Deadline may have doomed one appeal option for Nebraska death-row inmates
The clock may have run out on one avenue pursued by defense attorneys on behalf
of inmates on Nebraska's death row.
Death penalty opponents argue a 2016 U.S. Supreme Court decision in a Florida
case - which said jurors must make every finding necessary in order for someone
to be sentenced to death - puts the constitutionality of Nebraska's sentencing
procedures in doubt.
But Friday, in arguments before the Nebraska Supreme Court in the case of Marco
Torres, it appeared it might be too late for him and others on the state's
death row to rely on the 2016 decision in their appeals.
That's not because the justices seemed convinced Nebraska's sentencing method
was constitutional or that the U.S. Supreme Court decision only applied to new
cases going forward.
They didn't get that far. And it appears they might not - at least in Torres'
All because he and most others on death row didn't raise the issue within a
year of the Jan. 12, 2016, decision in Hurst v. Florida.
Torres' appeal, filed 5 months too late, was the first citing the Hurst
decision to reach Nebraska's highest court.
Friday, as defense attorney Jeff Pickens of the Nebraska Commission on Public
Advocacy began to argue the court should wait for the U.S. Supreme Court to
answer whether Hurst applies retroactively, justices quickly jumped in, asking
how they "get past" the1-year statute of limitations.
"Well, that's a great question," Pickens answered.
While it appears that one year has passed since the decision at issue, he
pointed justices to another U.S. Supreme Court decision in 2006 that says
courts ought to consider whether the administration of justice is better served
by addressing the merits raised or dismissing a case.
"That's what I'm hanging my hat on," he said.
Justice William Cassel said he had a bit of a quarrel with the premise that the
district court had denied Torres due process to raise the issue when it
dismissed his appeal without a hearing, citing the missed deadline.
"They (defendants) do have an opportunity. They may choose not to use it. But
that's their problem, isn't it?" Cassel asked.
Pickens countered, asking whether a judge would automatically rule in favor of
1 side in a civil case - as compared with Torres' criminal case - without
giving notice to anybody involved or having a hearing.
"I suspect that probably would not happen," he said.
Pickens said he thinks Torres' case is one where a trial court could consider
that "the best interest of justice would be for the court not to dismiss the
case based on statute of limitations and go ahead and get to the merits."
But, Justice Stephanie Stacy said, there is no "interest of justice" exception
to the state's statutory time limitations on appeals.
Solicitor General James Smith said the Nebraska Supreme Court is required to
uphold state law and doesn't have the authority to add an "interest of justice"
exception when the Legislature never put such language in statute.
"Frankly, the analysis can and should end there," he said.
Smith stated it simply: The cases at issue in Torres' motion were more than a
year old, so his motion is time-barred on its face.
The district court's reason for dismissing the motion was correct, he said, and
that court's decision should be affirmed.
Justice Lindsey Miller-Lerman asked Smith if it was his position that the court
didn???t need to get into the Hurst decision, even if Hurst ultimately raised a
new principle and was retroactive.
Yes, Smith said.
In Hurst, the nation's high court found that a man's death sentence in a 1998
murder case violated the Sixth Amendment because, under Florida's sentencing
scheme, a judge, not a jury, made the critical findings necessary to impose the
In Nebraska, juries decide whether aggravating factors exist to justify an
execution. If so, a 3-judge panel then determines whether the aggravating
factors outweigh any mitigating factors in the defendant's favor to warrant a
This week, Amy Miller, legal director of the ACLU of Nebraska, said the Hurst
decision is also raised in the appeal of death-row inmate John Lotter.
"But whether or not it will have any impact on another case I think is the
troubling concern," she said, seeming to refer to Carey Dean Moore.
State officials this week asked the Nebraska Supreme Court to set an execution
date for Moore, who killed 2 cab drivers in Omaha in 1979 and has been on death
row for nearly 38 years.
If the Supreme Court issues an execution warrant, Moore could be killed by
lethal injection before the Hurst issue even is decided.
Torres, 43, was sent to death row on 2 counts of 1st-degree murder for killing
roommates Timothy Donohue, 48, and Edward Hall, 60, in Grand Island in 2007.
His DNA was found at the crime scene and he had used Hall's debit card 2 days
before his body was found.
(source: Lincoln Journal Star)
Looking back on a night of evil, and the witnessing of an execution
What I remember most about that day in the conference room of the Rapid City
Journal newsroom was how heavy my right hand felt.
So heavy, in fact, that I couldn't raise it when Editor Michael LeFort asked
for volunteers - to witness the killing of a human being.
My hand seemed immovable as other hands went up among the reporters gathered
around the conference-room table. And I was happy - if that is a word that can
be used in this scenario - to see that Bill Harlan's hand was one of them.
An exceptionally talented, experienced reporter, Harlan was one of the many old
hands, including me, that the Journal still had on staff during the summer of
2006. He was also a former medic during the Vietnam War, with life-and-death
experiences I never had and can't clearly imagine.
"I think it should be Harlan. That seems pretty obvious," I said at some point
about the witnessing role as we discussed the formation of a coverage team for
the 1st state-sanctioned execution in South Dakota in 59 years, and which roles
different staffers would play.
It was obvious, too, that I didn't want to take 1 of 2 spots reserved for media
representatives to witness the execution by lethal injection of 24-year-old
Elijah Page of Athens, Texas. Page was 1 of 3 men convicted of the horrific - a
word that isn;t overused here - March 12, 2000, torture and murder of a
19-year-old Chester Allan Poage of Spearfish.
It was a gruesome crime that began with a video game invitation by Poage to 3
young men he thought were friends. It turned into a robbery at his home and
ended in a stream bed in the woods down in otherwise serene Higgin's Gulch near
Spearfish. Along the way, his attackers tried to poison Poage before beating,
kicking, stabbing and pummeling him with stones, as they ignored his pleas for
The details are shocking, sickening, heart breaking. And the crime sent Page
and Briley Piper to death row, following guilty pleas to 1st-degree murder
charges. Their accomplice Darrell Hoadley stood trial and was convicted, and
got life in prison without parole.
While Piper was fighting his death sentence - he still is on death row - Page
gave up and asked to be executed.
In the preparations leading up to the Page execution, the Associated Press got
one witness spot. The Journal got the other. And I knew Harlan was the right
Journal reporter for the unenviable job. He knew it, too.
"I volunteered because I thought it was an important story and I thought I was
an experienced reporter who was qualified to do it," Harlan said the other day
in a telephone interview from his home in Columbus, Georgia. "I thought it
should be done well."
I did, too. And if I had been assigned the witness role, I would have done it,
as well as I could. But I was glad it was Harlan, not me.
I was part of the Journal team being assembled that summer of 2006 by LeFort to
cover the execution, scheduled for Aug. 29 at the South Dakota State
Penitentiary in Sioux Falls. And our team offered coverage - first from Rapid
City, then from Sioux Falls - for weeks leading up to the night of the
On the day of the scheduled execution, it seemed awkward and tense around the
prison, the ominous sort of feeling you have when a storm is coming. And that
was more noticeable as the hours and minutes ticked off.
I was to be in the prison at the time of the execution, in a room set up for
reporters to file stories, and nearby to meet with witnesses after Page was
killed. But into the late afternoon I was still working on stories outside the
walls. That's where I saw Art and Sue Guettler of Spearfish and their daughter,
Misty, who had dated Page, walk slowly out of the prison following their last
visit to the condemned man.
The execution day was supposed to be reserved for immediate-family visits. But
because of their close relationship with Page, the Guettlers got permission
from Circuit Judge Warren Johnson - who had sentenced Page to death - for a
About 25 minutes after the Guettlers came out, Page's sister, Desiree Page, and
father, Kenneth Chapman, also left the prison, joining the Guettlers on a small
lawn across the street from the prison. There they spoke in quiet tones and
None of them wanted to be interviewed at that time.
By that point, Harlan was back at his motel room, getting ready for the
unenviable coverage chore he faced that evening. Or thought he faced. But just
a few hours before the lethal injection, then-Gov. Mike Rounds postponed the
execution, saying there was a conflict between the planned 3-drug execution
mixture and state law, which Rounds said limited the execution mix to no more
than 2 drugs.
"I was in my motel room out by Interstate 90 tying my tie and getting ready to
go to the prison when the call came in," Harlan said. "I remember it exactly
because I was so relieved. I was relieved even though I had volunteered to do
Turns out, he would still do it, 11 months later. The 2007 state Legislature
fixed the legal conflict that worried Rounds, and the new law took effect on
July 1. The execution was rescheduled for the 11th.
The Journal team was reassembled. The preview stories were filed. We gathered
in Sioux Falls. And Harlan joined Carson Walker of the Associated Press and
other witnesses in a room outside the execution chamber on the evening of the
About 6 p.m., Page ate his last meal of steak with A-1 sauce, jalapeno poppers
with cream, onion rings, tossed salad, lemon ice tea, coffee and ice cream. At
10:11 p.m. he was declared dead from the injection. Moments earlier, he
declined an offer by Warden Doug Weber to make a last statement.
Harlan, Walker and a few other witnesses were in one of the witness rooms,
watching the execution through a window. And once the curtain was opened just
prior to the execution, they were just a few feet from where Page lay on a
gurney in the tile-floored execution chamber.
"When they opened the curtain, it revealed the room, which was very spare,"
Harlan said. "I heard a gasp for cry from some other room, some kind of cry."
The execution itself didn't take long and was handled in an efficient,
matter-of-fact way, he said.
"My impressions haven't changed in 11 years," Harlan said. "The thing that
really struck me was how mundane it all was, how routine it all seemed."
Harlan and Walker later described the last moments of Page's life after the
"I guess we described the same scene in every execution that goes well," he
said. "There were a couple of deep, snoring sounds and one last rattling breath
and that was about it."
But of course, however matter-of-fact the execution appeared, it was anything
but routine in South Dakota. Harlan was witnessing the 1st execution in South
Dakota since 1947, when 33-year-old George Sitts died in the electric chair in
the South Dakota Penitentiary for the murder of 2 law-enforcement officers.
Sitts was the only person executed in that chair.
There are places where executions really are routine, however, including
Huntsville, Texas, where the son of a Rapid City woman was executed in 2010. My
wife, Mary Garrigan, then also a reporter at the Rapid City Journal, was sent
to Huntsville to cover the execution of 41-year-old Kevin Varga on May 12th,
Varga was on death row in the Huntsville State Prison, along with Billy
Galloway, who was executed the day after Varga. Varga, Galloway and Deannee Ann
Bayless, all of Sioux Falls, and Venus Anderson of Revillo were convicted of
the beating death of David Logie of Fayetteville, N.C., during a robbery in
Mary spent time in Huntsville during the days leading up to the execution, with
interviews with Varga's mother, Beth. A passionate opponent of the death
penalty, Mary did her job in offering balanced coverage but refused a spot
among witnesses of Varga's execution.
"I just don't think you can every unring that bell. And I didn't want that
image in my head for the rest of my life," she said the other day, as we talked
about her trip to Huntsville and the exceptional reporting she did there.
"Also, I just felt like being there would somehow make me complicit in it. I
just couldn't do it."
Mary had that conversation with Michael LeFort before she left for Huntsville.
"He said that was fine, although he would have preferred to have a local byline
on the execution story," Mary said.
That was understandable. But Michael and Journal readers wouldn't get that
story first hand from Mary. That would have to come from other reporters. What
they did get from Mary, however, was a meaningful examination of a state and
community where executions are common. Her stories included interviews with
residents of Huntsville and reporters who witness executions regularly and
worked to prevent them from becoming mundane.
Journal readers also got an unusual look at the life of Varga family members
leading up to the execution. Mary and Beth Varga made a connection down in
Huntsville, one that isn't forgotten when they happen to run into each other in
"I guess the last time I saw her was about a year ago at a second-hand store,"
Mary said. "We had a nice talk. But it's always a little weird, because we have
that horrible connection."
Beth Varga did witnesses the execution, and she heard her son's final words as
the lethal injection took his life: "Mom, I'm going."
Imagine what it was like for a mother to hear those words come from her son, as
his life ebbed and vanished. Whatever horrid things he did, it was still a
moment where a mother heard her son speak his final words and take his last
We should pause here, of course, to remember the horrors that Chester Allan
Poage's mother, Dottie Poage, faced in hearing and reading about the details of
her son's death, at the hands of Page and Piper and Hoadley. We can't forget
that mother's suffering. Ever. Or how her son suffered. And what his mom went
through knowing of that suffering, as she grieved his death.
I know Mary didn't forget that loss and that pain, even as she allowed herself
to feel the anguish of another mother whose son took part in that horrid act,
yet remained her son.
Mary is glad she wasn't there in person to see and hear the end of Kevin
Varga's life. But she saw and heard enough in Huntsville. And emotions returned
as she reviewed some of those stories recently.
"I got very sad and kind of nauseous reading through them and thinking about
those people again," she said. "My own opposition to the death penalty is what
kept me out of the execution room. And the whole experience in Huntsville only
reinforced my certainty that the death penalty doesn't solve any of our crime
It also reinforced her sense of respect for the work she did for most of her
"Reading those stories also made me remember what a great and unusual privilege
the job of being a reporter is, to be given that kind of access to people's
lives and their stories and pain," she said. "I was always amazed when people
granted me that gift, and I still am."
A gift indeed, as difficult as it can sometimes be. None of us on the
death-penalty coverage team had assignments quite so difficult as Harlan's.
Although 11 years later, he says he doesn't feel scarred by the experience.
"I've been with good friends when they died, in a much more horrible way than
Page. And that affected me," Harlan said. "And the people we were fighting, we
killed a number of those people. And that affected me. This? Who knows? Having
experience with PTSD, I'm not too quick to say it didn't bother me."
Maybe more than witnessing the execution, covering the gruesome details of the
murder case itself bothered Harlan, as it bothered any of us who wrote about
"In retrospect, I probably went into too much detail covering how that kid was
murdered," Harlan said. "It was horrific. It was ISIS like. I'm not even sure
ISIS does anything quite so horrific. He was tortured. And I was not in favor
of the death penalty and still am not. But if anyone deserved it, he (Page)
Plus, Harlan said, Page wanted that end himself. Sought it. Finally got it.
Regardless of all that, Harland remains opposed to the death penalty. He
considers the state-sanctioned execution of 1,472 people - and counting - in
the United States since the death penalty was reinstated in 1976. And he adds
in shameful failings like Abu Ghraib and the rejection of certain immigrant
groups, sometimes including kids, and wonders about our nation's presumed spot
on a moral high ground in the world.
"I don't know how we square ourselves as the human-rights leader of the world,"
Beyond the moral issues in the taking of a human life, Harlan considers other
points of opposition to the death penalty.
"Think of the opportunities lost, the ones you might have had with life without
parole," he said. ???First, you'd eliminate a lot of the appeals. Then you'd
have decades to study these people and try to figure out what was going on.
Maybe you couldn't but maybe you would. You might learn something that could
help in all this."
Maybe even something that could help prevent such murders? Who knows? The
argument isn't new, and it isn't finished.
U.S. Supreme Court rulings in the 1960s called into legal question
death-penalty laws and practices in certain states, and along with a growing
movement against the death penalty brought a decade-long moratorium on
executions in the United States. By 1976, the high court had clarified what it
considered constitutional and some states began re-writing their laws to
accommodate the ruling, so they could resume executions.
On Jan. 17, 1977 those state-sanctioned killings resumed when convicted killer
Gary Kilmore, 36, was executed in Utah by a firing squad. Last year there were
23 executions in the United States. And there have been 7 so far this year, 4
of them in Texas. The last was on March 27 when Rosendo Rodriguez III was
killed with an injection of Pentobarbitol.
The next execution is scheduled for April 19th in Alabama. And there are dozens
more, according to the Death Penalty Information Center, on the schedule
stretching into 2023.
So Elijah Page was just 1 of many before, since and yet to come. But he was
also one who sticks with the people who cared for him, and for the people who
lost an innocent loved one - Chester Allan Poage - to the deranged, murderous
actions of Page and his 2 cohorts.
In a much-less personal way, Page is also the one who sticks with those of us
who were part of that Rapid City coverage team, especially the team member who
watched as Page took his last breath.
The team member I was relieved not to be.
(source: Kevin Woster, South Dakota Public Broadcasting)
Idaho Lawmaker Who Maybe Wanted to Execute People for Abortion Has Second
Idaho state Sen. Bob Nonini, a Republican candidate for lieutenant governor, is
attempting to walk back comments saying that he believes the death penalty
could be a potential punishment for people who have abortions.
Nonini, a 3-term state senator, made the comments at a candidate forum on
Monday, the AP reported. "There should be no abortion and anyone who has an
abortion should pay," Nonini said.
Pressed by moderators on the nature of the punishment, Nonini nodded when asked
if he supported the death penalty as a possible punishment for abortion.
According to the AP, he attempted to backtrack the comments hours later. He
also posted a statement on Facebook writing, "Since abortion is murder, I
believe we should consider penalties for individuals involved in these
procedures. I NEVER said or agreed that the death penalty should be an option
during the Monday debate at the Nuart theater."
He made it very clear that he wants to see Roe v. Wade overturned because it
"would allow states like Idaho to re-criminalize abortion as a deterrent."
However, it is my understanding that in the history of the United States, long
before Roe was foisted upon this country; no woman has ever been prosecuted for
undergoing abortion," he continued. "That is for practical reasons, as well as
for reasons of compassion."
What an interesting use of the word compassion.
Kevin Williamson is wrong. Hanging women who have an abortion is not
pro-life----Kevin Williamson wasn't fired by 'The Atlantic' for being
anti-abortion or having 'mainstream' conservative views. He was fired for
wanting women to suffer.
Is it out of bounds to argue that women should be hanged for having an
An actual debate is raging over this question following yesterday's firing of
conservative writer Kevin Williamson from The Atlantic for expressing this view
on multiple occasions. Williamson apparently believes this is "pro-life."
Conservatives fanned out to attack The Atlantic and "the Left" for their
closed- mindedness in not embracing a view that calls for the humiliating,
torturous killing by the state of women who have had an abortion.
Commentary's Noah Rothman called Williamson's firing "chilling" and The
Resurgent's Eric Erickson said that it was all "about the left wanting a
monopoly on the public square so none can be exposed to competing ideas." The
American Conservative's Rod Dreher tweeted, "The Atlantic's cutting
[Williamson] loose under left-wing fire is deplorable. But clarifying.
Reason's Katherine Mangu-Ward wrote, "The Atlantic is essentially declaring
that it cannot stomach real, mainstream conservatism as it actually exists in
21st century America."
Here is Williamson's view as expressed in a podcast: "I would totally go with
treating [abortion] like any other crime up to and including hanging -- which
kind of, as I said, I'm kind of squishy about capital punishment in general,
but I've got a soft spot for hanging as a form of capital punishment. I tend to
think that things like lethal injection are a little too antiseptic."
"I've got a soft spot for hanging."
Little Green Footballs' Charles Taylor hit the nail on the head in a Twitter
debate with Williamson about his view: "You don't just want these women to die,
you want them to suffer."
But according to Williamson's defenders, this is just another viewpoint like,
say, believing in supply-side economics or that the government is too big. It's
"mainstream conservativism," apparently.
Except it's not. It's not even mainstream among conservative anti-abortion
rights organizations. When candidate Donald Trump said in an interview that he
thought women should be punished for abortions, the rebukes were swift and
mighty. The March for Life put out a statement saying, "No pro-lifer would ever
want to punish a woman who has chosen abortion. This is against the very nature
of what we are about." The National Right to Life Committee also released a
statement making clear that it has never supported penalties against women who
undergo abortions. Trump was forced to reverse his position to say that should
abortion be outlawed, the only person who would be held accountable would be
the doctor, not the woman. Even Trump didn't gleefully muse about hanging
Williamson seems to believe his way of thinking is merely the intellectually
consistent view. He says abortion is murder, and murderers (sometimes) get the
death penalty - though typically not by hanging, unless you live under the
Taliban - ergo women who have abortions should get the death penalty. Easy
peasy. Yet the Catholic Church, of which Williamson is a member, has somehow
managed to be opposed to both abortion and the death penalty.
Where I find common cause with Williamson's defenders is in their concern that
intellectual diversity is lacking in our society's cultural institutions
whether it's the media or academia. In fact, I wrote an entire book on the
topic. I just don't think this event is a good example of that phenomenon.
While we should afford wide latitude for what people can say in public without
fear of sanction in an effort to encourage vigorous debate, no publication is
obligated to hire people who express views that violate their ethos. For
example, is anyone criticizing the National Review for not having a marquee
pro-abortion rights liberal columnist, let alone one who is making an argument
that is outside the farthest fringe of what abortion rights organizations
It is nonsensical to say that the firing of Williamson proves the Atlantic
can't tolerate ideological differences. The Atlantic is a center-left
publication, yet they hired Williamson knowing he was an articulate
conservative who opposes abortion rights.
What the Atlantic didn't know was the callousness and inhumanity with which
Williamson discusses women who've had an abortion.
To suggest, as many have, that he was fired for being "pro-life" is ridiculous.
He was fired for being unable to have a reasoned, civil debate about abortion
that doesn't involve fantasizing not just about the government killing women
who get abortions, but about how they kill them.
This is a reasonable standard for a magazine to have. Turning Kevin Williamson
into a free speech martyr helps nobody, least of all the cause of intellectual
diversity and free speech.
(source: Kirsten Powers, USA Today)
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