Oct. 3
TEXAS:
SCOTUS considers if man may be executed after 'expert' testified that black
people are dangerous----Count the failures of justice in Duane Buck's case.
As a devout Christian, he spends much of his time praying and atoning for his
past sins. For 2 decades, he's encouraged young people around him to
self-reflect and better themselves. All the while, Buck has maintained a clean
disciplinary record - always doing what is asked of him and never stepping out
of line.
And he's done it all on while awaiting his execution.
"On death row, inmates are routinely written up for trivial things like
refusing to shave, having too many postage stamps, putting up art or photos on
the wall or windows, refusing to shower on a given day," Kate Black, a staff
attorney for the Texas Defender Service who works closely with Buck, told
reporters last week. "So for Mr. Buck to have existed for over 20 years in
these circumstances, and to not have been written up one time, it's really
remarkable."
Black also spoke of Buck's unrelenting faith, which has become an integral part
of his character growth in the decades he's spent behind bars.
"Mr. Buck is a deeply faithful man, and he spends most of his time in prayer,"
she said. "Not just prayer for people who are on his side? - for his lawyers,
his legal team? - but also for people we would see as our adversaries. He
spends time praying for the district attorney, for the attorney general, for
the solicitor general."
A case about errors
If Buck's life was not at stake in Buck v. Davis, and if his case did not raise
grave questions about the reliability of our justice system, then the parade of
errors that the case brings to the Supreme Court would almost be comic.
There's a good chance that he is there because of 2 sets of incompetent
lawyers, a psychologist's racist testimony, a bait-and-switch perpetrated by
Texas's current governor, and an opinion authored by one of the most
dismissively ideological judges on the federal bench.
As ThinkProgress previously explained, Buck is "not simply a case of
ineffective assistance of counsel, this is a case of ineffective assistance of
counsel aggravated by even more ineffective assistance of counsel." And that is
only part of the story.
Buck was convicted of murdering his girlfriend and a man he believed to be his
girlfriend's lover. At trial, he was represented by Jerry Guerinot, an attorney
widely viewed as one of the worst, if not the worst, capital defense attorneys
in the nation. Guerinot represented nearly three dozen people facing the death
penalty and never won a case. 20 were sentenced to die. As the New York Times'
Adam Liptak wrote, "a good way to end up on death row in Texas is to be accused
of a capital crime and have Jerry Guerinot represent you."
During the sentencing phase of Buck's trial, the phase that determined whether
or not Buck would receive a death sentence, Guerinot and his co-counsel
introduced testimony from Dr. Walter Quijano, a psychologist with a history of
racist testimony in capital cases. At Buck's trial, Quijano testified that
African Americans and Hispanics are especially likely to be dangerous as they
are "over represented in the Criminal Justice System." Buck is African
American.
Quijano's testimony matters because Texas law requires the prosecution to show
that a capital defendant is likely to be dangerous in the future before that
defendant may be sentenced to die. Moreover, as Buck's current legal team
explains in their brief to the Supreme Court, it is likely that Guerinot's
decision to introduce Quijano's testimony violates the Constitution.
"This information was presented in an expert report. It was elicited during Dr.
Quijano's testimony. It was referred to by the prosecutor that directed the
jury to pay attention to that testimony," Sherrilyn Ifill, the NAACP Legal
Defense Fund's president and director of counsel, said during a press briefing
last week.
Under the Supreme Court's decision in Strickland v. Washington, a criminal
defendant receives unconstitutionally ineffective assistance of counsel when
their lawyers' incompetence prejudices the outcome of the trial. This prejudice
does not need to be shown with certainty. Rather, a defendant who received
ineffective assistance should prevail when there is a "probability sufficient
to undermine confidence in the outcome" of the trial that attorney incompetence
impacted the trial's result.
In Buck's case, his Supreme Court legal team explains, "it took 2 days for
jurors to reach a decision about the special issues" in the case, one of which
was whether Buck was likely to be dangerous in the future. Over the course of
this time, they sent a note to the judge asking "can we talk about parole with
a life imprisonment?" and another requesting the very same psychological report
where Quijano said that Buck's race "meant an 'Increased probability' of future
dangerousness."
In other words, the jury was conflicted over whether Buck deserved the death
penalty. And there is a reasonable likelihood that they would have reached a
different result if not presented with Quijano's racist conclusions.
"This was not a case where it was clear to the jury what the right conclusion
was," Sam Spital, one of Buck's attorneys, told reporters. "If this is not an
extraordinary case, there is no such thing as an extraordinary case."
But that bring us to the next round of errors in Mr. Buck's case. In 1999, some
time after Buck was sentenced to die, he was appointed a new lawyer to help him
challenge his sentence during what are know as "habeas" proceedings. This
lawyer had his own history of poor representation of capital clients. And he
failed to challenge the 1st legal team's decision to introduce the racist
testimony. That error had lasting and disastrous consequences for Buck, as a
federal judge later ruled that Buck lost his ability to assert this claim
forever because it was "procedurally defaulted."
Since then, however, Buck did receive 2 pieces of good news. The 1st was a 2000
announcement by then-Texas Attorney General John Cornyn (R) (now U.S. Senator)
that Quijano's pattern of offering racist testimony was not acceptable and that
the state "will not object" if the inmates sentenced to die "seek to overturn
the death sentences based on Mr. Quijano's testimony." But this good news
proved short lived, as Cornyn's successor, Texas's current Gov. Greg Abbott
(R), did not honor Cornyn's promise after Buck sought relief from his death
sentence.
The 2nd piece of good news was a pair of Supreme Court cases establishing a
"narrow exception" to the previously existing rule that "an attorney's
ignorance or inadvertence in a postconviction proceeding does not qualify as
cause to excuse a procedural default." The incompetence of Buck's 2nd legal
team, in other words, no longer absolutely precludes him from challenging the
incompetence of his 1st legal team.
So that's where Buck's case stands right now as it awaits its day in the
Supreme Court. Buck has faced an avalanche of incompetence mixed with racism
mixed with broken promises. He's also faced extraordinarily conservative judges
in the courts below. The question before the justices is whether they are able
to weave a path through the maze of errors that led him to this point.
The context
This maze arises as protesters across the country demand more police
accountability and an end to racist enforcement of the the law. The issue at
the heart of Buck's case - whether or not race can be the basis for an
execution - are indelibly linked to the larger, national discussion about the
way race informs the administration of justice inside and outside the court
system. If the highest legal authorities in the country rule that race can be a
factor in determining that someone must be killed, there's no telling what
other members of law enforcement will do with that information.
"Even though this case is 20 years old, even though this is a capital case,
even though Mr. Buck has been found guilty of committing a heinous crime, this
case, in many ways, speaks to the moment we find ourselves in, in this
country," Ifill said. "We think it's important that [the] context be
understood, as this case is argued and deliberated[.]"
Leading up to the oral argument, hundreds of supporters have rallied behind
Buck and collectively said that race cannot be the basis on which the criminal
justice system operates.
Among those calling for a new sentencing hearing are Phyllis Taylor, who
survived Buck's gunshots, and Linda Geffin, a prosecutor on his case. A
bipartisan group of politicians, civil rights leaders, and legal experts -
prosecutors, judges, and previous American Bar Association presidents - has
also lent its support, according to Black.
"They are united in their belief that, in this country, one of our fundamental
principles has to be protected," she said. "And that principle is that race
plays no role in our criminal justice system, particularly when the ultimate
punishment is at stake."
Last June, racial profiling was at the forefront of a debate between Justice
Sonia Sotomayor and several of her more conservative colleagues in Utah v.
Strieff, a case holding that police may arrest someone for an outstanding
warrant, even if they initially stopped the person for unlawful reasons.
The Supreme Court's 'Wise Latina' Notches Her First Key Victory
25 years ago on Wednesday, the greatest lawyer of the 20th century confronted
his own mortality.thinkprogress.org
"We must not pretend that the countless people who are routinely targeted by
police are 'isolated,'" Justice Sonia Sotomayor wrote in a scathing dissent.
"They are the canaries in the coal mine whose deaths, civil and literal, warn
us that no one can breathe in this atmosphere."
She added that police overreach has bred a culture of fear in communities of
color. "For generations, black and brown parents have given their children 'the
talk,'" Sotomayor wrote. "Instructing them never to run down the street; always
keep your hands where they can be seen; do not even think of talking back to a
stranger - all out of fear of how an officer with a gun will react to them."
But with the capital punishment case on the table, race is front and center
once again. As was the case in Strieff, the question is once again whether the
Court will hold that a defendant's prior bad actions renders them less worthy
of protection under the Constitution.
"It's lovely when we're talking about innocence," said Spital. "It's easier in
some ways. But the challenge for our legal system is: even for the guilty, do
we allow racism and racial discrimination to infect the process?"
(source: Ian Millhiser, Justice Editor, thinkprogress.org)
VIRGINIA:
Halifax judge considers death penalty for convicted murderer
A Halifax County man is expected to learn this week whether he will live or die
for carrying out a 2011 rape and murder.
James Lloyd Terry entered guilty pleas in March on counts of capital murder,
rape, and robbery related to the death of Charlotte Rice in South Boston. Under
Virginia law a person found guilty of capital murder can face a punishment of
death or life in prison.
A neighbor found Rice, 84, beaten and lifeless in her home on Hamilton
Boulevard in April of 2011. According to prosecutors, the neighbor who found
Rice reported seeing a man matching Terry's description "nude from the waist
up" and fleeing Rice's home shortly after she was attacked.
Arguments opened Monday in what is expected to be a four-day sentencing phase
for Terry. In presenting their opening arguments, Terry's defense team
indicated they will use their client's intellect as a means for helping him
avoid the death penalty.
"He took full responsibility and accepts his punishment," a member of Terry's
defense said of their client Monday. "He's not the worst of the worst, because
he is intellectually disabled."
The Supreme Court of the United States ruled in 2002 that executing people with
intellectual disabilities violates the Eighth Amendment's ban on cruel and
unusual punishment, however individual states are open to define what
constitutes an intellectual disability.
Prosecutors argued in opening statements that Terry is "a continuing threat to
society," citing prior criminal incidents and convictions over a period of 20
years. "Nothing will stop this defendant and he remains a future danger,"
prosecutors said.
Judge Joel C. Cunningham will decide whether Terry should face Virginia's death
penalty or life in prison. His decision is expected following the presentation
of evidence by prosecutors and defense attorneys later this week.
(source: WDBJ news)
OHIO:
Ohio ready to resume executions with new drug combination
Ohio plans to resume executions next year after a 3-year hiatus with a new
3-drug combination, a state prosecutor said in a Columbus courtroom.
Assistant State Atty. Gen. Thomas Madden told federal Judge Edmund Sargus that
details of the execution policy will be released by week's end, the Associated
Press reported.
The state's last execution was in January 2014, when corrections officials
employed a combination of a sedative and a painkiller to execute Dennis
McGuire. The process took 25 minutes, and witnesses said McGuire seized and
gasped for 15 minutes. McGuire had been convicted for the rape and murder of a
pregnant woman in 1993.
Ohio Gov. John Kasich later delayed all scheduled executions until January
2017, when Ronald Phillips is scheduled to die for the rape and murder of his
girlfriend's daughter. The delay resulted in part from Ohio's difficulty in
obtaining lethal drugs required to carry out executions.
Lethal injection, the preferred execution method in the United States for
decades, has become less viable as the most efficient drugs have become
unavailable. Supplies of thiopental, one of the crucial drugs, ran out in 2010
when its U.S. manufacturer ceased production and foreign supplies were not
approved for import by the FDA.
In December 2014, Ohio Gov. John Kasich signed into law a bill that would
provide 20-year confidentiality for pharmacies that prepared lethal
formulations. Some Ohio lawmakers openly discussed the use of firing squads to
carry out death sentences, a move rejected by Kasich.
(source: USA Today)
***************************
Ronald Phillips execution: Ohio plans January death using 3-drug combo after
3-year pause
Ohio plans to resume executions in January with a new 3-drug combination after
an unofficial 3-year moratorium blamed on shortages of lethal drugs, an
attorney representing the state told a federal judge Monday.
The state outlined its plan to Columbus federal Judge Edmund Sargus in a
hearing where The Associated Press was the only media outlet present. Thomas
Madden with the Ohio attorney general's office said the state will use the
drugs midazolam, which puts the inmate to sleep; rocuronium bromide, which
paralyzes the inmate; and potassium chloride, which stops the heart. He said
the drugs are not compounded and are FDA approved.
Madden said a new execution policy will be announced at the end of the week.
Attorneys representing death row inmates say they'll file a new challenge
almost immediately.
The development opens the way for the execution of the Ronald Phillips for the
rape and murder of his girlfriend's 3-year-old daughter in Akron in 1993.
Ohio hasn't put anyone to death since January 2014, when Dennis McGuire
repeatedly gasped and snorted during a 26-minute procedure using a
never-before-tried 2-drug combo.
The state also used midazolam in McGuire's execution, making it disappointing
that Ohio would again turn to that drug, said Allen Bohnert, a federal public
defender representing several death row inmates.
Ohio and other states have struggled since then to find legal supplies of
execution drugs. Much of the states' problem has come from the fact that many
of the drugs used in executions are made in Europe?, and officials there widely
oppose the death penalty.
The state has more than 2 dozen inmates with firm execution dates sitting on
death row, with executions scheduled out as far as October 2019.
After McGuire's execution, the longest ever in Ohio using lethal drugs, the
prisons agency changed its policies to allow for single doses of 2 alternative
drugs. Complicating matters, neither of those drugs - sodium thiopental and
pentobarbital - is available in the United States after their manufacturers put
them off-limits for executions.
The state has unsuccessfully tried to find compounded or specially mixed
versions.
Last year, Republican Gov. John Kasich ruled out looking for alternative
methods, such as the firing squad or hanging.
In 2014, Kasich signed a bill into law shielding the names of companies that
provide the state with lethal injection drugs.
Supporters said such confidentiality is necessary to obtain supplies of the
drugs, and the measure is needed to restart Ohio executions. Opponents said it
was naive to think the bill could truly protect companies' names from being
revealed.
In 2014, former federal Judge Gregory Frost sided with the state, saying the
prisons agency's need to obtain the drugs outweighed concerns by death row
inmates that the information was needed to meaningfully challenge the source of
the drugs.
Phillips' execution was initially delayed because he requested to donate his
organs?, and Kasich said he wanted officials to study the feasibility of the
request. He was eventually denied the request, with officials saying he
wouldn't have time to recover from the transplant operation before being
executed?.
(source: CBS news)
***********************
Supreme Court rejects appeal from Springfield man on death row
The U.S. Supreme Court Monday rejected an appeal from a Springfield man who was
sentenced to death in 2011 for his role in the murder of a counselor for
troubled young people.
The justices, without comment, let stand a ruling last year by the Ohio Supreme
Court which upheld the conviction and death penalty of Jason Dean, 41, who took
part in a 4-day shooting spree that culminated in the death of Titus Arnold of
Springfield.
Dean's co-defendant, Joshua Wade, who was 16 at the time, was convicted of
murder and sentenced to life in prison.
(source: Dayton Daily News)
INDIANA:
Prosecutor considering death penalty in Amber Pasztor case
Amber Pasztor went before a judge Monday morning for the 1st time since being
charged with murder for allegedly smothering her 2 young children. The judge
entered a not guilty plea for her.
Pasztor, 29, of Fort Wayne appeared in Elkhart Circuit Court and showed no
emotion when the judge read the murder charges she faces. The judge set a
January 23, 2017 trial date and she will be appointed a public defender after
telling the court she did not have money to pay for an attorney. None of
Pasztor's family attended the hearing.
Elkhart County Prosecutor Curtis Hill said as far as he knows, Pasztor has not
undergone a mental health evaluation. He also said he's not ruling out pursuing
the death penalty.
Her next court date has been scheduled for October 27.
The murder charges were filed after police in Elkhart found the bodies of
7-year-old Liliana Hernandez and 6-year-old Rene Pasztor on Sept. 26, hours
after authorities issued an Amber Alert following their abduction from the home
of their custodial grandparents.
Police say in an affidavit that she confessed to smothering the children.
A prosecutor says Pasztor also is a suspect in Allen County in the shooting
death of a neighbor, 65-year-old Frank Macomber, whose car she was driving when
she was arrested. His body was found Tuesday in a wooded area
(source: Associated Press)
OKLAHOMA:
3 more Oklahoma death row inmates lose final appeals
The U.S. Supreme Court on Monday declined to review the appeals of 3 Oklahoma
death row inmates. There are now 11 inmates eligible for execution dates when
the state resumes lethal injections.
Without comment, the justices rejected appeals from:
-- Phillip Hancock, convicted of 2 counts of 1st-degree murder and given the
death penalty for the 2001 shooting deaths of Robert L. Jett Jr., 37, and James
V. Lynch, 58, both of Oklahoma City;
-- Julius Darius Jones, who was a University of Oklahoma freshman when he shot
and killed Edmond insurance company executive Paul Howell, 45, in the driveway
of his parents' home in Edmond; and
-- Anthony Castillo Sanchez, convicted of raping and murdering OU dance
student Jewell Buskin in 1996.
(source: Tulsa World)
CALIFORNIA:
A spiritual perspective on California's death penalty initiatives----The
question isn't whether we should let criminals off the hook, but whether we
have anything to lose by giving them the opportunity to reform.
"2 rival death penalty initiatives are on the November ballot," writes Fresno
Bee (California) columnist Andrew Fiala. "Proposition 62 seeks to abolish the
death penalty. Proposition 66 intends to make it more efficient. The moral
questions raised are complex."
Complex indeed, although I probably would have gone with "perplexing" or
"myriad." All the more reason, then, to keep this particular discussion focused
on just 1 question: Is there anyone who is not capable of being redeemed?
Of course, no one can say for sure. That doesn't mean, however, that the
question is not everyone's to consider.
Thousands of years ago, at least for the nascent Jewish nation, it wasn't so
much a matter of one's ability as it was their worthiness of redemption. "If
men strive, and hurt a woman with child, so that her fruit depart from her, and
yet no mischief follow: he shall be surely punished, according as the woman's
husband will lay upon him," it says in the Bible. "And if any mischief follow,
then thou shalt give life for life, Eye for eye, tooth for tooth, hand for
hand, foot for foot, Burning for burning, wound for wound, stripe for stripe."
Whoever wrote this wasn't saying people can't be redeemed, only that in certain
situations, they shouldn't be allowed to.
Years later, it was a Jewish reformer who called this theology into question.
"Ye have heard that it hath been said, An eye for an eye, and a tooth for a
tooth," said Jesus during his Sermon on the Mount, "But I say unto you, That ye
resist not evil: but whosoever shall smite thee on thy right cheek, turn to him
the other also."
As a kid it was pretty easy for me to understand the downside of taking an "eye
for an eye, tooth for a tooth" approach to justice. As the ever-thoughtful
Tevye says in "Fiddler on the Roof," this would eventually leave "the whole
world ... blind and toothless." But I still didn't get the part about turning
the other cheek. Somehow that sounded weak, if not unwise.
But then, probably sometime in my early teens, I ran across what Christian
theologian Mary Baker Eddy had to say on the subject. "Whosoever shall smite
thee on thy right cheek, turn to him the other also," she wrote, quoting Jesus,
in her book Science and Health with Key to the Scriptures. "That is, Fear not
that he will smite thee again for thy forbearance."
I don't think she was suggesting that we should let those who have done
something wrong off the hook, but rather, that we can't be harmed by giving
them the opportunity to improve themselves, to be reformed, to be redeemed.
There were those in Eddy's day, and many today in fact who are familiar with
her work as the discoverer and founder of Christian Science, who would say that
her approach to redemption was to pretend that evil did not exist, that God was
incapable of creating sinners and, therefore, that there was no need for
punishment or reformation of any kind. This, however, was not how Eddy saw
things.
"A sinner is not reformed merely by assuring him that he cannot be a sinner
because there is no sin," she wrote in Science and Health. "To put down the
claim of sin, you must detect it, remove the mask, point out the illusion, and
thus get the victory over sin and so prove its unreality."
For Eddy, "put[ting] down the claim of sin" - exposing its unreality by
challenging its veracity - involved a willingness to see one's self as
something besides a mortal personality defined by mortal circumstances; to
reject the idea that once you've chosen a particular path in life, there's no
turning back; to dismiss the notion that the grace of God is available to some
but not all, and even then only in certain situations.
She didn't see redemption as merely possible, but inevitable - a divinely
inspired, divinely supported process born of an innate though sometimes latent
desire in all of us to live our lives in concert with God or good, as she often
defined God.
Eddy also didn't see herself as being in a position to influence her fellow
voters on the deeply moral political decisions of her day. "I am asked, 'What
are your politics?"' she writes in The First Church of Christ, Scientist and
Miscellany. "I have none, in reality, other than to help support a righteous
government; to love God supremely, and my neighbor as myself."
Regardless of what we decide in November with regard to the death penalty, we
would do well to follow her lead.
(source: Eric Nelson writes about the link between consciousness and health
from his perspective as a practitioner of Christian Science; Communities
Digital News)
US MILITARY:
Supreme Court rejects to death penalty for military
The Supreme Court won't hear a challenge to the death penalty for members of
the military.
The justices on Monday rejected an appeal from the former soldier who was
sentenced to death for killing 2 fellow soldiers and injuring 14 others in an
attack in Kuwait in 2003.
The appeal from Hasan Akbar focused on whether the way in which the armed
forces impose a death sentence complies with recent Supreme Court rulings.
Akbar is being held at Fort Leavenworth, Kansas. He was convicted of killing
Army Capt. Christopher S. Seifert and Air Force Maj. Gregory L. Stone in Kuwait
during the early days of the Iraq war.
The military has not carried out an execution since 1961.
(source: Associated Press)
USA:
Death Penalty Loses Majority Support for 1st Time in 45 Years
For the 1st time in almost half a century, support for the death penalty has
dipped below 50 % in the United States.
Just 49 % of Americans say they support capital punishment, according to a Pew
Research Center poll conducted from late August to early September. That
represents a 7-point decline in about a year and a half. Support peaked at 80 %
in 1994.
The death penalty has had majority support among Americans for 45 years. The
last time support was as low as it now stands was in 1971. Pew has surveyed
Americans on the subject for the past 2 decades and relies on the polling
organization Gallup for older data.
Death Penalty Support Reaches a 45-year Low
"Much of the decline in support over the past 2 decades has come among
Democrats," wrote Baxter Oliphant, a research associate at Pew.
Just 34 % of Democrats support the death penalty today - less than 1/2 as many
as in 1996, research shows. Support among Republicans declined over that
period, too, but remains high: 72 % back capital punishment today, down from 87
% 2 decades ago.
Independents, for the 1st time in decades, are about evenly split on the
practice.
Americans are divided on the subject by gender, generation and race. Men are
more likely than women to support the death penalty; whites are much more
likely than Hispanics or African-Americans to support it, the survey found.
Fewer Americans between the ages of 18 and 29 support the death penalty than
any other age group today.
The flagging support for the death penalty aligns with a decline in the number
of executions nationwide, which peaked in 1999 when 98 people were put to
death, according to the Death Penalty Information Center. There have been 15
executions so far this year, and a few more are scheduled.
9 states have suspended capital punishment in the past 5 years, and 30 still
allow it, according to the Death Penalty Information Center. Californians will
weigh repealing capital punishment when they go to the polls in November.
(source: Associated Press)
*************************
Richard Branson: America uncivilized for employing the death penalty
Virgin Group founder Richard Branson has branded the U.S. as uncivilized for
still using the death penalty.
Speaking at the "Virgin Disruptors" event in London on Monday, the billionaire
entrepreneur said he was travelling to America this week to campaign against
the death penalty, ahead of a referendum in California next month, which could
see the end of the punishment in the state.
"America...you can't really be a civilized nation if you are still employing
the death penalty. Europe got rid of it 70 years ago and I would say Europe is
now civilized. America has got to rid themselves of it," Branson said.
The billionaire was speaking on stage about "purpose" while doing business. He
said that an entrepreneur's business is "changing the world", and with that
comes wealth which brings responsibility. Branson urged business people to take
on the world's major issues.
"If we can get every single business in the world to take that attitude, we can
get on top of almost every problem in this world," he said.
It's not the 1st time Branson has spoken out against the death penalty. He has
written numerous blog posts on the topic and earlier this year, began a
campaign called #DeathPenaltyFail, a series of short films to cast light on the
punishment system in the U.S.
Branson also highlighted the persecution of homosexuals in Uganda, and
Philippines president Rodrigo Duterte's war on drugs, in which hundreds of
people have been killed for taking illegal substances. He said public figures
should take an active role in campaigning against these acts.
"We've got to use our influence to try to try to speak out and try to bring
some decency to countries," Branson said.
(source: cnbc.com)
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