August 22
TEXAS----stay of impending execution
Court halts execution of convicted child killer who claims intellectual
disability
A man convicted in the sexual assault and murder of an 11-year-old girl was set
to die next Wednesday. But the Texas Court of Criminal Appeals stopped his
execution amid claims of intellectual disability.
The Texas Court of Criminal Appeals on Monday halted the execution of a
convicted child murderer who claims he's intellectually disabled and therefore
ineligible for the state's harshest punishment.
Steven Long, 46, was set to die next Wednesday for the 2005 rape and murder of
an 11-year-old girl in Dallas County. Courts had previously rejected his
appeals claiming intellectual disability, but that was before the U.S. Supreme
Court invalidated Texas' methods for determining intellectual disability for
death-sentenced people in March.
With that ruling in mind, Long's lawyer, Thomas Scott Smith, again asked the
courts to stay Long's execution earlier this month, presenting evidence that
Long's IQ score has regularly been placed in the low 60s. His request was
granted Monday afternoon - the court tossed out the execution to further review
the case.
"In light of this new law and the facts of applicant's application, we have
determined the applicant's execution should be stayed pending further order of
this Court," the court order said.
Long was sentenced to death in the murder of Kaitlyn Smith. In October 2005,
Long had recently moved in with a couple and their daughter across the street
from Kaitlyn, and one night she came over for a sleepover, according to a court
opinion. By morning, Kaitlyn was missing, and her body was later found
partially wrapped in trash bags underneath an empty trailer.
A bloody fingerprint near her body matched Long's, and he confessed to the rape
and murder of the girl. He was sentenced to death the next year, and he has
lived on death row for almost 11 years.
In a 2008 appeal, Long's lawyers appealed his sentence, claiming he was
intellectually disabled. The U.S. Supreme Court ruled in 2002 that executing
intellectually disabled people was unconstitutional, but it left it up to the
states to determine the disability. The courts ruled him fit for execution
under Texas' standards at the time.
But over the years, the high court had several more rulings further refining
how states may determine who is disabled. In March, the case invalidated Texas'
method in the case of death row inmate Bobby Moore.
In 2014, a state court used current medical standards to deem Moore
intellectually disabled, but the Texas Court of Criminal Appeals overruled that
determination, saying the court should have used the state's standards instead.
The state relied on decades-old medical standards and a requirement that a
person has a low IQ and has had poor adaptive functioning since childhood,
which it determined in a controversial set of factors.
The high court rejected the method, saying Texas' refusal to use current
medical standards and its reliance on nonclinical factors violated the U.S.
Constitution. Since the ruling, other Texas death row inmates have had their
sentences changed from death to life in prison.
With a new standard in place after Moore, Long again brought his intellectual
disability claim to the courts.
"The use of [Texas' rejected method] in deciding the claim creates the
impermissible risk that Mr. Long will be executed despite significant evidence
establishing that he is among the class of persons for whom execution is
proscribed as cruel and unusual," his lawyer, Smith, wrote in a court filing.
(source: Texas Tribune)
*********************
Executions under Greg Abbott, Jan. 21, 2015-present----25
Executions in Texas: Dec. 7, 1982----present-----543
Abbott#--------scheduled execution date-----name------------Tx. #
26---------Sept.7------------------Juan Castillo----------544
27---------Oct. 12-----------------Robert Pruett----------545
28---------Oct. 18-----------------Anthony Shore----------546
29---------Oct. 26-----------------Clinton Young----------547
30---------Nov. 8------------------Ruben Cardenas---------548
31---------Nov. 16-----------------Larry Swearingen-------549
32---------Jan. 30-----------------William Rayford--------550
(sources: TDCJ & Rick Halperin)
FLORIDA----impending execution
Florida Supreme Court's mea culpa doesn't halt execution
The Florida Supreme Court on Monday rejected a reprieve for a convicted
murderer scheduled to be executed Thursday, after justices acknowledged the
court had been mistaken for more than 2 decades about the race of 1 of the
victims.
Lawyers for Mark James Asay, convicted of killing Robert Booker and Robert
McDowell in 1987, asked state and federal courts to grant a new hearing after
the Florida Supreme Court last week issued a rare mea culpa for mistaking 1 of
the victims as black.
But the Supreme Court on Monday summarily dismissed Asay's request.
"While this court may have mislabeled the racial identity of the victim in its
prior opinions, this fact does not negatively affect this court's final
determination," justices unanimously decided Monday afternoon.
It's not unusual for death row lawyers to launch a flurry of appeals in the
days preceding an execution.
But the latest attempt by Asay lawyer Marty McClain, who's represented
defendants in more than 200 death penalty cases, is yet another twist in a case
rife with oddities.
In an Aug. 14 order rejecting Asay's latest round of state appeals, the Supreme
Court noted that the court had "previously described the victim born Robert
McDowell as 'a black man dressed as a woman.'"
McDowell was "known to friends and neighbors as Renee Torres," the court wrote.
"Torres was identified at trial by everyone who testified as white and
Hispanic. Renee Torres nee Robert McDowell may have been either white or
mixed-race, Hispanic but was not a black man," the court wrote. "We regret our
previous error."
While the court acknowledged its mistake, last week's order refused to allow a
rehearing on issues related to Asay's case, prompting McClain to file a
separate lawsuit over the weekend alleging that the condemned prisoner's rights
were being ignored.
Prosecutors' case against Asay - portrayed as a racist inked with swastikas and
white supremacist tattoos - was "premised upon its claim that the 2 homicides
at issue were motivated by Mr. Asay's alleged racial animus," McClain wrote in
a 52-page petition filed Saturday with the Supreme Court.
"In a case in which the prosecution case was built on a theory of racial animus
towards blacks as the motive for Robert McDowell's homicide, this (Supreme)
Court at the 11th hour has changed Mr. McDowell's race from black to white
and/or Hispanic," McClain added.
The "change of fact" came with a state of "regret (for) our previous error" but
also barred Asay from getting a new hearing, the defense lawyer pointed out.
"In other words, this court after giving notice of a change of fact decided
that Mr. Asay was not entitled to be heard at all, let alone meaningfully
heard, as to what this change in fact means in regards to the litigation that
has occurred during the past 26 years regarding the constitutionally (sic)
validity of the judgments and sentences entered against him. A more clear
violation of due process and the constitutional guarantee of notice and
opportunity to be meaningfully heard is hard to imagine, and at the 11th hour -
10 days before Mr. Asay is to be executed," he wrote.
Asay was convicted in 1988 of the murders of Booker and McDowell in downtown
Jacksonville. Asay allegedly shot Booker, who was black, after calling him a
racial epithet. He then killed McDowell, who was dressed as a woman, after
agreeing to pay him for oral sex. According to court documents, Asay later told
a friend that McDowell had previously cheated him out of money in a drug deal.
The prosecutor's theory of the case was that Asay was a white supremacist who
first shot and killed Booker because he was black and then a short time later
shot and killed McDowell.
A jury found Asay guilty of 2 counts of 1st-degree murder, and recommended the
death penalty with a 9-3 vote.
"In closing arguments, the prosecutor relied upon a jailhouse informant's
testimony that Asay confessed to killing 'those niggers,'" McClain wrote in
Saturday's petition.
But since the court acknowledged it had erred regarding McDowell's race, "the
relevance of evidence that Mr. Asay was a racist melts away and needs to be
revisited," McClain wrote in a footnote.
"Evidence of racial animus towards blacks is not relevant in a case in which a
white man is charged with killing another white man," he wrote.
But Attorney General Pam Bondi's office argued that the high court's mistake
was irrelevant.
"Asay murdered 2 people in separate incidents," Charmaine Millsaps, a lawyer
representing the state, wrote in a 12-page response filed a few hours before
the court's Monday decision. "There is no dispute regarding the race of the 1st
victim as being black or Asay's racial motivation in the first murder. ... The
race of the second victim does not matter to the convictions or death
sentence."
The case of Asay - who will be the 1st Florida death row inmate to be executed
since January 2016 - has been fraught with problems.
Asay spent more than a decade on death row without legal representation, a
violation of state law.
And many of the records related to Asay's case were destroyed after being
stored in a shed that was "infested with snakes, rats and insects," McClain
wrote in a court filing after being appointed to represent Asay last year.
Other records were destroyed by water and mold, McClain wrote.
Asay's case has also involved a legal tangle over a lawyer who was the subject
of an investigation ordered by Florida Supreme Court Chief Justice Jorge
Labarga.
The high court dropped the inquiry after Mary Catherine Bonner, who repeatedly
missed critical deadlines in death penalty cases, resigned from a statewide
registry that made her eligible to represent defendants like Asay.
(source: Tallahassee Democrat)
*********************
Florida Supreme Court rejects appeal of Thursday's execution
The Florida Supreme Court is refusing, again, to halt the state's 1st execution
after a hiatus of more than 18 months.
Justices rejected an appeal Monday on behalf of Mark Asay, who is set to die on
Thursday for killing 2 men in Jacksonville in 1987.
Asay, who is white, used a racial epithet when he shot Robert Lee Booker, who
is black. The 2nd victim, Robert McDowell, had been described as black in some
testimony, but was either white or Hispanic.
The court recently acknowledged misidentifying McDowell's race 26 years ago in
its initial review. Asay's lawyers said this violated due process, but the
court ruled that the victim's racial identity was fully explored at trial and
did not affect the court's previous rulings.
(source: Associated press)
MISSOURI----impending execution
Missouri prepares for 2nd execution of 2017; requests to halt it still pending
Unless the last-minute requests for a reprieve are granted, a Missouri
death-row inmate will be put to death Tuesday evening.
Marcellus Williams, 48, was convicted in the 1998 fatal stabbing of former St.
Louis Post-Dispatch reporter Felicia Gayle at her University City home. In
2003, the state Supreme Court upheld Williams' conviction, saying there was
sufficient evidence to support the jury's conclusion.
His initial execution date was set for January 2015, but the state Supreme
Court postponed it for DNA testing.
Those tests were submitted to the court again last week as part of a request
for a stay of execution. One of Williams' attorney, Kent Gipson, said it showed
the DNA on the murder weapon wasn't from Williams. But the court rejected the
request; the U.S. Supreme Court hadn't weighed in as of 6 a.m. Tuesday.
At the same time, the Midwest Innocence Project, which seeks to overturn
wrongful convictions, has asked Republican Gov. Eric Greitens to step in and
have a state board review the DNA evidence. The nonprofit's director, Tricia
Bushnell, said the case "has so many questions" and "a number of the hallmarks
that we see in wrongful convictions."
But St. Louis County Prosecutor Bob McCulloch lambasted the request to the
governor, saying it is filled with statements that are "flat-out wrong." When
it comes to the DNA evidence, he told St. Louis Public Radio in an interview
Monday, what was "extracted, or located on the knife was not of sufficient
quantity or quality to identify or exclude anyone."
"This motion is just another last-ditch effort to somehow muddy the water and
try to claim that some innocent man might be executed," McCulloch said.
"Marcellus Williams killed her. It was a vicious assault. He laid in wait for
her."
Greitens spokesman Parker Briden declined to comment on the request for a board
of inquiry on Monday, adding there would be a statement Tuesday.
Anti-death penalty rallies are planned in Jefferson City, Columbia,
Springfield, Kansas City and St. Louis on Tuesday, as well as a vigil outside
of the Eastern Reception, Diagnostic and Correctional Center in Bonne Terre,
where Williams will be executed.
The state Department of Corrections has said it is "prepared to carry out"
Williams' execution. It will use 2 of its 34 vials of the sedative
pentobarbital. Missouri is 1 of 4 states that uses that method of lethal
injection.
The state protects the source of its pentobarbital, despite lawsuits from
inmates and media outlets to force the state to reveal that information.
Pentobarbital is made by 1 of 2 sources: A compounding pharmacy or an
FDA-approved manufacturer. The manufacturer will not sell directly to any state
for use in an execution and has made it clear it doesn't want 3rd-party
distributors to do so.
Williams would be the 2nd person Missouri has executed in 2017; Mark Christeson
was put to death on Jan. 30.
(source: KCUR news)
COLORADO:
Death penalty case could cause courtroom remodeling in Colorado Springs
El Paso County's 1st death penalty case in a decade may require a remodeling
job at the Terry R. Harris Judicial Complex.
A judge presiding over the double-murder case against Glen Law Galloway on
Monday said he would request that the jury box in the Division 3 courtroom be
enlarged to accommodate a panel of 12 people plus 6 alternates.
Murder trials typically involve 1 or 2 alternate jurors, who do not join in
deliberations unless someone on the panel gets sick or cannot complete their
service for other reasons. But with the case against Galloway expected to last
3 months or longer, 4th Judicial District Judge Gregory Werner ruled earlier
this year that 6 alternate jurors would be seated to protect against the
possibility of a mistrial.
When the courtroom work would occur, and how much it is expected to cost, are
details that weren't made public at a brief hearing Monday.
If the project is approved, much of the labor would be supplied by in-house
staff, keeping costs to a minimum, said District Administrator Scott Sosebee.
Courtroom renovations could end up being one of the less expensive parts of
Galloway's trial. In 2016, the Denver Post reported that the death penalty case
against Aurora theater shooter James Holmes racked up more than $3 million in
expenses - the result of 3 years of jailing, evaluating and prosecuting the
so-called Batman killer.
That figure didn't include the salaries of judges, prosecutors, sheriff's
deputies and other government employees who spent most or all of their time on
the case, nor the taxpayer dollars spent by the Colorado Public Defender's
Office, which isn't required to disclose defense costs.
Galloway, 45, an ex-Fort Carson soldier, is charged in the back-to-back fatal
shootings in May 2016 of Marcus Anderson, a homeless man, and Janice Nam, an
ex-girlfriend whom Galloway had previously been convicted of stalking when
their relationship soured. Authorities haven't announced how or whether the
deaths were linked, except to say both victims knew Galloway.
(source: The Gazette)
USA:
Johnson & Johnson unit speaks out at planned death row drug use----Group says
it does not condone use of its drugs in lethal injection as Florida eyes move
Johnson & Johnson, the world's largest healthcare company, has hit out at plans
by the US state of Florida to execute a prisoner on death row using an
experimental lethal injection containing a drug it invented.
Janssen, a division of J&J, discovered etomidate in the 1960s but no longer
makes the off-patent medicine, which is manufactured by several drugmakers.
"We do not condone the use of our medicines in lethal injections for capital
punishment," Janssen said in a statement.
It added: "Janssen discovers and develops medical innovations to save and
enhance lives. We do not support the use of our medicines for indications that
have not been approved by regulatory authorities, such as the US [Food and Drug
Administration]."
It is the 1st time that a drug connected to J&J has been used in a lethal
injection and, as such, the company has not spoken out on the topic before.
Florida has not disclosed which company made its supplies of etomidate, an
injectable sedative used to anaesthetise patients, which is manufactured by
several companies including Pfizer and Mylan, according to a government
database of prescription drugs.
J&J's condemnation follows several similar interventions by drugmakers such as
Pfizer, Roche and Baxter.
Most drugmakers are vehemently opposed to the use of their products in lethal
injections and many have responded to anti-death penalty campaigners by
introducing controls to stop correctional facilities stockpiling their
medicines for executions.
The industry's opposition to capital punishment - which it sees as anathema to
its mission of saving lives ??? has frustrated states that still have the death
penalty.
Many such states have been unable to secure supplies of drugs and have been
forced to turn to unproven experimental cocktails or, in the case of Utah,
reintroduce the firing squad.
"The world's largest drug manufacturer has added its voice to the industry-wide
consensus that opposes the misuse of medical products in lethal injection
execution," said Maya Foa, director of Reprieve, a charity that describes
itself as an "international rights organisation".
Ms Foa added: "Pharmaceutical companies are clear that their drugs are for
saving the lives of patients, not ending the lives of prisoners. In Florida
particularly, governor [Rick] Scott should listen to clear and unequivocal
statements from J&J and others calling time on this dangerous misuse of
medicines."
It is not clear how Florida circumvented the controls put in place by
drugmakers to stop correctional facilities from buying their medicines,
although it could have amassed supplies of etomidate before it publicly
announced its intention to use it in a lethal injection earlier this year.
Florida plans to use etomidate as the 1st of 3 drugs in the lethal injection,
which also includes rocuronium bromide, a muscle relaxer to prevent jerking,
and potassium acetate, which stops the heart when administered in high enough
doses.
The state is also substituting potassium acetate for potassium chloride, which
is more commonly used but harder to secure because of the supply controls.
Potassium acetate has been used in a lethal injection only once before in 2015
in Oklahoma - but only by mistake. In that highly publicised execution, the
prisoner said he felt like his body was "on fire" before he died.
After defeating several legal challenges, Florida scheduled the execution of
double murderer Mark James Asay for this Thursday.
A spokesperson for Florida attorney-general Pam Bondi did not respond to a
request for comment.
(source: Financial Times)
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