Nov. 11
KENTUCKY:
Death penalty in Kentucky has 'glaring problems'
What should be done to the latest ISIS-inspired terrorist in the USA? His name
is Sayfullo Saipov. He is a 29-year-old truck driver from Uzbekistan who was
charged on Nov. 1 with material support of a terrorist group and violence and
destruction of motor vehicles after he drove a truck down a bike lane
intentionally, killing 8 people and injuring 12.
President Trump was quick to say that he should receive the death penalty, and
New York's Mayor DeBlasio was quick to take issue. He favors life in prison
with no chance of parole. We shall see whether the fate of Saipov becomes part
a slight recent rise in the number of executions in our nation, as reported by
Richard Wolf in USA TODAY on Oct. 23, or part of the longtime declining trend.
In the Wolf story, it was noted that the execution of an Alabama cop killer,
Torrey McNabb the previous Thursday (Oct. 19) was the 21st such execution this
year, marking the first time that the number of executions has risen
year-over-year since 2009, when there were 52. 2009 was followed by a
relatively steady drop until now.
Opponents of capital punishment have been quick to label this new development
as only a temporary interruption in the broader trend toward abolition.
(Wrongful Conviction Day and the 15th Annual World Day Against the Death
Penalty were both observed in October, but the U.S. just angered many by voting
against a UN resolution condemning the death penalty for homosexuality.)
The number of states doing executions dropped from 9 in 2013 to 5 in 2016, and
supreme courts in Florida, Delaware and Connecticut recently struck down those
states' death penalty procedures. However, this year, the number of states
executing has grown somewhat.
Arkansas rushed to do 4 in 8 days before its supply of lethal injection drugs
ran out; and it tried for 8 over a 2-week period, only to be thwarted by court
intervention in the other 4 cases.
Florida resumed executions after an 18-month halt because of a Supreme Court
ruling on its sentencing procedure. 2 states, Nebraska and Oklahoma, put the
death penalty back in state statutes or the constitution, and voters in
California defeated an abolition effort. Some recent executions occurred
because further claims of innocence and requests for more forensic testing went
unheeded.
Despite the increase, only 16 of the nation's 3,000 counties issue capital
sentences with any regularity, and most of the people on death row were put
there 10, 20 or 30 years ago by juries and prosecutors who, according to Rob
Smith, the executive director of the Fair Punishment Project, would not hand
down the same sentences today knowing the alternative of life without parole.
States still occasionally go on execution sprees (Missouri in 2014-15 and
Georgia in 2016), but since the Supreme Court reinstated the death penalty in
1976, the height of the death sentencing era is now 20 years behind us.
There are several reasons for the overall downward trend. Since 1973, 155
people on death rows have been released with evidence of innocence. Racial
disparities have drawn greater attention. The Death Penalty Information Center
informs us that African-Americans make up 34.5 % of defendants executed and 42
% of inmates on death row, despite constituting only 13 % of the general
population.
The race of the victim weighs heavily. About 50 percent of murder victims are
white, but of cases involving the death penalty, over 75 % involved white
victims. Among persons executed for interracial murders, 20 whites have been
executed for killing a black victim, and 287 blacks have been executed for
killing a white victim.
In 2010, it was estimated 61 % of voters would choose another punishment over
the death penalty: 39 % would favor life without parole plus restitution; only
33 % would favor the death sentence.
As for the alleged deterrent effect in lowering the homicide rate, the most
recent finding was that 88 % rejected the deterrent effect and only 5 %
supported it. In a 2009 poll of law enforcement professionals, the death
penalty finished last among a series of factors to be ranked in the top 2 or 3
in interference with law enforcement. 20 % picked lack of law enforcement
resources, and 20 % picked drug and alcohol abuse. Insufficient use of the
death penalty finished ninth (last), with 2 % of those asked ranking it in the
top 2 or 3 factors.
Then there is the matter of cost. In 2014, Kansas spent $400,000 per case when
the death penalty was sought and $100,000 when it was not. The average death
penalty case in Maryland costs $3 million; and between 1978 and 1999, the state
spent $186 million while performing 5 executions. Florida has averaged $24
million per case on 44 executions since 1976. North Carolina has spent $2.16
million per execution over the cost of a life sentence. Texas has averaged $2.3
million, 3 times the cost of imprisoning someone in a single cell with the
highest security for 40 years.
For Kentuckians there is a very troubling array of findings by the American Bar
Association Kentucky Death Penalty Assessment Report from December 2011.
(Kentucky has 33 people on death row and has executed 3 since 1973.)
Over 500 pages in length, the report highlights such glaring problems in
Kentucky's implementation of the death penalty that it recommends temporary
suspension of executions until the major issues of fairness and accuracy are
rectified.
Of the 78 people sentenced to death in Kentucky during the period studied, 50
had a sentence overturned, an error rate of more than 60%. Inadequate retention
of evidence diminishes the effectiveness of a state law allowing
post-conviction DNA testing prior to execution. Chances to establish both
innocence and guilt are thus lost.
There are no uniform standards on eyewitness identifications and interrogations
to guard against false identifications and confessions. There is no mechanism
to guide prosecutors to avoid discrimination in application of the death
penalty. Jurors in capital cases were found to have a disturbing lack of
understanding of sentencing guidelines before deciding whether a defendant
should be executed.
Public defenders have caseloads far exceeding the national average and salaries
31 % below those of similarly experienced attorneys in surrounding states. At
least 10 of the 78 people sentenced to death were represented by defense
attorneys who were subsequently disbarred.
There are not adequate protections for defendants with mental retardation or
mental illness. And there is a lack of data-keeping throughout the
administration of the death penalty, making it impossible to guarantee that the
system is operating fairly, effectively and efficiently. What a sobering
assessment!
When the Kentucky General Assembly has its next regular session, there will
again be proposals to abolish the death penalty, but the past history of such
efforts is not encouraging, despite numerous good reasons to abolish it. At
least, however, we can harbor the hope that the ABA report's findings will lead
to the declaration of a moratorium on the use of the death penalty until the
substantial problems cited in the report are rectified to make the system more
just and more efficient.
(source: Danville Advocate)
NEBRASKA:
Pending challenges of Nebraska's death penalty system could affect state's
latest execution efforts
A legal issue looms over Nebraska's death penalty that's unrelated to the new
and untried lethal drug combination state officials unveiled this week.
Defense attorneys say pending challenges of a system that allows judges rather
than juries to impose death sentences could impact whether the state ends its
streak of 20 years without an execution.
At least 3 of the 11 men on death row have challenged the state's procedure,
which gives 3-judge panels the final say in capital cases. They argue that the
U.S. Constitution requires the same jury that decides a defendant's guilt to
also decide his fate.
Their argument has so far proved unsuccessful. A district court judge recently
issued an opinion that utterly rejected any argument of constitutional flaws in
Nebraska???s system. Attorneys for the inmates will now hope for favorable
rulings in state and federal appellate courts.
Nebraska prison officials announced Thursday they have obtained supplies of 4
drugs they say will allow them to carry out a lethal injection execution.
Attorney General Doug Peterson said that after a 60-day notice period, he
intends to seek a death warrant for Jose Sandoval, who led 3 gunmen who stormed
a Norfolk bank in 2002 and shot down 4 bank employees and a customer.
While attention immediately focused on the drugs, which have never been used in
combination by another death penalty state, questions about Nebraska's capital
sentencing procedure remain unsettled.
The 3 death-row inmates who have challenged Nebraska's system are John Lotter,
Marco Torres and Jeffrey Hessler.
They rely on a 2016 case called Hurst v. Florida, in which the U.S. Supreme
Court struck down a capital sentencing scheme that allowed judges to impose
death sentences. The ruling in the Florida case prompted the Delaware Supreme
Court to end the death penalty there because it relied on a similar system.
Although Sandoval has not yet raised a similar challenge, the issue could
potentially affect the state's efforts to execute him, said Rebecca Woodman, a
defense lawyer in Lenexa, Kansas, who represents Lotter.
"Those cases could have an impact on Sandoval's case for sure," she said.
But a Nebraska judge recently delivered a blow to Lotter's effort to overturn
the death penalty based on the Hurst decision. Saline County District Judge
Vicky Johnson, who presided over Lotter's motion in Richardson County, said
Nebraska's system is substantially different from the one struck down by the
Supreme Court.
In Florida, juries provided judges with advisory opinions about sentencing. The
key factual determinations regarding punishment were left with the judge.
In Nebraska, juries must decide - during a 2nd penalty phase held right after
the trial - whether aggravating factors against a convicted defendant exist. If
juries find, beyond a reasonable doubt, that aggravating factors do exist, a
3-judge panel considers any mitigating factors in favor of the defendant
. If the aggravating factors outweigh mitigating factors, the judicial panel
may then impose a death sentence.
"This makes Nebraska's sentencing process completely dissimilar from the
sentencing scheme utilized in Hurst," Johnson wrote in an order issued in late
September.
The judge went even further in support of Nebraska's system. She said the Hurst
decision may apply to death penalty cases still under direct appeal but not
retroactively to convictions like Lotter's and Sandoval's, which were long ago
affirmed by the Nebraska Supreme Court.
Lotter also failed in an earlier attempt to raise the issue before a federal
district court judge.
Woodman declined to comment about the most recent ruling against her client.
But Lotter has appealed to the Nebraska Supreme Court, which recently agreed to
hear the case.
Lotter, 46, has spent 22 years on death row for the 1993 triple homicide at a
farmhouse near Humboldt, Nebraska. The case inspired the award-winning movie
"Boys Don't Cry."
Torres, 42, was sent to death row for the 2007 execution-style shootings of 2
Grand Island men. His challenge of Nebraska's system is part of a habeas corpus
motion filed last summer in U.S. District Court in Omaha.
Hessler, 39, was sentenced to die for the rape and murder of a 15-year-old
Gering girl in 2003. A check of court records showed no recent activity on his
motion challenging the state's sentencing scheme.
(source: Omaha World-Herald)
***********************
Lawsuits expected over possible Sandoval execution
Death penalty experts say the new four-drug combination Nebraska officials
unveiled Thursday has never been used by another state in a lethal injection
execution.
That means legal challenges over the drugs could further delay what would be
the 1st time Nebraska has used lethal injection to carry out an execution.
"It's yet another experimental protocol. Now the lawsuits begin," said Robert
Dunham, director of the Death Penalty Information Center in Washington, D.C.
The Nebraska Department of Correctional Services announced Thursday that it has
notified Jose Sandoval - 1 of 3 men convicted of murder in the 2002 U.S. Bank
shootings in Norfolk - that it will inject 4 drugs in the following order:
diazepam, fentanyl citrate, cisatracurium besylate and potassium chloride.
Diazepam (brand names include Valium) is a benzodiazepine that is used to
produce a calming effect. Fentanyl citrate is a general anesthetic that has
been used since the 1960s. As an opioid, it also blocks pain, which has made it
a popular a street drug linked to lethal overdoses.
Cisatracurium besylate (brand name: Nimbex) relaxes or paralyzes muscles and is
used along with a general anesthetic when intubating patients or doing surgery.
The final drug, potassium chloride, is used to stop the inmate's heart. It was
the only drug that was also used in Nebraska's former 3-drug combination.
Dunham said the 4 drugs selected by Nebraska have not been used in combination
by another death penalty state. The 3rd drug, cisatracurium besylate, has not
been used before in an execution, he added.
Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in
Sacramento, Calif., said that in 2015 the U.S. Supreme Court established "a
fairly high hurdle for those who would stop a lethal injection."
In deciding a lethal injection dispute in Oklahoma, the court said that to
prevent an execution, the drug must present a "demonstrated risk of causing
severe pain" in the inmate and the risk must be substantial compared with known
alternative drugs, Scheidegger said.
"The objection that a drug has never been used before is not valid by itself,"
he said.
State Sen. Ernie Chambers of Omaha, the leading opponent of capital punishment
in the state, said the new and untested protocol would inspire lengthy legal
action.
"They're far from being at the point at which an execution can be carried out,"
Chambers said. "I think the rough ride has just begun."
The senator said he thought that Thursday's announcement was more a "political
and public relations" move tied to Gov. Pete Ricketts' bid to win a 2nd term as
governor.
The Republican governor helped organize and fund a petition drive to reinstate
capital punishment last year after the Legislature in 2015 overrode his veto to
repeal the death penalty.
Danielle Conrad, director of the ACLU of Nebraska, said she was "horrified"
that the state plans to use Sandoval as a test subject for an unproven lethal
drug combination. Her organization, she said, will closely evaluate the
constitutional questions raised by the state's plan.
"This rash decision will not fix the problems with Nebraska's broken death
penalty and are a distraction from the real issues impacting Nebraska's
Department of Corrections: an overcrowded, crisis-riddled system," she said in
a press release.
(source: Norfolk Daily News)
US MILITARY:
Law professor seeks federal court protection against forced video testimony to
Guantanamo
A Long Island law professor is seeking a federal judge's protection from an
order to testify by video feed next week at a USS Cole case hearing. It is the
latest test of the reach of the war court created after the Sept. 11 attacks to
try non-citizens.
In court Friday, prosecutor Air Force Maj. Michael Pierson called Hofstra law
professor Ellen Yaroshefsky's preemptive habeas corpus filing at the U.S.
District Court in Manhattan part of a "collateral attack" on the military
commission system.
While war court prosecutors haven't yet subpoenaed Yaroshefsky and 3 "rogue
counsel" who have defied a judge's order to appear, Pierson said, Congress and
the Secretary of Defense have absolutely granted the power to the prosecutors.
At issue is what Air Force Col. Vance Spath, the judge, can do about the
resignations of 3 civilian defense attorneys for Saudi captive Abd al Rahim al
Nashiri - death-penalty defense lawyer Rick Kammen and Pentagon employees Rosa
Eliades and Mary Spears. The defenders quit in October citing a classified
ethical conflict, after getting advice from Yaroshefsky, who had no access to
their secrets.
Spath says they didn't have his permission to resign, considers them attorneys
in absentia and is considering contempt proceedings over their "shocking and
appalling" decision to "abandon" Nashiri, the alleged mastermind of the Oct.
12, 2000 USS Cole bombing. He is charged in a death-penalty case.
So Spath has ordered Yaroshefsky to war court headquarters in Virginia next
week to answer his questions about her 8-page Oct. 5 ethics opinion the lawyers
used as a basis for their resignations.
When the judge tried to do the same thing - order Kammen, Eliades and Spears to
appear by video from Virginia - Kammen got a federal court in Indiana, where he
has a law practice, to temporarily suspend enforcement of that order. Now
lawyers for the law professor have similarly filed a preemptive habeas corpus
petition in federal court against Spath and Secretary of Defense Jim Mattis to
prevent prosecutors or the judge from sending U.S. Marshals to force her to war
court headquarters.
The thought is not far-fetched. Spath had marshals seize a recalcitrant witness
in Massachusetts last year, hold him overnight in a Virginia jail and deliver
him to the same place for video testimony.
Lawyers for Yaroshefsky argue in their petition before U.S. District Court
Judge Gregory H. Woods in New York that the Guantanamo war court "lacks any
authority to detain or seize United States citizens." They said Yaroshefsky may
not be allowed to bring her own lawyers into "the secure government facility"
for Spath's questioning, and she and does not want to go.
They ask him to quash any potential subpoena to testify at Guant???namo, even
virtually.
They argue that Spath overstepped his role by unilaterally calling Yaroshefsky
as a witness, essentially usurping the role of prosecution and defense
attorneys. And they say a military commission is less a court than "an
administrative agency board that operates under tightly constrained powers and
may not act outside of the powers explicitly given it by statute."
In court Friday, Spath said he was waiting to hear more about the scope of his
power. "If a District Court judge tells me I don't have contempt authority we
will pick up and go home," he said.
Pierson told Spath that prosecutors were confident the law was on their side.
The prosecutor invoked an earlier precedent in which a civilian federal court
chose to not meddle in a military trial in the interest of "comity, respect for
the expertise of military judges and judicial economy."
That case, however, involved a classic court-martial. The war court at
Guantanamo is a hybrid civilian-military tribunal created by President George
W. Bush and reformed by President Barack Obama solely to try non-U.S. citizens
for war crimes.
17 U.S. sailors were killed in al-Qaida's suicide bombing of the Cole off Aden,
Yemen, after 2 Yemenis pulled a garbage skiff packed with explosives alongside
the ship and detonated it.
Court hearings this week have focused on lead prosecutor Mark Miller's
continuing effort to pre-admit evidence, such as debris collected by sailors
and federal agents aboard the foundering warship in the aftermath of the
bombing.
Nashiri's only lawyer in court all week, Navy Lt. Alaric Piette, consistently
refused to question the witnesses or take part in the mini-hearing.
Spath explained in court that he was carefully bifurcating and setting aside
pretrial preparation portions that, in his view, did not require the guidance
of an American Bar Association-approved lawyer with death-penalty experience.
The judge called it "nuts and bolts" litigation.
Piette replied the evidence was the "nuts and bolts of a government case that
they are trying to use to convict and execute Mr. Nashiri," and that "every
aspect of a capital case" requires the guidance of a learned counsel.
After each evidence bag was offered, Piette would declare that in the absence
of a death-penalty defender he was bound to ask no questions and "take no
position."
Spath, who has become increasingly frustrated with Piette's refusal to
participate, at one point replied: "There is a position and a strategic
decision from the defense community."
Spath is the chief trial judge of the Air Force. He observed in court Friday,
which was Veterans Day, that the law provides skilled death-penalty defense
lawyers to war-on-terror detainees charged with capital crimes "to the extent
practicable" - unlike in his normal court-martial practice, where airmen
charged in death-penalty crimes don't get capital counsel.
Kammen and the other attorneys got the ethics opinion from Yaroshefsky, who
does not have a security clearance to know the top secret nature of their
concern over a lack of attorney-client privacy. They then submitted their
resignations to the chief defense counsel for military commission, Marine Brig.
Gen. John Baker, who knows the classified issue and let them quit.
The judge and general disagree on Baker's authority to release them. After the
general refused a direct order from Spath to rescind his opinion, the judge
declared him in contempt of court and sentenced him to 21 days confinement in
his Guantanamo trailer park quarters and to pay a $1,000 fine. A senior
Pentagon official suspended the sentence after 48 hours while he reviews it.
In the past 2 weeks, 3 different lawyers have hired their own lawyers and gone
to 3 different federal jurisdictions essentially seeking protection from the
war court.
Civilian volunteer lawyers filed an unlawful detention petition in Washington,
D.C., on behalf of the Marine general confined to his trailer park quarters;
resigned attorney Kammen filed his preemptive habeas corpus suit in Indiana,
and now Yaroshefsky has turned to New York's Southern District.
In court Friday, another case prosecutor, Army Col. John Wells, announced that
the prosecution was arranging for an attorney-client meeting spot in the
building housing the judge's chambers and other administration offices at the
war court compound called Camp Justice.
Before he quit over the attorney-client privacy problem, Kammen had sought the
court's permission to both brief the Saudi about the classified program or
information threatening their confidential conversations and to set up an
alternative meeting site at Camp Justice, the war court compound miles from the
prison.
Spath rejected both requests, saying as judge he didn't have authority to
approve the disclosure of classified information to Nashiri, and likewise
couldn't decide where lawyers meet their captive clients when court wasn't in
session.
(source: miamiherald.com)
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