Nov. 30
TEXAS:
30 years after being 'freed', Texas man still waiting for his freedom; Legal
row saw death sentence for murder in 1977 both overturned and commuted to life
in jail
A convoluted legal row has erupted over a Texas prison inmate who has been
behind bars for more than 30 years after his case was overturned.
In 1977, Jerry Hartfield was convicted of murdering a bus station ticket agent
in Bay City, about 80 miles south-west of Houston. Eunice Job Lowe was beaten
to death with a pickaxe and left in a storeroom when her daughter, 19, found
her body. Mr Hartfield, 21 at the time, was sentenced to death.
3 years later, his conviction was overturned after appeal judges ruled a juror
being struck down in the original case because of reservations about the death
penalty was unconstitutional. But he was never released, as the case was passed
between courts, lawyers and the Texas Governor for years. This eventually led
to his sentence being commuted to life imprisonment, even though his conviction
had never been reinstated.
About a month after the 1980 ruling by the Texas Court of Criminal Appeals,
state prosecutors asked the court to allow a second hearing in the matter. They
wanted the appeal judges to either reduce the sentence to life, or allow them
enough time to ask the Governor to do so. 2 years on, in 1983, the court
finally decided that it wasn't going to hold another hearing. Instead, it said
the lower court should go ahead and hold a retrial.
But, as Hartfield turned 27, the state trial judge, the district attorney and
the sheriff sent a letter to the Texas Board of Pardons and Paroles
recommending that Governor Mark White commute his sentence. A retrial, they
argued, had become harder to conduct with the passage of the years. Moreover,
they said such a move would once again traumatise Eunice Lowe's daughter. The
sentence was eventually commuted. But for 20 years nobody cared to ask about
the impact of the opposing moves. On the one hand, Mr Hartfield's conviction
has been overturned. On the other, his sentence had been commuted by the
Governor. Meanwhile, Mr Hartfield was stuck in prison.
"It's one of those one-in-a-million deals," Mr Hartfield's defender, Kenneth
Hawk, told the Associated Press. "When you see it, it's kind of breathtaking."
Things finally began moving when Mr Hartfield petitioned local courts in 2006,
having put the writ together himself with help of a fellow inmate. It was
turned down twice by Texan judges before being approved by a federal judge, who
said the inmate's position was as "straightforward and subtle as a freight
train".
The US District Judge Lynn Hughes said the ruling overturning the conviction
and paving the way for a re-trial was never quashed. "The court's mandate was
never recalled, its decision never overturned, the conviction never
reinstated," the judge ruled, rejecting the official claim that Mr Hartfield
could have filed an appeal - but that he only had 1 year to do, beginning with
the retrial order in 1983. The judge thought otherwise, saying the clock only
begins when there is a conviction. Here, the conviction was overturned in 1980.
This week, a panel of federal judges finally came down on the side of Judge
Hughes. The official position justifying Mr Hartfield's incarceration was
"disturbingly unprofessional", they said. The Governor's decision to commute
the sentence didn't make any difference, because there was no sentience to
commute in 1983. The case has now been returned to the Texas Appeals Court,
which has been asked to clarify the status of its initial ruling. The answer
will determine if and when Mr Hartfield will finally get his day in court.
(source: The Independent)
****************************
Jerry Hartfield, Texas Inmate, Waits 30 Years For Retrial
A Kansas man who remains in a Texas prison more than 30 years after his murder
conviction was overturned has become the subject of a fight between the state,
which insists he's being legally held, and a federal appeals court that says
he's wrongly imprisoned.
Jerry Hartfield, whose conviction was overturned in 1983, maintains his
constitutional right to a speedy trial has been violated after the state failed
to retry him but also didn't set him free.
A federal appeals court has agreed with him, but he's unlikely to receive a new
trial soon after the same court, in a spat with the state attorney general's
office, sent his case back to the Texas Court of Criminal Appeals on Wednesday
with a request that it define the status of its ruling overturning Hartfield's
conviction. If the Texas appeals court accepts the federal appeals court's
request, it could set off a new series of legal proceedings that ties up the
attorney general's office and drags out the case.
Hartfield's federal public defender, Kenneth R. Hawk II, said his client has
been "stuck" in the Texas prison system for more than three decades because no
one seems to know what to do with his case.
"It's one of those one-in-a-million deals," Hawk said. "When you see it, it's
kind of breathtaking."
Hartfield, now 56, was 21 when he was convicted in the 1976 slaying of a
55-year-old ticket agent at a bus station in Bay City. Eunice Job Lowe was
beaten with a pickax and her body left in a bus station storeroom, where her
19-year-old daughter found it.
Hartfield was convicted and sentenced to die, but in 1980, a Texas appeals
court ordered a new trial, saying a potential juror had been wrongly excluded
from the original trial because of her reservations about imposing the death
penalty.
State attorneys twice requested a rehearing on that decision, with the appeals
court rejecting their second request on March 4, 1983.
11 days later, then Gov. Mark White commuted Hartfield's death sentence to life
in prison. At that point, both sides let the case lie for about 20 years.
Hartfield, described in court documents as illiterate and mentally impaired
with an IQ of 51, got the ball rolling again in 2006, when he filed a
handwritten writ of habeas corpus with the help of another inmate. The writ
essentially said he should be retried or set free. It was rejected twice by the
Texas Court of Criminal Appeals before Hartfield submitted it in the federal
court system.
A judge there agreed with him.
"Hartfield's position is as straightforward and subtle as a freight train,"
U.S. District Judge Lynn Hughes said.
The state had claimed that Hartfield was legally serving the life sentence
ordered by White. It said he had had 1 year under federal rules to file an
appeal on any aspect of his case, and that year started when the retrial was
ordered in 1983.
Hughes disagreed, saying the clock on an appeal doesn't start until there's a
conviction, and none exists in this case.
"The court's mandate was never recalled, its decision never overturned, the
conviction never reinstated; yet Hartfield never received the `entirely new
trial' ordered by the court," he wrote.
The state's appeal of Hughes' decision eventually ended up before a three-judge
panel of the 5th U.S. Circuit Court of Appeals, which described the state's
defense of Hartfield's incarceration as "disturbingly unprofessional" in its
Wednesday decision.
The panel had said in October that it couldn't make a formal decision on
Hartfield's complaint that his constitutional right to a speedy trial has been
violated because the issue hadn't been resolved yet by his state trial court in
Wharton County, about 60 miles southwest of Houston.
But the federal appeals judges left little doubt about their position, saying
the state appeals court reversal 30 years ago meant "there was no longer a
death sentence to commute, and thus the governor's order could not have had any
effect."
The state's request for a rehearing on that decision led to Wednesday's ruling.
Hartfield, who is originally from Wichita, Kan., has been moved to a Texas
prison hospital for an undisclosed illness and was not available for an
interview.
Hawk said he'd discussed the court activity with Hartfield but found it useless
to write him.
"Because he can't read it," he said.
(source: Associated Press)
DELAWARE:
Decision on death penalty case to come next year
The Delaware Supreme Court will decide if the conviction and death sentence
against Jermaine M. Wright should be reinstated or remain overturned sometime
after Jan. 23.
If the Delaware Supreme Court does not reinstate the conviction, Wright, who
had been the longest-serving inmate on Delaware???s death row, could be set
free.
In a letter sent to attorneys today, the justices asked both sides to submit
additional written briefs and indicated that the court would be making its
decision based on those submissions without additional oral arguments next
month.
Wright was sentenced to death for the 1991 slaying of disabled liquor store
clerk Phillip Seifert during a robbery. However, in January, Superior Court
Judge John A. Parkins Jr. tossed out the conviction and death sentence, citing
a variety of issues, including the failure of police to properly read Wright
his rights, the fact that Wright confessed while apparently high on heroin and
the fact that some evidence was improperly withheld from the defense.
Wright's conviction was based almost entirely on his 1991 confession to police.
The Delaware Supreme Court heard oral arguments in the case over the summer and
then sent the case back to Parkins for additional investigation on the evidence
that was allegedly withheld. Prosecutors claim the defense was aware of a
similar liquor store robbery the night Seifert was killed, a fact that could
have been used to argue Wright's innocence.
Police initially said that the 2 robberies were linked but later ruled out
Wright as a suspect in the other holdup.
Earlier this week, after holding several hearings, Parkins again ruled that the
defense was not properly informed about the evidence and sent the case back to
the justices in Dover.
******************
Death penalty case still stirring
The state's effort to reinstate the death penalty against a man whose
conviction was overturned 11 months ago is headed back to the Delaware Supreme
Court.
Superior Court Judge John A. Parkins Jr. ruled Wednesday in a 15-page opinion
that police and prosecutors did not provide critical information to attorneys
who represented Jermaine Wright 20 years ago, as they were required to do.
Wright was convicted and sentenced to death for the 1991 slaying of liquor
store clerk Phillip Seifert.
The ruling by Parkins essentially affirms his decision in January 2012 to
overturn Wright's conviction and death sentence.
Prosecutors appealed that decision, saying that Wright's attorneys were aware
of the evidence - relating to a similar robbery at a different liquor store on
the night of the homicide - and the Delaware Supreme Court sent the matter back
to Parkins for additional investigation.
However, after hearing from Wright's original trial attorney and others,
Parkins ruled that the defense was not informed of this evidence, which they
could have used during the trial to argue Wright's innocence.
It is not clear if the Delaware Supreme Court will now rule on the appeal or
ask for additional briefs or argument from attorneys.
(source for both: The News Journal)
ARIZONA:
Supreme Court asked to block Arizona execution
Lawyers for an Arizona death-row death inmate are asking the U.S. Supreme Court
to block his scheduled execution Wednesday.
Lawyers for Richard Dale Stokley argue that lower courts didn't adequately
consider possible grounds for leniency in sentencing.
The state wants to execution to go forward. A prosecutor says a response will
argue that courts did consider pre-sentencing evidence submitted on Stokley's
behalf.
Stokley was sentenced to death for the 1991 murders in rural Cochise County of
2 13-year-old girls - Mandy Meyers and Mary Snyder.
Another man pleaded guilty to 2nd-degree murder in the killings. He has been
released after serving 20 years in prison.
(source: Associated Press)
VIRGINIA:
Wolfe again seeks end to death-penalty retrial
A key witness who recanted his testimony in a death-penalty case was told by
prosecutors that he could face the same punishment himself if he does not go
back to his original story, according to defense lawyers.
The allegation about witness Owen Barber is contained in a motion that seeks to
dismiss the capital retrial of Justin Wolfe, whose original conviction and
death sentence were overturned after a decade on death row on accusations of
prosecutorial misconduct.
The motion contains details of a jailhouse discussion in September between
prosecutors and Barber, their one-time star witness who avoided the death
penalty by testifying against Wolfe in 2001. Initially, Barber, the triggerman
in the shooting of rival drug dealer Daniel Petrole, said he was acting on
behalf of Wolfe. Barber later recanted, leading a federal judge to overturn the
conviction.
In court papers, Wolfe's defense lawyers describe parts of the jailhouse
conversation. They say that Barber maintained that his original testimony
implicating Wolfe was false. Prosecutors then tell Barber that the case is back
at "square one" and that Barber himself could face death penalty charges if he
failed to uphold his original testimony, according to the motion.
"Perhaps most importantly, however, the Commonwealth discussed with Mr. Barber
the fact that the reversal of Mr. Wolfe's case has had personal repercussions
for them, and the fact that their reputations have been harmed," defense
lawyers write in the motion.
Defense lawyers said that under the circumstances, the conversation amounts to
improper coercion of a witness.
The defense obtained an audio recording of the jailhouse conversation as part
of the discovery in the case. In a separate motion, they say that parts of the
conversation are inaudible, and they are asking the judge for funds to have the
quality of the recording enhanced.
Prosecutor Paul Ebert, who recused himself from the case in favor of a special
prosecutor, declined to comment Friday on his conversation with Barber.
More broadly, the defense argues that the retrial amounts to a vindictive
prosecution because the new charges are harsher than those originally filed
against Wolfe, including an additional death-penalty count based on an
allegation of a "continuing criminal enterprise."
"It is constitutionally impermissible to add new charges against someone who's
been declared innocent by a federal court," said defense lawyer Edward
MacMahon.
A judge will likely hold a hearing on the motion in coming weeks.
Lawyers are also seeking to have the case tossed out in federal court, arguing
that state prosecutors failed to follow a federal judge's order to either retry
Wolfe in 120 days or grant his unconditional release.
(source: Associated Press)
FLORIDA:
Death row inmate receives another death penalty
A central Florida man already on death row for murdering 2 women has received
another death sentence for killing 2 gas station workers.
A Polk County judge sentenced 34-year-old Leon Davis Jr. on Friday. He was
convicted in October of 2 counts of 1st-degree murder and several other
charges.
Authorities say Davis fatally shot 33-year-old Pravinkumar Patel and
51-year-old Dashrath Patel during a Lake Alfred BP station robbery in December
2007.
Davis was previously sentenced to death for killing 2 women - 26-year-old
Yvonne Bustamante and 23-year-old Juanita Luciano - during the robbery of a
Lake Wales insurance company, about a week after the fatal gas station robbery.
Davis doused both women with gasoline and set them on fire.
(source: Associated Press)
********************
Florida Tries to Execute the 'Prince of God'
State officials say John Ferguson is faking his mental illness. The law says
the state can't execute an incompetent man. Something's gotta give.
Florida Governor Rick Scott wanted, finally, to get rid of John Ferguson, but
he wanted to appear fair in doing so. The convicted multiple murderer had been
on the Sunshine State's death row for decades -- for 34 years, for a generation
-- but questions lingered about his mental competency. As far back as 1971, in
fact, 6 years before Ferguson 1st killed, the state's own psychiatrists had
diagnosed him as suffering from "a major mental disorder" that rendered him
"psychotic and incompetent." 40 years later, he was hardly better.
So after Governor Scott set Ferguson's execution date for October 16th, and
defense attorneys duly alerted officials to their client's diminished mental
state, the governor appointed three psychiatrists to a "commission" to evaluate
Ferguson, to determine whether he was sane enough to be lawfully executed by
the state. The psychiatrists, who had never before seen or treated Ferguson,
were ordered to move quickly -- to examine the prisoner on October 1st and
issue their report on October 2nd. Here's how the defense describes what
happened next:
The Commission did even better: It managed to send a terse 1 and 1/2 page
report to the Governor by 4:00 p.m. the same day it evaluated Ferguson. Of
course, that sort of efficiency was accomplished thanks only to some short
cuts. For instance, even though Ferguson's mental-health records span thousands
of pages of paper, the Commission evaluated only a subset of them --
hand-picked by the State's lawyers. Notably absent from those records were any
of the pre-1978 diagnoses from State psychiatrists consistently documenting
Ferguson's paralyzing psychosis.
That said, the Commission still had to make their way through 2 file boxes of
medical records -- a task it knocked off with stunning efficiency, taking a
mere 90 minutes to complete. Needless to say, that feat came with its own cut
corners. As the Commission's Chair later conceded on cross-examination, he did
not review all of the records provided.
The Commission took the same fleet approach to examining Ferguson, meeting with
him for just under 90 minutes. During that interview, Ferguson demonstrated no
rational understanding of why the State was seeking to kill him or what would
happen to him. For instance, he told the Commission -- consistent with what he
has told psychiatrists for 40 years--that he is the Prince of God. He also told
them that he would "come back to life," that his body would not remain in his
grave, and that he was destined to be the "only one" at the right hand of God.
Ferguson also reported to the Commission a long history of other delusions and
hallucinations -- including current delusions and hallucinations. Among them,
Ferguson explained that he heard God whisper to him (through his set of "inner
ears") plans for fulfilling his destiny as the Prince of God; that he
communicated with his long-dead father, who has vowed to protect him from death
or harm; that he believes the State lacks the power to kill him; that he sees
"shadow people" who watch him; that he is convinced there are communist plots
that he will "drive away" after he assumes his seat at the right hand of God.
You likely already know what happened next. What happened next is what
frequently happens in these capital cases -- when state officials, acting in
frustration and anger, decide they have offered all of the due process and
equal protection protections they want to offer a condemned man. When the
search for the truth of a matter -- like whether a man who believes he is the
Prince of God is sane enough to be executed -- becomes a burden, the state no
longer wishes to bear honorably. The defense again picks up the story:
The Commission, however, saw nothing amiss. To be sure, it conceded in the
final paragraph of its report that Ferguson had indeed exhibited psychotic
symptoms. But the Commission dismissed them out of hand. In its view, Ferguson
"feign[ed] religious delusion thinking" and "feigned other psychotic symptoms."
The Commission, however, never administered a single test for feigning--even
though some of the Commissioners had brought testing equipment with them for
precisely that purpose.
Having written off all of Ferguson's psychoses as "feigned," the Commission
concluded that Ferguson "(1) has no genuine current mental illness; and (2)
understands the nature and effect of the death penalty and why it was imposed
on him." The Commission's members would later concede that they reached this
conclusion after a "short discussion" immediately following the interview, [a
discussion] which lasted approximately 5 to 10 minutes. As the Circuit Court
would later find, the Commission "did not complete a thorough and exhaustive
interview of Ferguson.".
The Florida Courts: Sane Enough to Be Executed
That's the same "circuit court," by the way, that quickly authorized Florida to
proceed with the Ferguson execution -- despite its concern over the
commission's work, and despite finding that Ferguson was a "paranoid
schizophrenic" who harbored "genuine" delusions. On appeal, the Florida Supreme
Court agreed, concluding that despite Ferguson's severe mental illness, he was
sane enough to be executed because he was aware of the punishment he was about
to receive and why he was about to receive it.
"Ferguson's only comments in the record regarding his burial -- comments made
directly to the Commission -- are that after his body is buried 'just like
Jesus, you'll come and look and you won't find me there.'"Ferguson had passed
the last test of his life, the state supreme court ruled, because he was "aware
that he has never before had a death warrant signed on his behalf" and "that he
would be the first person to receive Florida's current protocol of medications
for lethal injections." So a new execution date was set for October 23rd and
the days leading up to it were marked by a flurry of court filings and
responses, all surrounding the extent of Ferguson's competency, the applicable
legal standard for evaluating it, and the degree of deference due to Florida's
courts.
On the 20th, 3 days before Ferguson was to be executed, a federal trial judge
halted the proceedings. He had questions, he wrote, about whether Florida's
courts had properly applied the United States Supreme Court's new standard for
determining when a capital inmate is not competent enough to be executed.
Ferguson then asked the 11th U.S. Circuit Court of Appeals to stay his
execution, which it did just minutes before he was set to die. When Florida
appealed that ruling to Washington, the justices refused to intervene. John
Ferguson was going to get another day in court after all.
The Federal Courts: The "Meaning and Purpose" of Punishment
That day has come. On Thursday afternoon, a panel of three 11th Circuit judges
will convene to determine Ferguson's fate. The federal judges will preside over
a conference call -- an oral argument Florida argued wasn't even necessary.
"The decisional process will not be significantly aided by oral argument,"
Florida's lawyers wrote, and, "further, since this is a death case, upon which
execution of sentence was recently stayed at, literally, the eleventh hour, any
delay for the sake of oral argument would be particularly inappropriate."
For once, Florida may have a point. The appeals panel doesn't have a
complicated job ahead. The judges have to determine whether the Florida courts
followed both the letter and the spirit of the U.S. Supreme Court precedent set
out in a 2007 case styled Panetti v. Quarterman. In Panetti, the justices held
6-3 that a state had to give a condemned prisoner a meaningful competency
hearing which considered more than just the inmate's awareness of his crime and
the punishment he would receive for it. For the majority, Justice Anthony
Kennedy wrote:
Gross delusions stemming from a severe mental disorder may put an awareness of
a link between a crime and its punishment in a context so far removed from
reality that the punishment can serve no proper purpose. It is therefore error
to derive from Ford, and the substantive standard for incompetency its opinions
broadly identify, a strict test for competency that treats delusional beliefs
as irrelevant once the prisoner is aware the State has identified the link
between his crime and the punishment to be inflicted.
Florida's Argument
Florida's latest brief in this case is striking for the righteous anger it
exudes. The state argues that the Florida courts which reviewed Ferguson's case
applied the correct legal standard Justice Kennedy announced in the Panetti
case, a standard that doesn't necessarily extend to cases like this one anyway.
"The Florida Supreme Court's decision did not state that [Ferguson's] claimed
delusional belief or alleged mental illness was irrelevant to the inquiry," the
state's attorneys told the 11th Circuit:
Nor did the court not apply a bare 'factual awareness test' as argued by
[Ferguson]. The court appropriately considered the very limited Prince of God
belief expressed to the Commission [the only such belief specifically found
credible by the circuit court below], but, noted, that Ferguson nonetheless
expressed a clear and unambiguous knowledge of his impending execution and the
reason why this punishment had been imposed upon him.
Florida argues, in other words, that its state court judges satisfied the
Panetti test by merely considering Ferguson's delusions in the context of other
factors. Those factors include, the state argued, "the complete and utter lack
of observable symptoms of mental illness in a closely supervised setting of
death row for more than a decade." In other words, the Panetti case may require
state judges to consider as "relevant" a prisoner's delusions -- but it doesn't
require state judges to declare an inmate incompetent based solely upon those
delusions.
As for the work of Gov. Scott's "Commission," the psychiatrists who quickly
judged Ferguson competent for execution without reviewing all of his medical
records, Florida's lawyers tried to reassure the 11th Circuit that it was never
really a close call. From the state's brief: "Dr. Myers explained: 'It was
clear to me that there was no evidence of any significant mental illness. He
was -- his thoughts and thinking were clear.'" If Ferguson had ever suffered
from paranoid schizophrenia, the state's doctors testified, he wasn't suffering
now.
Ferguson's Argument
To Ferguson's lawyers, these arguments -- and the ruling by the state supreme
court which found their client competent enough to be executed -- are telling
instances of the elevation of form over substance. They are also telling
examples of state courts in capital cases willfully ignoring those Supreme
Court precedents with which they don't agree. From one of the Ferguson briefs
filed with the 11th Circuit:
[Florida] "contends that the Florida Supreme Court decision was 'in accordance
with Panetti because the Florida Supreme Court did not expressly state that
[Ferguson's] claimed delusional belief or alleged mental illness were
irrelevant to its inquiry.' True. The court never expressly declared Ferguson's
delusions irrelevant. It just completely ignored them in its analysis. And that
is what matters under Panetti.
Here the defense brief also is strikingly angry. For example, Ferguson's
lawyers dispute Florida's representation of their client's comments about
burial. The state told the 11th Circuit that Ferguson "rationally" discussed
the "burial of his remains." Not so, defense lawyers claim:
Ferguson's only comments in the record regarding his burial -- comments made
directly to the Commission -- are that after his body is buried "just like
Jesus, you'll come and look and you won't find me there" because he will "be on
the right hand of God," after which "he'd be returned to his rightful place in
the world" on "earth in a human form." And at no time when the death warrant
was read to Ferguson did he "express in any way... to anyone in the room at the
time... that he understood that he was going to die."
There is simply no way, the defense asserts, that Ferguson could be competent
to be executed under current Supreme Court precedent so long as he continues
to: 1) suffer from paranoid schizophrenia; 2) has "genuine" delusions that he
is the Prince of God, and; 3) is not malingering or feigning his illness. And
neither the doctors who briefly evaluated Ferguson nor the state courts which
rubber-stamped the conclusions of those doctors have been able to adequately
prove or explain otherwise.
A Glance Behind, and the Road Ahead
When it convenes Thursday, the 11th Circuit already will have a head start
toward its answer. The judges know this case. Last month, a few days before
Ferguson's execution date, in that flurry of motions, the panel was asked by
Florida at one point to keep the execution on track. The 11th Circuit agreed to
do so -- you could say it was against a stay for Ferguson before it was for a
stay for Ferguson -- using language that offers insight into where the court
may come out after Thursday's argument. From the 11th Circuit's October order:
The Governor of Florida appointed a commission of three psychiatrists to
determine whether Ferguson is competent to be executed, and the commission
unanimously found that he is. A state trial court then conducted a full and
fair evidentiary hearing and found Ferguson competent to be executed. The
Florida Supreme Court unanimously affirmed the finding of the trial court.
Ferguson has failed to identify clear and convincing evidence upon which the
district court could decide that the state court unreasonably determined that
Ferguson is competent to be executed.
(Here, folks, is an example of how law becomes separated from fact, how the
truth of a matter gets whitewashed. Gone from this version of events is the
shoddy work of those psychiatrists on the governor's commission, the ones who
didn't look at all the evidence or even sleep on their conclusions. Gone is the
state trial judge's concern about that commission's work. Gone also is that
judge's determination that Ferguson was suffering from "paranoid
schizophrenia," and from a "genuine" Prince of God delusion, and that he was
not malingering.)
Reasonably recognizing that the appellate panel may already have made up its
mind on Ferguson's competency, fearful that the federal judges are poised to
endorse and enable Florida's latest bid to rid itself of the man, defense
attorneys, in their final brief, gently urged the 11th Circuit to reconsider
its perceptions about the Ferguson case, reminding the judges that their
October ruling came upon them in a matter of hours, on an emergency basis, with
their client's execution time looming. Now, Ferguson's lawyers say, things are
different:
This Court has the benefit of both parties' best efforts now. The parties now
have briefed the merits of the habeas appeal, and Ferguson has explained at
length, as he had not been in a position to before, how the Florida Supreme
Court unreasonably applied [U.S. Supreme Court precedent] when it found
Ferguson competent to be executed.
This Court can and should review the parties' thorough briefing and take the
time it needs to conduct a searching review of Ferguson's claims. It is not
tethered to its earlier determination, nor to the Supreme Court's denial of
certiorari at a different stage of this case, and the state is wrong to suggest
otherwise.
What are the odds that the 11th Circuit is going to undertake that "searching
review?" You tell me. Florida officials are angry that Ferguson has not yet
been executed. Florida believes it has given the condemned man all the due
process to which he is entitled. Florida believes that a capital defendant may
be "genuinely" delusional but still understand the nature of capital
punishment. Justice Kennedy may end up being the only man left in America who
is both able and willing to tell the state why it's wrong.
(source: Andrew Cohen is a contributing editor at The Atlantic and legal
analyst for 60 Minutes. He is also chief analyst and legal editor for CBS Radio
News and has won a Murrow Award as one of the nation's leading legal analysts
and commentators.----The Atlantic)
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