April 24
OHIO:
Judge in Cuyahoga County rules man on death row for 30 years is mentally
disabled, tosses death sentence
A county judge has thrown out the death sentence of a man whose been on death
row since his 1988 conviction in a brutal beating death of a 74-year-old woman
at a Euclid laundromat.
Common Pleas Court Judge Cassandra Collier-Williams found Andre Jackson is
intellectually disabled now and likely was at the time he murdered Emily Zak,
and that allowing his execution would violate the U.S. Constitution’s ban on
cruel and unusual punishment.
The judge issued the 11-page opinion Friday, more than two years after she
presided over a hearing that featured testimony from psychologists who found
that Jackson’s scores were equivalent to that of a 9-year-old child.
“Every professional that evaluated [Jackson] noted that his intellectual
functioning was at a lower level than expected for someone in his age range,”
Collier-Williams wrote.
Cuyahoga County Prosecutor Michael O’Malley’s office has vowed to appeal
Collier-Williams’s opinion.
“The facts of this case are some of the most disturbing we have ever had,"
O’Malley said Tuesday.
Jackson is being represented by the Ohio Public Defender’s Office. They could
not be immediately reached for comment.
The crime
Jackson was convicted of beating to death 74-year-old Emily Zak, who worked the
counter at a coin laundry on Euclid Avenue. Jackson, then 20, lived in an
apartment building across the street from the laundromat and went there to
steal the cash register on June 25, 1987.
He forced Zak into the bathroom, where he beat her and shoved her head into the
toilet, court records say. He killed the woman by stomping her neck against the
rim of the toilet bowl, prosecutors said. Jackson then stole the register and
ran out of the shop.
Police arrested Jackson on an unrelated theft charge a few weeks after the
killing. When he heard in jail that police had found the cash register in an
abandoned field, Jackson went to detectives and told them he could find out
information about the killing if they agreed to ask a judge to lower his bond,
records say.
The state agreed and Jackson was released from jail. He was identified as a
suspect and arrested after fingerprints that investigators found on the
register and on the inside of the toilet lid matched his.
Jurors convicted him at trial and recommended his execution. A judge imposed a
death sentence in April 1988.
Landmark ruling
Jackson unsuccessfully filed a number of appeals in the 1990s. Then in 2002,
the U.S. Supreme Court issued a landmark ruling in Atkins v. Virginia in which
the court’s justices held that executing an inmate who is intellectually
disabled amounts to cruel and unusual punishment and is a violation of the U.S.
Constitution’s Eighth Amendment.
That ruling kicked off a new set of appeals for Jackson, whose lawyers argued
IQ tests dating back to when he was 12 showed that he was intellectually
disabled and functioned at a level much lower than the average person his age.
His case crawled along in the Common Pleas Court’s docket over the next 13
years, until Collier-Williams in 2016 allowed lawyers for Jackson and
O’Malley’s office to hire psychologists to test Jackson on his IQ and his
intellectual ability. A 2-day hearing was held to present their findings.
The tests
The average adult’s IQ is about 100, according to court records. Courts have
generally accepted the benchmark IQ to determine if a person can face the death
penalty at 70, but they have held that an IQ score alone is not enough evidence
for a judge to determine whether a defendant is intellectually disabled. They
have to find a defendant has subaverage intellectual functioning, significant
limitations in everyday skills and that the symptoms began as a child.
Jackson had his IQ measured 5 times in his life, including 2 tests in 2016.
He scored a 68 on a test when he was 12, which is generally considered
intellectually disabled. He took another test in 1992, when he was 26 years old
and had been in prison for 4 years. He scored a 72 on that test. He scored an
IQ of 76 on a 2003.
In 2 tests in 2016, he scored 80 on 1 test and 67 on the other.
Assistant Cuyahoga County Prosecutor Christopher Schroeder wrote in court
filings that Jackson’s highest score was likely the most reliable. They cited
testimony from their expert, Carla Dreyer, who gave him the test that measured
his IQ at 67. She said she felt Jackson scored low because he didn’t try very
hard, which deflated his score. She said that it is nearly impossible for
someone to artificially inflate their IQ score.
“I’m not trying to be inappropriate with the court but you can’t fake smart,”
Dreyer testified, according to court records. "You can fake dumb.”
Using that score would put Jackson out of the range of even being considered
borderline intellectually disabled, Schroeder wrote.
Functioning like a 9-year-old
Collier-Williams said that, because Jackson’s scores fluctuated so greatly, she
relied on the doctor’s reports and testimony about Jackson’s behavior.
David Smith, who gave Jackson the test on which he scored an 80, found Jackson
had the mental functioning equal to that of a child who is about 9 years and 9
months old, Collier-Williams noted in her opinion.
Jackson told Smith at the beginning of the exam that he was afraid other
inmates would tease him if Smith found him to be intellectually disabled, court
records say.
Collier-Williams wrote in a footnote in her opinion that the comment was
disturbing and that it demonstrated Jackson’s “subaverage intellectual
functioning” because he was more worried about immediate ramifications in his
prison environment than the potential of having his death sentence overturned.
She also cited testimony from his mother and brother that Jackson struggled
with basic, everyday tasks like managing money, and that as a child he had
undiagnosed attention deficit-hyperactivity disorder, and burned himself
frequently on hot water.
Schroeder argued that Dreyer found Jackson did not struggle with the skills
required to perform everyday tasks. He also said Jackson’s ability to “trick”
police into releasing him from jail following his theft arrest showed he had
the ability to plan and think ahead to evade capture.
(source: cleveland.com)
MISSOURI:
Jefferson City man appeals death sentence for 2009 murder
A Jefferson City man facing the death penalty for the murder of his ex-lover
appealed his sentence before the Missouri Supreme Court on Tuesday.
"Hail Marys are all they've got in this case because of the overwhelming
evidence of guilt," said the state's attorney, Greg Barnes, in regards to the
appeal.
David Hosier was convicted in 2013 for shooting Angela Gilpin four years
earlier. He was also charged in the murder of Angela's husband, Rodney Gilpin,
but wasn't convicted in that crime.
Hosier's attorney, Amy Bartholow called the evidence in the case
"circumstantial" with "no eyewitnesess, no confession, no DNA, no
fingerprints."
The jury suggested the death penalty because of "aggravating factors" in the
murder and the judge later agreed in 2013.
Court documents stated Rodney and Angela Gilpin were estranged, but trying to
make amends at the time of their deaths. During their separation, Hosier and
Angela were in a relationship, but Angela had been trying to end the
relationship for two months. At the time of her death, she also had filed an
order of protection against Hosier.
Hosier and his lawyer appealed the punishment phase of his sentencing by
arguing he had inefficient counsel at his original trial, and that his mental
health was not taken into consideration in the original trial.
Bartholow emphasized a 2007 stroke suffered by Hosier which she says affected
his brain and increased his depression, leading him to commit the murders.
"It shows that David's brain is dead in places, it is significantly damaged,"
said Bartholow. "That stroke had an effect on making his depressive symptoms
that much worse."
Barnes refutes the claim, saying the previous lawyer had Hosier's family
members testify about his mental health. He also cited other events prior to
2007 that demonstrate Hosier's violent tendencies prior to his stroke.
"It [the stroke] didn't explain the 1986 assault on his wife, or his threat to
kill multiple law enforcement officers," said Barnes. "Or to kidnap his kids
and take them to Mexico during this time."
Another point of contention was the reveal of Hosier's past felony and how it
affected the jury's decision, in particular, the assault of his 1st wife.
Bartholow said Hosier's previous lawyer revealed his felon past to the jury,
which led them to suggest the death penalty.
"That exact conviction was used as an aggravator in penalty and counsel was the
one...that allowed that to come in during the guilt phase," Bartholow said.
However, the court said it was more beneficial for Hosier to introduce his past
during the guilt phase rather than the punishment phase so it wouldn't surprise
jurors.
Barnes argued Hosier had a long criminal history and the original attorney
revealed the least amount possible as to not affect the jury's opinion of
Hosier. Barnes added the jury only had access to one paragraph which said he
assaulted someone to the point of a concussion.
"That's all the jury knew, that he caused a victim a concussion," Barnes said.
"They didn't know it was a domestic partner."
Hosier is 1 of 25 on death row according to the NAACP. The court has not
announced when they plan on deciding on the appeal.
(source: KOMU news)
COLORADO:
Colorado Supreme Court upholds attempted murder conviction of man on death row
The Colorado Supreme Court upheld the attempted murder conviction of Robert
Ray, 1 of the 3 men on death row in the state.
The ruling was announced in a news release Monday by the District Attorney’s
Office for the 18th Judicial District.
Ray was found guilty of attempted 1st-degree murder and 1st-degree assault of
Elvin Bell and Javad Marshall-Fields after an altercation at a music event in
July 2004.
Sir Mario Owens, who was also involved in the altercation, fatally shot Gregory
Vann, who helped organize the event with Marshall-Fields. Marshall-Fields and
Bell were shot after pursuing Owens, but both survived their wounds.
A jury also found Ray guilty of accessory to the murder of Vann. Ray was
sentenced to 103 years in prison.
Marshall-Fields, who’s mother is Sen. Rhonda Fields, D-Denver, was set to
testify against Ray when he and Owens shot and killed Marshall-Fields and his
fiancee in June 2005.
Ray and Owens were later given the death penalty.
“This Supreme Court ruling affirms what the jury knew 12½ years ago: Ray shot
Javad and Elvin that night in Lowry Park. The Court of Appeals ruled Ray got a
fair trial, and now so has the highest court in Colorado,” District Attorney
George Brauchler said in the statement. “The appellate system moves slowly, but
it moves towards justice.”
This legislative session, lawmakers hotly debated abolishing capital punishment
in the state. The bill was strongly opposed by Fields and later defeated.
“I raised my son to have the values that made him want to participate in the
criminal justice system. He was doing what he knew was right, and I encouraged
him in that,” Fields said in the statement. “While I wish every day he was
still with me, I am proud of the example he set for others who are asked to
testify to bring violent criminals to justice.”
(source: watchdog.org)
CALIFORNIA:
Pasadena Man Faces Death Penalty In Grisly Slaying----Prosecutors contend a
Pasadena man murdered a 76-year- old Arcadia woman while robbing her.
A Pasadena man accused in the death of a 76-year- old Arcadia woman whose body
was found two weeks ago by a construction crew in her backyard is due in court
Tuesday on capital murder, burglary and robbery charges.
Heber Enoc Diaz, 27, is charged with the April 9 killing of Chyong Jen Tsai.
Diaz is charged with one count each of murder, elder or dependent adult abuse
resulting in death, 1st-degree residential burglary and 2nd- degree robbery,
along with 2 counts of 2nd-degree burglary.
The murder charge includes the special circumstance allegations of murder
during the commission of a robbery and murder during the commission of a
burglary. Prosecutors have yet to decide whether to seek the death penalty
against Diaz, who has been held without bail since he was arrested last Friday
by Los Angeles County sheriff's deputies as he was leaving his home.
The charges include allegations that he used a hammer, jab saw and box cutter
in the commission of all but one of the crimes he's accused of committing -- a
March 19 burglary.
Tsai died from the "combined effects of multiple sharp force injuries, multiple
blunt trauma and asphyxia," according to coroner's records.
Her 2005 Lexus RX 300 was stolen from her home in the 300 block of East Forest
Avenue and was recovered last Thursday night in the 900 block of Colorado
Boulevard in Los Angeles.
Last week, Los Angeles County Supervisor Kathryn Barger recommended a $20,000
reward for information leading to whoever killed Tsai.
(source: patch.com)
********
ACLU challenges attorney over sexual relationships, time out of practice
The American Civil Liberties Union is trying to remove an attorney from a death
penalty case in Kern County in California, arguing that his sexual
relationships with a client’s daughters and lengthy leave of absence from the
law could be detrimental to the client.
Lawyer Gary Turnbull was appointed to defend Juan Pablo Vega, who is charged
with 1st-degree murder for allegedly shooting 3 people, killing 2 and wounding
the 3rd, at a nightclub near Bakersfield in 2015. The ACLU claims that
Turnbull’s appointment is another example of how problems with attorneys
representing indigent clients has led to more death sentences in some Southern
California counties, according to the Los Angeles Times.
Turnbull, now 74, represented Glenda Crosley, a woman who was accused of
killing her husband in the 1980s. He admitted to engaging in sexual
relationships with 2 of her 3 daughters and fathering a child with 1 of them,
the Los Angeles Times says. He was suspended from practicing law in 1995 for
not paying child support and again in 2004 for not paying bar dues.
In addition to these transgressions, Turnbull stopped practicing law for 20
years, the Los Angeles Times says. He reactivated his law license this past
October and began representing Vega about a month later.
“Many people mistakenly assume that the defendants charged with the death
penalty receive the best lawyering available,” Cassandra Stubbs, director of
the ACLU’s Capital Punishment Project, told the Los Angeles Times. “In fact, we
see all too often the worst kind of lawyering provided to the poor defendants
charged with capital crimes.”
Turnbull told the Los Angeles Times that he stopped practicing law because he
had cancer and moved to Canada. He returned to practicing because he was bored,
and in addition to handling Vega’s case, he is now handling 2 other death
penalty cases.
Turnbull dismissed the ACLU’s arguments that he is unfit to represent his
clients.
“They’re saying from a relationship I had 35 years ago, that I’m unfit,”
Turnbull told the Los Angeles Times. “Yeah, well, that’s history and the bar
didn’t find it was unethical, immoral, illegal or any conflict. According to
court rules, I’m totally qualified.”
San Diego criminal attorney Keith Rutman was appointed to represent Vega in
October 2017 but told Turnbull would be taking over the case, the Los Angeles
Times says. He also has raised questions about Turnbull’s fitness.
A hearing to clarify counsel is scheduled for May.
(source: ABA Journal)
**********************
Scott Peterson Trial Fast Facts
Here is a look at the Scott Peterson trial. Peterson was convicted in November
2004 of murdering his wife, Laci, and their unborn son, Conner, in 2002.
Prosecutors alleged that Peterson’s motive for the 2 murders was to escape
married life and upcoming fatherhood. Peterson is on death row at San Quentin
State Prison near San Francisco.
Timeline:
December 24, 2002 – Laci Peterson is initially reported missing from their home
in Modesto, California.
January 24, 2003 – Amber Frey, a Fresno massage therapist, comes forward at a
police news conference and says she was having an affair with Peterson. She
says the affair began November 20, after Peterson told her he was single.
April 18, 2003 – California Attorney General Bill Lockyer, confirms a body
found on April 13 on the San Francisco Bay area shore is that of baby Conner
and a body found in the same location on April 14 is that of Laci Peterson.
April 18, 2003 – Peterson is arrested in San Diego, pending capital
murder/double homicide charges, and is held without bail.
April 21, 2003 – Arraignment in Stanislaus County Superior Court before Judge
Nancy Ashley. Peterson is charged with 2 felony counts of murder with
premeditation and special circumstances. Peterson pleads not guilty.
– Under California law, the special circumstance allows the prosecution to seek
the death penalty. There are 2 counts because of California’s fetal homicide
statute, any fetus — meaning 8 weeks of development and onward — is considered
an equal victim.
May 2, 2003 – Mark Geragos becomes Peterson’s attorney.
June 12, 2003 – A gag order is placed on participants, saying the restrictions
were necessary to preserve Peterson’s right to a fair trial amid “massive”
publicity.
August 18, 2003 – Judge Al Girolami rules that news cameras will not be allowed
in the courtroom at the preliminary hearing.
September 26, 2003 – Laci Peterson’s family files a civil lawsuit against
Peterson in Stanislaus County Superior Court to prevent him from receiving
money for selling his story.
October 29, 2003 – Preliminary hearing – DNA and forensics evidence is
presented.
December 3, 2003 – Peterson pleads not guilty at his formal arraignment.
December 19, 2003 – Laci’s mother, Sharon Rocha sues Peterson for over $5
million for the deaths of her daughter and unborn grandson. As the executor of
Laci’s estate, Rocha files 2 separate lawsuits in the Stanislaus County
Superior Court, a wrongful death action and a survival action.
January 20, 2004 – The trial is moved to San Mateo County.
February 2, 2004 – Judge Alfred Delucchi bars cameras from the San Mateo County
courtroom for the entire trial.
March 4, 2004 – Jury selection begins.
May 27, 2004 – The 6-man, 6-woman jury is seated in the case. There are also 6
alternates.
June 1, 2004 – Trial begins.
June 21, 2004 – Judge Delucchi tells jurors that they must take care to ensure
their actions in and around the courtroom are not misconstrued. The warning
comes after Juror No. 5 spoke to Laci’s brother, Brent Rocha, at a courthouse
security checkpoint on June 18.
June 23, 2004 – Juror No. 5, Justin Falconer, is dismissed from the jury.
August 10, 2004 – Frey testifies that Peterson told her he was a widower and
lied about where he lived and where he traveled. Jurors hear recordings of
Peterson and Frey’s conversations, made by police after she discovered the
truth.
October 5, 2004 – The prosecution rests.
October 26, 2004 – The defense rests.
November 1, 2004 – The prosecution makes its closing arguments.
November 2, 2004 – The defense starts its closing arguments.
November 3, 2004 – Jury deliberations begin.
November 12, 2004 – Peterson is found guilty of 2st-degree murder for Laci’s
death and 2nd-degree murder for son Conner’s death. – The 1st-degree charge
usually carries a potential sentence of 25 years to life with the chance of
parole but in this case, the jury finds that “special circumstances” apply in
Laci’s death, and he could face a death sentence or life in prison without
parole.
– The 2nd-degree charge carries a potential sentence of 15 years to life.
November 30-December 9, 2004 – Penalty phase. Sharon Rocha testifies, crying
and even shouting at Peterson several times. Peterson’s parents and half-sister
testify for the defense.
December 13, 2004 – The jury recommends that Peterson be sentenced to death.
March 16, 2005 – Judge Alfred Delucchi follows the recommendation of the jury
and sentences Peterson to death.
October 21, 2005 – A judge rules that proceeds from a $250,000 life insurance
policy Peterson took out on Laci will go to Laci’s mother.
July 12, 2006 – Peterson gives a videotaped deposition for a $25 million
wrongful death lawsuit filed by Laci’s family.
October 31, 2007 – The Fifth District Court of Appeal reaffirms an October 21,
2005 ruling that Sharon Rocha should get the $250,000 life insurance payout for
Laci’s death.
April 2009 – Laci’s parents drop their wrongful death lawsuit against Peterson.
July 5, 2012 – Peterson’s automatic appeal is filed in the California Supreme
Court.
March 13, 2019 – Gov. Gavin Newsom signs an executive order issuing a
moratorium on executions of all 737 death row inmates in California prisons,
including Peterson. This only suspends executions while Newsom is in office.
(source: KRTV news)
USA:
The Supreme Court’s Death Drive
5 conservative justices are bent on defending a policy that is unpopular,
expensive, and cruel.
The post–Anthony Kennedy Supreme Court majority has introduced itself to the
nation by strapping itself to the decaying corpse of the American death
penalty.
It is a curious choice. Capital punishment is a relic of a harsher time, now
stumbling toward extinction, unpopular with both right and left. For these
conservative justices—Chief Justice John Roberts and Justices Clarence Thomas,
Samuel Alito, Neil Gorsuch, and Brett Kavanaugh—to embrace it is like an
American politician journeying to the Soviet Union in 1991 and saying, “I have
seen the future and it works!”
In February, the Court rejected a plea from an Alabama inmate to have his
spiritual adviser in the death chamber with him as he died. The inmate was
Muslim, and Alabama law allows only the prison’s full-time chaplain, a
Christian, to fill that role. Remarkably, the Court had no need to become
involved. The U.S. Court of Appeals for the Eleventh Circuit had already
granted the inmate, Domineque Ray, a stay of execution until a court could hear
his religious-freedom claim. The Eleventh Circuit encompasses Alabama, Florida,
and Georgia—the heart of the death belt. Its judges hear in one year more death
cases than Roberts, Thomas, or Kavanaugh heard in their whole careers on the
circuit bench. (The Tenth Circuit, where Neil Gorsuch was previously seated,
includes Oklahoma, which conducted 33 executions during his tenure; only one
other state in the circuit, Utah, conducted an execution during that time.)
The Eleventh Circuit panel held, first, that Ray had brought his claim as soon
as he found out about the policy (which Alabama had kept secret until a few
weeks before his execution) and, second, that he was likely to win on his
religious-freedom claim. Prudence and comity, if not simple humanity, would
have counseled that the Supreme Court stay out of the case at that point. But
the Court lifted the stay, claiming that Ray had waited too long to raise his
claim. He was executed immediately afterward.
The general dismay this decision stirred wasn’t quieted when, on March 20, the
Court ruled the other way on an indistinguishable set of facts: In Texas, a
Buddhist inmate’s pleas for a cleric of his faith were met by the rule that
only a prison chaplain could be present in the execution chamber (Texas had a
Christian minister and a Muslim imam but no Buddhist). Lest anyone think that
the pro-death justices were going wobbly, however, Gorsuch and Thomas both
dissented from the stay, and Kavanaugh suggested that Texas should just exclude
all spiritual advisers from the death chamber. On April 3, Texas followed the
suggestion; problem solved!
Then, on April 1, the Court’s majority rejected a timely plea from a Missouri
inmate that his rare health condition—fragile, blood-filled tumors in his face,
neck, and mouth—would make lethal injection agonizing. In his opinion for the
five-justice majority, Gorsuch was flippant: “The Eighth Amendment does not
guarantee a prisoner a painless death—something that, of course, isn’t
guaranteed to many people, including most victims of capital crimes.”
Gorsuch repeated Alito’s claim of a few years back that the lack of painless
execution drugs is due to “pressure from anti–death penalty advocates.” (In
fact, sodium thiopental, the drug he was discussing, is now made only in
Europe, and under EU law can’t be exported to the U.S. or anywhere else for use
in executions.) He also inveighed against lawyers’ pleas for “last minute
stays.” (Bucklew’s case was first brought in 2012.) And in a snarling footnote,
he insisted that the Alabama Muslim-chaplain case had been rightly decided;
true, the state kept its protocol secret, but, Gorsuch, without the slightest
hint of irony, suggested Domineque Ray should have been able to figure it out
by using a lawyer’s skill of carefully construing a state statute that made no
mention of the issue.
Next, on April 12, the 5-justice majority rejected an appeal by Christopher Lee
Price, an Alabama inmate who was seeking execution by lethal gas—a method
approved by the state of Alabama and apparently close to implementation—instead
of lethal injection. The inmate’s appeal had originally been rejected largely
because his lawyer filed the wrong copy of a scientific paper on the pain level
of gas execution, one marked “preliminary” rather than “final.” (The “final”
report contained the identical finding about pain levels.) A district court,
having seen the final report, stayed the execution, but the Eleventh Circuit
gave the green light and the Supreme Court did the same.
All told, the 5 conservatives have had quite a run this term. The question that
haunts me is why. None of the inmates seeking stays was claiming to be innocent
or even asking for a new trial; each had a serious claim that a stay might make
his death less agonizing. The 5-justice majority seemed to give these factors
no significance; instead, it grumbled about last-minute appeals.
Perhaps the rationale is that the new sheriff in town needs to bring these
lawless death-penalty lawyers to heel. If so, that is rubbish. I know of no
area of law, civil or criminal, where honorable, good lawyers do not
strenuously advocate for their clients up to the moment when it is too late to
try. Corporate lawyers who protract litigation are often heroes in the
hushed-tone precincts of the federal bench; but those who seek to save their
clients’ lives instead of money are now the subjects of baseless disapproval.
The Court’s death jurisprudence involves a lot of let’s-pretend. In the 2008
case of Baze v. Rees, Roberts enunciated a principle that seems to have
hardened into conservative dogma: “Capital punishment is constitutional. It
therefore necessarily follows that there must be a means of carrying it out.”
This error would be glaring to a sophomore philosophy student: “Because a
human-staffed mission to Mars is constitutional, it necessarily follows that
there must be a means of getting to Mars.” Um, no. Death as a punishment may,
in the abstract, be constitutional if carried out without gratuitous infliction
of pain, but history suggests that there is no such method. As far back as we
have records, humans have been killing one another under color of law, and
every means they have devised—the stone, the sword, the stake, the guillotine,
the rope, the gas chamber, the electric chair, the injection gurney—has, over
time, been revealed as unspeakably cruel. Human beings are not easy to kill,
and other humans usually make a bad job of it.
During the Reagan years, perhaps, a segment of the public yearned for
state-inflicted death, but in 2019, that is no longer true. The Duke law
professor Brandon Garrett, in his 2017 book, End of Its Rope: How Killing the
Death Penalty Can Revive Criminal Justice, documents what he calls “the great
American death penalty decline.” Analyzing the figures, he finds that “death
sentences have declined by more than two-thirds since 2000, reaching the lowest
levels since the early 1970s.” In an interview, Brandon told me that since the
book’s publication, “the trend has deepened. We are at a 10th of the
death-penalty-sentencing level of the 1990s.” Capital punishment is no longer
as popular with the public, he said, which means that jurors are less eager to
sentence offenders to death. “Even major death-penalty centers like Houston and
Virginia” have seen steep declines.
According to the Death Penalty Information Center, “New death sentences and
executions remained near historic lows in 2018 and a twentieth state abolished
capital punishment, as public opinion polls, election results, legislative
actions, and court decisions all reflected the continuing erosion of the death
penalty across the country.” Many of the states that formally have the death
penalty have not carried out an execution in years. California has 740
prisoners on its death row, and last carried out an execution in 2006; its new
governor, Gavin Newsom, in January granted at least a temporary reprieve to all
those awaiting death in the state’s prisons, closed the state’s execution
chamber, and withdrew its execution protocol—in effect taking the state out of
the execution business. Governors in Colorado, Oregon, and Pennsylvania have
done the same. New Hampshire’s legislature recently passed a repeal bill by
veto-proof margins.
Because it is both cruel and expensive, the death penalty is collapsing of its
own weight, and five angry men in robes cannot save it. That they are willing
to try, as I said above, is curious.
For generations, determined men and women have proclaimed certain bedrock
principles “hills to die on.” These five justices, despite all caution, have
found a hill they are willing to kill on.
(source: Garrett Epps is a contributing editor for The Atlantic----He teaches
constitutional law and creative writing for law students at the University of
Baltimore)
***********************
How John Roberts Is Shaping the Supreme Court’s Newly Savage Death Penalty
Jurisprudence
Tensions over capital punishment are high at the Supreme Court. The most recent
quarrel came in the wee hours of April 12, when the 5 conservative justices
rankled the 4 liberals by giving the green light to Christopher Lee Price’s
execution in Alabama. In an indignant dissent opening internal court politics
to public view, Justice Stephen Breyer lamented the majority’s unwillingness to
discuss the case in conference the next day. Ordinarily measured, Breyer wrote
that the majority’s middle-of-the-night rebuff of Price (who sought a
less-painful execution method) abandoned “basic principles of fairness.”
The razor-thin majority determining the fate of Price and several other death
row inmates in recent months has been anchored—with deceptive quiet—by Chief
Justice John Roberts. With Justice Anthony Kennedy now retired, Roberts is the
new man in the middle. He isn’t the most enthusiastic cheerleader for the
ultimate penalty on the court—that honor belongs to the trio of Justices Samuel
Alito, Neil Gorsuch, and Clarence Thomas—and rarely flashes his cards in
capital punishment cases. But his votes are shaping a newly savage
jurisprudence.
Joan Biskupic’s The Chief: The Life and Turbulent Times of Chief Justice John
Roberts, a deeply researched new biography of the jurist, helps piece together
Roberts’ approach to capital punishment cases. It includes a cautionary tale
from 1981, when Roberts, then 26, was clerking for William Rehnquist—the man
whom he would eventually succeed as the chief justice. In a death penalty
appeal that year, then-Justice Rehnquist vented his frustration with criminals
having “so many bites at the apple.” Long delays between conviction and
execution, he wrote, make a “mockery of our criminal justice system.” Biskupic
notes that Justice Lewis Powell privately told the chief justice his irascible
solo opinion was “misguided”—an admonition that went unheeded. In 1990,
Rehnquist would go on to lobby for a Republican bill drastically limiting
appeals for capital convicts. Defying a judicial norm against entering the
political fray, Rehnquist said the measure would fix a regime that “verges on
the chaotic.”
19 years later, there is little reason to think the new chief is any more
tolerant of extended capital appeals than Rehnquist, whom Roberts replaced upon
his death in 2005. But the 17th chief justice’s style and strategy are starkly
different. Whereas Rehnquist had no compunction about writing testy capital
punishment opinions, Roberts is a model of circumspection. During his 14 years
at the helm, according to Adam Feldman of Empirical SCOTUS, Chief Justice
Roberts has publicly dissented only four times from a decision to block an
execution in response to a request for an emergency stay. In argued merits
cases, he has kept his quill dry on all but a few occasions. In 18 death
penalty rulings since 2005, he has chosen to write opinions only four times:
one majority opinion (in a capital case outside the Eighth Amendment context),
one plurality opinion (with two other justices), one concurrence, and one
dissent.
Roberts does occasionally emerge from the shadows to broadcast a willingness to
break with his fellow conservatives on death penalty cases.
Perhaps the chief justice’s most powerful role, when he is in the majority, is
opinion assignment. So it is remarkable that only once, over a decade ago, did
Roberts assign himself a substantive death penalty opinion. Since that 2008
foray in Baze v. Rees, a decision upholding lethal injection against a claim it
is “cruel and unusual,” the chief has been happy to let his colleagues navigate
the treacherous waters of the death penalty debate. He has assigned some
opinions of the court to centrist justices like Stephen Breyer, Elena Kagan,
and Anthony Kennedy. But he has passed off dissents from left-leaning rulings
to his conservative colleagues, as in 2008’s Kennedy v. Louisiana (barring
capital punishment for rape) and 2014’s Hall v. Florida (regarding standards
for assessing a convict’s intellectual disability). Justice Alito wrote both of
those dissents; Roberts joined them. And in pivotal 5–4 rulings favoring the
conservatives, he has let firebrands Alito and Gorsuch take the lead in edging
the court further to the right.
A recent tilt came at the start of April, when Gorsuch wrote a 5–4 opinion that
shocked many for its callousness. A Missouri man with cavernous hemangioma, a
rare medical condition, had asked the justices to switch his execution method
from lethal injection to nitrogen gas. Lying on a gurney and being injected
with a lethal drug cocktail, Russell Bucklew’s doctors explained, would cause
tumors in his throat to burst, flooding his airway with blood and suffocating
him. Gorsuch, writing for his four conservative brethren, did not just turn
down Bucklew’s request—he repudiated him for waging a “headlong attack” on the
court’s precedents and erected what Breyer properly called an “insurmountable
hurdle” for inmates seeking a humane mechanism for their executions. The harsh
overtones of Gorsuch’s opinion did not flow from Roberts’ pen. But the chief
signed his name to the ruling.
Meanwhile, in a highly controversial pair of orders this year regarding an
inmate’s right to clergy in the execution chamber, Roberts kept himself well
out of the spotlight, taking advantage of the anonymity the court’s so-called
shadow docket affords reticent justices. We know—because four justices noted
their disagreement—that Roberts rejected a Muslim man’s right to an imam at his
side in February despite the availability of a minister for Christian inmates.
In an unsigned ruling, the majority offered a thin justification for the
decision, which Kagan called “profoundly wrong.” When a Buddhist inmate came to
the court with an identical claim in March, an apparently chastened majority
granted it. Thomas and Gorsuch noted their disagreement with the court’s ruling
in favor of the Buddhist man, and in a brief concurrence, Justice Brett
Kavanaugh explained why he saw the Muslim and Buddhist inmates’ cases
differently. But Alito and Roberts gave no indication of how they voted. Again,
the chief kept himself safely under the radar.
Roberts does occasionally emerge from the shadows to broadcast a willingness to
break with his fellow conservatives on death penalty cases. In February, he
joined the Supreme Court’s liberal justices to give an inmate with dementia
another chance to challenge his death sentence and chastised a Texas court for
sending an intellectually disabled convict back to death row. But there is less
than meets the eye in these leftward feints: Both cases simply involved the
application of a precedent a lower court had ignored. Neither move should
obscure the chief justice’s hard line on the death penalty evinced in hundreds
of other votes. Indeed, when the court decided the precedents behind the 2
February cases 12 and 2 years ago, respectively, he was in dissent both times.
Shrewd moves by Chief Justice John Roberts in the death penalty docket seem to
bear out Biskupic’s conclusion that—despite his self-description in his
confirmation hearings as a judge who simply “call[s] balls and strikes”—Roberts
“did not entirely shed his partisan thinking once he donned the black robe.”
The Chief quotes Roberts’ statement that, as chief, he sometimes “sublimates”
his conservative views. A better account of what he is up to, Biskupic
finds—drawing on interviews with his colleagues—is “strategizing.” His cunning
maneuvers over death penalty squabbles suggest she is right. While striving to
keep up appearances as an honest broker, Roberts is discreetly deploying his
new conservative majority to shore up America’s dwindling capital punishment
regime and buttress its executioners.
(source: slate.com)
****************
Wrongful Use or Threat of Capital Prosecutions Implicated in Five Exonerations
in 2018
At least 5 people were exonerated in 2018 after having been wrongfully
convicted in cases that involved the misuse or threatened use of the death
penalty, a DPIC analysis of data accompanying a new report by the National
Registry of Exonerations has shown. The National Registry’s annual report on
wrongful convictions, Exonerations in 2018, recorded a record 151 new
exonerations across the United States in 2018, including 68 exonerations
resulting from wrongful homicide convictions. 1 of those exonerations freed
death-row prisoners Vicente Benavides and Clemente Aguirre.
A record number of the exonerations in 2018 were the product of wrongful
convictions obtained by police and/or prosecutorial misconduct (107) or
perjury/false accusation (111), with both often occurring in combination. The 2
also were the leading factors contributing to wrongful homicide convictions,
79.4% of which involved police and/or prosecutorial misconduct (54 cases) and
76.5% of which involved perjury/false accusation (52 cases). Historically,
those 2 factors are the leading causes of wrongful capital convictions. Both
were present in more than 2/3 of the homicide exonerations (47 cases, 69.1%) in
2018, including the wrongful capital convictions of Benavides and Aquirre. DNA
evidence helped to exonerate 14 of those wrongfully convicted of homicide in
2018, only 20.1% of homicide exonerations. The prosecution presented perjured
testimony or false witness accusations in all of the murder cases involving
DNA, and police and/or prosecutorial misconduct was also present in more than
60% of those cases. DNA helped to rebut false or misleading forensic evidence
presented by the prosecution in five of the homicide exonerations.
At least 3 other homicide exonerations in 2018 involved the wrongful use or
threat of the death penalty. Bobby Joe Maxwell was capitally prosecuted in Los
Angeles, California for a series of 10 murders and 5 robberies attributed to
the “Skid Row Stabber” in 1978 and 1979. No physical evidence directly linked
Maxwell to the murders and witnesses failed to identify him or his voice in
police lineups. He won a new trial in 2010 after new evidence exposed the
prosecution’s prison informant as a “serial liar.” The prosecution dropped
charges against Maxwell after he suffered a heart attack that left him
comatose. Matthew Sopron was convicted of a double murder and sentenced to life
without parole in 1998 in Chicago, Illinois after an 18-year-old prosecution
witness falsely implicated him after having been threatened with the death
penalty. William Bigeck subsequently admitted that Sopron “had absolutely
nothing to do with the murders” and testified in post-conviction proceedings in
2018 that he would have done anything to avoid the death penalty and that he
had changed his initial statement to obtain a plea deal that took the death
penalty off the table. Daniel Villegas was convicted of capital murder and
sentenced to life in El Paso, Texas in August 1995 for a drive-by double
murder. The 16-year-old falsely confessed to the murders after a police
detective handcuffed him to a chair, threatened to take him to the desert and
“beat his ass,” slapped him, and said he would die in the electric chair if he
didn’t confess. “[T]errified out of his mind,” Villegas confessed. The Texas
state courts overturned the conviction in 2012, citing ineffective assistance
of counsel. Presenting evidence of innocence at his 3rd trial, Villegas was
acquitted in October 2018.
(source: Death Penalty Information Center)
***********************
The Enlightenment, the American Revolution and the ban on cruel and unusual
punishment
The US Supreme Court’s decision in Bucklew v. Precythe earlier this month,
condemning a man to a lethal injection that is likely to cause him to suffocate
on his own blood as tumors in his throat burst open, is a testament to the
degenerate state of American democracy.
The majority (5-4) opinion by Trump appointee Neil Gorsuch whittles down the
constitutional ban on cruel and unusual punishment, forcing the condemned to
identify “a feasible and readily implemented alternative method [of execution]
that would significantly reduce a substantial risk of severe pain and that the
State has refused to adopt without a legitimate penological reason.” (Emphasis
added).
Furthermore, the ruling holds that the US Constitution’s Eighth Amendment “does
not guarantee a prisoner a painless death—something that, of course, isn’t
guaranteed to many people, including most victims of capital crimes.”
The “feasibility” requirement proved an insurmountable hurdle for Russell
Bucklew, and it is intended to achieve the same result for future challenges to
inhumane execution. Putting the burden on the inmate of planning out his own
death, the court found that his proposal of nitrogen hypoxia—a mode of
execution shown to be effective, simple and painless by recent studies—was
lacking because it did not spell out the minutiae of safety measures for those
administering the lethal gas.
Bucklew’s rare medical condition causes blood-filled tumors inside his throat.
He has to sleep on a 45-degree incline to avoid suffocating on his engorged
uvula (the dangling ball-like formation at the back of the throat). At the time
of his execution, he will be strapped to a gurney, angled parallel to the
ground, at which point he will likely begin suffocating on his uvula before any
pentobarbital is even administered.
Justice Gorsuch argues that the standard for “cruel and unusual” must be the
conventions and mores that prevailed at the time of the ratification of the
Eighth Amendment, not modern conceptions that have evolved over the past two
centuries. He views as cruel and unusual only those execution practices
associated with the Middle Ages, including, as he says, “dragging the prisoner
to the place of execution, disemboweling, quartering [having one’s limbs
removed and posted in various locations], public dissection, and burning
alive.”
On its own terms, the Bucklew opinion is a judicial travesty, turning a
foundational limit on state power into a green light for unfettered executions.
But a complete appraisal of its retrograde implications requires historical
context.
Regarding the legal concept of cruel and unusual punishment, the Bucklew ruling
squarely attacks the Enlightenment values that inspired the American Revolution
and the Bill of Rights, and their antecedents such as the Glorious Revolution
of 1688 and the English Bill of Rights of 1689.
The Eighth Amendment to the US Constitution states that “excessive bail shall
not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.” When proposed at the First US Congress in 1789, the Bill of Rights
(as the first ten amendments to the US Constitution are collectively known)
included provisions for freedom of speech, press and religion (First
Amendment); for a democratic, citizen-run militia system instead of a standing
army (Second Amendment); for freedom from having soldiers quartered in one’s
home (Third Amendment); for freedom from unwarranted searches and seizures,
(Fourth Amendment); for the right to due process of law (Fifth Amendment); and
for trial by jury and the right to face one’s accuser in court (Sixth
Amendment).
The remaining Bill of Rights amendments provided the right to a civil jury
trial for claims exceeding $20 (Seventh Amendment); stipulated that the Bill of
Rights was not an exhaustive list of a person’s rights (Ninth Amendment); and
provided that rights not otherwise specified were reserved to the states or the
people (Tenth Amendment).
The Bill of Rights limited the powers that the federal government would have
under the Constitution that was drafted in 1787 and ratified by the states in
1789 to replace the more limited federal structure under the Articles of
Confederation. Delegates to the Constitutional Congress could not have secured
the votes to ratify the new federal structure without an agreement to add
amendments that would provide specific guarantees of personal liberty, so great
was the fear that a stronger government—with a powerful executive in the
presidency, new taxation powers, and a federal judiciary—might pave the way for
unaccountable autocracy.
The specific language “nor cruel and unusual punishments inflicted” copies
verbatim the English Bill of Rights of 1689, itself a bulwark against the
unrestrained power of the crown.
Both the American Bill of Rights and its English antecedent bear the
unmistakable stamp of the Enlightenment. The term Enlightenment can best be
summarized as the intellectual, political and cultural movement accompanying
the ascendancy of the bourgeoisie as a social class and the concurrent decline
of the feudal nobility, the great monarchies and the Catholic Church. Some of
its principal features include the elevation of the individual vis a vis the
state; the belief that the state derives its authority from consenting
individuals and exists to defend their liberties; and the belief that reason
can harmonize and improve human life. Institutions hindering human happiness
and progress have to justify their existence or step aside.
One Enlightenment philosopher who profoundly influenced the American Revolution
was the Italian humanist Cesare Beccaria. Born in Milan in 1738, Beccaria
studied law in his early years before joining a literary-philosophical club
called “the Academy of Fists” in his mid-20s. There he became acquainted with
the works of Enlightenment thinkers such as Diderot, Helvetius, Montesquieu and
Hume. Encouraged by his colleagues at the academy, he authored the highly
influential work On Crimes and Punishment.
Applying Enlightenment-era rationalism to the field of criminal law and policy,
On Crimes and Punishment rejected the “eye for an eye, tooth for a tooth”
approach to punishment. While this lex talionis—Latin for “law of equal”—view
of punishment had a certain straightforwardness to it, the costs of retribution
exceeded rational justification in Beccaria’s view. Instead, punishment “should
have only that degree of severity which is sufficient to deter others,” because
“every act of authority of one man over another that does not derive from
absolute necessity is tyrannical.” Beccaria supported a more utilitarian
approach (which heavily influenced Jeremy Bentham) instead of the prevailing
retributive approach to punishment.
With the boldness characteristic of the best Enlightenment works, On Crimes and
Punishment unsparingly criticized the common practice of extracting confessions
through torture, attributing this practice to vestiges of the religious
absolution of sins. The book features eloquent arguments for jury trials, due
process and the types of government restraints that ultimately found expression
in the American Bill of Rights. It also opposes what Becarria called “secret
accusations,” which we would today call sealed indictments.
The section On the Death Penalty develops the first modern arguments against
that irreversible punishment. “Is it not absurd, that the laws which detect and
punish homicide should, in order to prevent murder, publicly commit murder
themselves?”
And, as if anticipating the words of Gorsuch in the Bucklew ruling, Beccaria
adds: “What must men think when they see wise magistrates and grave ministers
of justice, with indifference and tranquility, dragging a criminal to death,
and whilst a wretch trembles with agony, expecting the fatal stroke, the judge
who has condemned him, with the coldest insensibility and perhaps with no small
gratification from the exertion of his authority, quits his tribunal to enjoy
the comforts and pleasures of life?”
The French Enlightenment author Voltaire seized on Becarria’s work immediately,
calling the Italian “a brother” and “a beneficent genius whose excellent book
has educated Europe.”
On Crimes and Punishments became so popular in Europe and in America too that
it underwent six printings in the space of a few years. Voltaire himself wrote
an introductory essay to 2 editions, which, according to one study, found their
way into the personal libraries of more than a third of the American
revolutionary leaders.
In his autobiography, Thomas Jefferson refers to Beccaria as an influence for
reforming criminal law in Virginia: “Beccaria and other writers on crimes and
punishments had satisfied the reasonable world of the unrightfulness and
inefficacy of the punishment of crimes by death.”
His collaborator in the Virginia Revisal of the Laws project, James Madison,
included On Crimes and Punishments on the suggested reading list for the
project’s participants and for participants in the Continental Congress as
well.
One exchange of letters between Jefferson and Madison indicates how deeply
influenced the 2 revolutionists were by the Milanese philosopher. The pair
discussed whether hanging would be appropriate in cases of treason and
insurrection, which crimes were usually held as examples even by death penalty
opponents of an exceptional circumstance that might require the ultimate
penalty to preserve a free society from tyranny. (This was Beccaria’s view, for
example.) In the exchange, Jefferson argued against the hanging of rebels,
going so far as to say that some rebellion from time to time was a good thing.
Beccaria’s influence on other American revolutionists is also apparent.
Thomas Paine, the great propagandist of the American Revolution, author of the
pamphlet Common Sense, opposed the death penalty even in the case of the
deposed king in the French Revolution. So did his friend, Dr. Benjamin Rush, a
signatory to the Declaration of Independence and the surgeon general to the
Continental Army.
The Revolutionary War commander, the Marquis de Lafayette, sarcastically
commented that he would support the death penalty as soon as he had sufficient
proof of human infallibility in its application. Likewise, Benjamin Franklin
and George Washington both disfavored the death penalty and advocated for its
less frequent implementation.
As the World Socialist Web Site wrote the day after the Bucklew decision, the
ruling appears to overturn a seminal 1958 Supreme Court case holding that the
Eighth Amendment prohibits not merely what was considered “cruel and unusual
punishment” in the late 1700s, but any punishment that defies “evolving
standards of decency that mark the progress of a maturing society.”
The 1958 standard echoed Jefferson’s words, etched on his memorial in
Washington, DC:
“I am certainly not an advocate for frequent changes in laws and constitutions.
But laws and institutions must go hand in hand with the progress of the human
mind. As that becomes more developed, more enlightened, as new discoveries are
made, new truths discovered and manners and opinions change, with the change of
circumstances, institutions must advance also to keep pace with the times. We
might as well require a man to wear still the coat which fitted him when a boy
as civilized society to remain ever under the regimen of their barbarous
ancestors.”
Bucklew holds that an execution is cruel and unusual only if it “superadds”
pain. In short, only pain that is unnecessary, i.e., does not contribute to the
causing of death, is cruel and unusual. The “superaddition” concept came from a
concurring opinion by Clarence Thomas in the 2008 Supreme Court case Baze v.
Rees, which legally sanctioned the three-part “cocktail” used for most lethal
injections at the time.
What is the significance of this concept? As part of the standard for cruel and
unusual punishment it requires specific intent to inflict pain or humiliation
on the part of the state, which is virtually impossible to prove. Therefore,
the superaddition standard permits virtually any form of killing. If a state,
for example, used drowning for execution without adding any pain on top of that
which is associated with drowning, this would pass constitutional muster, even
though the painless method of nitrogen hypoxia exists, according to the Supreme
Court’s latest rulings.
(One should recall that George W. Bush’s Office of Legal Counsel wrote “legal”
memos sanctioning the “enhanced interrogation”—i.e., torture—methods used by
the CIA after 9/11 against suspected terrorists. The memos made specific intent
to cause extreme pain or death the criterion for defining a type of treatment
as torture. In other words, if the torturers were supposedly not motivated by
the desire to inflict pain, but rather by other ends, such as extracting
information, then methods such as waterboarding, stress positions, threats
against a detainee’s children or parents, rectal feeding, etc. were
permissible. Gorsuch borrowed the same standard for his decision justifying
sadistic execution methods.)
Is there any doubt what the reaction of the great American revolutionists would
be if they read the opinions of Neil Gorsuch and Clarence Thomas? For all its
pretensions to constitutional “originalism,” the right-wing bloc on the Supreme
Court has denigrated the clear and unambiguous ban on cruel and unusual
punishment (“shall not… be inflicted”) into a remote contingency, with the
effective proviso, “unless the state prefers otherwise.”
The unstated premise of this legal reasoning is that it is the state and not
the citizen who possesses rights. This inversion of the Enlightenment view—that
states owe everything, including their very existence, to the citizens, who
have inalienable rights to life, liberty and happiness—pervades the entire
jurisprudence of both “originalism” (the province of the late Antonin Scalia)
and the “states’ rights” (of the segregationists) legal theories, which
inevitably protect state governments from federal intrusion on the trampling of
individual rights at the state level. Clarence Thomas, for one, actually
believes that each state could establish its own religion, and this would not
violate the First Amendment’s establishment clause. (See the WSWS analysis of
Town of Greece v. Galloway.)
The Bucklew ruling reeks of a quasi-religious self-righteousness, as though
prosecutors, politicians, judges and prison officials have the moral
standing—and what a rotten and unjust society they stand on, where the greatest
criminals invariably suffer no punishment, but wealth and privilege instead—to
decide not only if one should live or die, but whether one should suffocate! As
though putting down a man like an old dog (or in an even more painful manner)
rebalances the scales of justice, or brings anything or anyone back to the
victims, or alleviates any social ill whatsoever.
The decay of American democracy expresses, in political form, the unprecedented
economic polarization of society. A narrow and venal financial aristocracy
feels itself increasingly besieged by a restless working class and broad layers
of disillusioned youth. It responds by dismantling even the limited democracy
under capitalism and moving rapidly toward dictatorial forms of rule.
At the same time, by rehabilitating torture, the ruling elite aims to
intimidate those who oppose the social order and instill fear and terror in the
face of the brutality of the capitalist state.
(source: World Socialist Web Site)
_______________________________________________
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