USA:
Supreme Court to revisit death penalty for mentally disabled
How should states decide if someone convicted of a crime has an intellectual
disability, when the answer means life or death? This spring the Supreme Court
will wade back into these murky waters, 12 years after it took the death
penalty off the table for criminals with mental disabilities but left the
details to the states.
In its 6-3 decision in Atkins v. Virginia, authored by Justice John Paul
Stevens, the court prohibited states from executing anyone with "mental
retardation." Mental health professionals define it as substantial limitations
in intellectual functions such as reasoning or problem-solving, limitations in
adaptive behavior or "street smarts," and evidence of the condition before age
18. (Mental retardation is the term used in law, but most clinicians and The
Associated Press refer to the condition as intellectual disability.)
After the decision, most states stuck with the three-pronged clinical
definition, but Florida, Georgia, Mississippi and Texas set their own
standards. Under Florida's law, if you have an IQ over 70, you're eligible for
execution regardless of intellectual function or adaptive behavior.
Freddie Lee Hall, who has been on Florida's death row for more than 30 years
and scored in the mid-70s on IQ tests, is arguing the state's standard amounts
to unconstitutional punishment.
Most likely, the case won't result in a dramatic shift in national criminal
justice policy, but will further clarify who should and should not be eligible
for execution, said Ronald Tabak, an attorney who has represented multiple
clients with intellectual disabilities and chairs the American Bar
Association's death penalty committee.
"There is no reason to think that the court is taking this case because the
court loves that Florida is going against the norms of the mental health
field," Tabak said. "The more likely reason they granted (judicial review) is
... to say there are certain basic things about intellectual disability that
you can't exclude from consideration."
That's not the way Florida Attorney General Pam Bondi sees it. The Atkins
decision, she wrote in her brief to the Supreme Court, "expressly left the task
of defining retardation to the states," and Florida is free to adopt its own
standard for determining who is intellectually disabled.
"Freddie Lee Hall faces a death sentence for the 1978 murder of Karol Hurst,
and Florida courts have found that he is not intellectually disabled," said
Bondi. "We will urge the U.S. Supreme Court to uphold Hall's sentence."
The court's makeup has shifted since the 2002 Atkins decision. But if the
justices split along ideological lines, the vote could favor Hall, assuming
that swing vote Justice Anthony Kennedy sides with Hall, as he did with Atkins
in 2002. Arguments are set for March 3.
Similar cases are percolating beyond Florida. In Georgia, death row inmate
Warren Hill is fighting execution based on substantial evidence that he is
intellectually disabled. In Texas, where the courts use an anecdotal seven-part
test largely based on the characteristics of the fictional character Lennie
from John Steinbeck's novel "Of Mice and Men" to determine intellectual
disability, multiple prisoners have been executed in recent years even when
they've scored well below 70 on IQ tests.
Last year, Texas executed Marvin Wilson, who was convicted of murder in 1994,
even though he had an IQ of 61. In 2010, Virginia executed Teresa Lewis for her
role in a murder-for-hire scheme, even though she had an IQ of 72 and her
co-conspirators admitted Lewis did not plan the murder.
These are the types of cases advocates want the Supreme Court to revisit. "It's
our hope that the court will clarify that states must use the clinical
definition for intellectual disability???not only for current cases but for
future cases, too," said Margaret Nygren, executive director and CEO of the
American Association of Intellectual and Developmental Disabilities.
BORDERLINE CASES
Freddie Lee Hall was convicted of co-planning and carrying out the murder of
21-year-old Karol Hurst in Leesburg, Fla., in 1978. After spending the day
scouting the parking lot of a local grocery store with his partner, Mack
Ruffin, Hall forced Hurst, who was 7 months pregnant, into her car and drove
her into the woods. There, Ruffin sexually assaulted and shot Hurst. A jury
convicted Hall of 1st-degree murder for his role in the murder scheme.
Since Hall was sentenced to death in 1981, he has made multiple appeals based
on his low IQ, which varied from 71 to 80 depending on the tests and their
margins of error.
"He has been the same ever since I've known him, and he has the mind of a
child," said his attorney, Eric Pinkard, who has been working with Hall since
1999.
In multiple hearings to prove his intellectual disability, Hall's family and
longtime friends testified about Hall's struggles with reading, writing and
caring for himself and recounted how Hall experienced abuse, starvation and
torture as a child. The Florida courts decided that even though Hall had limits
in functioning and adaptive behavior, because his IQ scores were not below 70,
Hall was not intellectually disabled and could be executed.
It's these borderline cases where the individual state implementations matter,
said Nygren. "Intellectual disability, like genius, is on a continuum," Nygren
said. "It's challenging for states to legislate that this person is 'in' or
'out.'"
Still, the court shouldn't wade too much into the specifics of setting
protocols to define intellectual disability, said Kent Scheidegger, legal
director of the Criminal Justice Legal Foundation, which advocates for victims
of crime.
"If the Supreme Court gets into issues like these and declares them to be
federal constitutional mandates," Scheidegger said, "we will have a long
stretch of litigation as the high court resolves one issue after another, never
reaching the end."
Making that determination is generally subject to clinical judgment, said
Nygren. "Clinicians must pick scientifically valid tests that are culturally
relevant and standardized, but also individualized," Nygren said. "For
instance, if someone's been in jail for last 5 years, it's hard to evaluate if
they're good at managing money since they don't have money to manage. That's
where clinical judgment comes in."
Beyond IQ tests, the disability manifests in limitations in learning and
reasoning, and difficulty with social skills, personal care and language. These
factors are just as relevant as an IQ test score, which, said Nygren, "is never
going to give you 100 % (certainty), even though that's the expectation placed
on the test."
Advocates like Nygren want the court to require states to pay more attention to
margins of error when determining intellectual disability. Leaving the
determination of mental disability to the states, "has given states a lot of
leeway to do mischief with the definition of intellectual disability," said
Brian Kammer, executive director of the Georgia Resource Center, which provides
free legal services for death row inmates.
For instance, Georgia requires defendants to prove their intellectual
disability "beyond a reasonable doubt," the highest standard of proof in the
criminal justice system. Georgia is the only state that requires such a high
burden of proof and the legislature is considering lowering the standard in the
next legislative session.
DEATH SENTENCES DOWN
Still, the Atkins decision has had an impact on executions. At least 98 people
have had their death sentence changed since 2002 by proving that they were
intellectually disabled, according to data from the Death Penalty Information
Center. By their count, in the 18 years before the Atkins decision, at least 44
people who likely suffered from intellectual disabilities were executed.
Nationally, states are carrying out fewer death sentences than they have since
the penalty was reinstated in 1976. So far in 2013, 36 people have been
executed in nine states. In 2012, 43 people were executed in 9 states.
(source: USA Today)
***************
Prison guard murder defendant intellectually disabled, defense experts say
Respect means everything to one of the men accused of helping kill a federal
correctional officer at U.S. Penitentiary Atwater, in California's San Joaquin
Valley.
James Ninete Leon Guerrero wrote one friend he "will never back down to no
man." To make his point, newly available documents show, Leon Guerrero has
fought other inmates, gone on multiple hunger strikes and threatened prison
staff. At various times, he's improvised every weapon in an inmate's arsenal,
from throwing food trays to smearing feces. At other times, officers say he can
be cool, calm and collected.
"I give respect. I want it back," Leon Guerrero once wrote a friend. "That's my
line."
The intimate, often painful details about Leon Guerrero's life and mind are
included in a lengthy evaluation placed into the public record Wednesday. The
71-page evaluation, designated as "sensitive but unclassified," is one part of
a legal fight that could help determine whether Leon Guerrero lives or dies.
A 48-year-old native of Guam, Leon Guerrero is charged with 1st-degree murder
in the June 20, 2008, slaying of correctional officer Jose Rivera. Leon
Guerrero has pled not guilty, as has fellow defendant Joseph Cabrera Sablan,
but videotape and other evidence make the verdict less a mystery than the
potential sentence.
Rivera was 22 at the time of his death, a Navy veteran who had grown up in the
San Joaquin Valley.
Leon Guerrero was newly arrived at the maximum security Atwater prison and was
drinking prison brew on June 20 with Sablan, investigators subsequently
concluded. Investigators say Sablan suddenly stabbed Officer Rivera with an
approximately 9-inch long shank outside a cell. Rivera ran, and the 2 inmates
tackled him. Leon Guerrero held down Rivera while Sablan stabbed him
repeatedly, investigators say.
Attorney General Eric Holder has authorized federal prosecutors to seek the
death penalty for both Leon Guerrero and Sablan. Leon Guerrero's attorneys say
his intellectual disability must rule out capital punishment, under a 2002
Supreme Court ruling in which justices said executing the "mentally retarded"
violated the Eighth Amendment's ban on cruel and unusual punishment.
"Mr. Leon Guerrero showed a consistent and remarkable set of deficits in the
area of learning and memory functioning," Dr. Deborah Miora, a court-appointed
neuropsychologist, noted in a report, calling Leon Guerrero's mental problems
"ubiquitous."
Another psychologist cited by the defense, Dr. Daniel Reschly, added that Leon
Guerrero had "significant limitations in general intellectual functioning and
adaptive behavior prior to age 18."
Nearly 40 % of capital case defendants who had filed similar intellectual
disability claims through 2009 were successful in their efforts, according to a
study by Cornell University Law School professors John H. Blume, Sheri Lynn
Johnson and Christopher Seeds. The Cornell professors concluded that the 2002
ruling banning the execution of the intellectually disabled "has not opened
floodgates of non-meritorious litigation." The defense claims, in turn, have
prompted prosecutors to propose that other experts examine Leon Guerrero. The
ensuing legal wrangle over the examinations has made public more information
about Leon Guerrero's life, in which he has been both victim and predator.
"His father was physically abusive toward him, his mother and siblings,"
federal Bureau of Prisons psychologist Dr. Lisa Hope wrote in the 71-page
evaluation, further quoting Leon Guerrero as recalling "'He broke my mom's
nose, I seen him.'"
Raised with his 5 siblings in what was described as a "1-room, wood and tin
shack," Leon Guerrero reported drinking alcohol and smoking marijuana starting
when he was about 12. He said he was "paddled a lot" in school, where he got
bad grades, fought regularly and left before the end of 10th grade.
Leon Guerrero scores low on IQ tests. Precisely how low is a matter of dispute,
though the range appears to be between the mid-60s and the mid-70s. He was
"slow to master using the bathroom, dressing himself and tying his shoelaces,"
one psychologist cited by the defense noted. At the same time, Hope says, Leon
Guerrero can be verbal and has a memory some officers describe as "impeccable."
Going back to his 1st arrest for burglary, when he was 15 and Jose Rivera was
not yet born, Leon Guerrero has been incarcerated for more than half of his
life. While in prison, he has been frequently disciplined. Since the 2008
killing at Atwater, he has also been placed on suicide watch several times.
"When asked if he could go back and change things where he would start, he
responded that he never really had the opportunity to 'know what life's like,'"
Hope stated.
(source: The State)
**********************
MY NOTE: the following item is from Fe., 12, 2013, but related to the points
raised in the articles immediately preceding this one----RH)
13 Men Condemned to Die Despite Severe Mental Illness ---- If juveniles and
intellectually disabled people are ineligible for execution, why not paranoid
schizophrenics?
Just how crazy must a person be to be ruled incompetent for execution in the
United States? Being profoundly mentally ill is not enough. You have to be
deemed legally "insane."
At trial, the insanity defense generally hinges on a person's inability to
distinguish right from wrong or understand the "nature and quality" of his act.
In the context of an impending execution, insanity means you cannot rationally
comprehend that you are being put to death as a consequence of the crime you
committed.
In 2005, a Texas jury found that Andre Thomas, the subject of my in-depth
companion piece (see box below), was not insane at the time of his crime. (Read
Marc Bookman's essay: "How Crazy Is Too Crazy to Be Executed?")
To put this in context, consider that Thomas was then, and still is, a
delusional paranoid schizophrenic who hears voices - from God, he believes -
telling him to do things. He carved out the organs of his 4-year-old son, his
estranged wife, and her 13-month-old daughter, and took them home in his
pockets, believing that this would kill the demons inside them. In the days
following his arrest, he insisted to a jailhouse nurse that his victims were
still alive.
And that's not even the weirdest part of the story.
Thomas' case is on appeal in federal court, and as it stands, the courts cannot
even address the question of whether he is competent to be executed until he is
about to be. But should someone as obviously crazy as Andre Thomas be facing
execution at all? Over the past decade, US courts have barred the death penalty
for the intellectually disabled and for juveniles - the Supreme Court found
that they have less culpability due to their lower mental functioning and
immaturity. Many legal observers believe that barring the death penalty for the
severely mentally ill, given their dissociation from reality, is the next
frontier in capital jurisprudence.
Over the years, governors from both parties have seen fit to commute the death
sentences of profoundly mentally ill prisoners, even in conservative states.
But authorities in Texas have shown little mercy: The state Board of Pardons
and Paroles has recommended clemency based on mental illness in only one case
since 1977, when the death penalty came back into use (see Kelsey Patterson
below) - and Gov. Rick Perry denied it.
Patterson is hardly an anomaly, though. Here is a sampling of 13 capital cases
in Texas and elsewhere that beg the question: How crazy is too crazy for the
ultimate punishment?
----
Texas:
Name: Johnny Frank Garrett
State: Texas
Crime: Fatally stabbed a nun in 1981
Punishment: Executed in 1992
Diagnosis: Garrett was a paranoid schizophrenic who firmly believed that lethal
injection could not kill him, and that supernatural intervention by his
long-dead aunt would counteract the poisons. Even Pope John Paul II called for
clemency, but Garrett was put to death nonetheless.
----
Name: Larry Keith Robison State: Texas
Crime: Fatally shot and stabbed 5 people in 1982
Punishment: Executed in 2000
Diagnosis: A paranoid schizophrenic, Robison began hearing voices and acting
strangely as a teenager, and he claimed to have secret paranormal mental powers
and the ability to read people's minds and move objects from a distance. He
described voices in his head, which came through the clocks in his room,
spewing out warnings about Old Testament prophecies of the Apocalypse. Robison
interpreted this as a message that he had to liberate as many souls as possible
before the liberation of his own. His parents sought help for their son,
warning mental-health authorities of Larry's erratic and increasingly
aggressive behavior, but were told that the state could offer him no resources
unless he turned violent.
----
Name: Monty Allen Delk
State: Texas
Crime: Killed a man in 1986
Punishment: Executed in 2002
Diagnosis: Prison mental-health staffers first diagnosed Delk as bipolar and
later decided that he was malingering. While in prison, Delk behaved
delusionally and claimed to be the president of Kenya and a submarine
commander. Asked if he had any last words, he replied, "I am the warden. Get
your warden off this gurney and shut up...You are not in America. This is the
island of Barbados, people will see you doing this."
----
Name: James Blake Colburn
State: Texas
Crime: Tried to rape, and then killed a woman he saw hitchhiking in 1994
Punishment: Executed in 2003
Diagnosis: Colburn was diagnosed as a paranoid schizophrenic at age 17. He was
so doped up on anti-psychotic drugs at his trial, appeals lawyers noted, that
he snored loudly through his trial - and when he was not medicated, he consumed
his own bodily wastes.
----
Name: Kelsey Patterson
State: Texas
Crime: Randomly shot 2 people in 1992
Punishment: Executed in 2004
Diagnosis: Patterson was a paranoid schizophrenic who claimed he was controlled
by an electronic implant. After fatally shooting a businessman and his
secretary for no apparent reason, he went home, stripped to his socks and
walked around naked in the streets until the police picked him up. "What are we
doing here?" a federal judge reportedly asked the state's attorney general
during an appeal of Patterson's death sentence. "This is a very sick man."
Patterson was the first and only modern-day case in which the Texas Board of
Pardons and Parole has recommended that the governor commute a death sentence
based on mental illness, but Gov. Rick Perry denied him clemency. Asked for a
final statement, Patterson said: "Statement to what. State what. I am not
guilty of the charge of capital murder. Steal me and my family's money. My
truth will always be my truth. There is no kin and no friend; no fear what you
do to me. No kin to you undertaker. Murderer...Get my money. Give me my rights.
Give me my rights. Give me my rights. Give me my life back."
----
Name: Scott Louis Panetti
State: Texas
Crime: Killed his parents-in-law in 1992
Punishment: Awaiting execution
Diagnosis: Schizophrenia and manic depression. Before he was arrested for
capital murder, Panetti had been hospitalized for mental illness on 14
occasions. At trial he represented himself clad in a purple cowboy suit. As
evidence of his delusional nature, he said he wanted to subpoena Jesus, JFK,
and the Pope.
----
Name: Steven Staley
State: Texas
Crime: Killed a hostage in a failed robbery in 1989
Punishment: Execution stayed in 2012
Diagnosis: Paranoid schizophrenic. In a story for Slate, legal reporter Emily
Bazelon lays out Staley's case history: His mentally ill mother tried to pound
a wooden stake through his chest when he was seven. He tried to kill himself as
a teenager. According to doctors who have evaluated him on death row, he has
"grandiose and paranoid" delusions, believing, for example, that he invented
the 1st car and marketed a character from Star Trek. He also wets himself and
smears his feces around the cell. In 2006, after a judge deemed him incompetent
for execution, prosecutors sought to have him forcibly medicated so that they
could establish his competence. A state court then stayed Staley's sentence
last year without ruling on the legality of using forced medication for this
purpose.
Other States
----
Name: Guy Tobias LeGrande
State: North Carolina
Crime: Killing for hire in 1993
Punishment: Sentenced to death; deemed incompetent in 2008
Diagnosis: LeGrande, who was diagnosed with a delusional disorder, killed the
wife of a man who paid him to do it. He believed could communicate with Oprah
through his television, and represented himself at trial wearing a Superman
T-shirt. He also cursed his jury and called them "Antichrists." A state court
found him incompetent to be executed. He remains in prison.
----
Name: George Emil Banks
State: Pennsylvania
Crime: Killed 13 people in a shooting spree in 1982
Punishment: Sentenced to death; deemed incompetent in 2010
Diagnosis: Banks, who suffered from a psychotic disorder and thought the
government was trying to poison him, believed he was exempt from the death
penalty and that his death sentences had been vacated by God, Jesus, and
then-president George W. Bush. In May 2010, a lower court deemed him
incompetent to be executed. The decision was affirmed by the Pennsylvania
Supreme Court in 2011. Banks remains on death row, however.
----
Name: Calvin Eugene Swann
State: Virginia
Crime: Killed a man during a robbery in 1992
Punishment: Death sentence commuted in 1999
Diagnosis: In his late teens, Swann began talking to animals and speaking in
numbers, which led his parents to commit him to a mental institution, the start
of a lifetime spent shuffling between institutions and prisons. On the days
leading up to his execution, Swann's only concern seemed to be money for
cigarettes. In the end, Gov. Jim Gilmore commuted his sentence to life without
parole - which wasn't a sentencing option at the time of his trial - and quoted
prison officials saying Swann's behavior on death row was "nothing short of
bizarre and totally devoid of rationality." When Swann's lawyers told him the
good news, according to the Washington Post, the prisoner appeared not to
understand. He merely asked for a cigarette.
----
Name: Alexander E. Williams
State: Georgia
Crime: Kidnapped, raped, and killed a teenage girl in Georgia in 1986
Punishment: Death sentence commuted in 2002
Diagnosis: A paranoid schizophrenic, Williams saw little men in his cell,
talked to animals, and thought Sigourney Weaver was God. The Georgia Pardons
and Parole Board commuted his sentence to life without parole. Nine months
later, he hung himself in his cell at the state prison.
----
Name: Arthur Paul Baird II
State: Indiana
Crime: Killed his wife and parents in Indiana in 1985
Punishment: Death sentence commuted in 2005
Diagnosis: Baird had a long history of mental illness. He claimed he had solved
the nation's debt and was owed a $1 million reward from the government, and
that God would turn back time and bring his wife and parents back to life. In
commuting Baird's sentence, Gov. Mitch Daniels recognized the severity of the
prisoner's mental illness, noting that, had the option been available, the jury
would have imposed life without parole instead of a death sentence.
----
Name: Percy Levar Walton
State: Virginia
Crime: Killed 3 people in 1996
Punishment: Death sentence commuted in 2008
Diagnosis: Walton, a schizophrenic, began exhibiting signs of psychosis during
adolescence. In the months following his crime he sat in his cell and in court
smiling, laughing, and rocking back and forth. He would say he was Superman and
Jesus, and that the Bible was written about him. He believed that his execution
would bring him, his grandfather, and his victims back to life. Recognizing
that Walton was "seriously mentally impaired," Gov. Tim Kaine commuted his
sentence to life without parole.
(source: Mother Jones)
***********************
The executioners' lament; States with the death penalty can no longer get a
drug used in lethal injections. So they're improvising.
Why is there a crisis?
Stockpiles of a drug traditionally used in executions effectively ran out this
fall. The 32 death-penalty states had been struggling to maintain supplies
since 2011, when the sole American manufacturer of the anesthetic sodium
thiopental announced it was ending production under pressure from the
government in Italy, where its plant is based. Other European manufacturers
also refused to provide the drug because of a European Union statute
prohibiting the export of any product that might be used in capital punishment
- especially since there's evidence that lethal injections sometimes cause
agonizing deaths. Now, with hundreds waiting on death row, corrections
departments have started desperately trying untested alternatives. "We don't
know how these drugs are going to react because they've never been used to kill
someone," says Deborah Denno, a Fordham University law professor who studies
lethal injections.
Why did states start using lethal injection?
Oklahoma became the first state to adopt the method, in 1977. It was promoted
by state medical examiner Jay Chapman as a humane alternative to traditional
forms of execution such as the electric chair, which often made witnesses
uncomfortable. Those executed in the chair bucked and thrashed within their
restraints for long seconds, and sometimes died with smoke and flames shooting
out of their heads. Injections were meant to transform executions into a less
gruesome affair. To avoid any comparison with "putting down" animals with a
single drug, Chapman suggested a 3-drug cocktail, and it quickly became a
national standard. In 2008, the U.S. Supreme Court affirmed that the cocktail
did not violate the Eighth Amendment's prohibition on "cruel and unusual
punishment." Today, lethal injection is the primary method of execution in
every death-penalty state, and until this fall, Chapman's cocktail was the drug
mix of choice.
How does the cocktail work?
An anesthetic, sodium thiopental, is administered via an IV in the condemned's
arm to induce unconsciousness. Then a paralyzing drug called pancuronium
bromide is added to halt his breathing, while a third drug, potassium chloride,
stops his heart. In theory, the condemned shouldn't feel the effects of the
second and third drugs, which actually kill him. But in practice, say critics
and some scientists, executioners sometimes fail to properly administer enough
sodium thiopental to produce full sedation in large inmates or don't inject it
properly in a vein. As a result, inmates lie paralyzed but conscious for
minutes as they slowly suffocate, feel a burning sensation in their veins, and
go into cardiac arrest. In 2007, University of Miami researchers who studied
executions concluded that "the conventional view of lethal injection leading to
an invariably peaceful and painless death is questionable." In at least 3
recent executions, a single dose of the drug cocktail hasn't killed the
condemned, and more drugs had to be administered. (See below.) "It never
occurred to me when we set this up that we'd have complete idiots administering
the drugs," said Chapman.
What about the new drugs?
Most have not been used in executions before, so successfully employing them
requires guesswork. In October, convicted murderer William Happ was executed in
Florida with a new 3-drug combination that replaced sodium thiopental with the
sedative midazolam, a drug that causes memory loss and relaxation - but not
necessarily unconsciousness. Happ took 14 minutes to die rather than the
planned 7. His head shook throughout, and his eyes remained open until the 10th
minute. Other states have started using a single dose of the animal anesthetic
pentobarbital to execute inmates, usually bought from loosely regulated
compounding pharmacies. Texas's Department of Criminal Justice - which has
carried out 37 percent of all U.S. executions since the death penalty was
reinstated in 1976 - has gone the extra mile to keep its death chamber
operating. The department allegedly submitted a falsified prescription to one
compounding company, Pharmacy Innovations, ostensibly for patient "James Jones"
- actually the warden of the Huntsville Unit, which houses the execution
chamber. Other states have bought lethal injection drugs with petty cash or
individual employees' credit cards.
Is the death penalty in trouble?
In conservative states, support for executions remains strong, so they'll
probably go on. But 7 states have put executions on hold because of controversy
over lethal injections, and support for the death penalty is eroding
nationally. A recent Gallup poll showed that support for the death penalty is
at its lowest point in 40 years - at 60 %, down from a high of 80 % in 1994.
Still, for those who strongly support capital punishment, the fact that lethal
injections may inflict suffering on convicted murderers is beside the point.
"Why should it be FDA-approved?" said New York Law School professor Robert
Blecker, an advocate for the death penalty. "This is not medicine; this is a
method of killing."
When the drugs fail to work
Numerous executions by lethal injection have gone wrong. But perhaps the most
gruesome instance occurred in Florida in 2006, when the state tried to execute
Angel Diaz, sentenced to death 2 decades earlier for the killing of a Miami
topless-bar manager. The 3-drug cocktail used to kill Diaz was supposed to take
3 to 5 minutes to render him unconscious and motionless. But for 24 minutes,
Diaz writhed on the gurney, grimaced, shuddered, gasped for air, and even tried
to mouth words. Frantic prison officials gave him a 2nd dose of the drug meant
to render him unconscious. It took him another 10 minutes to die. It wasn't
till after the execution that medical examiners found 1-foot-long chemical
burns on Diaz's arms: The IV needle had punctured the 55-year-old man's veins,
so that the injected chemicals went straight into his flesh, burning it and
causing great pain but not knocking him out. He was apparently conscious as he
suffocated to death. Days later, former Gov. Jeb Bush imposed a moratorium on
all other executions for the rest of his term. It has since been lifted.
(source: The Week)
**********************
New Mexico death penalty case goes to jury ---- In closing arguments,
prosecutors portrayed John McCluskey as a dangerous, remorseless, cold-blooded
killer who deserves nothing less than execution
The fate of an Arizona inmate who kidnapped and murdered a retired Oklahoma
couple following a 2010 prison break went to the jury Wednesday, the final
phase in a rare and lengthy New Mexico death penalty trial.
In closing arguments, prosecutors portrayed John McCluskey as a dangerous,
remorseless, cold-blooded killer who deserves nothing less than execution for
the August 2010 slayings of Gary and Linda Haas of Tecumseh, Okla., as they
passed through the state.
A life sentence for John McCluskey "would be like putting a child in the
corner," Assistant U.S. Attorney Michael Warbel argued.
Defense attorney Gary Mitchell, however, told jurors McCluskey "is a human,
he's a man." Mitchell said McCluskey has a low IQ and has suffered a hard life
of abuse, brain damage, a prison rape and addiction.
McCluskey shouldn't have to pay the ultimate price "because the good Lord
didn't bless him with what you and I have," Mitchell said.
"Life in prison without release is more than sufficient," Mitchell told the
jury. "It's a horrific sentence."
McCluskey, 48, was convicted in October of murder, carjacking and other charges
in the slayings of the high school sweethearts and recent retirees, who were
making their 11th annual trek to Colorado to go fishing.
Warbel said serious crimes deserve serious punishment.
"The defendant wants you to sentence him to life in prison," he said. Warbel
noted McCluskey is a repeat violent criminal who has spent much of his life
behind bars and is used to a routine that includes meals, coffee, showers and
exercise.
"Don't give the defendant what he's asking for. Give him what he deserves."
The case was sent to the jury late Wednesday, 4 months after the panel was
seated to hear what was only the 2nd federal death penalty case in the state in
a decade. New Mexico outlawed the death penalty for state crimes in 2009.
Much of the 3-phase trial focused less on whether McCluskey was guilty than
whether he was capable of controlling his impulses and making reasoned
decisions when he kidnapped and killed the couple.
McCluskey was serving 15 years for attempted 2nd-degree murder, aggravated
assault and discharge of a firearm when he and 2 other prisoners escaped from a
medium-security prison near Kingman, Ariz., in July 2010 with the help of his
cousin and fiancee, Casslyn Welch.
1 of the inmates was quickly captured after a shootout with authorities in
Colorado. McCluskey, Welch andinmate Tracy Province headed to New Mexico, where
they kidnapped the Haases for their truck and travel trailer.
Province and Welch pleaded guilty last year to carjacking resulting in death,
conspiracy, use of a firearm during a violent crime and other charges. They
both fingered McCluskey as the triggerman.
(source: Associated Press)
**************************
How does your religion view capital punishment?
Arvind Khetia, engineer: In Hinduism, God is not seen as the one handing out
reward or punishment. However, there is a recognition of the universal law of
karma, also known as the doctrine of justice.
The law of karma states that every event is a result of an unending chain of
cause and effect. Thus, reward or punishment is nothing more or less than a
result of our good or bad actions, because, the law of karma refutes any
'arbitrary ruler.'
Therefore, one's belief in the law of karma provides a moral incentive to act
in a just manner.
With regard to the question of capital punishment, in Hinduism, one can find an
argument in favor as well as against capital punishment.
Although, the law of karma would be operative regardless, the argument in favor
of capital punishment recognizes that when one's personal choice of action
becomes harmful to society, a deterrent in terms of regulatory laws are
necessary to maintain a safe social environment. In the present Indian penal
code and the ancient Hindu law-books (Dharma shastra), there are provisions for
capital punishment for severe crimes.
The argument against capital punishment is motivated by the consideration of
compassion and non-violence (ahimsa). This is based on the recognition that a
human birth is a blessing, because, only in a human birth is one endowed with
free will to help one evolve toward liberation by ethical and spiritual living.
Therefore, capital punishment would deprive the chance to repent and redeem
oneself.
Professor Mohamed Kohia, Rockhurst University: According to Islam, life is
sacred. "If anyone kills a person - unless it is for murder or for spreading
mischief in the land - it would be as if he killed all people. And if anyone
saves a life, it would be as if he saved the life of all people." (5:32).
The Qur'an legislates the death penalty for murder, although forgiveness and
compassion are strongly encouraged. The victim's family is given a choice to
either insist on the death penalty, or to pardon the perpetrator and accept
monetary compensation for their loss (2:178).
Spreading mischief in the land can mean many different things, but is generally
interpreted to mean those crimes that affect the community as a whole, and
destabilize the society. Some examples include treason, terrorism, piracy of
any kind and rape. Each case is regarded individually and with extreme care,
and the court is fully able to impose more lenient sentences as and when they
see fit.
The question is: how can one hold life sacred, yet still support capital
punishment? The Qur'an answers, "Take not life, which God has made sacred,
except by way of justice and law. Thus does He command you, so that you may
learn wisdom" (6:151).
Therefore, the death penalty can be applied by a court as punishment for the
most serious of crimes. The spirit of the Islamic penal code is to save lives,
promote justice, and prevent corruption and tyranny. Even though the death
penalty is allowed, forgiveness is preferable.
It is very clear that compassion is the best choice (5:32). Forgiveness,
together with peace, is a predominant Qu'ranic theme.
The Divine Justice and Wisdom cannot be compared to the ever-changing man-made
laws.
(source: Kansas City Star)
*********************
Judy Clarke has a knack for keeping her notorious clients off death row
In a South Carolina courtroom 18 years ago, Judy Clarke stood before a jury of
9 men and 3 women and tried to humanize a client who had committed a horrific
and inhuman act. Susan Smith at first claimed that a black man carjacked her
and her 2 sons. She later admitted her story was a hoax.
That day, Smith was found guilty of drowning Michael, 3, and Alex, 14 months.
She was facing the death penalty. Clarke was asking that her life be spared.
"This is not a case about evil but a case of sadness and despair," Clarke, a
public defender, told jurors inside the old Union County Courthouse. "She made
a terrible decision with a confused mind and a heart without hope. Hopelessness
is not malice."
2 1/2 hours later, the jury came back and said Smith did not deserve to die.
She was instead sentenced to life in prison and would live with the knowledge
that she deliberately sent her children buckled inside a car into a lake to
their deaths.
The case brought Clarke's name into the national spotlight and set the stage
for a career in which she would become known as the lawyer who keeps killers
off death row. An avowed death penalty opponent, her specialty is seeing the
humanity and vulnerability in clients accused of some of the most terrible
crimes, and seeking a measure of mercy for them so that they may live.
During the Smith trial, Clarke and lead counsel David Bruck created a portrait
of a sad, abused and damaged woman whose father committed suicide when she was
6 and whose stepfather molested her when she was a teenager. "When we talk
about Susan Smith's life, we are not trying to gain your sympathy," Clarke told
the jury. "We're trying to gain your understanding."
Getting jurors to understand her clients has become the hallmark of Clarke's
work, inspired in large part by the Smith case. In a speech to students at
Loyola Law School in Los Angeles this past April, Clarke said she was "sucked
into the black hole, the vortex" of the death penalty while representing Smith.
"I got a dose of understanding human behavior and I learned what the death
penalty does to us," she said, according to an Associated Press account.
Since the Smith trial, Clarke has represented some of the highest-profile
murder defendants in contemporary American history: Unabomber Ted Kaczynski;
9/11 conspirator Zacarias Moussaoui; Atlanta Olympics serial bomber Eric
Rudolph; and Jared Lee Loughner, who killed a federal judge and 5 other people,
and wounded former U.S. Rep. Gabrielle Giffords and 12 others. All of Clarke's
clients have been spared death.
UNDERNEATH THE ACT
Now Clarke is going to try to make a case for life on behalf of Dzhokhar
Tsarnaev, the man accused in the Boston Marathon bombing, which left three dead
and more than 260 injured. She was asked to join the team of public defenders
already assigned to the case and no doubt will be tapped for what she does
best: humanizing her client.
"As soon as they had a suspect I turned to my husband, who is also a criminal
defense lawyer, and said they better hope they can get Judy Clarke on their
case," says Loyola law professor Laurie Levenson, a friend of Clarke's who
helped arrange the April talk there.
Clarke did not respond to interview requests for this article, which her
friends and colleagues say is not surprising. Clarke has never sought the
spotlight and has always put the needs of her clients first, they say.
"She's really, really modest, and she's really humble," Levenson says. "I think
she sees this as her mission as a lawyer. I'm a former prosecutor who's a huge
admirer because I think she's the real thing."
The essence of Clarke's Loyola speech, Levenson says, was that her clients - no
matter how horrible the crimes they are accused of committing - are real people
and not monsters. The world sees the criminal act, and Clarke tries to
understand what caused them to do it.
"Judy is sort of the defense lawyer's saint of lost causes, taking cases no one
thinks can come out with a good result. And she comes out with the best result
you can," Levenson says. "Her clients are not, by and large, exonerated. They
do not walk among us. But things don't end up for them as badly as people
initially thought they would."
Tommy Pope, the lead prosecutor in the Smith case and now a South Carolina
state legislator, argued passionately in favor of sentencing Smith to death. He
says Clarke was able to touch something in jurors. "It started out as Susan the
monster and evolved into Susan the victim," he says. "One of the things she did
was humanize the defendant. I anticipate she will do something similar in the
Boston case."
Pope also believes the public perception of Smith began shifting even before
the trial. "I think over the course of time, they were able to change the
public face of the defendant," he says. "As her opponent, I respect her. With
her, it's not drama; it's not theatrics. But there is an intensity."
Clarke grew up in Asheville, N.C., and studied law at the University of South
Carolina - about 90 miles south of where Smith's trial took place. After
earning her law degree in 1977, she headed west, going to work for the Federal
Defenders of San Diego. Clarke and her husband, international human rights
lawyer Thomas "Speedy" Rice, have their own firm in San Diego, a home base from
which they are often summoned. As a member of the Federal Death Penalty
Resource Counsel Project, which helps judges recruit qualified federal public
defenders, she is in frequent demand.
Not long after graduating from law school, Clarke began teaching at the
National Criminal Defense College, then in Houston. It was there that another
young lawyer, Laurie Shanks, met her and immediately became an admirer.
"She had already tried many more cases than I had. What struck me at that time
- she was not only brilliant; she was so kind, so generous and so willing to
help other lawyers," says Shanks, now a professor at Albany Law School. "She
was a mentor, and at the time there were few women faculty members."
Shanks, who had started her career as a prosecutor in Maricopa County, Ariz.,
says Clarke offered valuable lessons. "What I learned is that you have to look
at the individual who is branded as a defendant," she says. "What most people
do is look at the crime and then say: How could you represent that person? What
I really learned from Judy was to separate those 2 things."
She also got some insight into how Clarke works. "One of the things you'll find
out about Judy is that she spends thousands upon thousands of hours with each
one of her clients," Shanks says. "Judy will go in and talk to them about who
they are and what brought them to the place where they are."
It was that kind of commitment that helped Clarke develop and deepen her
relationship with Kaczynski. He was a particularly challenging client because
he did not favor being marked as disturbed or mentally ill, and at one point he
asked the judge to fire his attorneys for pursuing that line of defense.
Kaczynski's brother, David, who had alerted authorities when he suspected his
brother was the Unabomber, had wrestled with turning him in, fearing execution.
As David got to know Clarke and the defense team, he felt his brother had a
chance. "She had the ability to develop a relationship with Ted, and that was
not one of his gifts. He does not connect easily or well with people," says
David, a longtime anti-death-penalty crusader and now executive director of a
Buddhist monastery in Woodstock, N.Y.
The long hours Clarke spent with Kaczynski paid off. "She had a real sense of
Ted's humanity. To me that was extremely meaningful and validating," David
Kaczynski says. "I thought, 'Oh my gosh, she understands my brother as a human
being who has significant issues and challenges and mental problems, who's done
something terrible but is still on the level of a human being.'"
Kaczynski even grew to like Clarke. "I know at one point Judy had told him she
jogged. And Ted had always had a gift for drawing, a sort of cartoonish
drawing, and Judy had shown me a picture that he had drawn of her running
through the city streets of Sacramento during the trial," David says. "I
thought, 'Wow.' It certainly indicated a connection."
Gary Sowards, a Los Angeles lawyer and Clarke's co-counsel on that case, says
what she brought to it was her deep understanding of mental health. "I think
Judy's strength with clients is just how straightforward and genuine she is.
She has a desire not to just get into their head but to listen at a
compassionate level," he says. "Judy is just completely open with people. The
thing about clients with mental health issues is that there is this
under-the-radar connection you can't fake."
When the stakes are so high, clients facing death must be forthcoming and show
their vulnerabilities if they hope to live. "That's one of the hardest things
with capital cases. It invokes people's deepest, closest-held thoughts,"
Sowards says. "Her strength is being open with clients and giving them a sense
of safety - that their information is respected."
THE LESSON: LISTEN
Outside of the courtroom, Clarke has been sharing her more than 35 years of
experience with the young law students at Washington and Lee Law School, where
her husband also teaches.
"I feel that she taught me to remember to always listen," says former student
Cristina Becker, who graduated this past spring. "Clients are so used to being
told what to do. When you listen, they feel more in control and that their
lawyer is more trustworthy, especially in dealing with clients with mental
health issues."
When working with students, Clarke shows the same kind of patience and respect
she has for clients. "She waits until someone speaks completely. You can tell
she's trying to assess everything, and there's something refreshing about
that," Becker says. "I feel she literally practices what she preaches."
Becker recently accepted a job with the Mecklenburg County public defender's
office in Charlotte, N.C. "She was definitely an inspiration," Becker says of
Clarke.
Jonathan Shapiro, an experienced death penalty lawyer based in Fairfax, Va.,
co-taught a practicum course with Clarke at Washington and Lee. "She is just a
fabulous teacher and the kids love her approach," he says. "She is not
didactic. She doesn't tell them what to do. There is none of that. She helps
them develop their own skills on their own."
Shapiro says students appreciate that. "A lot of professors have pretty good
egos and like to flaunt their knowledge and talk about the things they've done,
and are not hesitant to let students know when they've screwed up, in their
eyes," he says. "Judy is not like that. She has no ego that is apparent to me.
So the atmosphere is not like those in other law classes. That's not to say
she's a pushover."
Becker can vouch for that. "She made it very clear that she was holding us to a
very high standard."
Dedicating a career to public defense work, particularly death penalty cases,
is not for everyone. Clarke's friends and colleagues say she has the gift to
see beyond the nature of her clients' deeds.
"Who can kill a child? Who can plant a bomb in a person's mailbox? Who can
point a gun at a congressperson? If you focus on the crime itself, the only
emotion you can feel is revulsion," Shanks says. "What we're saying is how can
we understand what would bring a person, any person, to do something that was
this horrific?"
Nearly 2 decades after Clarke and the defense team helped Kaczynski avoid the
death penalty, his brother remains a supporter and friend. Clarke and the
family stayed in touch over the years. Clarke called when their mother was ill
and again later when she died.
David Kaczynski understands the agonies that families endure when they have a
loved one accused of horrible crimes. He understands the isolation. Clarke
helped make them feel less like outcasts. "Just to have a person who has the
capacity to help, and the ability to nonjudgmentally understand what you're
going through, is important," he says. "We owe her a great, great, debt."
Clarke would probably not want anyone to feel indebted to her. In fact, after
the Smith case, she returned the $82,944 fee the state paid her, saying that
other indigent defendants could use it more.
"She is completely genuine," Shanks says. "With Judy, whether she is wearing
her little tie or brushing her hair out of her eyes, the reality is that she
absolutely, 100 % believes in her client and what she's telling the jury - and
the jury knows that. She's respectful of the jury, she's respectful of the
court, she's respectful of the victim of the crime. And the jury sees that, and
that's why she's successful."
Says Levenson: "She has an extraordinary commitment. She's fearless. She
doesn't get rattled if she has a difficult client and a difficult case. This is
what she does. It is her mission."
(source: ABA Journal)
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