[Deathpenalty] death penalty news----OKLA., COLO., CALIF., USA

[Rick Halperin]

Aug. 31



OKLAHOMA:

Oklahoma death row inmate mumbles incoherently during insanity hearing ---- 
Benjamin Robert Cole did not respond to most questions, as attorneys argues his 
mental state has deteriorated while imprisoned for 2002 murder of daughter


An Oklahoma man scheduled to die for killing his 9-month-old daughter mumbled 
about religion Friday during a hearing about his sanity, but only answered a 
few questions when testifying.

Attorneys for Benjamin Robert Cole don't think he's sane enough to be executed. 
They say the prison warden is violating a state law that requires her to notify 
the local district attorney when an inmate has become insane.

Cole was in a wheelchair during the hearing in a Pittsburg County courtroom in 
McAlester, where Cole is being housed at the Oklahoma state penitentiary. The 
50-year-old with long hair and a graying beard mostly mumbled and appeared to 
have his eyes closed as he sat slumped over while testifying.

He didn't respond to most of the questions.

When District Judge James Bland asked Cole why he was being executed, the 
inmate responded: "Go home. Go home to be with Jesus."

Cole, of Claremore, is scheduled to be executed by lethal injection on 7 
October. He was convicted of 1st-degree murder in Rogers County for the 2002 
killing of his daughter, Brianna Cole, whose spine was broken and her aorta 
torn after she was forcefully bent backward.

Cole has not denied killing the child.

An investigator for the public defender's office who interviewed Cole several 
times, said he mostly talks about scriptures and his "ministry", which she said 
she doesn't understand.

"He always talks about the end times and various messages the Lord has given 
him," investigator Julie Gardner said.

But Warden Anita Trammell said she's been able to converse with Cole on 
numerous occasions and that he understands why he's being executed.

"When I've pulled him out to talk to him, he's engaged in conversation," 
Trammell said.

In a court filing, though, federal public defender Susan Otto wrote: "Mr Cole's 
condition has deteriorated steadily since his conviction." The US supreme court 
has held that executing an insane person is unconstitutional.

Otto says Cole's ability to participate in his defense has been in question 
since the inception of the case, and she told the state's pardon and parole 
board last week during a clemency hearing that Cole once went 2 years without 
showering or leaving his cell.

A forensic psychiatrist hired by Cole's attorneys, Dr Raphael Morris, testified 
at Cole's clemency hearing that Cole sat before him in a catatonic state during 
an hourlong visit at the penitentiary and didn't make eye contact or utter a 
single word.

The pardon and parole board voted 3-2 against recommending clemency to the 
governor, who could only have granted clemency with a recommendation from the 
board.

But even a clemency recommendation would have been no guarantee that Governor 
Mary Fallin would have spared his life.

The board voted 4-1 to recommend clemency for death row inmate Garry Allen, but 
Fallin still rejected the recommendation and said his execution should proceed. 
Allen, who suffered a brain injury after being shot in the head during his 
arrest, appeared confused during his 2012 execution and seemed startled when a 
prison official announced the start of the lethal injection.

(source: The Guardian)






COLORADO:

The death of the death penalty in Colorado?


With 2 recent high-profile death penalty cases ending with life in prison, 
experts are wondering if the death penalty in Colorado is dead.

The Aurora theater shooting and the Fero's Bar stabbings were both heinous 
crimes with a wide community reach. They involved multiple victims and 
affiliated crimes, and the district attorneys in both cases sought the death 
penalty.

Each trial ended with convictions for the defendants, but in both cases, juries 
rejected the death penalty. In Aurora, one juror decided it would be immoral to 
sentence the shooter to death. In Denver, at least one juror decided that the 
defendant's troubled childhood outweighed the horrible nature of his crimes.

Both defendants are now headed to the Colorado Department of Corrections for 
the rest of their lives.

Recent polls show that a majority of people in Colorado continue to support the 
death penalty, but that support is waning.

"It is a failed public policy," says Christopher Decker, an attorney with the 
Colorado Criminal Defense Bar Association. "It is not efficacious, it does not 
deter crime, it is obscenely expensive, it is capriciously and randomly applied 
unfairly, and many believe it is morally unjust."

Denver District Attorney Mitchell Morrissey said he would need to take a close 
look at the suspect before considering a new death penalty case and he thinks 
the death penalty should be put before Colorado voters.

According to 9NEWS Psychologist Dr. Max Wachtel, there is still overwhelming 
support in Colorado for the death penalty, but there may not be enough support 
to ever get another death penalty conviction.

"A recent poll showed that 63 % of registered voters thought the theater 
shooter should receive the death penalty. That is a big majority," says Dr. 
Max. "But think about it - this was a horrible crime with a lot of victims that 
affected the whole community, and only 63 % of people wanted the death penalty. 
That's actually a pretty low percentage for this crime."

Dr. Max also discussed a powerful argument conservatives are starting to make 
against the death penalty: money.

According to the Vera Institute of Justice, it costs roughly $31,000 per year 
to incarcerate an inmate. With the Aurora theater trial estimated to have cost 
$10 million, that means for the same amount of money, the theater shooter could 
have been housed in prison for more than 300 years.

"And that is just the cost for the trial," says Dr. Max. "If he had been 
sentenced to death, the cost would have gone up exponentially because of the 
number of appeals."

(source: KUSA news)

****************

"Plea discussions turned to opposition in Aurora theater shooting case," Aug. 
23 news story.


District Attorney George Brauchler is reported to have said that his decision 
to go forward with the James Holmes trial and not accept the plea offer of life 
without parole was supported by his ability to convince 9 jurors of his 
position. As public defender Doug Wilson succinctly pointed out, "Convincing 9 
jurors is not enough." It takes the unanimous verdict of 12 jurors to convict 
and impose the death penalty. The overwhelming evidence of Holmes' mental 
illness should have alerted Brauchler that out of any 12 jurors there would be 
a strong chance that one of them would not support the death penalty, as in 
fact happened. Instead he took an emotional position that cost the state 
millions of dollars to achieve what could have been accomplished by taking the 
plea. Shame on him.

Larry Leff, Denver

(source: Letter to the Editor, Denver Post)






CALIFORNIA:

State's death-penalty delays put on trial


California is about to find out if taking 3 decades or more to execute death 
row inmates will turn out to be the fatal flaw in the state's long-faltering 
death penalty system.

In a case that may be headed to the U.S. Supreme Court, a federal appeals court 
on Monday will review a Los Angeles federal judge's startling ruling last year 
declaring California's "dysfunctional" death penalty law unconstitutional 
because of systemic delays in a state with more than 1/4
of the nation's condemned inmates.

In that ruling, U.S. District Judge Cormac Carney concluded that death 
sentences in California, where there are now more than 750 condemned killers at 
San Quentin, have been transformed into "life in prison, with the remote 
possibility of death."

The ruling has been put on hold while the 9th U.S. Circuit Court of Appeals 
weighs Attorney General Kamala Harris' appeal. Despite her own reservations 
about the death penalty, Harris has urged the appeals court to reverse the 
decision, saying in court papers the ruling is "fundamentally misguided" 
because any delays in reviewing the appeals of death row inmates are meant to 
ensure legal protections to avoid mistakes.

The showdown amounts to a legal referendum on the nation's most prolific death 
penalty state, notorious for filling its death row but failing to carry out 
executions. California has had just 13 executions overall since 1978, and none 
in nearly a decade -- the result of ongoing legal challenges to the state's 
lethal injection method.

With at least 40 % of the state's death row inmates now awaiting execution for 
2 decades or longer, legal experts say the time may be ripe for the Supreme 
Court to use the California example to decide whether such delays render a 
state's death penalty law unconstitutional.

Condemned inmates in California and elsewhere have tried the argument before, 
but Carney's ruling broke new ground -- and at least 2 Supreme Court justices, 
Stephen Breyer and Ruth Bader Ginsburg, have already urged the court as 
recently as June to take up the broader question of the death penalty's 
legality.

"This is a distinct kind of messy in California," said Douglas Berman, an Ohio 
State University law professor and author of the Sentencing Law and Policy 
blog. "This is not a delay, delay, delay case. It's a delay as 1 symptom of a 
massive problem case."

The case before the 9th Circuit involves condemned killer Ernest Dewayne Jones, 
on death row for two decades for the 1992 rape and murder of a Southern 
California accountant. In his ruling, Carney, a Republican appointee of former 
President George W. Bush, found that delays in cases like Jones' are "systemic, 
and the state itself is to blame."

Specifically, the judge determined that such lengthy delays and detours for 
death row inmates create an arbitrary path to execution for just a "trivial 
few" inmates - the type of unreliable system the U.S. Supreme Court has found 
amounts to cruel and unusual punishment.

>From failures to appoint lawyers for automatic death penalty appeals to 
interminable delays in the California Supreme Court and federal courts, lawyers 
for death row inmates argue that the problem is not fixable. They are backed in 
the case by a variety of anti-death penalty groups, as well as several state 
legislators, including Bay Area state Sens. Loni Hancock and Mark Leno.

"Anybody looking at California's system recognizes its dysfunction," said 
Michael Laurence, Jones' lawyer and head of a state agency representing death 
row inmates. "We're not going to fix it."

State lawyers and death penalty advocates, however, say there is nothing 
unconstitutional about a system that moves slowly to protect the legal rights 
of death row inmates, a large percentage of whom get their sentences overturned 
in the process.

In addition, one group warned the 9th Circuit that invalidating the state???s 
death penalty law would "create a new class of inadequately punished 
murderers," citing infamous killers such as Charles Manson who had their death 
sentences commuted to life in prison when the Supreme Court struck down the 
death penalty in the early 1970s.

Kent Scheidegger, legal director of the pro-death penalty Criminal Justice 
Legal Foundation, scoffs at the argument California???s death penalty is 
irretrievably broken.

"Of course it's fixable," he said. "Virginia fixed their system. They executed 
the D.C. sniper in less than 6 years, and that is not unusual there."

The 9th Circuit is hearing the case at a critical point. State prison officials 
plan to unveil a new single-drug execution method this fall, a move that could 
lead to the resumption of executions in a year or two. And there are at least 
17 death row inmates who've exhausted their legal appeals and are eligible for 
immediate execution dates if the state???s death chamber reopens.

But the 9th Circuit legal battle puts another layer of uncertainty into the 
California death penalty equation. And legal experts say if the appeals court 
backs Carney's logic, the Supreme Court may have no choice but to intervene.

"If there is a constitutional block (to California's law) in place," Berman 
said, "it's an absolute certainty the Supreme Court takes it up."

(source: Daily Democrat)

*****************

Pasadena Court Hears Death Penalty Arguments in Case That Affects 749 Death Row 
Prisoners


The 9th U.S. Circuit Court of Appeals in Pasadena will hear oral arguments 
Monday in a case that could lead to California's death penalty being declared 
unconstitutional.

At stake in the hearing is the State Attorney General's appeal of a ruling made 
last year by Central California U.S. District Judge Cormac Carney that 
effectively vacated or annulled the death sentence of Ernest Dewayne Jones.

Jones had been convicted for the rape and murder of Julia Miller in 1992 and 
sentenced to death in 1995. The Supreme Court of California affirmed the 
sentence 1n 2003.

Last year, Carney issued a ruling lambasting California's long death penalty 
process and calling capital punishment "life in prison, with the remote 
possibility of death."

In his ruling, Carney wrote, "Allowing the system to continue to threaten Mr. 
Jones with the slight possibility of death, almost a generation after he was 
first sentenced, violates the Eighth Amendment's prohibition against cruel and 
unusual punishment."

In a court filing, lawyers in California Attorney General Kamala D. Harris's 
office argued that the pace of the death penalty review process under 
California law reflects the state's commitment to justice.

"Everyone involved in this process - counsel for the state, counsel for capital 
defendants, and the courts themselves - works carefully and methodically to 
ensure that death sentences are lawfully imposed and carried out only 
appropriate cases," the filing said. The lawyers described the process as 
taking a "suitably deliberate pace" that is a safeguard against "arbitrariness 
and error."

Carney is a George W. Bush appointee. The appeals court panel is composed of 
Democratic appointees - Judges Susan Graber, Johnnie Rawlinson and Paul Watford 
- who are now facing a potentially momentous decision on an issue that had 
divided California and its leaders for a long time.

The Attorney General intends to argue that there is no legitimate legal basis 
for Carney's 2014 ruling, according to a legal brief from Harris' office. It 
also argued the process provides for necessary protection to defendants.

"The court mistook its policy critique as a proper basis for legal judgment," 
the brief said.

In support of the state, the Criminal Justice Legal Foundation said "a delay in 
the execution of the death penalty is not a violation of the rights of the 
defendant."

"A delay in the execution of the death penalty is not a violation of the rights 
of the defendant," the Foundation's legal director Kent Scheidegger wrote in a 
friend-of-the-court brief. "He's getting to live out a longer life than he was 
sentenced to, than he should have received. That's not a constitutional 
violation against the defendant. The excessive delays are a violation of the 
rights of the victim, and we should be fixing them."

Other groups campaigning for the abolition of the death penalty have also filed 
briefs in the case.

San Francisco-based Death Penalty Focus said the state is "uniquely 
dysfunctional in its death penalty system."

"It's by far the largest death penalty system in the country," Matt Cherry, 
DPF's Executive Director, said, "It is by far the most costly, and it has very 
little effectiveness in the way it's been run for the last 40 years."

If the lawyers for Jones are victorious, the case could affect the fate of more 
than 740 prisoners now on death row at San Quentin State Prison and send legal 
ripples across the country.

Either way, both sides agree that the case raises issues about the 
administration of capital punishment that are likely to reach the Supreme Court 
over time.

(source: pasadenanow.com)






USA:

How the Supreme Court's liberals plan to kill the death penalty


Citing analysis by the Supreme Court Database, a story recently appearing in 
the New Times pronounced the court's 2014-2015 term to be the most liberal in 
50 years. That came as no surprise to readers of this column, however, as I 
documented the court's leftward drift as it was developing.

What makes this all the more remarkable is that it has been accomplished 
despite the fact that only four of the court's nine justices are hard-nosed 
liberals. Their formula for success has been a simple one. Stick together like 
glue in every case where ideology really matters and pick up one of the other 
judges each time to form a majority.

In most instances, Justice Anthony Kennedy has been that other judge.

The liberal block's most celebrated success this past term was discovering a 
hitherto unfathomable right to same-sex marriage hidden in the Fourteenth 
Amendment. So, many are compelled to wonder, what do these energized liberals 
have in mind for an encore?

Well, wonder no more, because I'm going to tell you right now. It's abolishing 
capital punishment. Just as they short-circuited what had been a spirited 
public debate about same-sex marriage, they're gearing up to subvert the 
democratic process once again by killing the death penalty.

Murderous thugs

They fully intend to transform their personal aversion to this historically 
sanctioned punishment into a judicial declaration that it now somehow 
constitutes cruel and unusual punishment under the Eighth Amendment.

Among those hoping they do just that are murderous thugs like Ronell Wilson, 
sentenced to death for the cold-blooded execution of two New York City police 
detectives on Staten Island in 2003, and Dzhokhar Tsarnaev, the terrorist punk 
condemned to die for placing a bomb near the finish line of the Boston Marathon 
2 years ago that killed 3 people, including an 8-year-old-boy.

Evidence of what the 4 liberal judges have up their sleeves, discernible for a 
while now, emerged more concretely early this year when they dissented from the 
court's refusal to grant a stay of execution to Charles Frederick Warner, 
convicted by an Oklahoma jury of the brutal murder and rape of an 11-month-old 
girl.

Although conceding that Warner's crimes were "horrific," they vehemently 
opposed his execution on the grounds that Midazolam, the first of three drugs 
Oklahoma planned to use during his execution, might render him susceptible to 
too much pain. Never mind the unspeakable agony that Warner inflicted on his 
tiny, blameless, utterly defenseless victim.

Revealing dissent

The "it-might-be-too-painful" argument has become the latest strategy of death 
penalty opponents, including, obviously, the Supreme Court's four liberals, to 
whittle away at capital punishment generally and eventually have it abolished 
in the United States. That has to be their ultimate objective because the 
argument is so palpably absurd in and of itself.

Fast forward now to June 29 when the Supreme Court, with its four liberal 
judges dissenting once again, upheld Oklahoma's right to use Midazolam in 
additional executions.

This time, however, Justice Stephen Breyer, a member of the court's liberal 
wing, in a dissent joined by liberal icon Ruth Bader Ginsburg, let the cat out 
of the bag, declaring, "It's highly likely that the death penalty violates the 
Eighth Amendment."

To that end, he noted, that there are proven instances of innocent people 
having been wrongfully convicted and sentenced to death. That, of course, is 
both unquestionably true and deeply disturbing. It's also an excellent reason 
to shelve the death penalty where there is any doubt whatsoever about a 
defendant's guilt.

It is not, however, a sound basis for precluding a capital sentence for people 
like Wilson and Tsarnaev, inmates whose guilt has been established to a moral 
certainty.

Delaying tactics

Breyer also contended that the death penalty is "cruel" because of 
"unconscionably long delays that undermine [its] penological purpose." What he 
failed to mention, however, is that these delays are caused by the death-row 
inmates themselves who file endless applications to overturn their convictions 
and/or sentences. And it is liberal judges like Breyer who've created a body of 
law that facilitates their doing so.

The death penalty is also "unusual," Breyer claimed, because 30 states have 
either abolished it or have not executed anybody in at least eight years. That, 
however, is hardly a reason to impose a nationwide ban on capital punishment by 
judicial fiat. Remember, the death penalty has been a punishment of 
unquestionable validity since the inception of the republic. If sovereign 
states choose to continue employing it, historical precedent clearly supports 
their right to do so.

Enlisting Kennedy again

With Breyer and Ginsburg now on record as expressly supporting the abolition of 
capital punishment, Elena Kagan and Sonia Sotomayor, the court's two other 
liberals, who walk in lockstep with them, will be on board when they make their 
move.

They'll still need one more vote to make it happen, of course, and they'll be 
looking to Kennedy to come through for them again. They have good reason to be 
optimistic, too. For in 2005, he provided the pivotal fifth vote to ban the 
imposition of death sentences on juveniles. While many people, me included, 
strongly agreed with that result, the legal reasoning behind it was tenuous.

The court's 4 liberals are determined to kill the death penalty just as soon as 
they can.

And, as the court's last term illustrates, they have a knack for getting their 
way. Which is why I'm confident that they'll eventually succeed.Those who 
believe that to be a good thing have some interesting company. Ronell Wilson 
and Dzhokhar Tsarnaev think so too.

(soruce: Commentary; Daniel Leddy----Staten Island Advance)

***********

Recusal call clouds Gary Sampson case----Judge in death penalty trial 
interacted at event with potential witness


The night out on Martha's Vineyard in July 2014 probably seemed innocuous at 
the time - a gathering over lobster rolls, a documentary screening at the local 
film society, followed by a panel discussion about the film.

But a year later, concerns about US Senior District Judge Mark L. Wolf's 
interactions that night have disrupted perhaps the most high-stakes case 
pending in federal court in Boston: Wolf is weighing whether his involvement as 
the film panel moderator, and his interactions with a panelist who may now be a 
witness in the death penalty trial of serial killer Gary Lee Sampson, have 
created an appearance of a conflict of interest so strong that he should recuse 
himself from the case.

The concern has the case's prosecutors, defense attorneys, and Wolf wrangling 
about legal definitions and standards, but the issue also highlights an often 
overlooked quandary for judges - the fine line that they must straddle when 
participating in public functions with the risk that any engagement could later 
be seen as a conflict of interest, or even the appearance of one, in any of the 
dozens of cases before them at any given time.

Wolf has overseen the death penalty trial of Sampson since the case was first 
filed in 2001, and he is set to oversee a new trial to determine his sentence 
in September. The judge threw out an earlier death sentence after finding that 
one of the initial jurors had lied about her background.

As prosecutors allege Wolf had too cozy of a relationship with a prisoners' 
rights advocate who may be called to testify, Wolf's decision of whether to 
recuse himself could be the most closely watched decision he has had to make in 
the history of the high-profile death penalty case, a rarity in Massachusetts.

Sampson lawyers oppose request for judge to step down

Lawyers for admitted killer Gary Lee Sampson opposed a motion for the judge in 
the death penalty trial to step down.

During the panel discussion on Martha's Vineyard, Wolf called the panelist, Dr. 
James F. Gilligan, a prisoners' rights reform advocate, one of the world's 
leading experts in his field, and they discussed matters of mental health and 
prison conditions that will be central to Sampson's case against a death 
sentence.

Wolf helped organize and participated in the panel discussion on the 
documentary film last summer on behalf of a family friend, who was the film's 
director. He said he did not know at the time that one of the panelists would 
later be called as a witness, and would not have served had he known. He said 
they never discussed the Sampson case.

R. Michael Cassidy, a Boston College law professor, who researches ethics and 
professional responsibility, said judges have to be careful to protect the 
integrity of their cases, but at the same time, "We don't want judges in an 
ivory tower, not aware of what's happening in society."

"We want judges to be engaged in the public and teach, and lecture, and go to 
film exhibitions," he said. "We want judges to have lives so they are tuned in 
to what's happening in society."

"It's really a difficult decision he is making, and the standard is an elastic 
one," Cassidy added.

He said, though, that any decision that Wolf makes could become a key factor in 
an appeal for Sampson that will have to be resolved by a higher court in 
Boston, complicating Wolf's predicament. Wolf and the parties involved would 
not want to try the case a 3rd time if he decides to stay on, and his decision 
is later overturned.

And yet Wolf should not be quick to step aside, Cassidy said, because judges 
are allowed to presume they do not have an apparent conflict unless proven 
otherwise.

Sampson pleaded guilty in federal court to the carjacking and killing of 
Jonathan Rizzo, 19, and Philip McCloskey, 69, during separate incidents in 
2001.

He also admitted to the killing that same week of Robert "Eli" Whitney in New 
Hampshire, and was sentenced to life in prison in separate proceedings in that 
state.

A federal jury in Boston agreed in 2003 to sentence Sampson to death, but Wolf 
threw out that decision in 2011 after finding that one of the jurors lied 
during the screening process about her past interactions with law enforcement. 
The judge said he would have excluded her from the jury had he known, and an 
appeals court upheld the decision.

The ruling was a blow to the family members of Sampson's victims, who had been 
critical of Wolf's past decisions. The judge said at the time of Sampson's 
sentencing that he believed he suffered from mental illness, a ruling the judge 
said he was legally required to make, but it offended family members who saw 
the statement as opposition to the death penalty.

Michael Rizzo, Jonathan Rizzo's father, also took issue with Wolf's comments in 
a 2013 Boston Globe article about a novel he keeps on his desk, "Judge on 
Trial," that features a judge confronted with a death penalty case that tests 
his personal values.

Rizzo said that the judge's disclosure this spring about the Martha's Vineyard 
panel discussion is a "consistent pattern of behavior I've seen over the last 
14 years" that questions his impartiality, adding that the judge should hold 
himself to the same standard he holds of jurors.

"I consider him to be biased in the way he looks at things," Rizzo said.

Judges are legally required to recuse themselves from a case if they have a 
direct conflict of interest, for instance a financial stake. They must also 
step aside if, according to court regulations, a "reasonable" outsider would 
believe that the judge has an "appearance" of a conflict.

That standard, according to legal analysts, is tougher for judges to interpret, 
because they are also supposed to follow a presumption that they do not have a 
conflict, and that it is their duty to handle any case that comes before them.

Nancy Gertner, a retired US District Court Judge who now teaches law at Harvard 
University, said that "the rules of recusal have to be reasonable."

"Judges don't live in a vacuum, and there are a range of issues that come up, 
and where does this sit on that range?" she said. "If appearance is interpreted 
as anyone might see a problem, that's a standard that is way too big. It has to 
be a standard of reasonableness."

It is rare, but not unheard of, for a judge to step aside reluctantly or be 
forced to recuse themselves.

In March 2014, US District Court Judge F. Dennis Saylor IV stepped down under 
repeated pressure from defense lawyers in the corruption trial of state 
probation officials. Saylor ultimately agreed that he had a close friendship 
with fellow District Court Judge Timothy S. Hillman, who the defense cited as a 
potential witness.

In March 2013, a federal appeals court forced Judge Richard G. Stearns to 
recuse himself from the trial of gangster James "Whitey" Bulger, finding that a 
reasonable person would question Stearns' impartiality. The judge had been a 
top prosecutor in the US attorney's office in the 1980s, when Bulger claims 
another prosecutor in that office granted him immunity for his crimes.

(source: Boston Globe)