June 14
INDIANA:
Judge: DOC must pay $538K in ‘egregious’ death penalty records case
The Indiana Department of Correction’s refusal to disclose to the public
information concerning the means it would use to execute a condemned criminal
will cost taxpayers more than a half-million dollars in attorney fees, a judge
has ruled.
Marion Circuit Judge Sheryl Lynch awarded $538,000 in attorney fees to
plaintiffs who sued the DOC to obtain records pertaining to the lethal
injection protocols that would be used at the Indiana State Prison in Michigan
City in the event an execution was carried out. Lynch’s order was issued
Wednesday.
Washington attorney Katherine Toomey, joined by attorneys from Plews Shadley
Racher & Braun, successfully sued the department to obtain information on drugs
the DOC could potentially use in a lethal injection. But rather than comply
with Lynch’s prior order to disclose the information under the Access to Public
Records Act, the DOC used an 11th-hour Statehouse maneuver to slip a so-called
secrecy statute into the Indiana budget bill in the closing days of the 2017
General Assembly. The law inserted into the budget bill shielded DOC from
disclosing the information, contravening Lynch’s order of summary judgment in
favor of Toomey.
? Lynch subsequently struck down that law, and her order issued Tuesday spelled
out the highly unusual nature of the case. Lynch said the hefty award of legal
fees was justified “given the procedural history of this APRA request… .”
“The Department in its actions going to the General Assembly to successfully
obtain a retroactive statute without advising the Court and Toomey after the
Court issued its Summary Judgment Order October 24, 2016 in favor of Toomey,
and filing an improper appeal … was egregious,” Lynch wrote.
The office of Indiana Attorney General Curtis Hill, which defended DOC in this
case, said in a statement, “The Office has received Judge Lynch’s Order and we
are reviewing it to determine our next steps.”
Lynch’s earlier order shed light on machinations between the DOC, Gov. Eric
Holcomb’s office and the General Assembly that resulted in the last-minute
language adopted as law that apparently was in direct in response to her
ruling.
“Following the Court’s Ruling on Motion for Summary Judgment and during the 5
months the Department’s appeal was pending, the (DOC’s) Director of Legislative
Services e-mailed the Governor’s Deputy Chief of Staff of Legislative Affairs.
The e-mail attached the full text of the Secrecy Statute. On April 18, 2017,
the Department’s deputy commissioner e-mailed the Governor’s legislative chief,
saying, ‘[Name redacted] – I spoke with [name of Department’s legislative
services director redacted] about this. I believe these [sic] version is
substantially similar to the earlier draft, and should be helpful in resolving
the Toomey case, and serve the other purposes ...,” Lynch wrote in a November
2018 order striking down the secrecy statute on numerous constitutional
grounds.
Toomey, a partner with Lewis Baach Kaufmann Middlemiss PLLC of Washington,
D.C., and local counsel Plews Shadley began litigating the case five years ago.
Lynch dismissed the state’s argument that the plaintiffs had not prevailed in
this case and, therefore, were not entitled to attorney fees.
“If the Department had not gone to the General Assembly without knowledge to
Toomey or the Court to get a retroactive statute to essentially vacate this
Court’s Order for Summary Judgment dated October 24, 2016 in favor of Toomey
and file an improper appeal to the Indiana Court of Appeals and the Indiana
Supreme Court to prolong the Attorney Fee hearing, then Toomey would not have
needed to file its pleading to force the public disclosure of e-mails and
legislative materials,” Lynch wrote.
Plews Shadley said in a statement, “Judge Lynch observes that this case started
out as a simple public records request that could have been resolved very
efficiently and inexpensively. Instead, the Indiana Department of Correction
needlessly multiplied and dragged out the legal proceedings and forced Ms.
Toomey through legal proceedings that no citizen should have to go through in
order to get the government to obey the law.”
Indiana has not carried out an execution since 2009, though seven of the
state’s nine death row inmates are under an active death sentence. The
litigation comes as plaintiffs’ attorneys say pharmaceutical companies and
distributors are loath to have their products or names associated with
executions. Many have forbidden their products from being used to carry out
lethal injections.
The case is A. Katherine Toomey v. Indiana Department of Correction,
49C01-1501-PL-003142.
(source: The Indiana Lawyer)
OKLAHOMA:
Oklahoma can't be trusted with the death penalty
[Dave Ruthenberg is on vacation this week. This column, which won a recent
Oklahoma Press Association award, originally was published Aug. 15, 2018.
Ruthenberg returns from vacation next week]
This past week, Oklahoma state officials announced they still have not been
able to draft a new execution protocol and there is no plan to date to resume
executions. Based on the bungling that has occurred in Oklahoma, the date
executions are to resume should be easily decided: there should be none.
After putting a hold on executions in 2015 following a series of botched or
attempted executions involving the use of lethal injections, the state
Legislature passed a law that would allow executions to be carried out using
nitrogen hypoxia. Oklahoma would thus become the first state to use this inert
gas to execute inmates.
According to CNHI’s Oklahoma state reporter, Janelle Stecklein, Department of
Corrections Director Joe Allbaugh had announced in March (2018) they hoped to
have the new gas protocols drafted within 120 days. The fact that has not
transpired should actually be seen as good news as Oklahoma has been a death
chamber of horrors.
Oklahoma made global news in 2014 with the botched execution of Clayton Lockett
when his execution was halted 33 minutes into the procedure. It was later
learned the intravenous line had failed. Witnesses said Lockett writhed and
thrashed in apparent pain. Officials then announced Lockett had died of a heart
attack, but a later autopsy revealed he died due to the drugs that were
administered.
The state put a hold on executions while it reviewed its process and
implementation of drugs, which had become increasingly difficult to obtain due
to pharmaceutical companies not wishing to be part of the execution process.
The state turned to a compounding pharmacy.
Oklahoma’s next execution occurred in January 2015, when Charles Warner was
executed using a three-drug regimen of what was supposed to have consisted of
midazolam, to produce sedation, rocuronium bromide, to stop breathing, and
potassium chloride, to stop the heart. Warner stated it “feels like acid” and
“it burns.”
It was later learned potassium acetate had been used on Warner, not potassium
chloride. When the next scheduled execution date arrived, the state learned it
had again received a shipment of potassium acetate and not potassium chloride
and canceled the planned execution of Richard Glossip just two hours before
Glossip was scheduled to die.
Incredibly, it was revealed in a grand jury report, when Steve Mullins, then
the top lawyer for Gov. Mary Fallin, learned the wrong drug had been delivered,
he instructed the deputy attorney general to “Google it” to determine if it was
the same as potassium chloride. It’s not. The grand jury report stated Mullins
wished to proceed with the execution. It seems unimaginable a Google search
minutes before a scheduled execution could have been the determining factor in
life or death for Glossip.
We can only hope Allbaugh is doing more than just a Google search on nitrogen
hypoxia — but don’t assume anything.
It’s not just the recent history of botched executions and flippant attitudes
that exposes Oklahoma’s deeply flawed system of justice.
As Mark Fuhrman noted in his 2003 book, “Death and Justice: An Expose of
Oklahoma’s Death Row Machine,” the Sooner State’s long-held “hang ‘em high’
attitude of cowboy justice” resulted in more executions per capita than any
other state, including Texas. Fuhrman was a firm believer in the death penalty
until he came across his Oklahoma research.
The legitimacy of many of those convictions was torn asunder when the extent of
Oklahoma County police chemist Joyce Gilchrist’s misconduct, including
misrepresentation and destruction of evidence, was discovered. Gilchrist was
the DNA lynchpin in several of Oklahoma District Attorney “Cowboy Bob” Macy’s
successful prosecutions. Macy sent 54 people to death row during his 21 years
in office.
According to the Innocence Project, as noted by syndicated columnist Michelle
Malkin, at least 11 wrongful convictions have been attributed to Gilchrist and
Macy, including 2 former death row inmates.
While many would believe this sad chapter is behind Oklahoma, allegations of
irregularities within the Oklahoma City Police Department crime lab have again
emerged as now-retired forensic specialist Elaine Taylor’s work has come under
heavy fire by several world-renowned forensic scientists who have criticized
her work in the 2015 rape conviction of former Oklahoma City police officer
Daniel Holtzclaw.
Meting out justice is not a light matter, especially when it comes to the death
penalty. While the crimes of a condemned prisoner may be gruesome, that does
not excuse the state from conducting itself in a thorough, responsible manner
and carrying out the sentence in a humane fashion.
There can be no room for error or misconduct.
Should we really expect Oklahoma to get it right this time? Maybe we should
Google it.
(source: Column; Dave Ruthenberg is a multiple award-winning columnist and
writer for the Enid News & Eagle)
NEVADA----female among 2 who may face death penalty
Former model, boyfriend could face death penalty for murder of California
doctor
2 people accused in the murder of a California doctor could face the death
penalty. 8 News NOW learned the District Attorney's office will put the case of
Kelsey Turner and Jon Kennison in front of a committee to decide if the D.A.'s
office will pursue the death penalty.
Turner, a former Maxim model, and her boyfriend entered a not guilty plea
Thursday to charges they murdered a California doctor. Both Turner and Kennison
face murder and conspiracy charges for the death of 71-year-old Thomas
Burchard.
His body was found in the trunk of Turner's car in March. Turner and Kennison
are being held without bail.
Their roommate, Diana Pena took a plea deal where she pled guilty to a charge
of accessory murder last week.
She's since been released on her own recognizance and awaiting sentencing.
(source: KLAS news)
OREGON:
HB 3268 would only allow the death penalty in cases of terrorism-related
killings.
Lars brings on Steve Doell, President of Crime Victims United of Oregon, to
discuss the new bill filed in Oregon that would effectively get rid of capital
punishment. Oregon has voted on capital punishment multiple times in the past
without much success, however, it is continuously being reinstated. Listen
below for more.
https://expo.oregonlive.com/news/g66l-2019/03/f2fd9983933636/a-look-at-who-is-on-oregons-death-row.html
The post HB 3268 would only allow the death penalty in cases of
terrorism-related killings. appeared first on The Lars Larson Show.
(source: KXL news)
USA:
Bishops vote to revise U.S. catechism’s capital punishment section
The U.S. bishops voted June 13 to revise what the U.S. church teaches its adult
members about the death penalty in a passage on the issue in the U.S. Catechism
for Adults.
The full body of bishops approved the revised passage by a vote of 194 to 8
with 3 abstentions. It now will need the approval, or “recognitio,” of the
Vatican.
The passage was the work of the bishops’ Committee on Evangelization and
Catechesis, chaired by Auxiliary Bishop Robert E. Barron of Los Angeles. On the
1st day of the bishops’ spring assembly in Baltimore, Bishop Barron said June
11 that wording emphasizes the dignity of all people and the misapplication of
capital punishment. Discussion of the was not meant to be a debate on the death
penalty overall, he added.
Death penalty in the Catechism
p451 – Life and Dignity of the Human Person
p422 – Life Issues that Confront Us
The material given to bishops about the additional passage points out that last
year, the Congregation for the Doctrine of the Faith released the pope’s
revision to the teaching on the death penalty in the universal Catechism of the
Catholic Church.
In response to that action, the bishops’ Committee on Evangelization and
Catechesis made plans to replace its current text in the U.S. adult catechesis
with a revised statement. The goal is to “keep our treatment of the death
penalty in the U.S. Catechism for Adults in alignment with the revised
universal catechism,” Bishop Barron said.
He noted it quotes extensively from Pope Francis’ addition. Key features of it
similarly emphasize “the irreducible dignity of all people, even those accused
of terrible crimes” as well as the practical non-necessity of capital
punishment due to developments within civil society and the danger of the
“gross misapplication of this penalty.”
Bishop Barron reiterated that the bishops were not debating the change to the
universal catechism itself or even the overall issue of capital punishment, but
simply deciding if the added revision to the adult catechism adequately
reflects recent catechism revisions.
He said the passage provides context and justification for the development of
this teaching on the death penalty that highlights the dignity of the human
person. It also emphasizes the continuity of Catholic teaching on this topic by
citing St. John Paul II’s encyclical, “The Gospel of Life,” and previous
statements of U.S. bishops.
The bishop noted that the universal catechism change has not yet been published
and if the U.S. bishops made a similar change to the U.S. adult catechism, they
would not issue the revised version until the universal catechism change is
published.
Last year, the pope ordered a revision of the Catechism of the Catholic Church
to reflect that “the death penalty is inadmissible because it is an attack on
the inviolability and dignity of the person” and that the church is committed
to working toward the abolition of capital punishment worldwide.
The catechism’s paragraph on capital punishment already had been updated by St.
John Paul II in 1997 to strengthen its skepticism about the need to use the
death penalty in the modern world and, particularly, to affirm the importance
of protecting all human life.
The U.S. bishops’ passage about the death penalty states that “today it is no
longer just nor reasonable to apply the death penalty,” stressing that it is
not needed to protect society and its application is “inequitable and flawed.”
The new passage also says the death penalty does not promote a culture of life
and, quoting the universal catechism, adds that it is “inadmissible because it
is an attack on the inviolability and dignity of the person” and the church
will work “with determination for its abolition worldwide.”
(source: Carol Zimmermann, Catholic News Service)
**************************
The ‘Death Penalty’s Dred Scott’ Lives On----In 1987, the Supreme Court came
within one vote of eliminating capital punishment in Georgia based on evidence
of racial disparities. Instead, it created a precedent that civil-rights
advocates have been fighting for decades.
Curtis Flowers has faced 6 separate trials for a 1996 quadruple murder. 2 ended
in a mistrial; 3 others resulted in him being convicted and sentenced to death,
but all 3 sentences were later overturned by the Mississippi Supreme Court on
the basis of prosecutorial misconduct. In its 3rd such ruling, the court found
that the prosecutor had unconstitutionally struck African Americans from the
jury pool because of their race. The 4th and latest conviction reached the U.S.
Supreme Court on appeal in March, with the defense alleging a pattern of
prosecutorial discrimination in jury selection that had continued in the 6th
trial. A series of decisions from earlier this year suggest that the Court’s
new conservative majority may in general be supportive of capital
punishment—but the alleged discrimination in Flowers’s trials elicited concern
even from some of the conservative justices.
The record of systemic disparities in U.S. capital cases is long and well
documented. Compounding the biases that pervade the entire criminal-justice
system, including in jury selection, states are more likely to seek and secure
a death sentence in cases involving white victims, especially if the defendant
is black. But while studies have consistently shown that these disparities
exist in capital-punishment systems around the country, the success of
discrimination-based challenges to the death penalty has been piecemeal. The
Supreme Court has heard a number of arguments about racial discrimination in
capital cases over the past three decades, and has found in favor of several of
the defendants, but the scope has almost always been limited to individual
cases of discrimination.
After empirical evidence of systemic bias was first published decades ago, it
was almost used to strike a major blow to the criminal-justice system, in the
1987 Supreme Court case McCleskey v. Kemp. Lawyers for Warren McCleskey, a
black man sentenced to death in Georgia for killing a white police officer
during an armed robbery, argued on appeal that capital punishment in the state
was racially discriminatory and violated McCleskey’s Fourteenth Amendment right
to equal protection. They based their allegations of unconstitutional
discrimination on a landmark statistical study showing significant racial
disparities in the administration of the death penalty in Georgia. The case
brought the Court within one vote of potentially striking down capital
punishment in the state—but instead affirmed a standard that civil-rights
advocates have been fighting ever since.
In a contentious 5–4 decision, the Court determined that general disparities in
a state’s capital-punishment system were not enough to demonstrate
unconstitutional discrimination in an individual defendant’s case. In a memo to
his fellow justices, Antonin Scalia wrote that racial biases have a “real” and
“ineradicable” influence on “jury decisions and (hence) prosecutorial
decisions”—and yet he didn’t believe that bias was enough to invalidate those
decisions.
Justice Lewis Powell, writing on behalf of the majority, even noted that the
arguments in the case “basically challenge the validity of capital punishment
in our multiracial society.” But, citing a standard previously established in
civil law, he too concluded that the Court couldn’t find that McCleskey’s
rights had been violated solely based on the discriminatory impact found in the
study; McCleskey’s lawyers would have also needed to prove that the state had
intended to discriminate against him.
In an eloquent dissent, Justice William Brennan cited the Supreme Court’s past
decisions barring black citizenship in Dred Scott v. Sandford and protecting
segregation in Plessy v. Ferguson, warning that the McCleskey ruling would have
broad implications in the fight for racial equality. “The reverberations of
injustice are not … easily confined,” he wrote. Responses from scholars echoed
his concerns. One philosophy professor’s reaction in the Los Angeles Times ran
under the headline “Someday McCleskey Will Be Death Penalty’s Dred Scott.”
The McCleskey opinion has had far-reaching effects on all kinds of
equal-protection claims. The precedent impairs constitutional challenges based
on widespread racial disparities not just in capital sentencing, but in the
criminal-justice system more widely; it requires defendants to prove
discrimination on a specific basis, providing clear evidence that they were
explicitly targeted because of their race. If police officers, prosecutors,
judges, or others don’t openly acknowledge their own prejudices, defendants
face a prohibitively high bar fighting for their Fourteenth Amendment rights in
court.
If one of the justices in the majority had voted the other way, the Court may
have not only overturned McCleskey’s sentence, but also ruled Georgia’s
capital-sentencing system unconstitutionally discriminatory. Such a decision
would have provided a powerful precedent for contesting the death penalty at
the national level—and the racial biases of the country’s broader
criminal-justice system. Powell himself came to regret his decision before
long, but too late to change the outcome of the case. In 1991, four years after
Powell retired from the Supreme Court, his biographer asked him if, given the
chance, he would change his vote in any case he had presided over. “Yes,”
Powell told him. “McCleskey v. Kemp.”
In the decades since the case was decided, legislators and state courts have
sought to address the systemic racial disparities that McCleskey acknowledged
but did nothing to correct. Beginning in 1988 with the introduction of the
Racial Justice Act, which would have prohibited “the imposition or the carrying
out of the death penalty in a racially disproportionate pattern,” Congress has
proposed more than a dozen laws to counteract the ruling. None of them has
passed.
Politicians have had more success at the state level. State legislatures have
passed racial-justice acts in Kentucky and North Carolina (North Carolina’s has
since been repealed), and have abolished the death penalty outright in
Illinois, Maryland, and New Hampshire, citing racial discrimination as a
motivation. (Other states have banned the death penalty for different reasons.)
State courts in Connecticut and Washington have also recently ruled the death
penalty unconstitutional, in part on the basis of discriminatory application.
It has now been abolished or overturned in 21 states, as well as in Washington,
D.C., and Puerto Rico.
In 4 other states, governors have imposed moratoriums on executions. In
California, Governor Gavin Newsom issued the latest such order in March,
arguing that the death-penalty system is inherently unfair and
disproportionately targets people of color and those with disabilities. The
action drew immediate support from several of the 2020 Democratic presidential
candidates, and Beto O’Rourke and Kamala Harris have promised that, if elected,
they would suspend executions at the federal level for similar reasons.
In the past, such statements would have likely generated backlash from the
national electorate. But Cassandra Stubbs, the director of the Capital
Punishment Project at the ACLU, says the death penalty’s unfairness has, over
time, led to a rise in opposition among the public.“This notion that we’re
going to fix the death penalty, we’re going to make it less arbitrary, we’re
going to make it nondiscriminatory, we’re going to put in place various
reforms—the fact is that all of those have really failed so spectacularly,” she
told me.
She said the compounding evidence of discrimination and the failures to
mitigate it have also prompted renewed litigation against capital punishment.
Some lawsuits reached the Supreme Court via defendants who alleged that someone
had acted with discriminatory intent toward them—in line with the precedent
that McCleskey set—and the justices voted to overturn a number of individual
death sentences in those cases. These decisions reflect a larger shift in the
Court’s capital-punishment jurisprudence in recent decades; with Justice
Anthony Kennedy as a frequent swing vote, a series of prominent decisions
limited the applications of the death penalty.
The Court has “never revisited its shameful holding” in McCleskey, Stubbs has
written. But, she told me, it “is certainly a vulnerable precedent when you
line it up next to other decisions that they’ve issued in recent years.” And
even with Kennedy’s departure from the Court, the addition of the conservative
justices Neil Gorsuch and Brett Kavanaugh, and the Court’s apparent change in
position on the death penalty overall, Stubbs argued, “I don’t think it’s fair
to say that we’ve lost a majority of Supreme Court justices who are concerned
about bias.”
Three of the Court’s conservative members have already joined their liberal
peers in voicing unease about discrimination in individual capital cases: John
Roberts condemned the use of racist arguments in court when writing for the
majority in a 2016 case that overturned a capital sentence, and during
arguments in Flowers v. Mississippi, Samuel Alito said that “the history of the
case prior to this trial is very troubling” and “is cause for concern.”
Kavanaugh directed a series of pointed questions toward the Mississippi
attorney general that suggested he was sympathetic to Flowers’s case. Gorsuch
will soon have an opportunity to share his own in-depth thoughts on the alleged
racial discrimination in Flowers when the Court delivers its opinion.
But even if they agree that a biased prosecutor repeatedly discriminated
against jurors on the basis of race, the Court’s conservative justices may also
believe, as the McCleskey majority did, that general disparities in the
criminal-justice system cannot alone prove unconstitutional discrimination in
individual cases. The justices don’t seem eager to reconsider the latter point.
The Court had two opportunities to revisit McCleskey in 2017, when it received
petitions for cases arguing that a statistical study demonstrated that racial
considerations had created unconstitutional bias in Oklahoma capital-sentencing
judgments. But this January, the justices declined to hear arguments in either
case.
(source: The Atlantic)
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