Supreme Court 2007

Supreme Court and the Death Penalty
The U.S. Supreme Court will be hearing four death penalty cases in January 2007:

This Arizona case will be argued on January 9. The Court will decide whether defense counsel has a duty to develop and offer evidence favorable to the client in a death penalty case when the client actively opposes presentation of such mitigating evidence. On a habeas corpus petition, the U.S. Court of Appeals for the 9th Circuit (en banc) held that Landrigan had received ineffective representation and was entitled to a new sentencing hearing.

These two cases have been consolidated and will be argued on January 17. The basic question in both cases is whether Texas' former jury instructions allowed the jury to consider the full range of mitigating evidence that a defendant might offer, especially regarding mental impairments. The U.S. Court of Appeals for the Fifth Circuit denied relief to both defendants.

SMITH V. TEXAS, No. 05-11304
This case will be argued on the same day as the consolidated cases above, January 17. The issue again involves Texas' former jury instructions. The underlying issue in this case had been decided earlier by the U.S. Supreme Court in favor of the defendant, LaRoyce Smith, in 2004 and remanded back to the Texas Court of Criminal Appeals for consideration of a new sentence. The Texas court denied Smith a resentencing because it said he had not shown "egregious harm" to his fair trial rights. The Supreme Court will decide whether the Texas court applied the proper standard of review.

The Supreme Court has already decided one capital case this term:
Argued Oct. 3, 2006; Decided Nov. 13, 2006
The Court upheld California's death penalty law in a 5-4 decision. The majority held that the state's law allowed the jury to consider all appropriate mitigating evidence, thereby overturning a ruling to the contrary by the 9th Circuit.

The Court's decision in LAWRENCE V. FLORIDA, No. 05-8820, argued Oct. 31, 2006, is pending.

On December 7, the Court accepted a new capital case, ROPER V. WEAVER, No. 06-313, which will examine the standards for when a prosecutor's argument at the penalty phase is unfairly inflammatory.

For more information on all of these cases, see Supreme Court.

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Texas Court Rejects Presidential Order in Death Penalty Case

The Texas Court of Criminal Appeals rebuffed President Bush's order that Texas courts review the cases of Mexican foreign nationals who were sentenced to death without the benefit of their rights under the Vienna Convention on Consular Relations.  Writing for the court, Judge Michael Keasler, stated: "We hold that the President has exceeded his constitutional authority by intruding into the independent powers of the judiciary."  Judge Sharon Keller concurred, writing: "this unprecedented, unnnecessary, and intrusive exercise of power over the Texas court system cannot be supported by the foreign policy authority conferred on him by the United States Constitution."

In 2004, the International Court of Justice in The Hague ruled that 51 Mexican citizens who were on death row in the U.S. were entitled to a review of their convictions and sentences in light of the fact that they were not informed of their right to speak to their consular officials at the time of their arrest, as guaranteed under the Vienna Convention.  While one of these cases, that of Jose Ernesto Medellin, was making its way to the U.S. Supreme Court, President Bush issued a memorandum to the Justice Department ordering that state courts abide by the decision of the International Court.  The U.S. State Department also announced that, for future cases, the U.S. was withdrawing from the agreement that gave the International Court jurisdiction in the case of the 51 Mexican citizens.

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Supreme Court Justices Raise Issue of Time on Death Row

The U.S. Supreme Court upheld California's death penalty law in a 5-4 decision on Nov. 13 in Ayers v. Belmontes. The majority held that the state's law allowed the jury to consider all appropriate mitigating evidence. The decision reversed the U.S. Court of Appeals for the 9th Circuit, which had overturned Belmontes death sentence. The dissent, consisting of Justices Stephens, Breyer, Ginsburg and Souter, however, disagreed, contending that the jury would have to disregard the judge's instructions in order to consider mitigating evidence about the defendant's future prospects for reform. The dissent argued for a more appropriate balancing of state's need for its law to be carried out with the defendant's right to have all the evidence that might save his life considered by the jury. The dissent stated that the state's need for an execution was greatly diminished by the fact that this case was now 25 years old, and, hence, the people would gain little by having an execution carried out now, whereas the defendant had everything to lose by an unfair decision:

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Tipping the Scales: Supreme Court Fails to Recognize Danger of Executing the Innocent

The Anniston Star
Section: Opinion
July 2, 2006
Author: Richard C. Dieter
Special to The Star

In deciding a narrow issue about an obscure part of Kansas' death penalty law, the Supreme Court last week revealed a chasm of differing opinions regarding the fundamental reliability of capital punishment in this country. Although the opposing views were widely divergent and sharply expressed, the court did us all a service by identifying the key problem that may decide the future of the death penalty in this country in coming years.

The issue before the court was simply whether Kansas juries should be required to impose the death penalty when they believe that the aggravating and mitigating factors in a case are exactly equal. In a close vote, the court held that it is permissible to allow a tie to go in favor of the state's request for death. The decision, however, is likely to be remembered for a much different debate within it.

Justice David Souter, writing for the four justices in the minority, voiced a strong concern about the dangers of executing innocent defendants. We should not be imposing death sentences in close cases, he noted, because we now have voluminous evidence that many people have been wrongly convicted in death penalty cases. Since "death is different" from every other punishment, we should err on the side of caution.

Justice Antonin Scalia, agreeing with the majority regarding Kansas' law, but writing only for himself, took strong exception to the four justices' concerns about innocence. For one thing, he said, he knew of no recent case where an executed person had been shown to be innocent. If there were such a case, he noted, it would have been "shouted from the rooftops." Moreover, he said, even in cases where inmates had been freed from death row, the problem of innocence was greatly overstated.

Both assertions by Scalia deserve a response. With respect to executing the innocent, Scalia seems not to be fully informed. Just days before his opinion was published, and for the fourth time in the past two years, such a case was indeed being shouted from the rooftops. The story about the probable innocence of Carlos DeLuna, who was executed in Texas in 1989, appeared on "ABC World News," "Nightline" and the front pages of the Chicago Tribune. Major stories and series about two other Texas cases of probable innocence, those of Ruben Cantu and Cameron Willingham, and one case from Missouri, that of Larry Griffin, have also appeared repeatedly in other major papers and wire reports.

Scalia is correct that none of the many DNA exonerations over the past decade have involved someone who was already executed. Unfortunately, DNA evidence is often allowed to deteriorate over time. Moreover, some states have refused to allow access to such evidence after an execution has occurred. So there is not yet incontrovertible proof of such a fatal mistake. But given the thoroughness of the four investigations mentioned above, the probability that such an execution has occurred is high.

Scalia's second assertion is that even cases involving people who have been officially cleared of all the charges that sent them to death row are not a cause for concern. He particularly mentions the cases on the Death Penalty Information Center's innocence list as examples of sounding an unnecessary alarm.

DPIC's list of 123 cases is not the product of subjective judgments about innocence. Rather, it is an objective record of people who have been sentenced to death, whose convictions were overturned, and who were then cleared of all related charges and freed by the justice system. For Scalia, it is improper to call these defendants "innocent." He cites a few cases in which the original prosecutor, or a court reviewing a civil claim for wrongful conviction, expressed a belief that the defendant might still be guilty.

The implications of denying such people the status of innocence are far reaching. The principle that you are innocent until proven guilty is a bedrock principle of our criminal justice system, and it has been a fundamental tenet of every respected judicial system for centuries, going back to biblical times. If a person's status of innocence can be taken away merely because a prosecutor suspects the person of a crime but never proves it in a fair trial, then the state assumes dangerous powers at the expense of the people. No one should have to prove his innocence.

However one may label the people who have been freed, their cases should indeed raise alarms across the country. In all 123 cases, the justice system unanimously convicted the individual and then expressed such certainty in its decision that it sentenced the person to death. This same justice system then reviewed the cases and concluded that each person could not even be convicted of the slightest offense, and they were set free. For every eight individuals who have been executed since 1973, one person has been exonerated and freed from death row. That ratio reflects a terrible record and is ample cause for the court's concern.

Justice Scalia makes one more claim that has been heard often from proponents of the death penalty: that exonerations from death row prove that the system works. In some cases, that is, thankfully, true. But in many other cases, it was only the fortuitous advent of scientific DNA testing that freed the individual, or the dogged work of journalism students, or the pro bono work of a large law firm - services available only to a handful of the thousands of individuals on death row - that saved these lives.

Justice Scalia was certainly right on one point. He said the death penalty has become an "incoherent" system. The faulty construction of much of that system is largely the court's responsibility. But with all its complications, this system too often fails to get the most fundamental job done right: being certain of guilt before anyone is deprived of life. The issue of innocence is very serious and deserves our utmost attention.

Richard Dieter is executive director of the Death Penalty Information Center in Washington, D.C.

Leilah Rampa/The Anniston Star

Copyright, 2006, The Anniston Star, Consolidated Publishing Co. All Rights Reserved.
Record Number: /ans/raw/07-02-2006/opinion/2006/as-insight-0702-0-6f30s2936.htm

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New Voices - Judiciary

Statements by Supreme Court Justices

Statements by Federal Court Judges

Statements by State Judges

Statements by Federal Court Judges

Federal Judge Says Seeking Death Sentence Not Worth the Costs

Federal District Court Judge Jack B. Weinstein (pictured) said recently that seeking the death penalty against Humberto Pepin Taveras in New York is not worth the effort of prosecutors or taxpayers’ money. "Based on the history of cases tried in metropolitan New York, the chance of Pepin receiving the death penalty is virtually nil," Weinstein said. The case against Taveras, who confessed to murdering two drug traffickers in the 1990s while already serving more than 12 years in prison for other crimes, has already cost over $750,000 in defense costs, and Judge Weinstein expects that number to increase. There has only been one death sentence recommended by a federal jury in New York since the federal death penalty was reenacted in 1988 (Ronell Wilson in 2007).

Taveras’ defense attorneys responded to Judge Weinstein's suggestion and intend to petition the Department of Justice prior to the May 12 trial date asking DOJ not to seek the death penalty if Taveras pleads guilty to the murder charges. If they succeed, Taveras will serve life in prison.

Defense attorney Lou Freeman said, "We applaud the judge's decision as fair and common sense-based." The U.S. Attorney did not respond, but his office is seeking the federal death penalty in six cases in that same district.
(“Judge: Death penalty in drug case not worth pursuing,” by Anthony Destefano,, March 1, 2008). See New Voices and Costs.

Federal Judge Calls for Vast Improvements in Representation to Fix California's Broken System

Arthur L. Alarcon (pictured), a senior judge on the U.S. Court of Appeals for the 9th Circuit in Los Angeles, sharply criticized California's death penalty system and chided lawmakers for failing to provide adequate representation and funding for capital cases. Judge Alarcon, a death penalty supporter, wrote an article in the Southern California Law Review entitled "Remedies for California's Death Row Deadlock" warning that failure to address California's capital punishment problems and its backlog of cases could effectively end the death penalty in the state. He noted, "The delays in reviewing capital cases will continue to grow in California to the point where the United States Supreme Court may someday hold that such imprisonment is, in and of itself, cruel and unusual punishment."

Judge Alarcon believes the failure of the California Legislature and the governor to put more money into the process is at the root of the state's problems. California's death row is the nation's largest, with 667 people awaiting execution. The state has difficulty finding attorneys to represent these inmates on appeal because it caps their hourly rate at less than half the average awarded by federal courts in California to attorneys appointed in some civil cases. "I would be hard-pressed to explain to a bartender or a non-lawyer acquaintance how it is appropriate that an appellate lawyer who is attempting to save a human being's life is compensated at the rate of $140 per hour while the same lawyer could receive as much as $540 per hour to represent an insolvent corporation in bankruptcy proceedings," the judge wrote.

In addition to not allotting enough money for trial attorneys to represent clients facing execution, the judge observed that the state fails to provide the funds necessary to investigate death penalty cases. California only permits defense attorneys to spend $25,000 investigating a capital case on appeal, a figure U.C. Berkeley law professor Elisabeth Semel said represents just a fraction of the $500,000 many firms allocate to investigate clients in post-conviction cases. Judge Alarcon's article predicted that the state's problems will only get worse, noting that no lawyers have been appointed for any death row prisoner sentenced to death since 2003. Of the 17 sentenced to death in 2002, only two have legal counsel.

Santa Clara University law professor Gerald F. Uelmen said he welcomed Judge Alarcon's comments, though he feared some of his proposed solutions, such as removing mandatory review of capital cases by the California Supreme Court, could lead to inconsistent decisions. Uelmen, who is the executive director of the California Commission on the Fair Administration of Justice, observed, "With 650 cases backed up, we have to look at all alternatives."

(H. Weinstein, Los Angeles Times, August 30, 2007). Read Judge Alarcon's article.

Federal Judge Calls the Death Penalty Arbitrary, Biased and Fundamentally Flawed

Judge Boyce F. Martin, Jr. of the U.S. Court of Appeals for the 6th Circuit called the death penalty "arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair." Judge Martin dissented in the case of Getsy v. Mitchell and said it made no sense that Jason Getsy received a death sentence for his role in a murder-for-hire conspiracy, while the other two triggermen and the mastermind of the crime, all escaped a death sentence. He wrote:

In Jason Getsy’s case, sadly, we need not consider hypotheticals, such as the better-paid lawyer who would likely have done a better job, or the brutal murder which, for whatever reasons, could not be coupled with any of a state’s statutory aggravating circumstances. For in Getsy’s case the hypothetical is made real. The nineteen-year-old Getsy was sentenced to death for being one of the trigger men in a murder-for-hire conspiracy. His two compatriots, Richard McNulty and Ben Hudach, did not receive the death penalty because both were offered and accepted plea bargains. Thus there is some logic, perhaps, to why McNulty and Hudach received lesser sentences. But there is no logic to why John Santine, the mastermind of the conspiracy, who paid Getsy, McNulty, and Hudach to do his dirty work, and who took great steps to make sure they completed the job, also did not receive a death sentence.
. . .
Jason Getsy and John Santine are not hypothetical players in a criminal law final exam.
They are real people who committed real crimes, indeed, the same crimes. That Getsy will be put to death while Santine will be spared, and that the law (at least according to the majority) actually sanctions this result, makes it virtually impossible for me to answer in the affirmative what Justice Blackmun viewed as the fundamental question in Callins v. Collins— namely, does our system of capital punishment "accurately and consistently determine" which defendants "deserve" to die and which do not?

(Getsy v. Mitchell, No. 03-3200, U.S. Court of Appeals for the 6th Cir. (July 25, 2007) (Martin, J., dissenting)).

Federal Judge Advises Justice Department to Rethink Death Case

U.S. District Judge S. James Otero (pictured) halted the penalty phase of a federal capital case in Los Angeles and told prosecutors that he believes the U.S. Justice Department should reconsider its decision to seek the death penalty for Petro "Peter" Krylov. Krylov is facing the death penalty for his role in a kidnapping and murder plot. Otero, the second federal judge this year to urge federal prosecutors and the Justice Department to rethink their decision to seek a death sentence, told prosecutors that Krylov's case is different from the cases against his two co-conspirators, who both received death sentences. "I would hope that the government has enough flexibility that they can address these major significant life-and-death issues to handle circumstances such as what has occurred in this case," Otero told lawyers for both parties while the jury was out of the courtroom. Prosecutors responded that they would share Otero's comments with Justice Department officials, but that Attorney General Alberto Gonzalez had already made the decision to seek death for Krylov.

Otero was appointed to the federal bench by President George W. Bush and is regarded by some in the federal bar as a tough sentencer. His comments during the sentencing phase of Krylov's trial echo sentiments voiced in January 2007 by Judge Frederick Block of the U.S. District Court in Brooklyn. Block told federal prosecutors that pursuing a death sentence for a convicted drug kingpin would be an "absurd" waste of time and money and predicted that there was "no chance" a jury would return a death sentence in the case. After the Justice Department decided to proceed with its effort to win a death sentence in that case, the jury's verdict resulted in a sentence of life in prison without parole.

"There has been a surprising amount of resistance to the Bush administration's Justice Department, under both John Ashcroft and Gonzales, in ramping up the number of capital cases," said Douglas A. Berman of Ohio State University's Moritz College of Law, and an expert in death penalty sentencing. There have been 95 federal death penalty trials during the Bush administration, compared to 55 during the Clinton administration.

(L.A. Daily Journal, May 4, 2007).

Federal Judge Says New York Case is "Absurd" Waste of Time and Money

U.S. District Judge Frederic Block recently told federal prosecutors that pursuing a death sentence for Kenneth McGriff would be an "absurd" waste of time and money. According to a court transcript, while jurors were on a break during closing arguments of the guilt phase of McGriff's trial, Block advised prosecutors to contact their supervisors in Washington, DC, and ask them to reconsider their decision to seek the death penalty if McGriff is convicted in a contract killing conspiracy. He told prosecutors, "I feel, as an officer, as a judge, that this is an absurd prosecution based upon what I have heard. I think I have a responsibility to let authorities know. ... There's just no chance that 12 jurors will vote for the death penalty in this case, and I think it is good for us to save money, if we can do that, and judicial resources."

UPDATE: The jury's non-unanimous sentencing vote will now result in the judge imposing a sentence of life-without-parole for McGriff.

(N.Y. Times, Feb. 10, 2007). (Associated Press, January 25, 2007).

Chief Judge of the Fourth Circuit Ponders Worth of the Death Penalty

In a speech to law students from Furman University, William W. Wilkins, the Chief Judge of the U.S. Court of Appeals for the Fourth Circuit, expressed doubts about the value of the death penalty given its high costs and probable lack of deterrence. He also noted that the existence of the death penalty in the U.S. makes it very difficult to extradite suspects from foreign countries who oppose capital punishment. With respect to the extra costs attibutable to capital cases, Wilkins noted, "I'm not saying it costs too much. But I am saying it's a legitimate question to ask." He also challenged the students to consider which was the worst punishment, death or life in prison with no parole, especially for terrorists who want to be a martyr for their cause.

(The Greenville News, Oct. 12, 2006).

Federal Appeals Court Judge of the Fifth Circuit Expresses Legal and Moral Problems with the Death Penalty

Judge Carolyn Dineen King (pictured) of the U.S. Court of Appeals for the Fifth Circuit was the main speaker at the "Red Mass" on October 4 at the Catholic cathedral in Corpus Christi, Texas. The Red Mass is an annual liturgy held for members of the legal profession near the beginning of the judicial term. Its traditions extend back to 13th century Europe. Judge King spoke about the death penalty, both from her perspective as a judge and as a Catholic. In both areas, she raised strong concerns about the application of the death penalty in the U.S. Judge King described the recent legal history of the death penalty, with a particular emphasis on Texas' statute. She noted that the court of which she is a member mistakenly interpreted a Supreme Court ruling, and then many executions occurred over many years before the Supreme Court corrected the error. She also expressed serious misgivings about the risk of executing the innocent. Judge King stated:

"[T]he injustice of executing capital defendants under laws that were for so many years undeveloped and in flux is troubling. Think about it. My court's opinion . . . was on the books for twelve years before the Supreme Court struck it down. During those twelve years, many defendants were executed without the constitutionally-required judgment by the jury on whether the defendant was sufficiently morally culpable to be sentenced to death. That is not to say that those defendants were innocent of the crimes for which they were convicted. But it could certainly lead one to ask why, if the jury's judgment about moral culpability was constitutionally required, so many went to their deaths without it.

Also profoundly troubling is the risk that an innocent man will be executed. I must say that from my experience with capital cases, there is usually a great deal of evidence that the defendant is, in fact, guilty. But the lengthy investigation of the Houston crime lab, which exposed evidence of serious problems such as falsified test results, including DNA test results, and the tailoring of reports to fit police theories, certainly suggests that even scientific evidence, to which we normally attach considerable confidence, can be flawed. Only God's justice is perfect justice. The assessment of the death penalty, however well designed the system for doing so, remains a human endeavor with a consequent risk of error that may not be remediable."

In discussing her moral views as a Catholic, she clearly indicated that those views did not dictate her constitutional rulings from the bench. Nevertheless, she finds a strong denunciation of the death penalty in the U.S. in Catholic teaching, especially given the alternative sentence of life in prison without parole. Under that teaching, vengeance is not a legitimate justification for the death penalty. She stated:

"Catholics, the people of life, have an opportunity to advocate to our legislators changes in our laws that will align them more closely with the moral law. For the solution to the problems that we face with the death penalty is a political one (not a judicial one), and each of us, as a Catholic citizen and voter, is called upon to promote it.
. . .
The Catholic bishops have recently issued a call to the Catholic community, inviting every Catholic to join in the Catholic Campaign to End the Use of the Death Penalty, not as a partisan campaign but as a moral commitment.
. . .
The Church's campaign has been long in coming, centuries long, but at last it is here and all of should actively and prayerfully support it."

(South Texas Catholic News, Oct. 20, 2006). Read Judge King's entire statement.

Federal Judge Discusses His Concerns About the Death Penalty

In an interview with The New York Times, Judge Jed S. Rakoff discussed his reasons for finding the federal death penalty to be unconstitutional. Judge Rakoff ruled in April 2002 that the death penalty failed to secure due process because of the demonstrated risk of executing an innocent person. He noted that his conclusions on capital punishment were based in part on his extensive review of cases included on the Death Penalty Information Center's innocence list. He remarked that the exonerations exposed "something pretty upsetting, if you think about its broader ramifications....that our legal system is not as good in ascertaining the truth as we thought it was." Rakoff also revealed his personal appreciation for the needs of victims' family members. In 1985, his brother, Jan, was murdered in the Philippines, a crime that left an "unhealable wound." Though his 2002 decision was overturned, Rakoff maintains his concerns about the capital punishment system: "I continue to think that the process is deeply flawed. It posits a very high likelihood that no innocent person is convicted, which I no longer believe to be true."

(The New York Times, January 2, 2005). See Victims, DPIC's page on U.S. v. Quinones, and Innocence.

ECPM Interview with Federal Judge Gerald Heaney

Gerald W. Heaney, a U.S. Court of Appeals Judge in the Eighth Circuit, voiced his personal concerns about the death penalty. The remarks were part of an interview featured in the End to Capital Punishment Movement (ECPM) USA's March 2003 newsletter. Heaney, in response to a question about whether the death penalty could ever be applied fairly, noted, "I don't think you can work out a fair system. I agree with Justice Harry Blackmun . . . that every effort had [already] been made to make it fair and reasonable and that it really couldn't be done." The ECPM USA plans to co-host a conference on the death penalty in the United States in Mexico City, Mexico, in Spring 2004. To request a copy of the ECPM USA newsletter, contact Laurent David.

Former Federal Chief Judge Calls Death Penalty "Legalized Murder"

Abner J. Mikva (pictured), a retired Chief Judge of the U.S. Court of Appeals in Washington, DC, and a former Congressman, recently characterized the death penalty as "legalized murder" and mainly a form of revenge. In an article in Shma Magazine, Mikva stated:

"The more that variations on the theme are scrutinized, the more obvious it is that the real reason for executing people is the oldest of reasons: revenge, anger at the felon, the somewhat flawed interpretation of the biblical "Eye for an eye, tooth for a tooth." But if that is the real reason for remaining outside the fold of all Western nations who have reformed away the death penalty, then why don't we acknowledge this thorn in our legal system by its appropriate name? We should admit that we engage in legalized murder."

The edition of Shma Magazine featuring Mikva's comments also contains articles about the death penalty from a Jewish perspective.

(Shma Magazine, October 2002)

U.S. Judge Says Death Penalty is "Critical Problem" for Courts

During a Nashville speech to federal and state judges, U.S. 6th Circuit Court of Appeals Senior Judge Gilbert Merritt (pictured) said that capital punishment is "by far the most difficult, time-consuming, frustrating, and critical joint problem (judges) have to grapple with on a daily basis." Merritt noted that, despite the intense scrutiny of death penalty cases, he has reviewed two cases in which he has "serious doubts" the right man was sentenced to death. He described Tennessee's death penalty system as "still broken" and stated that other judicial issues "pale in comparison." The reliability of that system has been muddied by passion, politics, "extremely zealous" prosecutors, and a lack of training for defense attorneys, he said.

(The Tennessean, September 27, 2002)

Federal Judge Considers Likelihood of Wrongful Executions

Federal Judge Michael Ponsor recently wrote about his experience presiding over the case of Kristen Gilbert, the first death penalty case in Massachusetts in several decades:

The experience left me with one unavoidable conclusion: that a legal regime relying on the death penalty will inevitably execute innocent people - not too often, one hopes, but undoubtedly sometimes. Mistakes will be made because it is simply not possible to do something this difficult perfectly, all the time. Any honest proponent of capital punishment must face this fact.

(Boston Globe, 7/8/01)

Ninth Circuit Judge Critiques Supreme Court Death Penalty Decision

Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit recently delivered the distinguished James Madison Lecture at NYU Law School. He sharply disagreed with the U.S. Supreme Court's decision to allow the execution of Thomas Thompson to go forward in California simply because the proper procedural steps had not been carried out in his case: "Most remarkable of all, in making its assessment of the costs, the United States Supreme Court never even mentioned the costs to our legal system of allowing the state's violation of the defendant's constitutional rights to go unremedied. It never even considered the costs to society -- let alone the defendant -- of permitting a person to be executed on the basis of an unconstitutional trial or for a crime of which he might well be innocent. In short, the Supreme Court never even took into account the interests we all have in upholding the Constitution or the costs we all incur when the federal courts are precluded from performing their basic constitutional functions."

(10/20/98, at p.47-48)

Federal Judge Questions Deterrence Value of Capital Punishment

Former U.S. Court of Appeals Judge, Abner Mikva, wrote in the Connecticut Law Tribune (3/9/98): "[I]t is very hard to find any empirical evidence that our societal security is strengthened by the use of capital punishment. States that have wielded the death penalty with vigor have crime rates as high or higher than states that have never authorized the death penalty. Despite many efforts to do so, it has proven almost impossible to quantify the efficacy of capital punishment. . . . The main function of the death penalty is to vent societal spleen against those who commit certain heinous crimes."

(See deterrence.)

Federal Dissent Calls California Executions "Miscarriage of Justice"

U.S. Court of Appeals Judge Stephen Reinhardt, dissenting in the decision to allow Thomas Thompson to be executed in California: "In closing, I would observe that the miscarriage of justice that is about to occur is the product of the federal judiciary's elevation of procedure over justice, of speed and efficiency over fairness and due process. I regret that we have chosen that course in recent years, and believe that in doing so, we have severely tarnished our nation's justice system. It is the courts that should engender in all of the people an enduring commitment to liberty and fairness. That commitment will surely not be inspired by this case and others like it."

Thompson v. Calderon, 1998 WL 401071 (9th Cir. July 11, 1998). Thompson was executed on July 14.

Statements by State Judges

Mississippi Supreme Court Justice Says Death penalty is Unconstitutional

The Presiding Justice of the Mississippi Supreme Court, Oliver Diaz (pictured), dissented in a recent capital case, Doss v. Mississippi, stating he had come to the conclusion that the death penalty is unconstitutional:

"[A]ll that remains to justify our system of capital punishment is the quest for revenge, and I cannot find, as a matter of law, that the thirst for vengeance is a legitimate state interest. Even if it is, capital punishment’s benefit over life imprisonment in society’s quest for revenge is so minimal that it cannot possibly justify the burden that it imposes in outright heinousness. The death penalty is, therefore, reduced to “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.” (quoting Justice White in Furman v. Georgia)."

In his December 11 dissent, which was joined by Justice Graves, Justice Diaz reviewed incapacitation and deterrence as goals of the death penalty and found them unsupported.  He also noted the relatively small number of death sentences returned in capital trials in recent years and the deplorable funding for indigent defense.

Further excerpts from Justice Diaz’s opinion follow:

Referring to the recurring exonerations of people on death row and in prison, Justice Diaz wrote, “Just as a cockroach scurrying across a kitchen floor at night invariably proves the presence of thousands unseen, these cases leave little room for doubt that innocent men, at unknown and terrible moments in our history, have gone unexonerated and been sent baselessly to their deaths.”

Justice Diaz concluded: “I cast no illusions for myself that my conclusion will persuade a majority of this Court’s members, whose sober judgments in capital cases I deeply respect, even as I disagree just as deeply. Neither do I doubt that, for the time being, Justice Stevens’ decision to ‘no longer . . . tinker with the machinery of death,’ will fall upon unconvinced colleagues at the high court (quoting Justice Blackmun). But I am convinced that the progress of our maturing society is pointed toward a day when our nation and state recognize that, even as murderers commit the most cruel and unusual crime, so too do executioners render cruel and unusual punishment.”

(Doss v. Mississippi, No. 2007-CA-00429-SCT, Dec. 11, 2208) (Diaz, P.J., dissenting) (internal  citations omitted).  See New Voices and Arbitrariness.

Utah Supreme Court Judge Says Death sentences Will be Reversed Unless Legislature Provides for Adequate Counsel

Utah’s Supreme Court recently expressed concern that the lack of qualified defense attorneys for indigent death row inmates could unravel capital sentences. In a unanimous decision in the case of death row inmate Michael Archuleta, Associate Chief Justice Michael Wilkins (pictured) said the court might be forced to reverse capital sentences because the low pay and the complexity of such cases have shrunk the pool of Utah attorneys who will accept them. "It falls to us, as the court of last resort in this state, to assure that no person is deprived of life, liberty, or property, without the due - and competent - process of law," Wilkins wrote. "Without a sufficient defense, a sentence of death cannot be constitutionally imposed." He wrote that the justices may soon be forced to reverse a death sentence and impose life without parole on such grounds if the legislature fails to provide adequate resources.

An excerpt from the opinion follows:

In recent years we have become especially concerned with the diminishing pool of competent counsel in capital cases. There is no acceptable justification for this trend. Competent defense and appellate counsel are guaranteed by our constitution. We cannot allow a defendant’s life to be taken by the government without an adequate review of the conviction. Our judicial oath to support, protect, and defend the Constitution must, of necessity, include the requirement that we take measures within our authority and responsibility to see that the mandates of the Constitution are observed.

It is the duty of the legislative branch to provide for adequate defense of capital defendants, including sufficient resources to attract, train, compensate, and support legal counsel. It is left to the legislative branch to determine how best to accomplish this goal. However, it falls to us, as the court of last resort in this state, to assure that no person is deprived of life, liberty, or property, without the due — and competent — process of law. Without a sufficient defense, a sentence of death cannot be constitutionally imposed. This basic concept is bedrock upon which our constitutional government stands.

If, in the future, we find that the unavailability of competent and willing counsel impedes prompt, constitutionally sound resolution in capital cases, we may be forced to hold that the lack of such counsel is sufficient grounds for outright reversal of a capital sentence and remand for the imposition of a sentence of life in prison without the possibility of parole, for which the required degree of sophistication and skill reposed in counsel is slightly less.

Archuleta v. Galetka, No. 20070228 (Utah S. Ct. Nov. 7, 2008). (P. Manson, “Utah's high court issues death-penalty warning: Lack of qualified defense lawyers could unravel capital sentences,” The Salt Lake Tribune, November 8, 2008). See also Representation and Costs.

Former FL Supreme Court Judge says Capital Punishment System is Broken

Gerald Kogan (pictured), former Chief Justice of the Florida Supreme Court, who has also served as a prosecutor, defense attorney, and trial judge, recently expressed concerns about Florida’s death penalty system.  “Florida’s system of capital punishment is broken,” he wrote in the St. Petersburg Times.  “Florida’s justice system fails on many fronts.” He pointed out that “Florida has become the holder of a dubious distinction: more individuals convicted of murder (22) have been exonerated from our death row than any other in the country." The state carried out its first execution on July 1 since the botched execution of Angel Diaz in 2006.

Justice Kogan was also concerned that protections were not in place to prevent further mistakes:

Mistakes in identification and prosecution of defendants are compounded by Florida's woefully inadequate system of providing those accused of capital crimes with representation at trial. The bar for inclusion in Florida's Capital Collateral Registry — a list of attorneys available to try capital cases — is set embarrassingly low, and requires very little of participating attorneys. The inadequate standards fall far short of the bare minimum qualifications established by the American Bar Association. Current Florida Supreme Court Justice Raoul G. Cantero III recently testified before the Florida Commission on Capital Cases that the representation provided by these attorneys is "some of the worst lawyering" he has ever seen.

Justice Kogan currently serves as the co-chair of the Constitution Project’s bipartisan Death Penalty Committee, which is composed of death penalty supporters and opponents.  The Committee has made more than 20 recommendations for the reform of the country's capital punishment system. Kogan argues that Florida should immediately adopt those recommendations, adding that until that happens, “Governor Crist should order a stay of all executions pending a statewide review of his state’s death penalty.”

(G. Kogan, "Florida’s justice system fails on many fronts,” St. Petersburg Times, July 1, 2008).  See New Voices.

Former New Jersey Supreme Court Justices Discuss the Failure of the Death Penalty

Former members of the New Jersey Supreme Court recently shared their insights on the death penalty at a symposium sponsored by Seton Hall and Fordham law schools, and by the the New York City and New Jersey State Bar associations. Five former members of the Court, including two chief justices, reviewed the 25 years of capital punishment in New Jersey before 2007’s repeal of the death penalty. Their conclusions echoed the opinion of Justice Barry Albin in State v. Wakefield (2007) that, compared to murderers serving 30 years to life in prison, those slated for death seemed to be the product of "random selection." Former Chief Justice Deborah Poritz (pictured) characterized the efforts of the Court as “an extraordinary experiment in trying to understand the death penalty from both a societal and an individual perspective.…” and that proportionality review became “the key to understanding how difficult it was to make the death penalty work in any sensible way.” Through her work on proportionality reviews, studying the reasons behind the choice for death versus imprisonment, she “began to feel…this system is…impossible. We really can find no way to do this that will take the arbitrariness out of the system,” she said.

In an editorial on the symposium and New Jersey's abolition of the death penalty, the New Jersey Lawyer, wrote:

The court passed every capital conviction through the prism of reflection, seeking to weed out the arbitrariness that justice abhors. When the representatives of the people saw that enforcement of the death penalty could not be reliably reconciled with rationality in its application, they acted, with the governor's assent, to repeal the death penalty. For that dynamic interaction among courts, electorate and elected officials, we express our wonder and respect. And we are proud to hold up "Jersey justice" as a model for the world.

("Editorial: Reflections on the repeal of capital punishment," New Jersey Lawyer, May 19, 2008). See Arbitrariness and New Voices.

California Judge says Death Penalty is "waste of taxpayers' money"

During his 15-year tenure on the court, Orange County Superior Court Judge Donald McCartin sentenced nine men to death. Now retired, Judge McCartin no longer believes in the death penalty. "It's a waste of time and taxpayers' money," Judge McCartin said. "It cost 10 times more to kill these guys than to keep them alive in prison. It's absurd. And imagine the poor victims' families having to go through this again and again."

All but one of the nine men Judge McCartin sentenced to death still remain on California’s death row.  One man died of a heart attack. Although California has the largest death row population in the country, the state has executed relatively few inmates: 13 in the past 30 years. The lengthy time inmates spend on death row while their cases are appealed, as well as the number of convictions reversed, have played a large role in McCartin’s present opposition of the death penalty.

There are currently 18 death penalty cases awaiting trial in Orange County.

(“Judge McCartin turns against death penalty,” by Gordon Dillow, Orange County Register, March 2, 2008). See New Voices and Costs.

Former N. J. Supreme Court Justice Urges State to Face Reality on the Death Penalty

In an opinion piece in the New York Times, former New Jersey Supreme Court Justice Peter G. Verniero said that the state should replace its flawed death penalty with the sentence of life without parole. Verniero is a former supporter of the death penalty, but now believes that the current statute is "ineffective," "consumes enormous energy and resources," and the state "lacks the collective will to carry out capital punishment." He wrote:

A recent report by the New Jersey Death Penalty Study Commission has recommended that the state abolish the death penalty and replace it with a life sentence in a maximum security prison, with no possibility of parole. Although I might not agree with all of the commission’s reasoning — I don’t, for example, interpret public sentiments as leaning against capital punishment to the extent that the commission does — I concur in its recommendation.

That was not always my view. As state attorney general, I supported the death penalty and worked to enforce it. Later, as a member of the New Jersey Supreme Court, I voted to affirm and overturn death sentences when legal standards required either result.

But from a policy perspective, I now believe that the current capital punishment system, which has spawned elaborate litigation that includes several layers of appeal, is ineffective.

Because death is an irreversible penalty, the state Supreme Court has construed the judicial role in capital cases as requiring heightened and exact scrutiny. The legal process has grown into a complex, lengthy undertaking that consumes enormous energy and resources.

For instance, each death penalty case typically entails not one but several hearings before lower and appellate courts. And it’s not only state courts; federal courts also evaluate the cases. Given that trial judges, jurors, prosecutors and defense lawyers are, like everyone else, prone to error, some have wondered whether any capital case ultimately can survive such unstinting review.

But the judiciary has not been alone in its caution. Two of the last six elected governors — Brendan Byrne, who is also a former prosecutor and judge, and Jon Corzine, the current governor — have opposed the death penalty. Moreover, while the death penalty study commission was conducting its review, the Legislature imposed a moratorium on capital punishment apparently because of policy concerns, including the possibility of mistakes. Although the chance of executing an innocent person under our judicial process is minuscule, the role of DNA in overturning convictions has increased doubts.

The result is that New Jersey has not carried out any executions since it reinstated capital punishment in 1982. The last execution here was in 1963. And no death sentence is likely to be carried out in the near future.

Other states, like New York, are in a similar position. New York’s highest court found a constitutional defect in the state’s death penalty system in 2004, and legislators in Albany have so far not corrected it.

Why not fix the flaws that have prevented the use of capital punishment rather than eliminate it altogether? Here’s the problem. Narrowing the scope of the death penalty statute or tightening its provisions, as some have proposed, would invite a fresh wave of litigation and open new avenues for legal challenge. In a decent society where death should be imposed only after careful judicial examination, those appeals would continue for years. Even renewed attempts at limiting the review process itself would spur additional lawsuits.

For instance, when New Jersey lawmakers sought in 1992 to curb the manner in which the judiciary conducts reviews to ensure that juries do not apply death sentences arbitrarily, the state Supreme Court eventually decided that it should not be so restricted.

If similar reforms were tried once more, it’s likely that another two decades would pass with no executions, and we would be having the same debate as we are today. Indeed, since 1985, the Legislature has amended the death penalty statute 15 times. Tellingly, rather than expedite the process, some of those amendments have echoed judicial or constitutional concerns by strengthening legal safeguards, underscoring how all three branches have proceeded carefully in this field.

Instead of revising the system yet again, we should accept the conclusion that New Jersey simply lacks the collective will to carry out capital punishment. Whether it’s fear of an erroneous execution, as DNA evidence has shown is possible in other states, or a combination of other factors, the elected branches appear ready to alter course. In that context, substituting a sentence of life without parole for the death penalty makes sense. In the absence of executions, such sentences essentially already exist.

I cannot fathom the pain felt by the families of murder victims. I can only assume that their grief and sense of loss are perpetual. Understandably for some, a feeling of justice will result only from the execution of the persons responsible for such unspeakable crimes.

Still, as a practical matter, New Jersey’s death penalty exists merely on paper. Despite the law on the books, this state has never really embraced capital punishment. We should acknowledge that reality and replace the death penalty with a punishment that is real.

(New York Times, January 14, 2007) Read the New Jersey Death Penalty Study Commission's report

California Judge Seeks Clemency for Man He Sentenced to Death

More than two decades after Ventura County Superior Court Judge Charles R. McGrath condemned Michael Morales (pictured) to die, McGrath is asking California Governor Arnold Schwarzenegger to grant clemency because the conviction was likely based on false testimony from a jailhouse informant. Morales is scheduled to be executed on February 21, 2006. McGrath's letter was included in a clemency petition filed by Morales' attorneys, David Senior and Kenneth W. Starr, dean of Pepperdine Law School and a former federal judge.

In his letter to Schwarzenegger, McGrath said that executing Morales would be "a grievous and freakish injustice." McGrath noted that in exchange for testimony given by the jailhouse informant, prosecutors dropped four of six felony charges against him. The informant testified that while he and Morales were together in a crowded cellblock, Morales confessed in Spanish to the rape and murder of Terri Winchell. A later investigation by the state attorney general discovered that Morales does not speak Spanish. McGrath's letter stated that the informant's testimony convinced the jury that the killing was egregious, and his testimony was the only evidence to support the single special circumstance that made Morales eligible for the death penalty.

McGrath told Schwarzenegger that California law requires judges to review the death verdicts of jurors to protect "the integrity of the judicial system, public confidence in the administration of the state's power to impose death and the rights of defendants to individualized sentencing decisions." He then added that had he known of the informant's falsehoods, "I would not have let the death sentence stand, and the awesome decision to spare his life would not be before you at this time. Under such circumstances, executing Mr. Morales would frustrate the design of our sentencing laws."

If executed, Morales would be the first Latino executed in California since capital punishment was reinstated. Senior and Starr note that the decision to bring their client up on capital charges was fueled by racial and ethnic concerns and that the district attorney who prosecuted Morales did not seek the death penalty in six other egregious crimes that happened during the same period, including the beating death of a black teenager by a white male.

(Los Angeles Times, January 28, 2006).

Washington Supreme Court Closely Divided on Rationality of State's Death Penalty

The Washington State Supreme Court recently came within one vote of effectively abolishing the state's death penalty when it ruled in the case of death row inmate Dayva Cross. Cross is on death row for the murder of his wife and her two teenage daughters. Attorneys for Cross had argued that their client should not be executed because killers who had committed worse crimes had been spared the death penalty. The 2003 case of Green River Killer Gary Ridgway, who received a life sentence in exchange for a detailed confession about killing 48 young women, was among the chief examples used by Cross' attorneys.

The court's 5-4 ruling upholding Cross' death sentence revealed a deep division about the future of the state's law. Writing for the majority, Justice Tom Chambers said the "moral question" of whether those on death row can be executed while a notorious serial killer is given life is best left to state lawmakers or the people of Washington.

A dissenting opinion authored by Justice Charles Johnson stated, "When Gary Ridgway, the worst mass murderer in this state's history, escapes the death penalty, serious flaws become apparent. The Ridgway case does not 'stand alone,' as characterized by the majority, but instead is symptomatic of a system where all mass murderers have, to date, escaped the death penalty. . . . The death penalty is like lightning, randomly striking some defendants and not others. Where the death penalty is not imposed on Gary Ridgway, Ben Ng and Kwan Fai Mak (the latter two convicted in Seattle's 1983 Wah Mee massacre), who represent the worst mass murders in Washington's history, on what basis do we determine on whom it is imposed? No rational explanation exists to explain why some individuals escape the penalty of death and others do not."

An editorial in the News Tribune echoed the dissenting justices' opinion, stating:

Since the 1960s, Washington has executed only 4 condemned murderers - and three of those sought death by refusing to appeal their sentences.

The rarity of executions speaks well of this state. But it has created a new grounds of appeal: that there is no logic or consistency in the way death penalties are handed down and carried out in Washington.
. . .
We're reluctant to argue for abolishing Washington's narrowly drawn death penalty, which reflects the will of the electorate. But Johnson's argument is hard to ignore in a state whose laws generally call for proportionate sentences for similar crimes.

With the likes of Ridgway, Ng and Mak living out their lives in prison, Dayva Cross’ execution - if it ever happens - may well be the legal equivalent of a capricious bolt of lightning.

(News Tribune, April 2, 2006 and Seattle Post-Intelligencer, March 31, 2006).

California Chief Justice Calls Death Penalty "Dysfunctional"

Ronald George (pictured), Chief Justice of the California Supreme Court, recently called the state's death penalty "dysfunctional" and criticized state lawmakers for their unwillingness to adequately fund the state's capital punishment system. The Justice noted that this refusal has been "a disservice to the administration of justice." George added, "I think that there are many, many things in the eyes of legislators that have greater priority. That's the problem. People want to have the death penalty, but they don't want to pay everything it costs to have it implemented in a judicious manner. . .The system is very dysfunctional."

George, a Republican who was appointed to the court by Governor Pete Wilson, said that the California Supreme Court needs several new staff attorneys to process capital cases, and he also stated that lawmakers need to increase hourly payments to lawyers handling death penalty appeals in order to keep inmates from waiting years before counsel is appointed. Approximately 25% of those on California's death row do not have a publicly appointed lawyer to challenge their conviction and sentence. Since California reinstated the death penalty in 1978, 13 people have been put to death. Four times as many people on death row have died of natural causes, suicide, or murder.

(Associated Press, April 30, 2006).

Ohio Supreme Court Justice Says Mentally Ill Should be Exempt from Death Penalty

Justice Evelyn Lundberg Stratton of the Ohio Supreme Court called upon the legislature to exempt defendants with serious mental illness from the death penalty. Judge Stratton concurred in the affirmance of the death sentence for Donald Ketterer. She noted that she was not questioning Ketterer's guilt, nor whether he was competent to stand trial, nor even his possible mental retardation, all of which are covered by other aspects of the law. Rather the judge said she was constrained by existing law to uphold the death sentence, even though she believed the defendant's mental illness should merit an exemption from the death penalty:

Ketterer is a person with a serious mental illness. His family also has had a long history of mental illness and suicide attempts. Ketterer himself was hospitalized repeatedly and attempted suicide several times. His mental illness was fueled by drug and alcohol abuse. Two psychologists testified that Ketterer had a serious mental illness, known as bipolar disorder, which makes it difficult for him to control impulses normally. Not even the state disputed that he was seriously mentally ill. But the state argued that Ketterer could have controlled his behavior.
. . .
Deterrence is of little value as a rationale for executing offenders with severe mental illness when they have diminished impulse control and planning abilities. As for retribution, capital punishment still enjoys wide public support among Americans, but a Gallup Poll conducted in October 2003 found that while almost two thirds of Americans surveyed support the death penalty, 75 percent of those surveyed in 2002 opposed executing the mentally ill. Society's discomfort with executing the severely mentally ill among us is further evidenced by the American Bar Association's formation of a task force in 2003 to consider mental disability and the death penalty. After studying the issue, the task force made recommendations that were adopted by the ABA House of Delegates in August 2006.
. . .
I urge our General Assembly to consider legislation setting the criteria for determining when a person with a severe mental illness should be excluded from the penalty of death. Unlike mental retardation, which can be determined by a number on an IQ test and other basic criteria, mental illnesses vary widely in severity. The General Assembly would be the proper body to examine these variations, take public testimony, hear from experts in the field, and fashion criteria for the judicial system to apply. (State v. Ketterer, 111 Ohio St.3d 70 (2006), Stratton, J., concurring) (internal citations omitted). See Mental Illness (including access to the ABA's resolution referenced above. The American Psychiatric Association and the American Psychological Association have also endorsed the resolution in favor of exempting the seriously mentally ill from the death penalty.

Former FBI Chief and Texas Judge Call for Halt to Texas Executions

William S. Sessions (pictured), who served as director of the FBI from 1987 to 1993, and Charles F. Baird, a former Texas Court of Criminal Appeals Judge from 1990 to 1998, have called for a halt to executions in Texas because of the risk of executing an innocent person. Sessions and Baird, both of whom are native Texans, cited the problems at the Houston Crime Lab as a principal reason for their doubts about the reliability of the death penalty system:

Since November 2002, when its police department's crime lab problems first surfaced, Houston citizens have reacted with dismay to each new revelation.

The problems initially seemed limited to fairly minor physical breakdowns at the lab building. At every turn, however, these problems have multiplied. Most recently, authorities discovered about 280 boxes filled with crime evidence involving as many as 8,000 cases. What is most worrisome is that these cases were considered closed, many with a perpetrator behind bars and the victims seemingly assured that justice had been done. But because these boxes remain uninventoried, we cannot be sure that the right person is in prison, or if the true perpetrator is still on the streets, endangering us all.

We are Texans and members of a bipartisan committee sponsored by the Constitution Project's Death Penalty Initiative. We joined the committee in 1999 because we believe the risk of convicting and executing the wrong people is unacceptably high. Since the initiative's creation, the number of individuals who have been exonerated and released from death row has reached 117 nationwide, including eight from Texas. The discovery of the boxes from the Houston crime lab raises the potential that many more wrongfully convicted people are being housed in our Texas prisons.

While our committee includes members who support the death penalty, and others who oppose it, we all agree that the risk of wrongful convictions is too high and that systemic reforms are urgently needed to try to make the system fairer and more accurate.

One of our recommendations is that states allow DNA and other biological evidence to be properly tested in any case and any time if the evidence might shed light on the guilt or innocence of the inmate, so that we can be as sure as possible that we are prosecuting the right person.

Our committee has not taken a position on a moratorium, but the Houston travesty requires us to join with the many prominent Texans who are now calling for a moratorium until the evidence in the Houston crime lab boxes is inventoried and, if appropriate, tested.

We are in good company. Houston Police Chief Harold Hurtt has noted,'I think it would be very prudent for us as a criminal justice system to delay further executions until we have had time to review the evidence.' The dean of the Texas Senate, John Whitmire, who represents part of Houston and also chairs the Senate Criminal Justice Committee, joined in the chief's call for a moratorium. In a letter to Gov. Rick Perry, Whitmire stated, 'It's just nuts, to sum it up, that we would not hold off on executions until we go through each and every piece of evidence.'

Former Gov. Mark White and Charles Terrell, a former chairman of the Texas Department of Criminal Justice, have also called on the governor to act, as have major Texas newspapers. Judge Tom Price of the Texas Court of Criminal Appeals has also recently joined the call for a moratorium.

Yet, within the last few weeks, five executions have gone forward involving death row inmates from Houston, with another scheduled for early December. District Attorney Chuck Rosenthal has resisted an independent review of the crime lab and has joined the trial judges in opposing a postponement of the executions, even just until a proper inventory and any appropriate testing of the evidence is done.

We cannot understand this position. If the evidence confirms the guilt of the person scheduled to be executed, the execution should go forward. But if the evidence exonerates the inmate, no Texan would want to see an execution.

Texans know that the crime lab problems are not just theoretical and are not limited to death row inmates. In 2003, Josiah Sutton was exonerated of a crime he did not commit after spending four years in prison. Earlier this month, George Rodriguez was released after spending more than 17 years in prison. He was convicted on the basis of faulty DNA analysis.

Since reintroduction of the death penalty, Texas has executed 336 men and women. Our state has been responsible for more than 35 percent of all the executions in America. Too many of these executions occurred despite of profound questions about the facts of these cases, including in some instances questions about whether the defendant was actually innocent.

The two safety valves that supposedly prevent our state from executing an innocent person have not worked as they should, and in some cases have failed entirely. The Court of Criminal Appeals, an elected and partisan body, has been criticized by the U.S. Supreme Court for not properly reviewing cases. A just released Texas Monthly article about the court is called 'And Justice for Some.' And -- borrowing a phrase from the Texas oil fields -- clemency in Texas is simply a dry hole, with critical facts either not presented to the governor or not meaningfully considered.

Many experts believe that the death penalty does not deter crime. Some of us are not sure one way or the other. But, we should not be deterred from exercising common sense. We have a runaway train with no one at the controls, and that is no way to run a railroad. We support a moratorium.

(Op-ed, Austin American-Statesman, November 25, 2004).

Former Missouri Chief Justice Reiterates His Concerns About Capital Punishment

Former Missouri Supreme Court Chief Justice Charles Blackmar recently reiterated his opposition to the death penalty and his concerns about wrongful convictions, noting that the exoneration of Missouri death row inmate Joseph Amrine "makes me wonder how many people there are who were wrongfully convicted." Amrine spent 26 years in prison, 17 of them on death row, before his conviction was overturned and he was released in July 2003. "The lesson is that people were persuaded eventually that he was innocent. But there are a fair number of people who were not guilty, who didn't receive such treatment and were executed," said Blackmar during his speech in Columbia, Missouri. During his discussion on the issue of innocence, Blackmar stated that even a sentencing error rate of one or two percent would be too much to justify maintaining capital punishment.

(Columbia Missourian, November 11, 2004) See Innocence.

Texas Judge Calls for Halt to Executions

Judge Tom Price, a 30-year veteran Republican jurist on Texas's highest criminal court, recently stated that those on the state's death row convicted with evidence from the Houston Police Department crime lab should not be executed until questions about its work are resolved. Price called for a limited moratorium on executions. The call came after Price offered the only dissenting vote when the Court of Criminal Appeals denied Dominique Green's request for a delay of execution based on the crime lab's problems. Green, a Houston man who was sentenced to death in 1992, was executed on October 26. In his dissenting opinion, Price reiterated his concerns about the accuracy of the Houston Police Department's ballistics analysis as well as the recent discovery of 280 boxes of mislabeled evidence from some 8,000 criminal cases. The crime lab's problems have plagued the Houston Police Department for nearly two years and have prompted similar calls from the city's Police Chief, Harold Hurtt, and several lawmakers. Price's call for a moratorium is the first of this magnitude from state's judiciary.

(Houston Chronicle, October 26, 2004)

Kansas Supreme Court Justice Reflects: "Do I Have It Right?"

In a report filed by the Kansas Judicial Council Death Penalty Advisory Committee, retired Kansas Supreme Court Justice Fred N. Six noted that capital punishment cases pose immense burdens on judges. He stated:

Always in the consciousness of that justice is the question, "do I have it right?" A wrong call is irreversible because "death is different." The "do I have it right" question travels with you. You carry it with you during the workday, deliberations at case conference, your commute to and from work, before retiring at night, and on weekends. The question shadows you. However, normal shadows disappear at sundown, the "do I have it right" does not. You also carry a brief case filled with death case material home at night and on weekends. This brief case becomes your "constant companion" until the death case opinion is filed.

(Report of the Judicial Council Death Penalty Advisory Committee, January 29, 2004)

Washington Judge States Death Penalty "No Longer Has Validity"

In a Seattle Times op-ed reflecting on the plea agreement for serial killer Gary Ridgway resulting in a life without parole sentence (read more), Washington State Superior Court Judge David A. Nichols stated that the "death penalty as a response to any criminal behavior no longer has validity and should be repealed, because it is impossible to administer with justice and fairness." He further noted:

"We are a nation of laws, ideally applied fairly and proportionally; but we have 50 different death-penalty laws, all of which have different criteria of application. Whether or not to charge or pursue the death penalty is left entirely up to elected prosecuting attorneys, who are often driven by political, social or financial constraints; or, as in this case, circumstances which cause the prosecutor to back down.

"Gross numbers of executions are being carried out in some states or regions of the country. An alarming number of convictions have been found to be wrong, and the death penalty is unfairly inflicted upon the poor, minorities and the under-represented.

"There is simply no way the death penalty statute can be administered fairly. There are too many variables and inconsistencies to allow any person interested in justice to support.

"With its repeal, we would stop its inequitable application, the unconscionable costs associated with its administration, and the endless appeals. There is perhaps a risk that by giving up the death penalty, we would surrender leverage we might have against a Gary Ridgway to reveal the details of what he did, but that is a small price to pay for getting rid of that part of the criminal code that mocks our notions of justice under the law.

"A life of incarceration with no hope of ever getting out may seem a small penalty to pay when applied to the worst of our wrongdoers, but the death penalty has no place in a sentencing scheme that strives for justice and fairness to all our citizens."

(Seattle Times, November 8, 2003).

Former Missouri Supreme Court Judge Decries Death Penalty

Charles B. Blackmar, senior judge of Missouri's Supreme Court from 1982-1992, recently called for consideration of abolishing the death penalty. In a letter to the editor that appeared in the Kansas City Star, Blackmar stated:

Most nations that share our political and cultural traditions have done away with the death penalty. The nations that still have capital punishment include China, North Korea, Iran, Saudi Arabia, Syria and, before the American invasion, Iraq. I am not aware of any nation of our tradition that did away with capital punishment that has a worse crime problem than we have.

Death-sentence cases seem interminable, with continuing appeals in state and federal courts. Yet there is a feeling that every defendant has the right to plead for his or her life as long as any court is available to review the case. Nothing would be lost if death penalty statutes were repealed.

(Kansas City Star, July 1, 2003).

Akron Beacon Journal Calls for Death Penalty Review in Ohio

A recent editorial in The Beacon Journal notes that Ohio Supreme Court Justice Paul Pfeifer, who played a leading role in writing Ohio's death penalty statute 22 years ago when he was chair of the Senate Judiciary Committee, is now calling for passage of legislation to analyze the state's death penalty system. The review, which also has the endorsement of the Ohio State Bar Association, would create a Capital Case Commission to study the state's death penalty and make reform recommendations to ensure accuracy and fairness. The editorial concludes:

"A Capital Case Commission would amount to a first step toward a thorough evaluation. Justice Pfeifer emphasized why the commission is "critically important." Ohio must have a system of the capital punishment that is "fair and just and equally applied to all" if it expects public confidence in criminal justice as a whole."

(The Beacon Journal, June 15, 2003) Read the editorial.

Missouri Justice Advocates Abolishing the Death Penalty

Former Missouri Supreme Court Justice Charles B. Blackmar recently called the death penalty "severely flawed," and expressed his support for abolition:

"The thought of executing an innocent person is repulsive. This is so even though the accused person may be a habitual criminal guilty of numerous crimes against persons and property. Yet few have the benefit of diligent services. . . . The process is so fatally flawed that the only solution lies in abolishing capital punishment.
Most nations with which we share a common heritage have already taken this step. The relatives of the victim have the right to demand swift and sure punishment, but they do not have the right to demand death when the process is so severely flawed.

(St. Petersburg Times, February 15, 2003, letter to the editor).

Judge Calls for End to New Jersey's Death Penalty

In a recent ruling denying death row inmate Ambrose Harris a new trial, New Jersey Superior Court Judge Bill Mathesius concluded that the death penalty is unworkable and should be abandoned. His opinion stated:

[I]t seems to this court that now is the manifestly appropriate time to abandon the comfortable sentiments and reflexive responses so firmly and emotionally grasped by the proponents and opponents of the death penalty in New Jersey.
If actual imposition of the death penalty requires such a Herculean effort as has been herein endured in terms of time, mental anguish and emotional expense, research, and writing (not to mention the hundreds and hundreds of thousands of dollars in accrued actual cost in this case alone), it strongly invites, nay, compels, the pragmatic conclusion that that penalty which imposes such an extravaganza, be finally legislatively or judicially annulled as opposed to being merely nibbled to death by state and federal ducks.
. . .
One might hope, instead, that this state and its citizens would, if no more than as a consummately practical deduction, simply resolve to set aside the comfortable pieties of the argument, eliminate the death element of the game and determine to maintain criminals of defendant's ilk in a secure place without possibility of parole.

(New Jersey v. Harris, Superior Ct. of N.J., Ind. No. 94-06-0605 (2002)).

Judge Mathesius also said, "That process, and Ambrose Harris in particular, are simply not worth the effort," New Jersey Assemblyman Reed Gusciora, who opposes capital punishment, later added, "It's cheaper to give someone life imprisonment without parole. We don't execute them anyway. I see no reason why we shouldn't abolish it." New Jersey has not carried out an execution since its death penalty was reinstated in 1982.

(The Trentonian, November 1, 2002)

Retiring Illinois Chief Justice Calls For End to State's Death Penalty

As he stepped down as chief justice of the Illinois Supreme Court, retiring Justice Moses Harrison said the state's death penalty is immoral and should be abolished. "Our system's the greatest in the world, but we know that it's not infallible," he said. "Despite the courts' efforts to fashion a death penalty scheme that is just, fair and reliable, the system is not working," he had written earlier. (Associated Press, September 5, 2002) In April 2002, the Illinois Commission on Capital Punishment finished its review of the state's death penalty laws and released a lengthy list of recommended reforms. The blue-ribbon commission was created in 2000 by Illinois Governor George Ryan, who set in place the nation's first state moratorium on executions. See also, Illinois Commission on Capital Punishment.

Arizona Supreme Court Justice Questions Reforming the Death Penalty

Arizona Supreme Court Justice Stanley Feldman recently stated that the fundamental issue of whether the death penalty should be retained in Arizona cannot be ignored. As the state Supreme Court's longest-serving justice, Feldman criticized efforts in Arizona to "perfect what I consider to be imperfectible" and noted: "There is no way to really do it right. The final decision has always come down to the members of our (Supreme Court) as to whether someone should live or someone should die...I am not smart enough to make that decision on any fair and consistent basis given the tremendous range of facts and circumstances that affect every victim and every defendant and every set of facts that make up a case." (Associated Press, July 15, 2002).

Maryland High Court Judge: Death Penalty "Not Worth the Aggravation"

Maryland Court of Appeals Judge Dale R. Cathrell, in his dissent to the Court's grant of a stay of execution to Stephen Oken, wrote:

"To be honest, if I were a member of the legislative branch of government, I would probably vote to abolish the death penalty. . . . I would so vote because of the way the death penalty system works, it simply is not worth the aggravation it costs throughout the body politic."

(Baltimore Sun, 2/10/02)

Former Judge Criticizes Death Penalty

Former Arizona Court of Appeals Judge Rudolph J. Gerber expressed his concerns about the about the death penalty in a recent article in the Arizona Law Review. Gerber, who spent over 25 years as a prosecutor and judge, wrote:

"For those who do not or cannot address the moral issues, there remain the disturbing facts . . . that our capital punishment falls disproportionately on minorities . . . and sweeps some innocent defendants. . . in its wide nets. . . ." (Arizona Republic, 10/11/01)

"The old priorities do not work"

In his dissent in a recent case regarding fairness of the death penalty in Illinois, state Supreme Court Chief Justice Moses Harrison II stated:

"If the capital punishment debacle of the last few years has taught us anything, however, it is that adherence to the formal process, as it existed under the old law, can produce results that seem rational but are, in fact, completely unreliable.
. . . Our tolerance for prosecutorial gamesmanship and professional incompetence has evaporated. From now on, the success of prosecutors will be gauged by how well they cooperate in the search for truth and justice, not by the number of convictions they secure. It cannot be any other way. The old priorities do not work. When convictions are prized above justice, innocent men are sentenced to die. It has happened too often in Illinois. It must stop."

(People v. Hickey, 2001 Ill. LEXIS 1080, Harrison, C.J., dissenting) Read the entire opinion and dissent (includes the new court rules)

Two Illinois Supreme Court Justices Challenge State Death Sentences

In a recent case before the Illinois Supreme Court, Chief Justice Moses Harrison II and Justice Thomas Kilbride stated that death penalty convictions handed down before new death penalty reforms went into effect should be thrown out. "[T]he procedures in capital cases prior to this court's adoption of the new rules was inherently unreliable and did not sufficiently protect a defendant's constitutional rights," said Kilbride. Harrison, who called the state's experience with capital punishment a "debacle," urged new trials, not just reduced sentences, for those sentenced to death before the system was revamped. The majority of the court rejected this view, but held that the court would review each death penalty case on its individual merits.

(Chicago Tribune, 9/28/01)

Texas Judge Questions Fairness of the Death Penalty

Senior State District Judge C.C. Cooke recently expressed his concerns about the fairness of the death penalty during a legal seminar. The Texas judge recalled how the 11 death penalty cases he presided over during his 23-years as a judge altered his feelings about capital punishment. Cooke helped craft the state's death penalty law when he served as a state representative. "I was looking at it as a young politician, with about 90 percent of my district supporting the death penalty. Now, from a judge's perspective and taking care of people's rights, I think it has a lot of flaws." Among the flaws cited by Cooke were inadequate legal representation, access to DNA testing and the racial disparity of those executed. "I think the mood is changing in this country and people are realizing there are deficiencies in the system," said Cooke. "We always think we've got the right person, but the system is not infallible."

(Fort Worth Star-Telegram, 7/24/01)

Former Florida Chief Justice Gerald Kogan recently spoke about innocence and the death penalty at the Amnesty International Southern Regional Conference in Orlando:

"[T]here is no question in my mind, and I can tell you this having seen the dynamics of our criminal justice system over the many years that I have been associated with it, prosecutor, defense attorney, trial judge and Supreme Court Justice, that convinces me that we certainly have, in the past, executed those people who either didn't fit the criteria for execution in the State of Florida or who, in fact, were, factually, not guilty of the crime for which they have been executed. . . . [Y]ou have to ask yourself, how many persons did we execute prior to the arrival of DNA evidence who would have been released, had we had that tool working for us 25, 30, 40, 50 years ago?" Read Justice Kogan's speech.

Former Alabama Judge Criticizes Politicization of Death Sentences

William Bowen Jr., the former presiding judge of the Alabama Court of Criminal Appeals, spoke out against the state's jury override provision which allows a judge to impose a death sentence even after the jury has recommended life in prison. Bowen said most judges would prefer not to have this power because it increases political pressure on judges to impose the death penalty. In Alabama, nearly a quarter of the death row inmates were sentenced to death by an elected judge exercising the jury override power. "Judicial politics has gotten so dirty in this state that your opponent in an election simply has to say that you're soft on crime because you haven't imposed the death penalty enough," said Bowen. "People run for re-election on that basis, because the popular opinion in the state is, Let's hang 'em." (New York Times, 6/16/01)

Kansas Chief Justice Notes High Cost of Death Penalty

As states look for ways to balance budgets in the face of overwhelming deficits, some state officials are concerned about the time and money consumed by maintaining the death penalty. During the Annual Report of the Chief Justice of the Kansas Supreme Court, Chief Justice Kay McFarland noted:

The Court also faces hearing three more death penalty appeals, which will severely strain our limited resources. So far only one such appeal has come through our Court since the reinstatement of the death penalty. This was State v. Kleypas, 272 Kan. 894, 40 P.3d 139 (2001). This case was orally argued on December 6, 2000. Prior to that, our limited research staff had spent months doing research on the issues presented taking time away from their regular work. Even with this advance preparation, a great deal more work was required. Thousands of pages of transcripts and other documents from the record were before us for review. The Kleypas opinion was filed on December 28, 2001 over a year after the case was argued before us. I have been on the Court since 1977, and no other case is even a close second to the amount of time spent on that one case. Now the Court is faced with three more death penalty appeals within the next few months.

We have no record of how much time was spent on the Kleypas case by the Court, research staff, and clerical staff. Some indications of the increased complexity of such cases are the following figures from the Board of Indigent Defense Services (BIDS). The average non-death penalty case costs BIDS between $10,000 and $12,000. The last two death penalty cases cost BIDS over $1 million each. (Emphasis added)

Texas Judge Makes Moratorium a Campaign Issue

Judge Bill Vance is running for presiding judge of Texas's highest criminal court, the Court of Criminal Appeals, supporting a moratorium on death penalty cases in which DNA testing could prove an inmate's innocence. Recent polls have shown that Texans support DNA testing and a moratorium for inmates who could use it to support claims of innocence. Vance's opponent is Court of Criminal Appeals Judge Sharon Keller. Judge Keller has been criticized for her majority opinion in which the court refused to grant Roy Wayne Criner, a man in prison for rape, a new trial, even after DNA tests concluded sperm found inside the victim came from someone else. Criner was eventually pardoned by Governor Bush after additional DNA tests confirmed his innocence.

(New York Times, 10/10/00)

Former Texas Judge Believes Innocent Person Has Been Executed

"There's no question, in my mind, that someone has slipped through the cracks and that an innocent person has been executed," said former Harris County (Texas) criminal court judge Jay Burnett in a recent interview with NBC Dateline. When asked about the quality of representation in Harris County, Burnett responded that because judges in Texas are elected and want to appear tough on crime, some will select attorneys who the judge knows will not put on an aggressive defense. "[W]hat we had, unfortunately, were some people who should not have been trying capital murder cases and were being appointed." The interview will air on NBC-TV at 8 p.m. EDT, Wednesday, August 30. (Dateline Press Release, 8/29/00)

Some of North Carolina's leading jurists and law enforcement administrators recently voiced their concerns about capital punishment in their state:

  • "The state should not execute another person without testing for DNA, if DNA testing is possible," said Tom Ross, Director of the state Administrative Office of the Courts and former state Superior Court judge. (Ross emphasized that he was speaking personally and not as a AOC director.)
  • Former N.C. Chief Justice, James Exum, said any death penalty law written by humankind "forever and always will be insufficient to decide who should live or who should die.... No matter how we try to dress it up -- doing it by lethal injection and very early in the morning -- it's still the ultimate, brutal act."
  • Guilford County District Attorney Jim Kimel stated that death penalty cases strain the justice system. They make up less than 1% of his caseload, but devour 1/3 of its resources. "They are all consuming," he said. "They demand not just due process, but super due process."
  • "I really question whether the death penalty is worth having in terms of time and money," said former Chief Justice Burley Mitchell, a long time death penalty supporter. "It has warped our court system. I think the time has come to decide whether it's worth the cost." (The News & Record, North Carolina, 8/8/00)

Judge Would Refuse to Sign a Death Warrant

A trial judge in King County, Washington, withdrew from a death penalty case, saying his personal beliefs would prevent him from signing a death warrant. Judge Steven Scott was asked by prosecutors to recuse himself from the capital case of Charles Champion after Scott told the attorneys that if Champion were convicted and sentenced to death he did not want to sign the death warrant. Scott, who said he has never accepted a death penalty case "because of [his] personal, individual, religious, moral and philosophical views," was assigned Champion's case without prior consultation. (Seattle Times, 3/28/00)

Florida Supreme Court Upholds Consitutionality of Electric Chair

Despite several botched executions, the Florida Supreme Court, in a 4-3 ruling, upheld the constitutionality of the state's electric chair. In his dissenting opinion, Justice Harry Lee Anstead wrote, "Our justice system is not simply an instrument of vengeance, despite the connotation to that effect contained in the extreme rhetoric that sometimes surrounds the constitutional debate over continuing use of the electric chair." (St. Petersburg Times, 9/26/99)

Ohio Carries Out First Execution Since Reinstatement

Ohio carried out its first execution since the reinstatement of the death penalty on February 19th. Wilford Berry, who refused all efforts to appeal his case, was executed despite significant questions about his mental competence. Justice Paul Pfeifer of the Ohio Supreme Court and one of the authors of the state's death penalty law, now questions capital punishment: "As we stand poised on history's doorstep, I find myself wondering if it's a step that we really want to take. Should the state be in the business of ending people's lives, no matter how reprehensible those people are?" He added that he wanted to distance himself from Ohio's law: "Knowing what I know now, my name wouldn't have been on it."

(Akron Beacon Journal web site, 2/18/99)

Illinois Supreme Court Justice Says Death Penalty is "Not Working"

Justice Harrison of the Illinois Supreme Court, concurring in part and dissenting in part in People v. Bull (Nov. 10, 1998): "Despite the courts' efforts to fashion a death penalty scheme that is just, fair, and reliable, the system is not working. Innocent people are being sentenced to death. . . . The prognosis for wrongly accused defendants facing capital charges is not improving. To the contrary, legislatures and the courts appear to have abandoned any genuine concern with insuring the fairness and reliability of the system. Achieving 'finality' in death cases, and doing so as expeditiously as posssible, have become the dominant goals in death penalty jurisprudence. . . . It is no answer to say that we are doing the best we can. If this is the best our state can do, we have no business sending people to their deaths." (emphasis added).

Nevada Chief Justice Opposes Juvenile Death Penalty

Nevada Supreme Court's Chief Justice, Charles Springer, dissented from a decision allowing the death penalty for a defendant who was 16 at the time of the crime. "Under Nevada's interpretation of the treaty (International Covenant on Civil and Political Rights), the United States will be joining hands with such countries as Iran, Iraq, Bangladesh, Nigeria and Pakistan in approving death sentences for children."

(Las Vegas Review Journal, 8/1/98). See Juveniles and the death penalty.

Florida Chief Justice Calls for "Rethinking" of Death Penalty

The Chief Justice of Florida's Supreme Court, Gerald Kogan, had some parting remarks to make about the death penalty in that state: "We have to ask ourselves if it is not time for us to rethink whether or not capital punishment is a viable remedy for the crime of first degree murder." Kogan participated in approximately 1,200 capital cases as a homicide prosecutor, defense attorney and judge. He noted that, despite the court's having done everything it could to speed up the death penalty process, capital cases account for only 3% of the Supreme Court's cases but take up close to 50% of the court's time. "The 97% of the other cases will affect far more people, in far more areas than these capital cases," he said. (Florida Bar News, July 15, 1998).

Arizona Judge Critiques Death Penalty

Judge Rudolph J. Gerber of the Arizona State Court of Appeals, recently wrote about the death penalty in the magazine Litigation (Spring 1998): "To support the death penalty as sound social policy strikes me as grossly misguided. Not only does the death penalty not deter murder, it fosters a culture of brutality, risks international condemnation, and transforms our country into a brutal pariah."

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Supreme Court Takes Two More Cases Regarding Texas' Faulty Jury Instructions

On October 13, the U.S. Supreme Court agreed to hear two capital cases from Texas in which the defendant was sentenced to death after the jury was given instructions that the Court has since found unconstitutional. Unlike in most states where the jury considers a range of aggravating and mitigating circumstances about the crime and the defendant before choosing a sentence of life or death, in Texas the jury was (the law has since been modified) given a series of yes-or-no questions about the crime and the future dangerousness of the defendant. In prior cases, the Supreme Court has said that such a mechanism does not allow full consideration of a person's mental disabilities, which should be counted as a mitigating factor. In the cases recently accepted, the trial judges instructed the jury that they could simply answer "no" to one of the factual questions if they did not want to sentence the person to death, even though the proper answer based on the facts should be "yes." In both of the new cases taken by the Court, the defendants were sentenced to death using this "nullification" instruction, and their appeals were denied by the U.S. Court of Appeals for the 5th Circuit.

Read More 5,425 reads
Supreme Court Agrees to Hear Texas Death Case a Second Time

The U.S. Supreme Court agreed to hear an appeal from Texas death row inmate LaRoyce Smith even though they had reviewed his case once before.  On October 6, 2006, the Court granted certiorari to decide whether the Texas Court of Criminal Appeals had applied the wrong standard after the Supreme Court had sent Smith's case back to them earlier.

The dispute does not involve Smith's 1991 conviction for the murder of a Taco Bell manager in Dallas.  Rather the Supreme Court held (7-2) in 2004 that Texas' jury instructions did not allow the jury sufficient latitude to consider Smith's low IQ and other mitigating evidence.  But instead of giving Smith a new sentencing hearing, the Court of Criminal Appeals ruled in March that the fault in the jury instructions was negligible because it did not cause "egregious harm" to Smith's right to a fair trial, and thus upheld Smith's death sentence.  Texas has changed the way the jury is instructed in capital cases, but the change was not in effect for Smith's sentencing.

Read More 3,788 reads
Supreme Court Denies Stay of Execution to Clarence Hill, 5-4

The U.S. Supreme Court denied a stay of execution to Clarence Hill who is scheduled to be executed at 6 pm on September 20 in Florida.  Four Justices would have granted the stay.  Hill had raised a civil rights challenge to Florida's lethal injection law after the Supreme Court unanimously ruled in June in his favor that such a challenge was proper.  However, the lower courts stated that his claim was filed too late and they denied him an evidentiary hearing on the merits of his lethal injection challenge. 

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Supreme Court Denies Remedies Under International Treaty

On June 28, 2006, the U.S. Supreme Court decided two consolidated cases involving the Vienna Convention on Consular Relations. In both cases, the foreign nationals were arrested but not informed by police officers of their consular rights under the Convention to ask that their respective consulates be notified of their detention. The Court concluded that statements made by foreign nationals do not need to be suppressed, even though the defendants were not informed of their consular rights.

The consolidated cases were: Sanchez-Llamas v. Oregon (No. 04-10566) and Bustillo v. Johnson. In the first case, Moises Sanchez-Llamas, a Mexican national, was arrested after an exchange of gunfire with police. The officers did not inform him of his rights under Article 36(1)(b) of the Vienna Convention, namely his right to ask that the Mexican Consulate be notified of his detention. He made incriminating statements about the shootout during interrogation, but the state court denied his motion to suppress those statements on the ground that the authorities failed to comply with Article 36. Sanchez-Llamas was convicted and sentenced to prison. The Oregon Supreme Court affirmed his conviction, concluding that Article 36 does not create rights to consular access or notification that a detained individual can enforce in a judicial proceeding.

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U.S. Supreme Court Upholds Kansas Death Penalty Law

In a 5-4 decision that revealed a deep division among the Justices over the fairness of capital punishment, the U.S. Supreme Court upheld Kansas's death penalty statute on June 26. In Kansas v. Marsh, the Court held that juries may be required to sentence a defendant to die when there is an equal weight of mitigating and aggravating evidence. The ruling overturns a Kansas Supreme Court decision that found the practice unconstitutional because it violated the Eighth Amendment's protection against cruel and unusual punishment.

Writing for the majority, Justice Clarence Thomas noted, "Our precedents establish that a state enjoys a range of discretion in imposing the death penalty." Justice David Souter wrote in his dissent for the minority that Kansas's law could lead to death sentences in doubtful cases, and he pointed to reviews finding that dozens of people sentenced to death were later exonerated. Citing pressure for prosecutors to win convictions, misidentifications, and false confessions that have contributed to the "hazards of capital prosecution," Souter called the Kansas law "obtuse by any moral or social measure." Because of the problem of innocence, he noted that, "We are thus in a period of new empirical argument about how 'death is different' ...."

Justice Antonin Scalia, concurring separately, discounted the dangers of convicting the innocent in capital cases and said that he had seen no clear evidence that an innocent person had been executed in recent years.

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