Aug. 22
TENNESSEE:
Death row inmates sue to stop electric chair 'torture'
A group of 10 death row inmates suing over lethal injection in Tennessee argued
on Friday that the state's backup plan - the electric chair ??? is an
unconstitutional "torture device."
The inmates are locked in a battle with the state over whether they have a
right to know how they will be killed and who will do the killing. Their
lawsuit stems from a 2013 law that makes nearly all information about lethal
injection secret. Friday's amended lawsuit targets a 2014 law Gov. Bill Haslam
signed that makes the electric chair the state's official backup if lethal
injection is declared unconstitutional or if the necessary drugs are
unavailable.
Attorneys for the inmates say that no other state - or any government in the
world - imposes electrocution on the condemned.
"The state of Tennessee stands alone as the only jurisdiction in the world to
involuntarily impose the electric chair on its condemned citizens," said Kelley
Henry, a federal public defender involved in the lawsuit. "Today, on behalf of
our clients who face imminent execution, we have asked the Chancery Court to
allow us to challenge the electric chair as a method of execution because even
when the chair works exactly as it is intended, it is a torture device."
The lawsuit says the electric chair amounts to "cruel and unusual punishment,"
which is outlawed by the U.S. Constitution. It points to the last man killed in
Tennessee by the electric chair, Daryl Holton.
The Tennessee Attorney General's Office, which is defending the state in the
lawsuit, had only just received the amended lawsuit and was reviewing it, said
spokeswoman Sharon Curtis-Flair.
The death penalty has been under intense scrutiny in recent months over a
series of botched lethal injection executions in which inmates lingered far
longer than expected - in some cases writhing and gasping as they slowly died.
The botched executions have drawn accusations that even lethal injection, once
thought to be a humane method of execution, may be cruel and unusual
punishment.
Tennessee last executed Cecil Johnson in 2009, by lethal injection. The last
time someone was executed by electric chair was in in 2007. That year, Daryl
Holton was electrocuted for murdering his 3 sons and a stepdaughter in 1997 in
Shelbyville. Under the prior law, Holton was given the choice of lethal
injection or electrocution.
Friday's lawsuit describes how Holton died, according to those who witnessed
it.
"A loud bang sounded, Holton's body jerked violently upward and remained there.
The black shroud fluttered and witnesses may have heard Holton sigh. Holton's
hands gripped the electric chair's arms tightly and turned red. After
approximately 20 seconds, Holton's body slumped over," the lawsuit said.
"Approximately 15 seconds later, a loud bang sounded, and Holton's body jerked
higher than it jerked the 1st time. Holton's hands continued to grip the
electric chair, and they turned bright red. After approximately 15 seconds,
Holton's body slumped."
The suit said an autopsy found extensive burning on Holton's body.
Attorneys for the condemned argue that the electric chair doesn't render
inmates like Holton unconscious, meaning they feel the effects of the
electrocution. They say the electric chair "cooks" an inmate's internal organs
and that they may catch fire while fully conscious.
The man who created Tennessee's electric chair in 1989, Fred Leuchter, was a
Holocaust denier with no electrical engineering experience or license. Leuchter
in 2006 told The Tennessean that the device he created was torture "tantamount
to somebody being burned at the stake."
The inmates are waiting for an appeals court to decide whether the state must
turn over the names of the execution team.
At least 11 inmates are currently scheduled to die through 2016, though the
lawsuit is likely to delay those executions. Billy Ray Irick, who raped and
murdered a 7-year-old Knoxville girl in 1985, is scheduled to be executed 1st,
on Oct. 7 of this year.
(source: The Tennessean)
CALIFORNIA:
Supreme Court Upholds Death Sentence for Throat-Slashing Killer----Limitations
on Evidence Implicating Original Suspect Not Prejudicial, Justices Rule
The California Supreme Court yesterday upheld the death sentence for a man
convicted of 3 murders in a case in which it took 5 months to seat a jury, 56
days of testimony before the jury got to deliberate, and 7 days of deliberation
to reach a partial verdict.
San Diego Superior Court Judge Laura Palmer Hammes sentenced David Allen Lucas
of Spring Valley to death in 1989 for the murders of Suzanne Jacobs, her
3-year-old son Collin, and Anne Catherine Swanke. Jurors acquitted him of one
murder, deadlocked 11-1 for conviction on 2 others, and convicted him of one
count of attempted murder.
All of the victims had their throats cut, but Jody Santiago Robertson survived
and identified Lucas as her attacker. The crimes occurred between 1979 and
1984.
Impaired Memory Claimed
Defense attorneys challenged Robertson, saying her memory was impaired by
trauma. They attacked the prosecution's use of serological evidence and sought
to convince jurors that another man was responsible for the crimes.
That man, a Kentucky drifter named John Massingale, was arrested for the 1979
Jacobs murders and was still in custody when Lucas was arrested in 1984 and
charged with the later crimes. Massingale confessed, but later recanted, saying
that he said what the police wanted him to in order to avoid the death penalty
and that his confession only matched the physical details of the murders
because the police showed him many photos of the interior of the victims'
house.
Police and prosecutors ultimately became persuaded, based on physical evidence,
that it was Lucas and not Massingale who committed the Jacobs murders.
Massingale was released after several years in custody, received a declaration
of factual innocence, filed suit for wrongful arrest, and was called as a
witness at Lucas' trial to bolster the claim that he had been mistakenly
charged and that Lucas had committed all of the murders.
The Jacobs killings occurred in 1979 in the Normal Heights section. Evidence
used to tie Lucas to the crimes included a bloodstained note, containing the
name and phone number of a local insurance brokerage from which Lucas obtained
a policy around the time of the murders.
Massingale testified that he was essentially illiterate.
Lucas was acquitted in the death of Gayle Roberta Garcia, a realtor who was
found with her throat slashed in a vacant Spring Valley house in 1981.
The Robertson attack occurred in June 1984 in El Cajon. Rhonda Strang, 24, and
Amber Fisher, 3, were killed in October 1984, a month before the body of the
last victim, Swanke, was found on a Spring Valley hillside.
Strang, whose brother was a friend and employee of Lucas, was baby-sitting the
child when the crimes occurred. Strang's husband was a drug dealer - there was
evidence Lucas was a customer - and the defense suggested he may have killed
his wife and Amber after learning that she was cooperating with a police
investigation of his activities.
Conflict of Interest
On appeal, the defense argued that Hammes should have disqualified the District
Attorney's Office due to conflict of interest.
It was unfair, the defense contended, to allow the same agency that had
prosecuted Massingale to prosecute Lucas, in part on the basis of Massingale's
testimony that he was innocent. The District Attorney's Office, counsel
claimed, was arguing in the criminal case that Massingale's confession was
involuntary, while claiming in defense of his civil suit that he was
cooperative and the police did nothing improper.
Chief Justice Tani Cantil-Sakauye, writing for a unanimous court, said that
even if the asserted conflict existed, it did not require the extraordinary
remedy sought by the defense.
"[The defendant] does not explain how the conflict may have altered any trial
testimony to his detriment," the chief justice wrote "If anything, the
prosecutor's assertion in the civil case that Massingale's confession was
voluntary would have encouraged those who interrogated him to describe
Massingale's confession as uncoerced, and this circumstance would have assisted
defendant in his 3rd-party culpability defense."
Cantil-Sakauye also said there was no prejudice to the defendant as a result of
limitations Hammes placed on defense cross-examination regarding Massingale's
civil suit.
The ruling was erroneous, the chief justice acknowledged, because it rested "on
the false assumption that Massingale's finding of factual innocence could be
admitted into evidence in his civil trial," when in reality it was inadmissible
by statute.
But the error was not of constitutional magnitude, Cantil-Sakauye explained,
and would only be grounds for reversal if it was more probable not that jurors
would have reached a verdict more favorable to the defense if they had heard
the testimony.
Jurors knew that Massingale had confessed to the Jacobs murders, spent years in
custody as a result, recanted, and had been found factually innocent, the chief
justice pointed out. He had been examined and cross-examined at length, she
said, and "jurors were fully aware that Massingale had a significant incentive,
albeit not necessarily financial, to testify against defendant - an interest in
avoiding prosecution and the death penalty."
Given all of that, the additional knowledge that he had a civil suit pending
would not have changed jurors??? perception of his credibility, Cantil-Sakauye
said.
The case is People v. Lucas, 14 S.O.S. 3637.
(source: Metropolitan News Company)
USA:
US executions face more uncertainty as expert refuses to defend drug
protocols-- Dr Mark Dershwitz will no longer act as courtroom expert-- Doctor
was Montana's only witness in death penalty case
The decision of America's leading expert on lethal injection drugs to stop
offering court testimony has left at least 1 state without a single witness to
defend its execution procedures from legal challenges.
The New Republic reported this week that Dr Mark Dershwitz, citing potential
impacts to his profession as a board-certified anesthesiologist, would no
longer act as an expert witness on behalf of lethal injection protocols.
Dershwitz, also a doctor of pharmacology and professor at the University of
Massachusetts medical school, has testified as an expert witness in more than
20 states and for the federal government. In June, he withdrew himself as a
witness in a case challenging the execution of Montana???s two death-row
inmates - convicted murderers Ronald Smith and William Jay Gollehon.
Smith, a Canadian, was sentenced to die for the 1982 murders of 2 men who
picked him up while hitchhiking, and Gollehon for the 1992 murder of an inmate
while incarcerated on two other counts of homicide.
The doctor was Montana???s only witness in a case brought against the state by
the Montana American Civil Liberties Union on behalf of Smith and Gollehon
challenging the state's execution procedures.
"At this point in time, we do not have another expert witness to replace him,"
said Anastasia Burton, deputy communications director for the Montana attorney
general. The case is now scheduled to move forward next summer. Previously, it
was meant to be heard in September.
The US states that have the death penalty have been scrambling since a 2011
European-led ban stopped the import of the drugs most commonly used to carry
out executions. Since then, states seeking to carry out executions have relied
on various compounded cocktails - including the sedative midazolam and the
painkiller hydromorphone in various dosages - or with pentobarbital purchased
through secret suppliers.
Several botched executions have followed, leading critics to accuse corrections
departments of carrying out "failed experiments" as they seek to replace
pentobarbital in the process.
Dershwitz "has been, for over a decade, probably the most important state's
expert in this particular area", said Deborah W Denno, an execution expert at
Fordham law school.
"I think states are going to be scrambling for lethal injection experts in the
same way they've been scrambling for drugs," said Denno, referring to states'
lack of pentobarbital, a barbiturate used to treat epilepsy that is deadly in
certain doses. "They don't have any people testifying on their behalf."
One of the cases on which Dershwitz worked was that of Ohio inmate Dennis
McGuire, who was executed in January for the 1989 rape and murder of Joy
Stewart, a pregnant newlywed.
A witness described the execution, which lasted 26 minutes, for the Guardian:
At about 10.31am, his stomach swelled up in an unusual way, as though he had a
hernia or something like that. Between 10.33am and 10.44am - I could see a
clock on the wall of the death house - he struggled and gasped audibly for air.
I was aghast. Over those 11 minutes or more he was fighting for breath, and I
could see both of his fists were clenched the entire time. His gasps could be
heard through the glass wall that separated us. Towards the end, the gasping
faded into small puffs of his mouth. It was much like a fish lying along the
shore puffing for that one gasp of air that would allow it to breathe. Time
dragged on and I was helpless to do anything, sitting helplessly by as he
struggled for breath. I desperately wanted out of that room.
The state later released a post-execution inquiry, concluding that "McGuire did
not experience any pain or distress," and that it had "discussed the events and
observations of the McGuire execution with its expert witness, Dr Mark
Dershwitz".
The New Republic published emails showing Dershwitz's later objections to the
state's characterisation: he said there had been no discussion and that
attorneys for the state only told him what happened during McGuire's execution.
Medical ethics prohibit anesthesiologists from participating in the creation of
an execution system.
"Although it is still too early to determine if there will be any permanent
actions taken against me, the mistakes made by Ohio in the April press release
could apparently happen again because of the lack of necessary review
processes," Dershwitz said in an announcement he sent to several states on 18
June and revealed in the New Republic.
"I cannot take that chance and will therefore terminate my role as an expert
witness on behalf of Ohio and all other states and the federal government," the
email says. The state later acknowledged that Dershwitz did not play a role in
the decision to increase the dosage of the drugs given to McGuire.
It is unclear how Dershwitz's withdrawal could affect upcoming executions in
Texas and Missouri. Each state has an execution scheduled for 10 September, and
both have been using secret compounders to obtain a supply of pentobarbital.
Missouri uses a "secret anesthesiologist" during executions, according to
Anthony Rothert, legal director at the ACLU of Missouri, but it is not known if
that is Dershwitz.
"If it's [Dershwitz] that will affect it, but we have no way of knowing who the
secret anesthesiologist is," said Rothert. "There are few anesthesiologists
willing to participate. Those that do tend to keep their participation secret."
The ACLU of Missouri is suing the state for court and state records, including
records showing where the state obtains pentobarbital. The Guardian is also
involved in a lawsuit challenging Missouri's execution secrecy.
Robert Blecker, a professor at New York Law School, believes states will find a
new expert.
"This is just a blip - this lethal injection controversy," said Blecker. "It
will be resolved. We'll adopt a different method," he said. Blecker believes
executions should "appear as painful as possible and actually be experienced as
painlessly as possible".
This controversy, Blecker says, is "part of a much deeper role and controversy
[which] is the role of punishment, if any, in our culture, and our shame at
doing it".
(source: The Guardian)
********************
3 Women Working Against Cruel and Unusual Punishment
As the nation was horrified by another botched execution this summer, a capital
defense lawyer in Texas, legal scholar in New York and the former warden of San
Quentin work against capital punishment.
There were only 3 people in the room: Jeanne Woodford, the chaplain and the man
strapped to a gurney with tubes coming out of his arms. After hearing the man's
last words, Woodford signaled the corrections officer who was "working the
chemicals," which means in prison argot that he started infusions of lethal
chemicals that flowed into the man on the gurney. As warden of California's San
Quentin, Woodford presided over this high-tech ritual of punishment four times.
After a stint as Executive Director of the California Department of Corrections
and Rehabilitation, she threw in the towel to become Executive Director of
Death Penalty Focus, the abolitionist organization that sponsored the 2012 SAFE
referendum seeking to replace the death penalty with life without parole.
Though the referendum failed to pass, Woodford is still hard at work in the
movement to abolish capital punishment in California.
Meanwhile, across the continent, in the gentility of Fordham University's
school of law, Arthur A. McGivney Professor Deborah W. Denno writes scholarly
articles about "working the chemicals" that are published in the nation's
leading law journals and quoted at death penalty hearings before the United
States Supreme Court.
Until lately, the chemicals Denno wrote about were sodium thiopental, an
ultra-short acting barbiturate that, given intravenously, is supposed to
deliver almost instantaneous sleep so that the condemned person will be
impervious to the rest of the evening's proceedings; pancuronium bromide, next
on the menu, which is related to curare, plant extract poisons from Central and
South America traditionally used on arrows which paralyze the body's skeletal
muscles (including the muscles of breathing); and for the coup de grace, a jolt
of potassium chloride, which stops the heart. This deadly mixture was known as
Carson's Cocktail, so named after the Oklahoma pathologist, A. Jay Carson, MD,
who concocted it as a "humane" alternative to the electric chair.
Since the early 1980s, the Carson Cocktail was the gold standard for
dispatching society's sinners (and the innocent too, if recent exonerations are
factored in). But since thiopental supplies have dried up because of the EU's
resistance to the death penalty states embracing the death penalty have been
forced by the courts to seek other drugs with results like this summer's
botched execution in Arizona. Now Professor Denno must address the ghoulish new
and often secretive lethal chemicals in use even as states calls for bringing
back the electric chair or firing squad.
In Texas, attorney Kathryn Kase despaired as the Lone Star State executed its
500th person since the resumption of the death penalty. Kase wears 3 hats. She
is Executive Director of the Texas Defender Service, where she supervises a
staff of ten lawyers. She is herself a courtroom lawyer specializing in death
penalty cases. And she and her staff mentor Texas lawyers in need of capital
litigation tactics.
Kase's organization was founded as a public-defender body with a focus on the
death penalty, but not specifically an abolitionist organization dedicated to
ending the death penalty. When she puts on her administrative hat, Kase must
play hardball as a politico, convincing fellow politicians of the importance of
the Texas Defender Service and wringing money out of the state government and
foundations.
Woodford, Denno and Kase could not be more different in personality and
background, yet all have thrust themselves into the battle against capital
punishment. There was a time when working in capital punishment was considered
men's work that was too gruesome for women. Not anymore.
Jeanne Woodford, whose manner is crisp and to-the-point, took a BA degree in
criminology and worked her way up to the highest rank of the California
Department of Corrections and Rehabilitation. Woodford told us that she chose
criminology because there were few women in the field and because she wanted to
bring a more even-handed standard of justice to criminology as practiced in
California.
Woodford is dismayed that, since the 1950s, penology has been dominated by a
punitive rather than rehabilitative philosophy; people want their pound of
flesh, even though punishment deepens sociopathic behavior, she says. Mere
confinement accomplishes nothing and rehabilitation is essential whenever
possible, says Woodford.
An unabashed abolitionist, Woodford says she is not "soft on crime" but as a
"policy person" she finds no respectable evidence that the death penalty is a
deterrent. By the time the legalities are done, it also costs more to execute a
person than to incarcerate him or her for life she says. There is, she adds, a
small element of the criminal population that it is so dangerous that it
requires lifelong incarceration.
Woodford's demeanor is so crisp that we felt a little trepidation about asking
her how she felt about overseeing the execution of four men when she was warden
of San Quentin in light of her views on the death penalty. "That," Woodford
replied, "Was a policy issue."
We asked Woodford what, specifically, changed her mind about capital punishment
and she told us she has always opposed it on moral and practical grounds and
that nothing has changed her opinion. Woodford says she sees hope that
behavioral science is beginning to change peoples' minds about the issue.
One could not imagine a woman more different from Jeanne Woodford than Kathryn
Kase. Funny, streetwise and a gifted lawyer, Kase started out as a journalist
in San Antonio, Texas, got bored covering police court, and craved the action
on the other side of the bar. Kase went to law school and moved to New York,
where she worked for brief periods for private law firms. She then returned to
Texas, where she says she found her calling in the Texas Defender Service, of
which a more thankless labor could not be imagined.
By most accounts, Texas really needs Kase. By 2011, Texas governor Rick Perry
had presided over more executions than any governor in modern history - 234.
The numbers continues to grow.
Speaking to Randi Hensley of the Campaign to End the Death Penalty in an
internal memorandum, a Texas lawyer agreed. "Once guys get on death row in
Texas, there's about a 90% chance they will die," said the lawyer: "There are
no public defenders, no money, no experienced death penalty lawyers."
While the lawyer's observations are somewhat exaggerated, not by very much:
organizations like the Texas Defender Service and the death penalty "clinic" at
the University of Texas are so short staffed that they find themselves
desperately filing appeals moments before the chemicals began to flow. Press
reports of Texas executions have been chilling.
As Kathryn Kase dukes it out in the rough and tumble of Texas courthouses and
the statehouse, Deborah Denno continues to highlight the cruelty of lethal
injections in her academic work. Soft-spoken and poised, Denno says her turning
point was the electrocution of Willie Francis, who walked the long road twice
because the first execution was bungled.
When lethal injections supplanted the "hot squat" (the electric chair) as a
more "humane" means of extinguishing human life, Deborah Denno made the cruelty
of lethal injections her academic focus. Denno's work is invaluable in helping
to paint for the public a complete picture of executions, from electrocution to
the death gurney says Steve Hall, executive director of the Texas abolitionist
group StandDown.
In a field once dominated by men, Kase, Denno and Woodford are bringing new
passion to the fight against the death penalty along with a small pool of
capital defenders like Judy Clarke and Maurie Levin. This summer's shocking
botched execution may bring more Americans to their side of the issue.
(source: Robert Wilbur is a psychopharmacologist who also writes semi-popular
articles on capital punishment, prison reform, and animal rights. Martha
Rosenberg is a regular Dissident Voice contributor----dissidentvoice.org)
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