violations, which led to Thompson's wrongful conviction and death sentence in 1985. The current Orleans Parish District Attorney appealed the ruling to the Supreme Court, asserting that upholding the award "exposes district attorney's offices to vicarious liability for a wide range of prosecutorial misconduct."  On October 13, the Court will hear Skinner v. Switzer to determine whether a Texas death row inmate's (Hank Skinner) request for DNA testing can be considered as a civil rights claim rather than as part of his death penalty appeal. Lower federal courts have been split on this issue.  Skinner has always maintained his innocence, but death penalty appeals are tightly restricted in raising new evidence.  Finally, on November 9, the high court will hear Cullen v. Pinholster, reviewing a Ninth Circuit decision overturning Pinholster's death sentence because of ineffectiveness of counsel. The appeals court said his lawyer should have presented evidence of Pinholster's mental illness that might have persuaded the jury to opt for a lesser sentence. The Court may choose new death penalty cases for review in the coming weeks.

REPRESENTATION: Kentucky Inmate Faces Execution Despite Sham Trial

Gregory Wilson is scheduled for execution in Kentucky on September 16, despite having been represented by woefully unqualified and unprepared attorneys in his death penalty trial.  It took over a year for the trial judge to find an attorney to take Wilson’s case. Wilson was indigent, and the maximum state fee for a capital-murder representation was $2,500. The judge even put a note on his courthouse door, saying: "PLEASE HELP. DESPERATE. THIS CASE CANNOT BE CONTINUED AGAIN."  Eventually, two lawyers agreed to take the case: John Foote, who had never tried a felony (much less a capital) case, and William Hagedorn, a semi-retired lawyer who gave as his office number the phone of the local bar, "Kelly's Keg."  Hagedon volunteered to be lead counsel for free, even though he had no office, no staff, no copy machine and no law books. According to witnesses, Wilson’s lawyers came and went during trial, and attorney Hagedorn was absent more than half the time. The lawyers failed to interview and subpoena witnesses, investigate evidence collected by police, or contact certain family members who would have testified on behalf of sparing Wilson’s life. Stephen Bright, president of the Southern Center for Human Rights, said that Wilson’s case is a "travesty of justice and among the worst examples he's ever seen of a defendant tried for his life with unqualified counsel."

NEW VOICES: Washington Attorney General Says Death Penalty May Not Be Worth the Costs and Delays

Washington Attorney General Rob McKenna recently said he is not sure the death penalty is the way to handle the worst crimes in his state. "I could live without it frankly. I think it's very expensive, and the delays are inordinate, delaying closure for the victims' families," he said.  McKenna said he uses the death penalty sparingly in Washington, reserving it for the most serious aggravated-murder convictions.  He said he would continue to uphold the law, if the people still desired it: "I support it as long as that's what the people of this state want." Although the death penalty is rarely used in Washington, the state is scheduled to carry out its first execution since 2001 on September 10. If the execution proceeds, Cal Brown, who has been on death row for 16 years, would be the fifth person executed since 1976.

CLEMENCY: Gov. Strickland Commutes Kevin Keith's Sentence to Life Without Parole

On September 2, Ohio Governor Ted Strickland (pictured) granted clemency to Kevin Keith, commuting his death sentence to life without parole. Keith, who was convicted of killing three people, has always maintained his innocence, and some evidence pointed to another suspect. Gov. Strickland’s commutation statement addressed his concerns regarding Keith’s case: “Mr. Keith’s conviction relied upon the linking of certain eyewitness testimony with certain forensic evidence about which important questions have been raised. I also find the absence of a full investigation of other credible suspects troubling.” The governor acknowledged that Keith might well be guilty and that the Ohio Parole Board had recommended against clemency, but he could not allow an execution with the doubts that persisted.  The governor left open the possibility that future developments might require additional relief for Mr. Keith.  Attorneys for Keith applauded Gov. Strickland’s actions, but said they will continue to petition for a new trial to address newly discovered evidence, evidence withheld by the State, and new science behind eyewitness identification, all of which, they claim, point to Mr. Keith's innocence.

Pennsylvania's Costly Death Penalty Produces Nothing in Return

Pennsylvania Governor Edward Rendell has signed 113 execution warrants during his two terms in office, yet it appears likely that he will leave office in a few months without seeing any of them carried out. Since the state reinstated the death penalty in 1978, only three men have been executed, all of whom had waived their appeals. Inadequate funding for criminal defense may be one of the primary reasons for this de facto moratorium. Since 1978, state and federal courts have overturned 124 death penalty cases on post-conviction review, mostly because of inadequate representation. (Other reasons cited include prosecutorial misconduct, racial discrimination in jury selection, and improper argument and jury instructions).  When the cases are retried, almost all result in a life sentence.  Robert Dunham, a federal defender, said, “So long as Pennsylvania systematically fails to adequately provide resources at trial, cases will be reversed [in] post-conviction."  Marc Bookman, founder of the Atlantic Center for Capital Representation in Philadelphia, said "an ungodly amount of money" has been spent on the death penalty in the state.  "[I]t's an incredible waste of money," he added.  "We're propping this thing up so that some of our leaders can claim to be tough on law and order."  Pennsylvania has the fourth largest death row in the country.

RESOURCES: DEATH ROW USA Winter 2010 Now Available

The latest edition of the NAACP Legal Defense Fund's "Death Row USA" shows that the number of people on the death row in the United States is continuing to slowly decline, falling to 3,261 as of January 1, 2010.  The size of death row at the start of 2009 was 3,297.  In 2000, there were 3,682 inmates on death row.  Nationally, the racial composition of those on death row is 44% white, 41% black, and 12% latino/latina. California (697) continues to have the largest death row population, followed by Florida (398) and Texas (337). Pennsylvania (222) and Alabama (201) complete the list of the five largest death rows in the nation. Death Row USA is published quarterly by the NAACP Legal Defense Fund. The report contains the latest death row population figures, execution statistics, and an overview of the most recent legal developments related to capital punishment.