U.S. Supreme Court to Address Discriminatory Jury Selection in Death Penalty Case

On Tuesday, Dec. 4, the U.S. Supreme Court will hear arguments in Snyder v. Louisiana, a case involving a black defendant sentenced to death by an all-white jury after the prosecution used its peremptory strikes to exclude all of the qualified black jurors.  During Allen Snyder’s 1996 trial for the murder of a man his estranged wife was dating, prosecutor James Williams of Jefferson Parish urged the all-white jury to sentence the defendant to death so that Snyder would not "get away with it" like O.J. Simpson. Simpson was acquitted of a highly publicized double homicide less than a year before. The defense challenged the selection of the jury as a violation of equal protection, but Snyder's conviction was upheld by the Louisiana Supreme Court.

In 2005, the U.S. Supreme Court reversed the conviction of Texas death row inmate Thomas Miller-El because of the prosecution's racially discriminatory jury strikes. The Court not only looked at the credibility of the reasons the prosecutor gave for eliminating individual black jurors, but also drew inferences from the cumulative effect of the prosecutor's actions throughout the process.  When Snyder's case first came before the Supreme Court, it was remanded back to Louisiana in light of the Miller-El ruling.

Before the trial, the prosecutor had made public references comparing Snyder's case to O.J. Simpson's, but he promised the trial judge that he would not make such references before the jury. This same prosecutor reportedly displayed on his desk a toy electric chair with pictures of the faces of the five black men he had sent to death row pasted to it. Two of the people Williams sent to death row were exonerated after it was discovered that prosecutors had failed to disclose exculpatory evidence.  Jefferson Parish was known for having supported white supremacist David Duke in various elections.
(Posted November 30, 2007). Read the Petitioner's and State's briefs here. Amicus briefs have also been filed in support of Snyder by the Constitution Project and Religious Ministers of Jefferson Parish. 

See also U.S. Supreme Court and Race.

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Supreme Court Review of Lethal Injections Attracts Advocates from Many Disciplines

In addition to the main brief submitted by the Petitioner in Baze v. Rees, several amicus curiae briefs have been filed in support of the inmates from Kentucky who are challenging the constitutionality of lethal injections as practiced in their state before the U.S. Supreme Court. The case is likely to be heard in January 2008 and decided by June. It appears that executions around the country have been put on hold pending the Court's decision.

The amicus (“friend of the court”) briefs submitted include:

  • The Death Penalty Clinic at the U.C. Berkeley School of Law. This "litigants" brief details how lethal injection executions are performed by "untrained, unqualified prison employees using inadequate equipment and following incomprehensible protocols." The Clinic surveyed thousands of pages of documents from more than a dozen states, concluding that states have "turned a blind eye" to the forseeable problems inherent in the three-drug lethal injection formula.
  • The Lewis Stein Center for Law & Ethics at the Fordham University School of Law. This brief describes the history of the three-drug lethal injection protocol used in virtually every death penalty state, and the movement toward methods of execution that were consistent with “evolving standards of decency.” The brief presents evidence that the present method of lethal injection was not the result of an informed deliberative process.
  • The American Civil Liberties Union and the Rutherford Institute. Arguing that lethal injections violate the Eighth Amendment, this brief shows how “lethal injection procedures and executions have been, and continue to be, shrouded in secrecy.”
  • Physicians and nurses, with a range of expertise in fields such as medical ethics, critical care, end-of-life care, pharmacology and anesthesiology. The brief informs the Court that "the medical and medical ethics communities have rejected the introduction of neuromuscular blocking agents" used in lethal injection executions because of the "significant risks" that they pose.
  • Veterinarians, with extensive experienced in veterinary anesthesia. According to this brief, “Kentucky’s lethal injection protocol would not meet the minimum standards for the humane euthanization of animals.” The brief further explores other risks associated with the chemicals used in Kentucky’s current protocol.
  • Human Rights Watch. The brief argues that the Court’s “Eighth Amendment jurisprudence has looked to international standards and practices in giving meaning to the prohibition against cruel and unusual punishment,” and that it should do so in deciding Baze.

The briefs filed by various amici, as well as the Petitioner's brief, are available here. (Source: Death Penalty Clinic, U.C. Berkeley School of Law, Nov. 13, 2007).  See also DPIC's Supreme Court and Lethal Injection pages.

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U.S. Supreme Court to Hear Ineffective Counsel Case

The U.S. Supreme Court has agreed to hear a case in which it will decide how appellate courts are to evaluate claims of ineffective assistance of counsel in plea negotiations. The case, Arave v. Hoffman (07-110), is the latest effort by the Justices to decide whether mistakes made by a defense lawyer warrant overturning a criminal's conviction or sentence. The appeal stems from a Idaho 1987 murder committed by Max Hoffman and two other men. Five weeks before his trial, prosecutors offered Hoffman a plea deal stating they would not seek the death penalty in exchange for his pleading guilty to first-degree murder. His court-appointed lawyer advised him that Idaho's death penalty law was likely to be struck down as unconstitutional because it was nearly identical to an Arizona law that had recently been overturned by the state's high court. Hoffman, who doubted that he was guilty of first-degree murder given his role in the crime, followed his attorney's advice and rejected the state's plea deal. In 1989, he was convicted of first-degree murder and sentenced to death -- a sentence that was reaffirmed when the Idaho Supreme Court upheld the state's death penalty statute.

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Texas Prosecutors Ask for Delay in Executions Until Supreme Court Issues Lethal Injection Ruling

As the U.S. Supreme Court prepares to consider the constitutionality of Kentucky's lethal injection procedures, prosecutors in three Texas counties have decided to await the Justices' ruling rather than ask judges to set execution dates and press forward through the courts. "It seems the common-sense thing to do at this point," said Roe Wilson, who handles death penalty appeals for the Harris County District Attorney's Office in Houston. Harris County sends more inmates to death row than any other county in Texas. Wilson said she plans to ask a judge to withdraw a February 26 execution date for Derrick Sonnier rather than face a court-imposed halt to his execution. Bell County District Attorney Henry Garza has also asked a judge to cancel a scheduled January 24 execution date for the same reason. He noted, "It just seemed to me that the writing was very apparent. Now we'll let them rule and we can come back in and act accordingly." In addition, Nueces County prosecutor Carlos Valdez has said he will not seek any more execution dates until the matter is resolved.

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Attorneys' Organization Files Judicial Conduct Complaint Against Texas Appeals Judge

The National Association of Criminal Defense Lawyers (NACDL) has filed a judicial complaint against the Presiding Judge of the Texas Court of Criminal Appeals, Sharon Keller (pictured), the first time the group says it has ever filed a complaint against a judge. NACDL has asked the Texas Commission on Judicial Conduct to review Judge Keller's decision to turn away the last appeal of a death row inmate because the rushed filing was submitted past the court's 5 p.m. closing time. Attorneys for Michael Richard, who was executed on the same day the U.S. Supreme Court announced it would review the constitutionality of lethal injection practices, said they were experiencing computer problems as they prepared their client's lethal injection-based appeal just hours before Richard's execution. The appeal was being filed right after attorneys had learend that the Supreme Court would take up the issue. They asked Judge Keller for 20 more minutes to deliver their appeal to Austin because the court does not accept computer filings. They were told, "We close at 5." Without a ruling from the state court, the lawyers could not properly appeal to the U.S. Supreme Court to block the execution. At least 150 attorneys have filed similar complaints against Judge Keller with the State Commission on Judicial Conduct, which can impose sanctions ranging from additional education to suspension or a trial.

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Lethal Injection Controversy Rises to National Importance with Stays of Execution

With the stays of execution in Virginia on October 17 and in Georgia on October 18, it appears likely that no more lethal injections will take place in this country until the U.S. Supreme Court renders a decision in Baze v. Rees, a case challenging the lethal injection process in Kentucky. Christopher Emmett in Virginia was granted a stay by the U.S. Supreme Court just hours before his execution. Jack Alderman's lethal injection was stayed by the Georgia Supreme Court a day before it was to occur. Stays have also been granted in numerous other states by other federal courts, by state courts, and by governors. The Death Penalty Information Center's Web site contains a number of resources related to lethal injection:

  • Lethal Injection Web Page: This Web page contains a general overview of the constitutional questions the U.S. Supreme Court will consider when it hears Baze v. Rees next year, as well as details about the status of lethal injection challenges and stays of executions across the country. In addition, the page contains information about the drugs used to carry out lethal injections and a list of the 37 states that use this method. Lastly, the page includes links to statements from medical organizations and additional resources related to this topic.
  • Stays of Executions: This chart details stays of execution related to lethal injection challenges since 2006.
  • States Where Executions are on Hold: DPIC's "Death Penalty in Flux" Web page contains a chart that details all states where executions are on hold, including states with formal moratoriums and states where executions have been halted due to concerns about the method of execution.
  • Methods of Execution: This page contains the methods used in each of the 38 death penalty states, including states that offer inmates a choice of method, and the number of executions by each method.
  • Botched Executions: Contains examples of executions where serious problems have arisen in carrying out executions.
  • Upcoming Executions: This page allows users to track scheduled executions and follow developments such as stays and commutations.
  • Supreme Court: Contains a more complete description of the issues facing the Court in the lethal injection case from Kentucky, Baze v. Rees.

(For stay in Virginia, see Wash. Post, Oct. 18, 2007; other information from DPIC sources).

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Presidential Powers at Issue in Supreme Court Arguments in Texas Death Penalty Case

On October 10, the U.S. Supreme Court will hear arguments in Medellin v. Texas, a case that will determine whether President Bush overstepped his authority by ordering state courts to comply with a 2004 International Court of Justice (ICJ) ruling. The case involves Texas death row inmate Jose Medellin, one of 51 Mexican foreign nationals who were denied their right to contact Mexican consular officials after their arrest. The ICJ's 2004 ruling called on U.S. courts to review the cases in light of this treaty violation, but Texas refused to review Medellin's case and he petitioned the U.S. Supreme Court for relief. The Supreme Court agreed to hear his case at that time, but before it could be decided, President Bush ordered the respective state courts to provide the review required by the ICJ. The Supreme Court then dismissed Medellin's case to allow time for this review. Texas courts again refused to grant such a review, claiming that President Bush did not have the power to give such an order. Medellin again appealed to the Supreme Court, which granted certiorari and will now consider the extent of President Bush's power to order compliance with the ICJ's ruling. Texas has argued that the Constitution does not give the president direct authority over courts, state or federal, even to have them conduct a hearing. The Bush Administration contends that state courts cannot be allowed to veto treaty obligations and that the president has inherent authority stemming from his unique foreign policy role.

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Texas, Alabama Executions Stayed As Lethal Injection Controversy Spreads

Two executions scheduled to take place on Thursday, September 27, in Alabama and Texas were stayed just two days after the U.S. Supreme Court announced it will consider the constitutionality of Kentucky's lethal injection protocol. In Alabama, Governor Bob Riley granted Thomas Arthur a 45-day stay of execution to allow time for the state to change its current lethal injection protocol. The change is designed to address concerns that inmates are not fully unconscious when given drugs to stop the heart and lungs, a problem that could result in excruciating pain. In Texas, the U.S. Supreme Court halted the scheduled execution of Carlton Turner as he was facing an imminent lethal injection. Though the Supreme Court did not give a reason for issuing a stay in Turner's case, his attorneys have linked their appeal to the Kentucky lethal injection case the Justices will hear next year. In their appeal to the Supreme Court, Turner's lawyers said that if the first of the three drugs failed to render Turner unconscious "the inmate will experience excruciating pain and torture as the second and third drugs are administered."

Earlier in the week, just hours after the Supreme Court announced it would hear the Kentucky lethal injection challenge, Michael Richard was executed in Texas. Lawyers attributed Richard's execution to the short period of time they had to prepare appeals. After the Supreme Court's decision to stay Turner's execution, Morris Moon, a Houston attorney with the non-profit Texas Defender Service, observed, "We're relieved. We're pleased it won't be business as usual in Texas."

The federal government and all but one of the 38 states with the death penalty use lethal injection for executions. Executions in many states had already been halted as courts and other officials consider their lethal injection protocols.
(Los Angeles Times, September 28, 2007; Associated Press, September 28, 2007; Reuters, September 28, 2007). See also Lethal Injection, Upcoming Executions, and U.S. Supreme Court.

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BREAKING NEWS: U.S. Supreme Court to Consider Constitutionality of Lethal Injection Procedures

In a case with broad national implications, the U.S. Supreme Court has agreed to consider the constitutionality of lethal injections as practiced in Kentucky. The Justices will hear a challenge filed by two Kentucky death row inmates, Ralph Baze and Thomas Clyde Bowling, Jr. The two men sued Kentucky in 2004 claiming that the state's lethal injection process amounts to cruel and unusual punishment, noting that the procedure can inflict unnecessary pain and suffering on the inmate. Prior to today's decision, the U.S. Supreme Court has never ruled whether the mix of drugs used in lethal injections violates the Eighth Amendment's ban on cruel and unusual punishment. In a previous ruling, the Court had made it easier for death row inmates to contest the lethal injection process used across the nation. The case is No. 07-5439, Baze et al. v. Rees et al. The Court has ordered that final briefs be filed by Dec. 28, 2007.

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Supreme Court Asked to Review Unusual Death Sentence

Attorneys for Patrick Kennedy, the only person on death row in the U.S. for a non-homicide offense, have asked the U.S. Supreme Court to review whether a death sentence for a crime where the victim was not murdered is constitutional. Kennedy was convicted of raping his 8-year-old step-daughter in Louisiana in 1998. Only a handful of states have laws that would allow a death sentence for such a crime. No one has been executed for a non-homicide offense since the death penalty was reinstated in 1976, and Kennedy is the only person under a death sentence for such an offense.

Kennedy has maintained his innocence of the underlying crime since his arrest, and defense attorney Jelpi P. Picou, Jr., notes that there was "no physical evidence" linking Kennedy to the crime.

There has not been an execution for rape in the United States since 1964. The U.S. Supreme Court last looked at the constitutional question in 1977, when it held that the death penalty for the rape of an adult was unconstitutional, calling the death penalty "grossly disproportionate" and "excessive" in that instance. In 1997, the Supreme Court refused to hear a challenge to Louisiana's child-rape law because the defendant had not been sentenced to death. At that time, Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer indicated that they had reservations about the law and that the Court's refusal to consider the appeal "does not in any way constitute a ruling on the merits."
(ABC News, September 11, 2007). Read Kennedy's Petition for certiorari. See also, Arbitrariness, Crimes Punishable by Death, and Supreme Court.

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