Jan. 6
MISSISSIPPI:
The Truth About Choosing Between Life and Death
Serving life without parole is not the big easy. Prisoners who are sentenced to
live behind bars every day until they die are not spending their hours watching
football games in air-conditioned cells.
But imagine if you didn't know that. Imagine that all you ever heard was the
false tale, so often depicted in the media, that incarceration until death is
like being locked in a country club. If you'd never heard the truth that being
sentenced to a small, sometimes crowded and sometimes painfully isolated cement
cell means suffering every day, it would be hard to know that life without
parole is an extreme and excruciating punishment.
In Mississippi and at least 3 other states, juries don't get to hear testimony
about the true conditions of life behind bars. In a data-driven society where
we demand information for the most mundane of choices, this artificial
suppression of important facts reminds me of the old Pepsi Challenge, but with
a patently unfair twist: this time the taster has to pick between Pepsi and
Coca Cola without even tasting the Coke. That's no way to pick a cola, and it's
certainly no way to pick who should live and who should die.
In a petition for certiorari we recently filed in the U.S. Supreme Court, we
challenge a death sentence the State of Mississippi obtained against our
client, Leslie Galloway III, by artificially tilting the scales of justice in
the state's favor. The State convinced the jury to have Mr. Galloway executed
by forbidding it from hearing anything about the harsh conditions Mr. Galloway
would face in a Mississippi prison if the jury chose a sentence of life
imprisonment without parole instead of execution.
Mr. Galloway was convicted of capital murder in 2010. Upon convicting him, his
jury became responsible for the single most difficult task we ask of juries in
this land - to decide if he should live out the rest of his days locked in
prison, or if the State should strap him to a gurney and execute him. When the
prosecutor stands up and tells the jury that only execution would be just (as
the prosecutor claimed in this case), the jury needs an answer to the question:
in comparison to what? Juries should get enough information to understand not
only the crime and the details of the defendant's life leading up to the crime,
but they should also get to know what a life sentence looks like to assess if
it is the appropriate punishment - would the prisoner be sitting in an air
conditioned cell watching ESPN all day, with privileges and freedoms that would
give him opportunities to hurt others, or would he truly suffer in prison and
be kept under close guard?
At Mr. Galloway's trial for his life, his defense team was prepared to present
the testimony of Donald Cabana, who had long served as superintendent of the
Mississippi State Prison at Parchman. If permitted to testify, Cabana would
have set the record straight by telling the jury that Galloway "is not going to
be in an air conditioned cell, he is not going to [get his own cell,] and he is
going to be suffering every day, a horrible existence, and they need to know
that." But, on the prosecutor's motion, the Mississippi courts blocked this
testimony completely.
Many jurors and a substantial portion of the public believe that life
imprisonment without parole can be adequate punishment, even for very heinous
crimes. In many states that still have the death penalty on the books,
testimony about the prison conditions that life imprisonment entails is an
important part of capital trials. By artificially excluding from the jury's
consideration the true conditions of imprisonment, Mississippi turned Lady
Justice on her head in order to secure a death sentence for Mr. Galloway.
Death sentences based on misinformation are sadly a part of our broken death
penalty system, leading to reversal after reversal. This petition gives the
Supreme Court an opportunity to fix a death sentence based on a lack of
information crucial to the jury's verdict. For the sake of Leslie Galloway,
let's hope the Court grants it.
(source: ACLU)
OHIO:
Deloney fit to stand trial in capital murder case
The man accused of robbing and gunning down Hartwell pizzeria owner Richard
Evans has been found mentally competent to stand trial by 3 experts but now his
attorneys, in an attempt to save him from death row, want to see if he is
mentally retarded.
John Deloney, 28, of Westwood, is charged with capital murder for the June 15
robbery and fatal shooting of Evans, who owned Cosmic Pizza. Deloney was
arrested in Indianapolis and returned to Cincinnati to face charges.
Hamilton County Common Pleas Court Judge Ethna Cooper announced in court that 3
different experts found Deloney mentally competent to stand trial. That led
defense attorneys Perry Ancona and Tim McKenna to ask that Deloney be tested to
determine if he is mentally retarded.
That's important in this case, where Deloney faces the death penalty, because
Ohio inmates with an IQ of 70 or below are deemed to be mentally retarded and
ineligible for the death penalty.
His attorneys are doing all they can to try to save Deloney's life because the
evidence of his guilt is powerful. The fatal shooting and robbery were captured
on the pizzeria's video system and was done with Evan's wife and 3 children
there. Deloney also has confessed to the shooting but told police it was
self-defense.
Evans and Deloney struggled over the gun. Evans was shot and died in his wife's
arms in front of the pizzeria.
In an odd twist, Deloney was found in Indianapolis with his twin brother, James
Deloney, who police mistakenly thought was the subject of the manhunt after
Evans' killing. James Deloney has filed in his brother's capital murder case
here several documents accusing police of roughing him up and taking his phone.
Hamilton County prosecutors suggested, and the judge agreed Monday, that those
issues be dismissed from the murder case and be brought up in a civil suit.
John Deloney's fingerprints also were found at the pizzeria. Unlike DNA,
fingerprints of twins aren't identical, Prosecutor Joe Deters said.
John Deloney's murder case next is in court Feb. 28.
(source: Associated Press)
COLORADO:
Jury selection starts in Colorado prison killing
Hundreds of potential jurors lined up outside the Douglas County Courthouse on
Monday morning as jury selection started in the death penalty case against
Edward Montour, who killed corrections officer Eric Autobee more than a decade
ago.
Autobee's father, Bob, walked up and down the long line carrying a photo of his
son and protesting the decision to seek the death penalty.
According to the Denver Post (http://tinyurl.com/n5cqwf3), Bob Autobee said his
son wouldn't want the death penalty.
Montour pleaded guilty to killing Autobee and a judge sentenced him to death.
The death penalty was later thrown out by the Colorado Supreme Court after the
court ruled in 2007 that only a jury can hand down death sentences.
(source: Associated Press)
WYOMING:
Eaton lawyers file big brief asking for new sentence
Lawyers for the former Riverton resident who is Wyoming's lone death row inmate
have filed a massive court brief asking a federal judge to overturn his death
sentence.
Inmate Dale Wayne Eaton, 68, is challenging the constitutionality of the death
sentence he received in 2004 for the rape and murder of 18-year-old Lisa Marie
Kimmell of Billings, Mont. The Wyoming Supreme Court already has upheld Eaton's
conviction, but the federal court has put the execution on hold.
Eaton grew up in Riverton and attended Riverton High School.
Eaton's lawyers filed the 300-page brief with U.S. District Judge Alan B.
Johnson of Cheyenne last week. The brief echoes testimony from a court hearing
this summer at which many of Eaton's relatives and acquaintances testified.
Eaton's current lawyers don't dispute that he killed Kimmell in 1988. But they
claim he didn't get an adequate defense at trial.
In challenging Eaton's death sentence, his current legal team has hammered on
their claim that his trial lawyers didn't do a constitutionally adequate job of
investigating his life, mental health and family history to draw out mitigating
evidence that might have convinced even a single juror that his life was worth
saving.
Kimmell disappeared while driving across Wyoming and her body was later found
in the North Platte River. In 2002, DNA testing linked Eaton to the murder
while he was in prison on unrelated charges.
At the time of Kimmel's murder, Eaton was living by himself in a rundown
compound in Moneta, west of Casper. Authorities have said he kept Kimmell
captive there for several days and raped her before killing her and burying her
car on the property.
Eaton's current legal team consists of Cheyenne lawyer Terry Harris and
Missouri lawyers Sean O'Brien and Lindsay J. Runnels. Harris declined comment
Monday on the brief or the status of Eaton's case.
Harris and O'Brien successfully challenged the death sentence of James Harlow,
an inmate at the Penitentiary of Wyoming who had been convicted of involvement
with the death of a correctional officer. A federal judge overturned Harlow's
death sentence in 2008.
The bulk of Eaton's latest federal brief levels criticism at lead trial lawyer
Wyatt Skaggs of Laramie. Skaggs declined comment Monday, saying he can't
comment on a pending case.
Eaton's team wrote in the brief that Skaggs' approach to the defense of capital
murder charges is, "so fundamentally flawed that the jury that sentenced Mr.
Eaton to die heard virtually nothing of his life circumstances and mental
illness that led to his impoverished isolation at the time of his crime."
The brief charges that Skaggs' tried to save money for the Public Defender's
Office by hiring a single person to serve both as investigator for the defense
and as a mitigation specialist, meaning a person who would interview Eaton's
family and others to try to present a complete picture of his life and
personality.
The Wyoming Attorney General's Office represents the state against Eaton's
appeal. Deputy Attorney General David Delicath said Monday that the state will
file a response brief in early February. Delicath declined comment on Eaton's
latest brief.
Once Eaton and the state finish this final round of briefing, the case
apparently could be ready for Johnson to make a decision on Eaton's request to
overturn his death penalty. However, the public court record isn't clear about
the status of recent defense claims that Eaton may suffer from mental illness
or mental disability that could preclude his execution.
Johnson previously approved a defense request for more medical testing of Eaton
after his lawyers said that his IQ might be low enough that he could be covered
by a federal ban against executing people with intellectual disabilities.
(source: The Daily Ranger)
USA:
Even Death Penalty Supporters Will Think Twice After Learning How It's Actually
Carried Out
Execution in the U.S. can occur in 5 ways: by lethal injection, electrocution,
lethal gas, hanging, or firing squad. But, lethal injection is by far the most
common method employed in the states where the death penalty is legal.
In 2013, 39 people were executed in America. 38 of them were killed by lethal
injection - all but 1, a man who requested electrocution, which is not typical.
There is not, however, a good chance you'd be killed by lethal injection the
way it was intended to be carried out. Medical experts had formerly delineated
a highly specific method to perform lethal injection called the "3-drug
protocol" which consisted of: sodium thiopental, a barbiturate anesthetic,
followed by pancuronium bromide, a paralyzing muscle relaxant, and finally,
potassium chloride, to stop the inmate's heart.
In 24 of the 38 lethal injection execution cases below, only 1 drug was used.
Not only did fewer than 1/2 receive the 3-drug protocol, but they also did not
even receive a lethal dose of a drug from the original list of 3.
As the chart indicates, most death row inmates received a single-drug injection
of the sedative pentobarbital last year.
According to Orrin Devinsky, M.D., a neurologist at NYU's Langone Medical
Center, "The 3-drug is more of a guarantee that breathing really stops and no
faint breaths prolong life."
Instead, the majority of inmates only receive pentobarbital, a brain
depressant, which, like too much alcohol, slows brain activity. At low doses,
it starts by acting on higher centers, and then progresses to the brain stem,
which controls breathing and arousal. This causes the inmate to become
unconscious, stop breathing, and die.
But without the other 2 drugs, the chance of an execution carried out in a
medically-approved way drops dramatically because the paralytic agent also
prevents breathing. In other words, when the inmate becomes unconscious, which
can stop his breathing by shutting off respiratory centers in the brain stem,
his respiratory muscles get paralyzed, which can cause death. The drug is hits
the same biological function - breathing - from several angles.
Without the 3-drug protocol, the chances of a screw-up dramatically increase.
This was especially clear during the attempted execution of Romell Broom in
Ohio, where executioners tried to kill him for 2 hours before giving up. To
this day, he remains on death row.
According to Richard Dieter, executive director of the Death Penalty
Information Center, there is a doctor is not present to administer the drugs.
With Joseph Clark, who was executed in Ohio in December 2006, it took 22
minutes for the technicians to find a vein. Shortly after the start of the
injection, the vein collapsed and Joseph's arm began to swell. He raised his
head off the stretcher and said 5 times, "It don't work. It don't work." The
curtains surrounding the stretcher were then closed while the technicians
worked for 30 minutes to find another vein.
"Screw-ups happen," Dieter said. "This is the one area where doctors come in to
play. Often, it's a doctor who finally determines that death has occurred."
Devinsky said, "The main screw-up is under-dosing, so someone looks like they
are not breathing but they are actually breathing shallowly and then they don't
die, or sustain brain damage but don't die."
Regardless of how you feel about the death penalty, that lethal injection is
not being carried out in a medically-sound way is of serious concern.
The mainstream media has raised this issue multiple times in the last couple of
weeks alone. In December, Jeffrey Toobin for The New Yorker wrote, "In 1890,
the Justices said that the process could not include 'torture or a lingering
death.' Accordingly, in 2008, the Court rejected a challenge to execution by
lethal injection - the prevailing method in the 35 states with prisoners on
death row - because, as Chief Justice John Roberts noted in his opinion, the
procedure did not present a 'substantial risk of serious harm.' In other words,
death is required, but harm is forbidden. Clear?"
How lethal injection is carried out may directly conflict with that. Toobin
continued to argue that while it's understandable that Supreme Court Justices
have attempted to make the process of killing an inmate somewhat more humane,
and while "there is a meagre kind of progress in moving from the chair to the
gurney," the fact remains that both "come with leather straps to restrain a
human being so that the state can kill him. No technology can render that
process any less grotesque."
But there are other issues - logistical and fiscal, rather than moral, medical,
or theoretical - at play.
For one, death row is expensive. Dieter estimates that while life in prison
costs $1 million per inmate, an inmate's time on death row, which can be last
for decades, require extra guards, and entails significantly more taxing legal
processes of appeals, costs a staggering $3 million per death row inmate.
Moreover, the length of time from sentencing to execution is increasing.
So how did we get here?
Drug manufacturers behind the lethal concoctions of the 3-drug protocol have
placed sanctions on these drugs because of their use in capital punishment. For
example, Hospira, Inc. the sole manufacturer of sodium thiopental, closed its
plant in North Carolina and attempted to move operations to Italy in 2009.
Italy demanded a guarantee that the drug not be exported for use in capital
punishment.
Toobin wrote, "What followed was a black comedy of increasingly desperate
attempts by prison officials to procure sodium thiopental." In 2012, the FDA
blocked it from being imported because the source had not been certified.
Enter the 1-drug protocol.
Missouri was the 1st to adopt it in October 2013, and would have succeeded in
using an overdose of propofol (a well-known drug used in medical anesthesia -
the drug that killed Michael Jackson) to kill inmates had the manufacturer not
objected, demanding that its use could lead to sanctions by the E.U. that would
threaten the U.S. supply.
Now 7 states have turned to "compounding pharmacies," which can obtain and
create drugs without FDA supervision. "The risks of these substances being
contaminated, or insufficiently effective, are considerable," Toobin wrote.
As the New York Times wrote in late December, "This only underscores the fact
that when it comes to the death penalty, the United States is virtually alone
in the Western world."
Some states are doing their own thing altogether. For example, Florida and Ohio
have resorted to midazolam to carry out executions, despite the glaring irony
that this drug was originally intended to help save lives, not take them. State
and federal courts are reviewing this process. Its safety, efficacy, and
painlessness in execution have not been officially confirmed. Florida man
William Happ, 51, was the 1st to be executed with midazolam. He "appeared to
remain conscious" for 14 minutes, which is twice as long as it should take.
So where does that leave us?
States are able to employ their own lethal injection procedures with little
federal regulation or medical oversight, and doctors are fighting back.
Anesthesiologist Joel Zivot, M.D., wrote an op-ed for USA Today in which he
voiced his strong opposition to the procedure. Lethal injection, he said,
"creates an illusion of humane, professional execution." In reality, though,
"When (states) employ lethal injection, they are not practicing medicine. They
are usurping the tools and arts of the medical trade and propagating a
fiction."
Nationwide, public support for the death penalty is at its lowest in 4 decades.
40% of people surveyed by Gallup now say they do not believe it is administered
fairly. The evidence suggests they are correct.
With little support and ample medical concern, it is time for the Supreme Court
to reconsider lethal injection's constitutionality. If the question is whether
lethal injection constitutes cruel and unusual punishment prohibited by the
Eight Amendment, its application leaves big questions.
As Dieter said in an interview, "We do know that there is an experiment going
on. That, in itself, is a cruelty."
(source: PolicyMic)
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