April 20
OHIO:
Judge delays ‘death penalty phase’ in trial of man convicted of double slaying
at Cleveland car dealership
The 2nd phase of the trial where a man faces the death penalty for killing a
couple at a Cleveland car lot in March 2017 has been delayed.
Joseph McAlpin was convicted Tuesday of all counts he faced, including
aggravated murder, in the execution-style deaths of Michael Kuznik and Trina
Tomola in the Mr. Cars dealership.
The trial was set to reconvene Monday to begin the penalty phase, where jurors
would hear additional evidence and recommend whether McAlpin should receive the
death penalty or a life in prison. The final decision on the sentence rests
with Common Pleas Court Judge Brian Corrigan.
But McAlpin on Friday asked for a mitigation report and a pre-sentence
investigation. Those reports require court staff and mental-health doctors to
interview McAlpin to determine, among other things, if he has any mental-health
conditions or a troubled past that could be used during the penalty phase to
convince jurors to spare his life.
McAlpin, who is representing himself during the trial, refused to sit down for
those interviews before the trial began.
Court officials on Friday had not set a new date for the second phase of the
trial to begin.
Prosecutors relied on DNA evidence, cellphone records, search history and
testimony from a man who admitted to helping McAlpin carryout what was supposed
to be a simple burglary to steal cars and titles to tie McAlpin to the March
11, 2017 slayings.
McAlpin entered Mr. Cars and shot Kuznik, 47, in the showroom. The bullet
grazed Kuznik’s face before he tried to escape toward a backroom, where McAlpin
stood over him and shot him in the top of his head, prosecutors said at trial.
Tomola, 46, tried to run from the building during the robbery. McAlpin shot her
in the back of her head, near an exit, prosecutors said.
McAlpin also shot and killed the couple’s Doberman Pinscher, Axel, who
accompanied the couple to work every day for protection, prosecutors said. He
also disabled the car lot’s security video systems before stealing the cars.
Investigators found McAlpin’s DNA in Kuznik’s back pocket, where prosecutors
said he had put cash from two car sales earlier in the day. The cash was not
found on Kuznik’s body. His DNA was also found on a computer modem that was
inches from Tomola’s body, and inside a BMW sedan that was stolen during the
killings, prosecutors said.
(source: cleveland.com)
*******************
Victims could have voice in death-penalty trial of accused killer of
Westerville officers
The death-penalty case of a man accused of murdering 2 Westerville police
officers could be the 1st in Ohio to allow jurors to hear victim-impact
statements if they reach the point of recommending a sentence of life or death.
Attorneys for Quentin L. Smith, 32, had filed a motion asking that such
statements be prohibited.
But a Franklin County judge on Friday agreed with prosecutors who argued that
victims have a right to address the jury during the sentencing phase under
Marsy’s Law, a constitutional amendment approved by Ohio voters in November
2017.
Common Pleas Judge Richard A. Frye said he thinks such statements must be
allowed under provisions of the victim’s-rights law.
Prosecutor Ron O’Brien called the ruling “a sea change” in what the state can
present to jurors in advocating for a death sentence.
Smith’s attorneys, Frederick Benton and Diane Menashe, declined to comment.
Both sides agreed that it’s the 1st time the issue has been raised in a death
penalty case since Marsy’s Law went into effect in Feb. 5 2018, 5 days before
the Westerville shooting.
Jury selection in Smith’s trial is scheduled to begin Oct. 11.
Smith is charged with killing Westerville police Officers Eric Joering and
Anthony Morelli on Feb. 10, 2018, in an exchange of gunfire as they entered his
townhouse in the 300 block of Cross Wind Drive to investigate a 911 hangup call
from his wife over a domestic dispute.
If jurors convict Smith of aggravated murder and find that he purposely killed
1 or both officers, he would become eligible for the death penalty. Jurors then
would enter a 2nd phase during which the defense would present what is known as
mitigating evidence in an effort to persuade them to spare Smith’s life.
Under Frye’s ruling, the jury also would hear testimony from the victims’
family members about how the crime has affected them.
“Right now, juries only hear ‘woe-is-me’ about the defendant and his bad
childhood and his drug or alcohol problems and never hear about the terrible
impact of the crime on the victim’s family,” O’Brien said.
(source: The Columbus Dispatch)
TENNESSEE:
Gov. Bill Lee talks about considering mercy as first execution of his term
approaches
Gov. Bill Lee said his review of a death row inmate's plea for mercy is "well
underway," and he acknowledged the jarring gravity of the decision as the first
execution of his term approaches.
Death row inmate Donnie Edward Johnson, 68, is scheduled to die May 16, four
months after Lee took office. He has asked Lee to spare his life — his legal
team says it will be their only attempt to stop the execution.
Johnson's clemency request focuses on his transformation behind bars, from a
lying murderer to a devout religious leader in the Seventh-day Adventist
Church. He was convicted with killing his wife in Memphis in 1984, but his
stepdaughter, the victim's daughter, has joined him in begging the governor to
stop the execution.
Lee said Wednesday he was considering the request, but he said it was too soon
to announce a decision.
"It's a thought process and something that I've never had to consider in my
whole life," Lee said during an event focused on criminal justice reform. "And
the power is profound."
Lee was reluctant to offer his view on executive clemency writ large, saying it
was too soon into his term to have a definitive philosophy on those decisions.
"I will approach each individual case differently," he said. "It's awfully
early for me to be able to comment on how I view the situation."
Lee and Kentucky Gov. Matt Bevin spoke together at a Wednesday event, hosted by
the Men of Valor prison ministry and conservative group Right on Crime. Both
Republican governors said they were dedicated to continuing criminal justice
reforms, even as they acknowledged some resistance among hardliners in their
own party.
'Everybody wins if we get this right.'
Lee and Bevin said it could be hard to push changes to the criminal justice
system, but they said there was broad bipartisan support for the concept. They
both cited the passage of the First Step Act as an example of coalescing
support.
The First Step Act, pushed by President Donald Trump in 2018 and passed by a
wide margin in an otherwise divided Congress, is a sweeping federal law that
allows courts to shorten unduly harsh prison terms.
Trump's embrace of criminal justice reform cleared the way for leaders at the
state level to pursue their own reforms.
"It makes it much easier for us to talk about what we want to do here when it's
being talked about at the federal level," Lee said.
This year, Lee has pushed to spend millions of dollars to educate prisoners and
his proposal to eliminate state engagement fees passed both chambers of the
General Assembly.
Bevin said those and other reforms would benefit the community as prisoners
finish their sentences and get released.
"Everybody wins if we get this right," Bevin said.
(source: The Tennessean)
ARKANSAS:
Arkansas murder conviction overturned
The conviction of a man for raping and killing his 6-year-old son was reversed
by the Arkansas State Supreme Court in an opinion released Thursday morning.
The court remanded the case for a new trial, due to questions about
jurisdiction.
Mauricio Torres was accused of raping Isaiah Torres while on a family camping
trip in Missouri on March 29, 2015. Isaiah was brought to a hospital after the
family returned to Benton County, Arkansas later that day. He died at the
hospital in Arkansas.
Mauricio Torres was convicted in Benton County in November 2016 of Capital
Murder and 1st Degree Battery. He was sentenced to death on the Capital Murder
charge and to 20 years on the 1st Degree Battery charge.
Torres was sent to death row at the Varner Supermax Unit in Grady, Arkansas.
Isaiah Torres' mother, Cathy Torres, pleaded guilty to Capital Murder in March
2017 as part of a deal to avoid the death penalty.
During the trial, a forensic pathologist testified that Isaiah died as a result
of sexual abuse. He also said Isaiah's body showed signs of being whipped and
struck repeatedly.
Isaiah's 9-year-old sister also took the stand. She testified that her "old
dad" would force Isaiah to sleep in a locked cage or trash can naked most
nights, and she also described other abuse.
The defense rested its case without calling any witnesses. In closing
arguments, defense attorneys said Torres did not knowingly kill his son, and
that his actions did not meet the legal definition of rape.
(source: 4029tv.com)
MISSOURI:
Senate committee hears pair of bills modifying death penalty guidelines
2 bills that would further curtail just when the death penalty could be handed
down were considered before a Senate committee this week.
Championed by Republican state Sen. Paul Wieland, SB 288 would remove the
option of the death penalty if all jurors cannot unanimously agree to such a
punishment. Wieland told the Senate Judiciary and Civil and Criminal
Jurisprudence Committee courts can currently decide on a penalty for someone
found guilty of 1st-degree murder except in instances when the governor
intervenes or in death penalty cases.
“We believe this raises serious constitutional questions about our death
penalty currently,” a representative from the Missouri State Public Defender
System told the committee, adding the office would have more resources for
other cases should this bill pass.
Tim Lohmar, president of the Missouri Association of Prosecuting Attorneys,
spoke in opposition to SB 288, noting it could take just one juror to decide
whether someone would receive the death penalty.
One person who didn’t approve of the death penalty could “derail” the option of
that punishment in some of the most vile cases, Lohmar argued.
The other legislation brought before the committee this week was SB 462 from
state Sen. Lauren Arthur, a Democrat. Her legislation would eliminate the
option of the death penalty for convicted felons who are found to have been
suffering from a serious mental illness at the time of the crime. That person
would still be able to receive life in prison without parole, however.
A defense would need to provide evidence that an individual was indeed
suffering from an “established serious mental illness” at the time of the
crime, and the prosecution would be allowed to present evidence pointing to the
contrary.
The mental illnesses laid out in the bill are: schizophrenia, schizoaffective
disorder, bipolar disorder with psychotic features, a major depressive disorder
with psychotic features, delusional disorders, traumatic brain injury, or
post-traumatic stress disorder.
“The 2 main reasons the U.S. Supreme Court decided as justification for the
death penalty — retribution and deterrence — don’t apply to [people with]
serious mental illness when they’re too delusional to understand what they’ve
done,” Arthur said. “This bill elevates our highest ideal to pursue justice in
a fair and equitable manner.”
Lohmar also opposed this bill, saying it would “eliminate any evidence of a
person’s mental illness or lack thereof from a jury” and only be before a
judge.
“The fact remains that all the evidence about a defendant’s mental illness is
available and will be and must be presented to the jury under the present law,”
he said.
There is similar legislation to SB 288 in the House — HB 811 — which was voted
out of committee last week.
(source: Southeast Missouri Times)
SOUTH DAKOTA:
A man with severe mental illness is accused of killing his mother and nephew.
Should he face the death penalty?
[This article was originally published by The Marshall Project, a nonprofit
news organization covering the U.S. criminal justice system. Sign up for their
newsletter, or follow The Marshall Project on Facebook or Twitter.]
Aleesha DeKnikker was grocery shopping, her phone set to silent, when the
voicemail from her mother, Carol Simon, came in: “Oh, it’s just Mom. Your
brother has really lost it, Aleesha.... He’s just having a mental breakdown and
he won’t even believe where he’s from. He won’t even believe that I gave birth
to him. ... I don’t know what to do.”
Six weeks later, Simon was found dead, along with her 7-year-old grandson,
Brayden Otto. Her son, Heath Otto, 24, admitted to investigators in Sioux Falls
that he had strangled his mother and nephew with a phone cord and then slit
their throats.
Soon after, Otto was ruled incompetent to stand trial, and he was sent to a
state hospital. Doctors hired by his defense lawyers diagnosed him with
schizophrenia. The Minnehaha County state’s attorney, Aaron McGowan, told
DeKnikker that her brother could face the death penalty. A trial will take
place as soon as Otto’s mental condition stabilizes, unless the prosecutor
agrees to let him be committed to a hospital permanently rather than face
prison and potential execution.
The case is gearing up amid a broader decline in the death penalty, as
lawmakers around the country are considering bans on death sentences for people
with certain serious mental illnesses. Some prosecutors have pushed back,
seeing these bans as a backdoor effort to abolish the punishment entirely.
Otto was close to his mother growing up, and he began experimenting with drugs
as a teenager. After a discharge from the Marines in his early 20s — he was
caught using steroids, his sister said — she started to notice moments of
paranoia.
“Unless you were close to him you wouldn’t see it,” Simon’s friend Maddie Borah
said. “He was going to school to be an electrician, and he’d be convinced
people were going into his toolbox.”
He began drinking heavily, and occasionally Simon would call a detox facility
to hold him until he sobered up. “I think she was lenient because deep inside
she knew there was something going on, beyond him being an addict,” Borah said.
Simon and DeKnikker, Otto’s mom and sister, were both nurses, so they
recognized a turning point around January 2016 — he was more paranoid than
ever, repeating himself and retreating into isolation.
“I knew he had schizophrenia,” DeKnikker said. “I knew he would need to get in
trouble to get help, but I never thought he would do something violent.”
He was not formally diagnosed. Twice, in May and August of 2016, he was
arrested at a bank where he was refusing to leave, as he talked about applying
to work for the CIA, and in September, he set off his mother’s home alarm
system, with the aim of making a CIA recruiter show up.
Simon wanted her son to be committed to a mental health facility, but South
Dakota laws required that he be a danger to himself or others, and as in much
of the country there were few resources for those needing mental health
treatment. He never saw a therapist. DeKnikker offered him money if he agreed
to seek treatment on his own, but he said she’d need to give him a large sum,
to pay for the voices in his head. Finally he agreed to treatment, but when it
came time to check into a hospital, he changed his mind and refused to stay.
“He didn’t verbalize intent to harm himself or others,” Borah said, so he was
not committed.
That was on a Tuesday in November. On Sunday, his other sister, Cassandra Otto,
left her son Brayden with him and their mother. When she called to check in,
she could tell from his tone that something terrible had happened. She sped
home. He’d set off the home alarm, so law enforcement officers had already
arrived. They asked if anyone needed medical attention, and Otto responded:
“Not anymore.”
He went on to claim, falsely, that his mother and nephew had medical conditions
and he wanted to “put them out of their misery.” He later told DeKnikker, in
her recollection, “It was an order from the CIA, and then he said stuff about
Hillary Clinton, and if he didn’t do it it was going to be World War III.” His
defense lawyers hired experts who diagnosed him with schizophrenia and
schizoaffective disorder.
Prosecutors may contest these diagnoses at trial, but they did not take issue
with the judge’s decision that he was incompetent to stand trial. According to
reporting by the Argus Leader, Otto had to wait several months for a bed to
open up at the state’s only public psychiatric hospital. In December 2018 a
doctor at that hospital told the court there was a “substantial probability”
Otto would be able to face trial within a year.
McGowan, the state’s attorney, does not need to formally announce yet whether
he is seeking the death penalty, but the case is proceeding as though he will;
the defense team is more robust than it typically would be in a non-capital
murder case. McGowan declined an interview, saying in an email that “our rules
of professional responsibility preclude me from commenting on the case.”
DeKnikker has written him a letter asking him not to seek the death penalty.
“Please know that killing another member of our family in no way honors my
mom’s life,” she wrote, “and doesn’t reflect anything my mom stood for.”
But Cassandra Otto, Brayden’s mother, wants her brother to be executed for the
killing of her child.
“I do forgive him, in a way, because I know my mom tried getting him help,” she
said. “I’m in a phase where I don’t know if he’s faking it or he’s really
mentally ill.” But, she added, “I think he should get the death penalty no
matter what, because my family doesn’t deserve what happened to us. My sister
disagrees, because that wasn’t her kid.”
She said her brother “knew what he was doing,” pointing out that he got a knife
only after he failed to kill Simon and Brayden with the phone cord. It is easy
to imagine prosecutors making a similar argument at trial.
Earlier this year, the South Dakota state legislature rejected a proposal to
ban death sentences for people with serious mental illnesses, though it had
passed such a proposal through one chamber last year. The Virginia state senate
approved a similar bill three months ago. Other bills are gaining traction in
Texas, Ohio, Tennessee and Missouri. Some include post-traumatic stress
disorder, while others are limited to schizophrenia, schizoaffective disorder
and bipolar disorder. Many require active psychosis at the time of the crime.
Some would let a judge decide who should be exempted, before the trial begins.
The Texas bill would let a jury decide during the trial. The Tennessee bill
requires a documented medical history before the crime, which might exclude
someone like Otto.
Supporters of these bills, with the backing of the American Bar Association,
argue that the “insanity defense” tends to be very narrowly defined, and juries
are skeptical of it. The Supreme Court has already banned the death penalty for
people with intellectual disabilities and those who committed their crimes
before the age of 18. Both bans were based on the idea that society views these
murderers as “categorically less culpable than the average criminal.” The high
court has ruled that death row prisoners must be “competent” to be executed,
though lower courts are still debating exactly what that means.
“Defendants who have a mental illness are particularly vulnerable in our
criminal justice system,” Amanda Marzullo, director of the Texas Defender
Service, told a panel of legislators in her state last month. “They are very
likely to fire their defense lawyers, or not cooperate with them, or even try
to represent themselves.”
Prosecutors have been wary. “The version of this legislation that is pending in
Ohio would effectively end the death penalty,” said Louis Tobin, executive
director of the Ohio Prosecuting Attorneys Association. He predicted that
everyone facing the punishment would be able to obtain a diagnosis. A defendant
can already mount an insanity defense, he pointed out, and then tell the jury
about mental illness as a way of persuading them to vote for life without
parole instead of death. Ohio’s bill, as of now, would apply retroactively,
potentially setting up lengthy legal fights over old cases.
If Heath Otto goes to trial, the state and the defense will battle over how
well Otto understood what he was doing, and what his drug and alcohol use says
about his culpability. In the meantime, he lives in a psychiatric hospital.
Maddie Borah, his mother’s friend, said she doesn’t visit, because she fears
she might trigger him: “If he understood what he did to his mother, he would
probably try to commit suicide.” She sees the entire situation as an indictment
of the way our society treats those with severe mental health problems: “It’s
much easier to kill a mentally ill man than to admit your mental health system,
your law enforcement, your policies and procedure are so inept.”
(source: argusleader.com)
CALIFORNIA:
This attorney once had sex with a client’s daughters. The ACLU wants him off
capital cases
Gary Turnbull hadn’t practiced law in California for 20 years before he
reactivated his license last October.
Within about a month, he was appointed to defend a man facing the death penalty
in the fatal shootings of 2 men at a bar south of Bakersfield.
Soon, a sordid story of the attorney’s past would resurface.
Decades ago, while representing a woman accused of killing her husband,
Turnbull, now 74, had secret sexual relationships with 2 of her 3 daughters,
eventually having a child with one. Twice he was suspended from practicing law
— in 1995 for not paying child support and again in 2004 for not paying bar
dues.
Now the American Civil Liberties Union is taking an unusual step of intervening
to try to remove him from the death penalty case, arguing that his ethical
transgressions and years out of practice make him unfit to take it on.
Turnbull’s appointment, an ACLU attorney said, is just one example of what she
sees as a troubling pattern: Problems with how attorneys for indigent clients
are appointed and paid are driving higher numbers of death sentences in some
Southern California counties.
“Many people mistakenly assume that the defendants charged with the death
penalty receive the best lawyering available,” said Cassandra Stubbs, director
of the ACLU’s Capital Punishment Project. “In fact, we see all too often the
worst kind of lawyering provided to the poor defendants charged with capital
crimes.”
Turnbull dismissed the arguments as “sour grapes.”
“They’re saying from a relationship I had 35 years ago, that I’m unfit. Yeah,
well, that’s history and the bar didn’t find it was unethical, immoral, illegal
or any conflict,” Turnbull said. “According to court rules, I’m totally
qualified.”
In a November declaration requesting to represent the man in the current
capital case, Turnbull indicated that he handled more than 100 criminal jury
trials and completed 300 hours of death penalty seminars throughout his career.
He told The Times that he is now handling w other capital cases.
Turnbull said he inactivated his license because he fell ill with cancer, moved
to Canada and didn’t think he’d practice again. He reactivated his license, he
said, because he was bored.
The ACLU’s effort to remove Turnbull is the latest twist in the nearly
4-year-old case of Juan Pablo Vega, who is charged with first-degree murder in
the shooting deaths of Jorge Zavala and Frederico Zuniga Moreno.
Kern County prosecutors allege that Vega walked into an Arvin nightclub in June
2015 and shot 3 people, killing 2 and wounding the other, after his girlfriend
called him and said they were bothering her and to come take care of it.
Vega’s trial is set for January.
A handful of attorneys were in and out of the case before a judge appointed
Keith Rutman, a San Diego lawyer, to represent Vega in October 2017 because the
Indigent Defense Program was unable to find a qualified attorney within the
county.
The Indigent Defense Program, run by the Kern County Bar Assn., contracts with
Kern County to represent defendants when the public defender’s office has a
conflict or otherwise cannot. The program director, Henry Marquez, did not
return multiple requests for comment.
As Rutman began building his defense, he needed to hire mitigation
investigators to dig into Vega’s upbringing in Mexico to find out what led him
to this point, he said in a court filing.
Rutman requested more funding to send investigators to Culiacan, in the Mexican
state of Sinaloa, because the county’s rate to pay them was so low — $42 an
hour — that he couldn’t find qualified people to take on the dangerous
assignment, he said in court filings.
Vega, he wrote, “is facing disparate treatment” from those facing the death
penalty in other California counties where there is enough funding for
mitigation investigators.
“The painful life stories of capital defendants are an important part of the
mitigation evidence defense counsel are duty-bound to investigate and present,”
the filing states.
A judge granted the request in November, ordering the county to pay an
investigator $150 an hour for work done in Mexico and another investigator $120
an hour for work done in the U.S.
After Rutman told the Indigent Defense Program director about the developments,
he was told another attorney would take over.
That turned out to be Turnbull.
Joe Hughes, vice president of the bar association’s board of directors, said
Rutman was not approved to be the lead attorney on capital cases and can only
serve as second chair. He did not say why.
Stubbs, of the ACLU, filed a declaration saying that an email exchange with the
Indigent Defense Program director “suggested possible retaliation against Mr.
Rutman for his advocacy” of Vega in securing additional funds. She also wrote
that someone who hasn’t practiced law for 20 years and “has not maintained
regular capital trainings” is unqualified to represent clients in death penalty
cases.
In a motion to clarify counsel, Rutman points to Turnbull’s history, saying it
raises “serious questions” about his fitness to serve.
“Turnbull engaged in such grave misconduct — having sexual relations with his
client’s 2 daughters — that the judge hearing the post-conviction case …
suggested he intended to refer the case” to the State Bar of California, the
motion says.
It’s unclear if the bar opened an investigation, but it does not appear from
online records that Turnbull was disciplined.
“These were young women who had lost their father, their mother was in jail for
having killed their father. He steps in, he’s a predator,” said Linda Starr, an
attorney who represented the mother, Glenda Crosley, after her conviction.
Crosley was convicted in a 2nd trial. The 1st trial — in which she testified —
resulted in a hung jury. She did not testify in the 2nd trial. She died in
prison in 2013, according to the California Department of Corrections and
Rehabilitation.
“We can’t know what he didn’t do because he was protecting his relationships
more than his client,” Starr said.
Turnbull said there was no conflict, describing one of the relationships as
“just two people, both alone, going through divorces.” He did not go into
detail about the 2nd one.
“What was unethical about it?” Turnbull said. “You’re going to rehash something
from 35 years ago? I can’t believe it.”
Turnbull and Rutman appeared in a Bakersfield courtroom on Thursday, each one
separately approaching and consulting with Vega, who was in a brown jail
uniform, his wrists shackled to a chain around his waist.
Kern County Superior Court Judge John R. Brownlee postponed the scheduled
hearing to clarify counsel to May because the court’s presiding judge was out
of town.
“We have a skeleton crew this week,” Brownlee said, adding that the matter
should be handled by the presiding judge since it “has the potential to
fundamentally change how we do business with the IDP.”
(source: Alene Tchekmedyian covers Los Angeles County’s criminal courts----Los
Angeles Times)
USA:
Veil of Execution Secrecy Expands in Several Southern Death-Penalty States
3 southern states have taken action to limit the public’s access to information
relating to executions by increasing secrecy surrounding lethal-injection drug
suppliers. On April 12, 2019, the Texas Supreme Court reversed an earlier
decision that would have disclosed the source of lethal-injection drugs used to
carry out executions in Texas in 2014, asserting that disclosure “would create
a substantial threat of physical harm to the source’s employees and others.” On
April 9, Arkansas Governor Asa Hutchinson signed into law one of the most
expansive and punitive execution secrecy laws in the nation, concealing the
identity of lethal-injection drug suppliers from the public and criminalizing
disclosure of execution-related information. Act 810 exempts lethal-injection
records from the state’s Freedom of Information Act and makes the intentional
or reckless disclosure of the exempted information a felony. In Louisiana,
amidst partisan feuding over the reasons the state has not carried out
executions, a bill that would make secret the source of execution drugs was
referred to the House Committee on Administration of Criminal Justice on April
8, the first day of the 2019 Louisiana state legislative session. Democratic
Governor John Bel Edwards, who voted against a similar bill five years ago
while serving as a state legislator, indicated that he would likely sign the
measure. Louisiana’s legislature is also considering two bills that would
abolish capital punishment.
The Texas Supreme Court decision marked the culmination of several years of
litigation over the state’s lethal-injection secrecy policy. A Texas district
court and a state court of appeals both ordered disclosure of the drug
supplier’s identity, and the Supreme Court initially upheld those lower court
rulings. The state asked for a rehearing, arguing that disclosure would have
“potentially devastating consequences” to public safety. The rehearing took
place after BuzzFeed News revealed through investigative reporting that the
state had obtained lethal-injection drugs from Greenpark Compounding Pharmacy,
a Houston based compounding pharmacy with a history of safety violations. When
the compounder’s identity was revealed, activists peacefully protested outside
the pharmacy. Attorney Ari Cuenin, arguing for the state, said that protests,
along with alleged threats, had convinced pharmacies not to provide drugs to
the state. The state called the pharmacy a “soft target” in an “urban area,
whose only defense is its anonymity.”
A number of states have asserted that anti-death-penalty activists have
intimidated pharmacies and major pharmaceutical companies into refusing to
supply drugs for executions and have argued in legislative debates and in
litigation that these alleged threats justify execution secrecy. In its secrecy
bill, the Arkansas legislature alleged without evidence that “there is a
well-documented guerilla war being waged against the death penalty” and that
“[a]nti-death penalty advocates have pressured pharmaceutical companies to
refuse to supply the drugs used by states to carry out death sentences.” In
fact, calling the use of their medicines in execution contrary to their medical
mission, several drug companies have sued Arkansas or filed friend-of-the-court
briefs alleging that the state engaged in misrepresentations and subterfuge to
improperly obtain their drugs. Independent media and law enforcement
investigations have concluded that the alleged threats against drug
manufacturers and suppliers have been unfounded or grossly exaggerated. A 2016
BuzzFeed News investigation revealed that FBI records debunked an alleged
threat that Texas and Ohio claimed established the need for secrecy. That
supposed threat was an email from a university professor who provided his name
and phone number and warned an Oklahoma pharmacy to take safety precautions.
The email was one of three pieces of evidence, along with a blog post and
comments left on the website of a previous supplier, that the Texas court
relied on in its decision. “There is no evidence of a history of specific
threats to that particular pharmacist or pharmacy because the source's identity
has been kept confidential,” the court wrote. “Thus, the question before us in
this case is whether the mere fact that the public knows that the Department is
receiving lethal injection drugs from some source, whoever it might be, is
enough to conclude that a substantial threat of physical harm will come to bear
on the source of the drugs if the identifying information is made public.”
(Keri Blakinger, Name of lethal injection supplier can be kept secret, Texas
Supreme Court decides, Houston Chronicle, April 12, 2019; Julia O’Donoghue,
Measure could make it easier for La. to carry out death penalty, NOLA Media
Group, April 16, 2019; View from the Senate: Lethal Injection Records to Become
Confidential, AMP News, April 12, 2019.) Read the Texas Supreme Court decision
in Texas Dept. Crim. Justice v. Levin et al. and DPIC’s November 2018 report,
Behind the Curtain: Secrecy and the Death Penalty in the United States. See
Lethal Injection, Secrecy, and Recent Legislation.
(source: Death Penalty Information Center)
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