[Deathpenalty] death penalty news----USA, OHIO, US MIL.

[Rick Halperin]

June 22


USA:

Executing the Mentally Ill and the Mentally Retarded: 3 Key Recent Cases
from Texas and Virginia Show How States Can Evade the Supreme Court's
Death Penalty Rulings


Since the Supreme Court lifted its ban on the death penalty in 1976, Texas
and Virginia have led the country in executions; Texas has executed 366
defendants; Virginia, 95. Both states' death penalty verdicts have been
subject to a high level of scrutiny in the past few years, by both state
and federal courts.

Over the past 2 months, three especially troubling cases played out in
these 2 states; 2 are from Virginia, and one from Texas. The defendants
whose lives hung in the balance were mentally ill or retarded and, in 1
case, both.

In spite of Supreme Court decisions that should have limited the men's
punishment to life in prison without the possibility of parole,
prosecutors in both states were dead-set on seeing the men die.

In this article, I will explain the current status of the law on executing
mentally ill and retarded persons, and argue that in states like Texas and
Virginia, the Supreme Court's mandate that these classes of persons be
spared the ultimate penalty has been reduced to mere wishful thinking.

The only good news here, as I will explain, is a conscientious decision by
Virginia Governor Timothy Kaine to reexamine one of these cases.

The Legal Standard for Not-Guilty-By-Reason-of-Insanity

The 1968 Supreme Court decision of Ford v. Wainwright was unequivocal: The
Eighth Amendment's prohibition against cruel and unusual punishment bars
the execution of a prisoner who is, by the applicable legal standard,
"insane."

Before considering the standard when execution is at issue, it's useful
first to consider the related, but distinct, standard to find a criminal
defendant not guilty by reason of "insanity" - of which readers may be
more likely to be aware.

For a jury to find a defendant not guilty by reason of insanity, it
generally must find that, by reason of mental defect or illness, the
defendant did not appreciate the wrongfulness of the criminal conduct, and
thus should not be held culpable under the law.

At the minimum, to meet this standard, a person must be diagnosed or
diagnosable with a mental disorder, personality disorder, or mental
retardation, pursuant to the criteria set out in the current edition of
the American Psychiatric Association's Diagnostic and Statistical Manual
of Mental Disorders (DSM), the standard psychiatric diagnostic handbook in
the United States.

Typically, at trial, a battle of experts is waged -- as prosecutor and
defense psychologists give their varying opinions of the defendant's
mental state at the time of the crime. Then jurors must decide who and
what to believe - and apply the legal standard.

As I wrote in a column explaining the 2002 verdict in the case of child
killer Andrea Yates, the legal standard, especially in states like Texas,
where Yates was prosecuted, and Virginia, often does not protect even very
sick people from being found culpable. That's often because the law does
not recognize that people suffering from delusions or psychosis can know
what they are doing, but not know that it is wrong. Yates, for instance
knew she was killing her children, but thought she was "saving" them by
doing so. She was suffering from depression with delusional episodes.

The Legal Standard for Not-Constitutional-to-Execute-Due-to-Insanity

As I mentioned above, the standard in the execution context - though
related - is different. As Justice Powell explained in his concurring
opinion in Ford, to be spared execution on grounds of insanity, defendants
must be "unaware of the punishment they are about to suffer and why they
are to suffer it." (Emphasis added.)

On this issue, too, a battle of experts is waged -- and the bottom line
remains that even a diagnosis of severe mental illness does not, by law,
render one incompetent to be executed. If a jury finds that a defendant's
single point of clarity in an otherwise hopelessly deranged mind is that
he knows the state wants to kill him to punish him for his crime, then
that is enough to send him to his death.

That brings us to the three recent Texas and Virginia cases.

The Case of Virginia's Daryl Atkins

The case of Daryl Atkins made it all the way to the Supreme Court - to
little effect.

In 2002, the Court held, in Atkins's case, that it was a violation of the
Eighth Amendment to execute persons suffering from mental retardation - as
defined by each state's law.

Most states have adopted laws that mirror the DSM criteria: To suffer from
mental retardation, a person must have an IQ below 70 and evidence of
maladaptive functioning in everyday life. In addition, because the DSM
defines mental retardation as a developmental disorder, it must have
arisen during childhood --either as a congenital "defect" or as the result
of trauma.

Though the Court accepted Atkins's Eighth Amendment argument, it did not
spare his life. Instead, it sent his case back to the Virginia trial court
for resentencing. This time, the sentencing jury would consider whether
Atkins suffered from mental retardation, and thus could not be executed.

Resentencing was a debacle. The judge ruled -- over the strenuous
objections of Atkins' defense counsel -- that the prosecutor could tell
the new jury that Atkins had previously been sentenced to die by another
jury, but that the Supreme Court had reversed the sentence.

On June 8, the Virginia Supreme Court correctly held that this ruling
could have biased the jury - and sent the case back down for yet a 3rd
sentencing proceeding.

Will this proceeding be fair? Don't count on it.

At the 2nd proceeding, the court rejected a defense-offered witness, a
pediatrician, who would have testified as to indicators that Atkins was
retarded before reaching the age of 18. The court may well do the same
once again.

Moreover, for the Atkins prosecution, the third time may be the charm -
for it's been shown that the more a defendant is subject to IQ tests, the
higher his score will be. Indeed, in the Atkins case itself, that
phenomenon has been well illustrated: With respect to the 2nd sentencing
proceeding, after the Supreme Court decision, the prosecution's expert
gave the test to Atkins 2 days after a defense expert had done so.

Unsurprisingly, Atkins's score was not only higher than his score on the
defense's test, but also higher than his score the first time the
prosecution tested him! Is Atkins gradually getting smarter? Of course
not. He's just getting better at an increasingly familiar test.

More generally, it is extremely - and unfairly - difficult for defendants
to meet the Supreme Court's standard to show retardation. Remember, they
must show that the condition was manifest in childhood. But demographics
guarantee this will be extremely difficult, if not impossible.

Death row inmates are typically poorly educated and impoverished. School
and medical records may be hard to find - or simply nonexistent. And while
wealthy children with mental retardation may receive special attention
from teachers and doctors, poor children may receive just the opposite:
They may be ignored.

The upshot is that when prosecutors, and their experts, argue that a death
row inmate's reduced cognitive capabilities developed not in early
childhood, but much later --- perhaps even in prison - the inmate may not
have proof to rebut that contention, even if false.

The Case of Texas' Scott Panetti

It turns out that inmates whose attorneys try to prove mental illness,
rather than mental retardation, fare no better. On May 9, a 3-member panel
of the U.S. Court of Appeals for the Fifth Circuit found that Scott
Panetti - though schizophrenic-- was sane enough to be executed by the
State of Texas. A petition for a rehearing by the full panel of judges on
the Court is pending.

As a child, Panetti almost drowned, and was nearly electrocuted by a power
line. Since then, he has been addicted to drugs and alcohol, and in and
out of mental institutions a staggering 14 times.

Nevertheless, Panetti was allowed to represent himself in his 1994 trial
for killing his wife's parents. According to a recent New York Times
article, Panetti wore cowboy costumes to court, delivered rambling
monologues, put himself on the witness stand and sought to subpoena the
Pope, Jesus, and John F. Kennedy. The jury convicted him nonetheless.

All those years in prison have only worsened Panetti's mental state. Yet,
at a competency hearing, a Texas judge found him "sane enough" to die -
claiming that Panetti met the Supreme Court's minimum standard, as set out
in Ford: He knew what punishment he was about to suffer, execution, and
why. Given Panettit's history, this finding seems absurd.

The Case of Virginia's Percy Walton

Perry L. Walton is both mentally ill and mentally retarded. Thus, he ought
to be exempt from execution based not only on the Supreme Court's decision
in Ford, but also on its later decision in Atkins. But the law was no help
to him, not in state or federal court.

In the course of several appeals, Walton's mental status has been the
subject of analysis by numerous mental health experts. None deny that he
is suffering from schizophrenia. And a neutral expert appointed by a
federal court said Walton was "totally crazy."

On the mental retardation issue, experts say his IQ is 66. Yet prosecution
experts say that Walton does not fit the DSM "early childhood genesis"
requirement for mental retardation, for, they claim, his low IQ is a
result of being incarcerated.

Fortunately - and rightly -- on June 8, Virginia Governor Timothy Kaine
stayed Walton's scheduled execution for 6 months to consider a clemency
grant. Kaine -- a devout Catholic and former missionary to Central America
-- took a strong stand against the death penalty which almost cost him the
campaign in 2005.

But Kaine promised to sign death warrants if justified under the law and
the facts. He has already rejected one clemency plea. We can hope that his
judgment in Walton's case will be different.

Do the Supreme Court Decisions Matter? Probably Not in Texas or Virginia.

Obviously, psychological diagnoses and psychological experts are not the
key to carrying out the mandate of the Supreme Court decisions that have
rightly held that it is cruel and unusual to execute the mentally retarded
and the mentally ill.

With standards that are too technical, and practical realities that hurt
defendants' ability to prove they meet the standards, even when they do,
the hope occasioned by these decisions has not been realized in the
courts.

The fact is that in America, the mentally ill and mentally retarded are
still executed - as the tenuous situations of these 3 defendants attest.

To paraphrase one of Percy Walton's attorneys -- as quoted in a June 9
Washington Post article -- the question here is this:

Do we, as a society, want to execute people in the throes of florid
schizophrenic delusions, or with the cognitive capacity of a child? The
answer should be a clear no. We ought to be better than that.

In the words of Justice Marshall who wrote the majority opinion in Ford v.
Wainwright, sparing the mentally ill from execution not only protects the
condemned from "pain without comfort of understanding," but protects "the
dignity of society itself from the barbarity of exacting mindless
vengeance."

Maybe someday, the tide will turn in Texas and Virginia and prosecutors
will find better things to do than to insist on death for the most
vulnerable, no matter how unseemly, no matter the cost.

Alternatively, perhaps the Supreme Court will someday realize the need to
match legal principles to reality, and make the Eighth Amendment's
protection not a theoretical principle, but a promise.

(source: FindLaw --Elaine Cassel practices law in Virginia and the
District of Columbia and teaches law and psychology. Her textbook,
Criminal Behavior (2nd ed., in press, Erlbaum), explores crime and
violence from a developmental perspective. Her book, The War on Civil
Liberties: How Bush and Ashcroft Dismantled the Bill of Rights, was
published by Lawrence Hill in 2004. Her website, Civil Liberties Watch, is
published under the auspices of Minneapolis, Minnesota's City Pages)

*****************

Time to end death penalty----U.S. Supreme Court hears case


When even the U.S. Supreme Court expresses misgivings about the death
penalty, it's time for all of us to take notice.

Recently, the court agreed to hear a case to consider one of the current
methods of execution - lethal injection. The case on appeal came from
Florida, which uses a combination of 3 drugs - one that anesthetizes, a
second that paralyzes and a third that stops the heart.

The claim, as in most cases appealing lethal injections, is that the
person being executed does feel pain, despite the anesthesia. If so, that
could be considered "cruel and unusual punishment," which is forbidden by
the U.S. Constitution.

Although this case came from Florida, the whole issue comes much closer to
home, since some California death sentences have been appealed on similar
grounds. In one case, the convict was due to be executed in February, but
the execution was postponed when the Supreme Court intervened in the
Florida case.

This doubt about the constitutionality of lethal injection is only the
latest in a long, historic string of doubts about the cruelty of
executions going back for centuries. Once, the guilty were burned at the
stake or beheaded by guillotine. Then, they were hanged or shot to death.
When the brutality of those methods became too obvious, we turned to the
electric chair and then the gas chamber.

Now, we have lethal injections - with the highest court expressing
misgivings about that method. The inescapable truth is, there is no method
for killing a human being that is humane.

Granted, some of the convicts on death row have committed the most savage
kinds of murders. Why should we concern ourselves with searching for a
humane way to execute them? So that we, as a society, don't sink to the
same level of brutality with them - by murdering the murderers.

There's really no need to keep searching for a constitutional form of
execution. Not when the available alternative is a sentence of life in
prison with no possibility of parole.

That protects the public from the convict as surely as execution does.
That also would allay the endless appeals in death penalty cases, which
have left us in this contradictory situation of having capital punishment,
in name at least, without having executions.

In the past 3 decades, more than 1,000 convicts have been executed in the
U.S. - while 123 death row inmates have been exonerated before they could
be executed. These aren't convicts whose sentences were commuted to life,
but convicts sentenced to die, who were later found not guilty of the
crimes for which they were convicted.

Since we don't need executions to protect us from these convicts, and
since we can't seem to find a constitutional method of execution, it's
time to reaffirm this newspaper's historic opposition to the death
penalty.

(source: Editorial, Ventura County Star)






OHIO:

Debate grows on humaneness of lethal injection ---- Supreme Court ruling
intensifies discussion


Hanging, firing squads, the gas chamber and the electric chair - all were
abandoned over the years to make executions more humane, as well as less
ghastly for witnesses.

Now lethal injection, which has been used nationally since 1982 and in
Ohio since 1999, is under fire from critics who say it is violates the
Constitutional ban on cruel and unusual punishment.

"I'm quite certain that some inmates have been tortured to death. Some of
them have suffered horribly," said Dr. Jonathan Groner, trauma medical
director at Children's Hospital and a longtime critic of execution
procedures.

The 3-drug process used to execute 21 men in Ohio has been criticized for
years, mostly by defense attorneys and antideath-penalty groups such as
Amnesty International.

But a U.S. Supreme Court decision last week fired up the debate about what
is the most painless and efficient way of putting murderers to death. The
ruling, while not supportive of critics' claims about lethal injection,
said the arguments should be aired in court.

The question is, if not lethal injection, then what?

North Carolina responded by hooking condemned inmates to a monitor to
measure their brain waves as they died.

Others advocate a large, single dose of the barbiturate pentobarbital, the
drug used in Oregon, the only state to legalize physician-assisted
suicide.

Still others recommend having trained medical personnel on duty at
executions. But Groner points out that physicians are forbidden by the
Hippocratic Oath - essentially, "Do no harm" - from participating in
executions.

Dr. Stanley Deutsch, an anesthesiologist from the University of Oklahoma,
developed the current mixture of 3 drugs used in lethal injections in
1977. Texas used it for the 1st time in 1982. Ohio and other states
adopted essentially the same protocol and have stuck with it.

State Prisons Director Terry Collins said he asked his attorneys to review
the court ruling to see how it affects Ohio. Also, he's still looking at
problems that plagued the execution on May 2 of Joseph Clark. It was
delayed more than an hour after a vein collapsed, prompting Clark to ask
his executioners whether they could give him something by mouth to kill
him.

Collins, who has been present at all executions since 1999, said, "I have
seen no one suffer during those 21 occasions."

But critics say that's the point, that the combination of drugs constructs
a "chemical curtain" that renders condemned inmates unable to move or
speak yet allows them to suffer as their respiration and hearts are
chemically stopped.

Of course, no one knows for sure, but there is some support for the
argument from patients who report being awake but paralyzed during painful
surgical procedures.

Veterinarians in many states have abandoned using the same drugs to
euthanize pets, considering them unreliable and potential causes of
suffering.

Dianne Clements, president of Justice for All, a victim-advocacy
organization in Houston, said the science is sound.

"The drugs that are used in lethal injection guarantee that the individual
is unconscious. They use 10 times the amount they use during a normal
surgery. It's impossible for them to feel pain."

Clements said victims' families often have an emotional response,
expressing frustration that the visibly calm procedure is too easy a
death.

"It's much easier to die by being put to sleep than by being brutalized
and tortured, raped, buried alive or burned alive," Clements said.

"But we don't set policy by emotional family views."

Greg Meyers, chief counsel for the Ohio public defender, said the Supreme
Court ruling means there will be "a full, fair public fight about whether
lethal injection constitutes torturing inmates to death."

"The U.S. Supreme Court pulled the curtain back and said to Ohio and all
the other lethalinjection states, 'You can't draw it closed and keep it
secret anymore.' "

Meyers said 2 pending Ohio cases, those of Richard Cooey and Jeffrey Hill,
contest the use of lethal injection. More might be added.

In the cases of John Glenn Roe, of Columbus, and Adremy Dennis and Lewis
Williams, attorneys argued against lethal injection but were rebuffed by
the courts. All 3 have been executed.

(source: The Columbus Dispatch)






US MILITARY:

Military law expert doubts death penalty, if Hamdania case comes to that


The charges include murder, and a Camp Pendleton spokesman says there's
enough evidence for them to be premeditated murder.

That could eventually lead to the death penalty for the eight
servicemembers charged in an Iraqi civilian's death in April.

But one military law expert says any legal result is well off in the
future. National Institute of Military Justice President Eugene Fidell
says the U-S hasn't executed a military member in more than 40 years, even
though several are on the military's version of death row.

Fidell is also warning against prejudging the case based on allegations of
what happened. A senior Pentagon official has said the servicemembers
pulled an unarmed man out of his home, shot him to death and then planted
evidence near him to make it seem as if he was planning a bombing.

(source: Associated Press)

**********************

Marine from Mukilteo could face death penalty


A 21-year-old Marine from Washington state is among 8 servicemen who have
been charged with premeditated murder in the shooting death of an Iraqi
man who was pulled from his home and shot while U.S. troops hunted
insurgents.

If convicted, Marine Lance Cpl. Robert B. Pennington of Mukilteo could
face the death penalty.

Pennington was among the seven Marines and a Navy corpsman who were
charged with premeditated murder on Wednesday. All 8 also were charged
with kidnapping.

Terry Pennington, 56, of Mukilteo denied the charges against his son.

"They've been accused of something that did not happen," Terry Pennington
told The Herald of Everett on Wednesday night.

The father criticized the U.S. government's filing of charges as an
"overreaction" and said, "The fact my son is involved in this has
devastated us, but we're willing to fight."

Robert Pennington, a 2002 graduate of Kamiak High School, was in his 3rd
deployment in Iraq. He was in the initial assault on Baghdad and also
fought in Fallujah, Terry Pennington said.

Late last month, Pennington learned from military officers that his son
was being held in the brig at Camp Pendleton. Calif. He didn't learn of
the accusations against his son until he heard about it on the news, he
said.

Pennington said he talked to his son on the phone every day. The family is
hurting, but Robert Pennington remains upbeat because he believes he'll be
cleared of the charges, his father said.

More troubling to his son Wednesday was learning that his best friend in
Iraq was nearly killed in an explosion this week, Terry Pennington said.

Pennington described his son as fun-loving and disciplined.

"Everyone who knows him is totally shocked by this," he said. "They know
it's not in his nature."

"He says the truth will come out and we'll see at that time how wrong the
charges and the allegations are," Terry Pennington said.

(source: Associated Press)