April 19
TEXAS:
Supreme Court Must Hear Texas Man's Death Penalty Case ---- A black defendant's
trial 20 years ago, tainted by a biased expert, is, indeed, "extraordinary."
A case now pending before the U.S. Supreme Court presents a disturbing question
about racial discrimination in the imposition of the death penalty: Is it
"extraordinary" to sentence a black man to death based on "expert" testimony -
introduced by his own trial counsel - that he is more likely to be dangerous
because he is black?
Due purely to the incompetence of his court-appointed lawyers, no court has
ever fully considered the merits of Duane Buck's argument that this ???racially
charged testimony denied him a fair trial. The U.S. Court of Appeals for the
Fifth Circuit nonetheless held that Buck's circumstances were not sufficiently
"extraordinary" to justify even considering his claim of racial discrimination.
The Supreme Court should review that decision and correct a major injustice.
Buck's case is extraordinary by any measure. He was sentenced to death in
Texas, where the death penalty requires a unanimous jury determination that the
defendant will be dangerous in the future. Defense counsel knew that
psychologist Dr. Walter Quijano believed that blacks are more likely to be
dangerous. But, astonishingly, counsel retained him anyway and elicited that
unfounded, racially discriminatory view in Buck's own case. Quijano reiterated
that "expert" view on cross-examination, and in closing the prosecution urged
the jury to rely on Quijano's testimony to find that Buck would pose a future
danger. The jury sentenced Buck to death.
Buck received new court-appointed counsel for his state habeas petition. That
counsel never raised the argument that Buck's trial had been tainted by the
racially discriminatory testimony on future dangerousness, or that Buck's trial
counsel had provided ineffective assistance by calling a witness who told the
jury that blacks were more likely to be dangerous in the future.
Procedurally Barred
After Buck filed his state habeas petition, the Texas attorney general conceded
in another capital case that Quijano's race-based testimony was
unconstitutional. The attorney general's office identified 6 more cases,
including Buck's, unconstitutionally tainted by Quijano's "expert" testimony.
The attorney general pledged that Texas would not object to resentencing in
those 6 cases, and eventually all defendants except Buck were resentenced. But
by the time Buck's case reached federal court, the state had changed its mind;
it successfully argued that review of Buck's claim was procedurally barred
because of his earlier lawyers' failure to raise the issue.
In 2012, the Supreme Court held that claims like Buck's can be reviewed in
federal court if - as here - the incompetence of state habeas counsel prevented
the defendant from raising a substantial claim in state court. And in 2013, the
court made clear that this rule applies to Texas. Buck then asked the federal
district court to reconsider his claim - something that requires a showing of
"extraordinary circumstances." Buck laid out everything that made his case
extraordinary. But the district court nonetheless refused, again, to review the
merits of his claim, concluding that his case was not extraordinary.
Buck sought leave to appeal from the Fifth Circuit - something that required
him to show only that reasonable judges could debate whether the district
court's decision was correct. But the Fifth Circuit would not even permit Buck
to appeal, concluding that Buck's claim was "unremarkable."
2 Decades Without A Ruling
The upshot is that, nearly 20 years after he was sentenced to death, no court
has ever ruled on Buck's claim that his trial was tainted by testimony -
elicited by his own lawyer - that he was more likely to be dangerous in the
future because he was black. That raises several serious problems. First, and
most critically, both the defense and the prosecution suggested to the jury
that Buck was more deserving of death because of his race.
This is the rare case in which racial discrimination in the imposition of the
death penalty was open and express. Such a sentence should not be permitted to
stand, not only because it is profoundly unjust to Buck, but also because it
calls the fundamental fairness of Texas's death penalty scheme into question.
Second, this case demonstrates how the incompetence of court-appointed lawyers
at the early stage of a case can forever bar review of even the most ???serious
constitutional errors. That, too, is fundamentally unfair.
Finally, this case shows that some courts of appeals are applying far too harsh
a standard in deciding whether a habeas petitioner should be permitted to
appeal. There is no question that reasonable people - including reasonable
judges - could conclude that Buck's case is "extraordinary," as two Fifth
Circuit judges' dissent from the denial of rehearing en banc demonstrates.
This case raises issues at the very heart of the current administration of the
death penalty. Due to the incompetence of Buck's trial counsel, his jury was
told he was more worthy of death because he was black. Due to the incompetence
of his state habeas counsel, the federal courts initially refused to consider
the issue. And the door to the courthouse remains closed - even though the
Supreme Court has made clear that claims like Buck's should be reviewed -
because the court below failed to acknowledge that Buck's case could reasonably
be viewed as extraordinary.
This case presents an unusual opportunity for the Supreme Court to set the
lower courts straight on the proper standards for review of such claims and, in
doing so, to correct a startling example of racial injustice.
(source: Seth P. Waxman, co-chairman of the appellate and Supreme Court
litigation practice at Wilmer Cutler Pickering Hale and Dorr, was the 41st
solicitor general of the United States; National Law Journal)
***************
Is life in prison just the death penalty on the installment plan?
Nobody protested when Jack Harry Smith died on Texas death row last week.
There were no frantic last-minute appeals, no letters to the governor, no
online petitions. Smith was not martyred by what opponents of capital
punishment characterize as Texas??? overzealous execution apparatus.
Smith, who achieved little else in his grim life, made a convincing argument
against the death penalty by growing old in prison and dying there.
At 78, he was Texas' oldest condemned inmate. He had been a death row resident
for 38 years.
Which raises the question: What difference would it have made to the general
public - us - if Smith's sentence had been carried out?
In practical terms, probably not much. If you can put ideology aside (which,
admittedly, is difficult to do), the state punished Jack Smith. It locked him
up for life, kept him away from the rest of us, kept him sheltered and fed with
a minimum of the modest creature comforts and liberties to which less serious
offenders are entitled.
In every sense save an actual execution, Jack Harry Smith was cleanly erased
from the society he violated by killing a clerk during a 2-bit holdup nearly 4
decades ago.
It was a stupid, vicious crime, committed by a career criminal who was never
much of a candidate for rehabilitation. An unemployed welder with a 6th-grade
education, Smith, at age 40, had repeatedly been convicted of robbery and
assault. He had spent more of his adulthood inside jail than out.
His last stretch of freedom lasted less than a year. Exactly 364 days after a
1977 parole, Smith was arrested for murdering a Harris County convenience store
employee during a robbery that netted about $90.
Smith said he wasn't there. A co-defendant and another witness said he was, and
a Harris County jury sentenced him to death.
There's no credible evidence that Smith was innocent, or that there was
anything wrong with his trial. He wasn't a pitiable victim of an unjust
society; or rather, even if he was, that does not excuse murder and robbery. By
most accounts, he was a stupid and violent man who would have damaged more
lives if he hadn't been caught.
But I also see little difference between Smith and his fellow death row inmates
and the much larger population of the so-called Texas prison system's "lifers'
row" - prisoners sentenced to be locked up for life without the possibility of
parole.
Texas adopted life without parole in 2005, giving prosecutors and juries a
severe and permanent punishment for capital offenders without imposing the
death penalty. As of Jan. 1, there were 263 inmates on death row; more than
twice that number are serving life without parole sentences, even though the
option has existed for only a decade.
Before anybody gins up a boiler-full of outrage over my liberal bleedin' heart,
let me sketch my own view on the death penalty.
Philosophically, I'm opposed, for 2 basic reasons: It's arbitrary and it's
irreversible.
But emotionally, I have seen too many dreadful cases up close to feel any
sympathy for capital offenders. As a 1-time courthouse reporter, I covered
trials involving such inhuman crimes that it was a challenge to keep my lunch
down, much less fret over the fate of the accused.
Having seen a mother collapse on the witness stand when she came face-to-face
with the man who raped, bit and strangled her baby daughter, it's tough to care
much about whether anything cruel and unusual happens to the guy from here on
out. It's tough to fret over whether a cop killer, a child murderer or a
dead-eyed drug addict who killed an old lady for a jar of coins has trouble
sleeping as the execution date nears.
But life without parole shuts those people away for good. It's less expensive
to the taxpayers - us! - both in the cost of trial and appeal. It doesn't
engender the intense, emotional controversy that surrounds the death penalty.
And it doesn't create death row martyrs who write poems and get fan mail from
Europe and become celebrity darlings to critics who think we're all a bunch of
barbarous rednecks down here in the Lone Star State.
In the end, Jack Harry Smith outlived his own case. His trial lawyer and the
judge in his case died before he did. Except for the novelty of his age, nobody
paid much attention to his passing.
There's a cold justice in that. It might have been less than he deserved, but
it surely wasn't more.
(saource: Jacquielynn Floyd, Dallas Morning News)
DELAWARE:
Public Defender's Office: Delaware death penalty law is unconstitutional
The debate over the constitutionality of the state's death penalty laws
continued Monday with the Public Defender's Office responding to the Department
of Justice.
Delaware's capital punishment statute is under review by the state Supreme
Court after a federal court decision invalidated part of Florida's death
penalty laws.
Florida allows the judge to sentence death, and the U.S. Supreme Court ruled a
jury must hold the responsibility for determining aggravating factors.
Delaware's law is somewhat similar to Florida's. In light of the federal
decision the Delaware Supreme Court is examining the issue. The Public
Defender's Office filed an initial brief and the Department of Justice has
replied.
Future capital cases are on hold while the court analyzes the
constitutionality.
This 3rd brief marks the last step before a decision, which can come based on
the briefs or from oral arguments in front of the justices. In such a
monumental case, it is likely the Supreme Court would schedule arguments rather
than rule based on the submitted materials.
Calling the flaws in the law "fatal," the Public Defender's brief is critical
of the state's submission and argues the current Delaware provision violates
the right to a trial by jury.
"Here, the jury's verdict, standing alone, permits only 1 penalty: life in
prison," it says. "To impose a sentence of death, additional findings of fact
are required and these findings, under the statute, are made by a judge and not
the jury. The defendant cannot receive the increased punishment of death until
the court makes additional findings not made by the jury. This violates the
Sixth Amendment."
The submitted text seeks to rebut the state's claims, and it says aggravating
factors must be found by a unanimous jury.
Citing the Delaware Code, the filing also disputes the Justice Department's
arguments that even if this portion of the statute is unconstitutional, the
Delaware death penalty as a whole is not.
"Without subsection (d)(1), which requires the judge to find the facts
necessary to impose death, the statute is not 'capable of being given effect
alone as an enforceable concept' because there would be no statutory procedures
in place to impose the death penalty," the Public Defender's brief states.
Should the Supreme Court rule not only that the language in question is invalid
but that the statute cannot be separated from the death penalty law as a whole,
capital punishment in the state would be at least temporarily struck down.
Responsibility would fall to the General Assembly to craft a new law, and there
may be enough death-penalty opponents in the 2 chambers dominated by Democrats
to block an attempt to overhaul the law.
(source: delawarestatenews.net)
VIRGINIA:
Protest Over Virginia Bill to Shield Death Penalty Drug Makers
Hundreds of religious leaders in Virginia gathered Monday in an effort to stop
a proposed amendment that would allow suppliers of death penalty drugs to
remain anonymous.
The amendment proposed by Governor Terry McAuliffe would add Virginia to a
growing number of states that do not identify the suppliers of their execution
drugs.
At least 500 faith leaders from the community met at a rally to protest the
amended bill. "It is no compromise -- it is wrong, plain and simple," said Rich
Cizik, of the New Evangelical Partnership for the Common Good.
"It violates decency, government transparency and certainly the biblical value
of integrity," he added. "This is a sleight of hand." McAuliffe dropped a
previous proposal that said prisoners would be put to death by electric chair
if no drugs were available for lethal injection.
The governor's office said the amendment was an attempt to find middle ground
with lawmakers who wanted to revert to using the electric chair for executions.
They contend allowing manufacturers to remain confidential will ensure
continued supply.
"It's the only practical way we will come by these drugs," Brian Coy, a
spokesman for the governor said.
The proposed amendment states, "The identities of any pharmacy or outsourcing
facility that enters into a contract with the Department for the compounding of
drugs necessary to carry out an execution by lethal injection... shall be
confidential."
Lawmakers, "have the opportunity to be part of the solution," McAuliffe told
the Associated Press last week. "If they pass up that opportunity, they will
bring the death penalty to an end here in Virginia," he said.
At least 12 states have similar laws shielding death penalty drug suppliers,
including Arizona, Arkansas, Florida, Georgia, Louisiana, Missouri, North
Carolina, Ohio, Oklahoma, South Dakota, Tennessee, and Texas, according to the
Death Penalty Clinic at the UC Berkeley Law School.
In recent years, drug makers -- both in the U.S. and in Europe ??? have stopped
selling the common execution drug sodium thiopental, which prisons have used
for executions.
The states have turned to alternatives such as compounding pharmacies, which
mix personalized medications based on specifications from doctors or patients,
for access to these drugs, according to the Death Penalty Information Center.
The use of compounding pharmacies, which are not subject to oversight from the
U.S. Food and Drug Administration unless they are large-scale and listed as an
"outsourcing facility," has been controversial. These kinds of pharmacies are
usually address the needs of a single or small number of patients.
Anti-death penalty advocates note that these secrecy laws mean it can be
impossible for the public or even for a condemned prisoner to know who will
provide the medication to be used at execution.
"In the end it allows for executions to be carried out for no transparency and
no oversight and no accountability," Megan McCracken, a lawyer for the Death
Penalty Clinic at UC Berkeley told ABC News. "That is deeply disturbing
because, predictably, what we've seen is a lot of very bad executions that
haven't gone according to plan."
Robert Dunham, executive director of the Death Penalty Information Center, said
the secrecy is intended to shield providers from harassment. But he said he has
not heard of any cases where the execution drug providers have reported
harassment.
"The basic principal of open government is that while we want to trust our
public officials we also want to verify they're telling us the truth," Dunham
told ABC News. "While we want them to be competent, we want to have oversight
that they in fact are. The secrecy laws fly in the face of both of these
principles."
Several botched executions in the past few years have captured public interest
and drawn attention to this issue.
Last year, Georgia inmate Kelly Gissander's execution was temporarily halted
hours before it was scheduled to begin due to a "cloudy" drug. The source of
that drug, whether it was a compounding pharmacy or other drug manufacturer,
was not made public. Gissander was executed months later after the state and
U.S. Supreme Court declined to stay her death sentence.
The U.S. Supreme Court voted to allow the use of the drug midazolam in
executions last year, despite two cases where the drug was accompanied by
extreme complications during the procedures.
Because executions are not a medical procedure, the U.S. Food and Drug
Administration does not regulate the drugs. Certified anesthesiologists can
risk losing their certification if they consult or participate in an execution,
according to a 2010 notice from the American Board of Anesthesiologists.
(source: ABC news)
GEORGIA----impending execution
Condemned man requests Italian for last meal
Daniel Anthony Lucas has asked for an Italian meal to be the last one he eats
before his execution set for next week for the murders of a Jones County father
and his 2 children.
According to the Department of Corrections, Lucas requested meat pizza, steak
and cheese calzone, a stuffed portobello mushroom, chef salad with ranch and
honey mustard dressings and orange juice.
Lucas, 37, will be given his last meal about 3 hours before the scheduled hour
for his lethal injection, which is 7 p.m. on April 27.
If he is put to death, Lucas will be the 5th person Georgia has executed this
year. Only twice since the death penalty was reinstated in 1976 has Georgia put
executed 5 killers in a year - in 2015 and in 1987.
Lucas, then 19, and Brandon Rhode were burglarizing the Moss family home the
afternoon of April 23, 1998, when the 1st of 2 children came home from school.
The younger of the 2 got home 1st.
Bryan Moss saw Lucas and Rhode through the front window, ransacking his
family's house, so the 11-year-old armed himself with a bat and went inside.
Lucas shot the boy.
Kristin Moss came home next. The 2 men also shot the 15-year-old girl.
Rhode shot the father, Steven Moss, when he got to the house on Griswoldville
Road in middle Georgia.
Then Lucas shot the children again to be sure they were dead.
Rhode was executed on Sept. 27, 2010.
(source: Atlanta Journal Constitution)
FLORIDA:
Attorney for murder suspect wants information about slain brothers
An attorney defending a man facing the death penalty plans to continue his
pursuit of getting the school records of two brothers killed on Labor Day at
their family's business.
School attorneys, and those representing the victims' parents, say the release
of the records would violate the privacy of Khasem Yousef, 23, and Farres
Yousef, 17, who died after a gunman killed them Sept. 7 at the Snappy
convenience store in Palmetto.
Assistant Public Defender Franklin Roberts said he needs the records to prepare
his defense strategy for accused killer Devin Breon Chandler, 25, and, perhaps,
be able to rebut evidence prosecutors present about the victims.
In an order written earlier this month, Circuit Judge Diana Moreland denied
Roberts' request for the records. She did not cite privacy, though; instead,
she said Roberts did not use the proper procedure to get access to the records.
"Although the Court respects the victims' family's right to privacy regarding
the victims' school records, that right is most likely outweighed by the
Defendant's right to due process in this matter," Moreland wrote in her order.
School attorneys are preparing to argue their case again, saying records are
confidential.
Roberts said he intends to file the required notice that he plans to send
subpoenas for the records. In his 1st attempt, he did not file the notice and
sent subpoenas directly to State College of Florida and the Manatee County
School District.
"We don't want it to be seen as an attempt to harass anyone, because that's not
what we're doing," Roberts said Monday.
In Florida, prosecutors can use victim impact statements to show the uniqueness
of an individual, but the information is not supposed to be taken into
consideration by a jury of whether or not to pursue the death penalty, he said.
"My point is, if we're going to allow that, you have to give the defense an
opportunity to understand the victims, and one way to do that is through
records," Roberts said.
Khasem Yousef attended State College of Florida, and his brother, Farres,
attended Manatee High School.
Roberts also requested copies of Chandler's complete school records from the
school district.
The Manatee County School District argued that releasing the records violated
privacy rights as dictated by the Family Educational Rights and Privacy Act and
also noted Roberts improperly served the subpoenas.
"A decision like this by the court brings general awareness for those seeking
records under FERPA," school district staff attorney Mitchell Teitelbaum said.
"There is a strict requirement to protect student privacy."
State College of Florida attorney Steve Prouty wanted a written court order
before producing any documents to avoid violating FERPA and potentially risking
loss of federal funding for the college, the judge's ruling noted.
The victims' parents, Buthania and Raed Yousef, were represented by Council on
American-Islamic Relations Florida attorneys Katherine Heffner and Thania
Diaz-Clevenger, who filed a motion to quash Roberts' subpoenas for the records.
There are other questions, Roberts said, including whether privacy rights
extend beyond one's lifetime and if parents can claim privacy rights for their
older son, who was an adult when he died.
Roberts said he has indicated to the prosecution that Chandler is willing to
enter into a plea agreement, but prosecutors continue to seek the death penalty
for 2 counts of murder in the 1st degree. Chandler also was charged with
robbery using a firearm.
Chandler received a 3-year prison sentence for a robbery in March 2009; he was
released in September 2011, according to Florida Department of Corrections
records.
"Hopefully, we will be able to make a presentation that Mr. Chandler should not
be put to death," he said.
(source: Bradenton Herald-Tribune)
*************
Give drug pushers death penalty
For decades state legislatures have been negligent in attacking the
drug-related industry. There is a Bible verse that says, essentially: Anyone
who leads a little one into sin should have a millstone tied about the neck and
dumped into the depths of the sea.
State legislatures should copy this idea and add capital punishment to the
crime of aiding to the delinquency of a minor. Hence, young adults might be
reluctant to use 14 year olds as drug distributors.
Professionals who live in luxury high-rises overlooking the horizon might think
twice about making a living from the drug trade if they were facing the
punishment of living the rest of their lives on death row.
Robert Fournier, Miami
(source: Letter to the Editor, Miami Herald)
ALABAMA:
Roger Stevens' attorney says state death penalty unconstitutional
Morgan County Circuit Court Judge Glenn Thompson on Monday granted the request
of accused killer Roger Stevens' attorney to reserve the right to argue that
the state's death penalty is unconstitutional.
Thompson granted attorney John Mays' request during an arraignment for Stevens,
64, who is charged with 4 counts of capital murder in the November death of
Stevens' ex-wife, Kay Stevens.
Roger Stevens could be sentenced to death or life in prison without the chance
of parole if convicted on any of the charges.
Stevens has been in Morgan County Jail since he was arrested a few hours after
Kay Stevens, 62, was killed Nov. 14 at the Corner Bakery and Eatery, which she
owned. He has been held without bail after the charge against him was upgraded
to capital murder.
Jefferson County Circuit Court Judge Tracie Todd last month ruled the state's
death penalty sentencing system is unconstitutional. Her ruling followed a U.S.
Supreme Court ruling that struck down a Florida law which allowed a judge to
override a jury's advisory sentencing recommendation and impose the death
penalty. Alabama's death penalty law is similar to the Florida law.
Alabama Attorney General Luther Strange filed a petition with the Alabama Court
of Criminal Appeals to throw out Todd's ruling. Strange said in the filing that
Todd doesn't have the power to prevent the state from seeking the death
penalty.
Mays told Thompson he didn't want to waive Stevens' constitutional rights until
after the Court of Criminal Appeals and possibly the Alabama Supreme Court rule
on the issue.
"I understand it's in a state of flux," Thompson told Mays. "I wouldn't want to
cut you off as I normally would after arraignment."
Mays said after the hearing that certain issues have to be raised before or
during arraignment. If not, the defense loses the right to bring them up later,
he said.
"I wanted to present the issue that my client had been indicted under an
unconstitutional statute," he said.
The 4 capital murder counts charge that Roger Stevens killed Kay Stevens by
shooting her and by inflicting blunt force trauma to her head while committing
2nd-degree burglary and while a protective order for Kay Stevens against Roger
Stevens was in effect.
A state pathologist found that Kay Stevens died from 2 gunshots and blunt-force
trauma to her head, a Decatur police investigator testified at a January
preliminary hearing on the murder charge.
(source: decaturdaily.com)
LOUISIANA:
Defense files motion to move Daigle trial outside Calcasieu
Defense attorneys for Kevin Daigle have filed a motion to have his trial moved
outside of Calcasieu Parish.
Daigle is accused of 1st-degree murder in the August 2015 death of State
Trooper Steven Vincent. The state is seeking the death penalty if Daigle is
convicted. Daigle is also charged with 2nd-degree murder in the death of his
roommate Steven Brewer.
According to the motion, Daigle could not possibly receive a fair trial in
Calcasieu. It says online video of Vincent's funeral procession and parts of
the funeral were viewed by close to a million people and at least 49 media
outlets covered the case.
Local attorney Catherine Stagg has handled numerous criminal cases. She said
fairness is the crux of the issue.
"Fairness is the ultimate goal in a trial because we start with the
constitutional premise that the defendant is presumed to be not guilty. When
the case goes to trial, the defendant is an innocent man unless and until he's
convicted. And fairness has to be the number one touchstone and can the
potential jurors be fair. The whole pool of jurors comes from the entire
parish."
The state has until May 9 to respond.
Stagg said typically in such cases, the state argues that just because a
potential juror has heard about a case doesn't mean they'll be unfair.
"I think the state would probably say that even though a huge percentage of our
local population have heard of the story, they would also stress how our people
are honest and try to be impartial and fair and that even people who have heard
of the case and seen the publicity would be able to set that aside and make an
impartial decision."
Judge Guy Bradberry has issued a gag order in the case, which prohibits
attorneys and others directly involved from doing interviews.
The defense also filed another motion saying Daigle couldn't possibly meet the
deadline for filing motions, particularly because it's a death penalty case
which requires more investigation. The deadline was April 12.
In the motion, the defense discusses voluminous American Bar Association
Guidelines for the Appointment and Performance of Defense council in Death
Penalty Cases. The attorneys say the guidelines require thorough and
independent investigations into both issues of guilt and penalty.
There's a hearing May 25th to take up the motions.
(source: KSLA news)
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