[Deathpenalty] death penalty news----NEB., UTAH, CALIF., USA

[Rick Halperin]

June 19



NEBRASKA:

Drama as FDA Prepares to Confiscate Execution Drugs Headed for 
Nebraska----State and federal governments set to clash, according to a report 
from BuzzFeed News.



Last month, my colleague Lauren Galik wrote about the atypical drama that 
unfolded when the Nebraska legislature overrode, by a single vote, the 
governor's veto of a law abolishing the death penalty in the state. Now the 
situation has gotten even more interesting.

BuzzFeed News has twice reported that the Food and Drug Administration (FDA) is 
planning to stop a shipment of sodium thiopental when it arrives from India. 
The drug, which Gov. Pete Ricketts (R-Neb.) plans to use to execute 10 inmates, 
is banned in this country:

"Please give me a call when you have time to discuss," Nebraska Corrections 
Director Scott Frakes recently wrote to the would-be supplier of the state's 
execution drugs. His email contained an attachment: a 2013 court ruling that 
spells out that the drugs the state spent more than $50,000 on would not be 
allowed into the United States.

The drugs aren't approved by the Food and Drug Administration, and the court 
ruling that Frakes attached makes it clear that the FDA has no choice but to 
seize the drugs when they come to the states.

The shipment, enough for hundreds of lethal injections, is expected to arrive 
any day now, according to public records and emails obtained by BuzzFeed News.

An FDA representative has already, according to the story, warned the state 
that "there is no FDA approved application for sodium thiopental, and it is 
illegal to import an unapproved new drug into the United States." But 
Nebraska's chief executive says Nebraska isn't "bound" by the court decision 
requiring the FDA to seize all incoming shipments of the execution drug - and 
that the legislature doesn't have the authority to change existing death row 
prisoners' sentences.

The conflict presents libertarian opponents of both capital punishment and big 
government, like me, with a conundrum: Should the FDA's smackdown of a decision 
by a duly elected executive about how to govern his state be welcomed or 
denounced?

My disdain for agents of a heavy-handed federal bureaucracy is strong, but so 
is my conviction that the death penalty has no place in America today. To the 
extent that there are conditions under whch government intervention is 
justified, halting a sadistic practice that has already led to the 
state-sanctioned taking of innocent human lives seems like a strong contender. 
But is it worth embracing a precedent of federal agencies' powers outweighing 
states' decision-making rights?

The good news is that the veto override in Nebraska suggests the tide is 
turning against capital punishment. As such, I'm hopeful we're heading for a 
time when executions are a thing of the past because the people in all 50 
states demanded an end to them - no federal intervention necessary.

(source: reason.com)








UTAH:

Death-penalty attorneys appointed as case moves forward against accused Utah 
double-murderer



The case against the man accused of killing a Mount Pleasant couple more than 3 
years ago is beginning to move forward, a judge having appointed defense 
attorneys in the potential death penalty case.

Logan Welles McFarland, 27, was charged last year in 6th District Court with 2 
counts of 1st-degree felony aggravated murder for the December 2011 slayings of 
70-year-old Leroy Fullwood and his 69-year-old wife, Dorothy Ann Fullwood.

McFarland, of Fairview, made his 1st court appearance only 5 months ago, after 
he was extradited to Utah from Nevada - where he had been sentenced to spend up 
to 56 years in prison for a crime spree that took place there.

On Wednesday, the defendant appeared in a Manti courtroom, where attorneys 
discussed the appointment of 2 qualified attorneys who could represent 
McFarland - who prosecutors say will face the death penalty for the 2011 
murders.

Sanpete County Attorney Brody Keisel said Thursday that his office will now 
begin sending evidence to court-appointed defense attorneys Douglas Terry and 
Ryan Stout.

McFarland is expected to decide by his next court date, on Aug. 26, whether he 
wants a preliminary hearing in the case.

McFarland also is charged with 1 count of 1st-degree felony aggravated burglary 
and 1 count of 1st-degree felony aggravated robbery, along with 2nd-degree 
felony counts of burglary of a dwelling and theft of a firearm.

Though McFarland has long been the suspect in the double murder, Keisel said 
last year that he had waited to file on the homicides until Nevada authorities 
had adjudicated their case against McFarland and his girlfriend, 28-year-old 
Angela Marie Hill, also known as Angela Marie Atwood.

The Utah murder charges were filed May 22, 2014, a day after McFarland was 
sentenced for the Nevada crimes.

Hill is charged in Utah with the same counts as McFarland, minus the homicide 
charges. She has not yet been extradited to Utah, according to the county 
attorney's office, and a court appearance has not been scheduled.

An arrest affidavit filed in Utah's 6th District Court, which was briefly made 
public in January 2012 before being sealed, police alleged that on Dec. 29, 
2012, McFarland drove around Mt. Pleasant looking for a home to burglarize.

McFarland apparently selected the Fullwood home at random and, late Dec. 29 or 
early Dec. 30, had friends drop him off on a road behind the residence, 
according to the affidavit. It was then only a short walk through sagebrush to 
reach the home.

What happened inside the home has not been made public, but the arrest 
affidavit says the home was ransacked, the contents of cupboards and closets 
"strewn" around the home. By the time McFarland left, the Fullwoods were dead 
from gunshot wounds.

On Dec. 30, McFarland allegedly called a relative and told him that they needed 
to talk because "a 'mission' had gone south," according to a probable cause 
statement filed in court. Police allege that McFarland told the relative that 
he had "dispatched lives" in Sanpete County.

(saource: Salt Lake Tribune)








CALIFORNIA:

Supreme Court upholds SD man's death penalty----Justices disagreed on whether 
jury selection was based on race, and if it harmed the trial



The U.S. Supreme Court on Thursday upheld the death penalty of a San Diego man 
convicted in the execution-style murders of 3 men during an auto shop robbery 
25 years ago.

However, the 5-4 opinion showed a clear split among the justices, who argued 
differing views on whether Hector Ayala's trial was tainted during the jury 
selection process, when all blacks and Hispanics available to serve were 
dismissed by the prosecution.

The case also gave 2 of the justices a platform to spar over the use of 
solitary confinement in the nation's prisons.

Ayala, who is Hispanic, went on trial in 1989 for the three shooting deaths at 
A & Z Auto Repair off 43rd Street in southeastern San Diego. On April 26, 1985, 
the victims' hands had been bound behind their backs as Ayala and his brother 
demanded $10,000. 3 were shot to death, while a 4th was able to escape wounded.

The jury selection process lasted 3 months and involved some 200 potential 
jurors. Each side was allowed 20 peremptory challenges, and the prosecution 
used 18, dismissing all seven Hispanic and black jurors available to serve.

When the defense objected, the judge heard the prosecutor's reasons behind 
closed doors without the defense present, so as not to reveal trial strategy.

The judge found that the challenges were not based on race, but on other 
factors, including views against the death penalty and a lack of proficiency in 
English.

The state Supreme Court agreed, stating that if any error did occur, it was 
harmless. But in a further appeal by Ayala, the U.S. 9th Circuit Court of 
Appeals found that Ayala???s rights were violated by not being a part of the 
closed-door meeting, and that the error harmed his case.

State Attorney General Kamala Harris petitioned the high court for review last 
year.

In the majority opinion written by Justice Samuel Alito, the Supreme Court said 
the 9th Circuit misunderstood the law in question, saying Ayala doesn't meet 
the high burden of proof for relief.

He said their decision cannot be based on mere speculation there was prejudice; 
actual prejudice must be found.

In looking at the record available in the case, the court agreed that the 
prosecution was able to offer reasonable arguments why the jurors were 
dismissed for reasons other than race.

"This is a difficult determination because of the nature of peremptory 
challenges: They are often based on subtle impressions and intangible factors," 
the majority opinion states. Nuances in the answers of potential jurors become 
even more important when considering whether people are for or against an issue 
as weighty as the death penalty.

\"Few are likely to have experienced a need to make a comparable decision at 
any prior time in their lives," the opinion said.

Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and 
Clarence Thomas agreed.

In her dissent, Justice Sonia Sotomayor strongly disagreed.

She said the defense had a good case on their hands and very likely could have 
come up with strong arguments that race was a factor if they had been allowed 
in the close-door meeting with the judge and prosecution.

"The defense had numerous persuasive arguments that it could have leveled ... 
had it been given the opportunity to do so," she wrote. The case leaves her 
with "grave doubts" that the exclusion was harmless to Ayala's trial and 
ultimate death sentence.

Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan joined her.

In an aside opinion, Kennedy took the opportunity to express his concerns with 
the solitary confinement conditions in which many prisoners like Ayala are held 
- and suggested that he would be open to hearing a case on the issue.

Ayala, 63, is on death row at San Quentin State Prison.

He said that if Ayala is in a typical solitary confinement situation, it is 
likely he "has been held for all or most of the past 20 years or more in a 
windowless cell no larger than a typical parking spot for 23 hours a day; and 
in the 1 hour when he leaves it, he likely is allowed little or no opportunity 
for conversation or interaction with anyone."

Thomas shot back with his own succinct opinion on the matter: "The 
accommodations in which Ayala is housed are a far sight more spacious than 
those in which his victims, Ernesto Dominguez Mendez, Marcos Antonio Zamora, 
and Jose Luis Rositas, now rest. And, given that his victims were all 31 years 
of age or under, Ayala will soon have had as much or more time to enjoy those 
accommodations as his victims had time to enjoy this Earth."

(source: San Diego Union-Tribune)

***********

6 inmates on San Quentin death row sue over time in solitary



A group of death row inmates has sued the state for keeping them in solitary 
confinement for years or even decades, locked in windowless cells with no phone 
calls or human contact. It's treatment, they said, that "amounts to torture."

The suit was filed in federal court Wednesday by 6 condemned prisoners, who 
said they were among about 100 inmates, out of 750 on death row, who are kept 
in isolation in the Adjustment Center at San Quentin State Prison as suspected 
gang members or associates. The suit said they are held in their cells 21 to 24 
hours a day, with no natural light, no access to education or work programs, no 
phone calls and no contact visits from family members, who must speak to them 
by phone across a glass barrier.

1 of the men has been in solitary confinement for 26 years, and 2 others for 
more than a decade, the suit said. Condemned prisoners in California spend an 
average of nearly 25 years on death row while their cases are appealed. A 
federal judge cited the duration of their confinement, though not the 
conditions, in a ruling last year that declared the state's death penalty 
unconstitutional. The state has appealed the ruling.

The suit is similar to a case scheduled for trial in December in federal court 
in Oakland over the solitary confinement of thousands of inmates in various 
prisons' Security Housing Units, the maximum-security lockups that house 
prisoners suspected of gang affiliations. The San Quentin suit was filed 
separately because the adjustment center isn't classified as a Security Housing 
Unit, although the conditions are similar, said Daniel Siegel, lawyer for the 
death row inmates.

Inmates in both cases claim their isolation violates the constitutional ban on 
cruel and unusual punishment and denies them due process of law. Until 
recently, they said, the only way out of the isolation unit was to become an 
informant. Prison officials say they now conduct case-by-case reviews of each 
inmate's gang status or affiliations, and have released some inmates into the 
general prison population. But inmates say they are still kept in solitary 
confinement because of books they've read or cartoons found in their cells.

Siegel said release from isolation is even harder to win on death row. He said 
some inmates have been kept in the Adjustment Center solely because their 
capital crimes were gang-related.

Terry Thornton, spokeswoman for the Department of Corrections and 
Rehabilitation, said officials haven't seen the suit and can't comment on it. 
But she said no inmates are held in the cells for 24 hours a day, because 
they're entitled to 10 hours a week in the prison exercise yard.

(source: Associated Press)

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

Justice Kennedy practically invites a challenge to solitary 
confinement----Courts 'may be required' to decide if prisons need to find 
alternatives to solitary, Kennedy says



Supreme Court Justice Anthony M. Kennedy, in an unusual separate opinion in a 
case wrote that it may be time for judges to limit the use of long-term 
solitary confinement in prisons.

His comments accompanying a decision issued Thursday marked a rare instance of 
a Supreme Court justice virtually inviting a constitutional challenge to a 
prison policy.

"Years on end of near-total isolation exacts a terrible price," he wrote. He 
cited the writings of Charles Dickens and 19th century Supreme Court opinions 
that recognized "even for prisoners sentenced to death, solitary confinement 
bears 'a further terror and a peculiar mark of infamy.'"

Sentencing judges and the high court have largely ignored the issue, Kennedy 
said, focusing their attention on questions of guilt or innocence or on the 
constitutionality of the death penalty.

"In a case that presented the issue, the judiciary may be required," he wrote, 
"to determine whether workable alternative systems for long-term confinement 
exist, and, if so, whether a correctional system should be required to adopt 
them."

Amy Fettig, an attorney for the ACLU's National Prison Project, said Kennedy's 
comments came as a welcome surprise.

"It's a remarkable statement. The justice is sending a strong signal he is 
deeply concerned about the overuse and abuse of solitary confinement," she 
said.

States such as Virginia and Texas routinely put death-row inmates in solitary 
confinement, she said. "They are automatically placed there. It has nothing to 
do with their being violent or their level of dangerousness," she said.

This month, a federal judge in Virginia is weighing a "cruel and unusual 
punishment" claim brought by inmates on death row there, she noted.

Kennedy usually joins with the court's conservatives in cases involving crime 
and punishment, but he has also voiced concern over prison policies that he 
deems unduly harsh. These include life terms for juveniles and long mandatory 
prison terms for nonviolent drug crimes. 4 years ago, he spoke for a 5-4 
majority that condemned overcrowding in California's prisons and said it 
resulted in unconstitutionally cruel conditions.

Both sides of Kennedy's views were evident in Thursday's decision. He joined a 
5-4 majority to reject a San Diego murderer's bid for a new trial, but wrote 
separately to raise the issue of possible constitutional limits to solitary 
confinement.

The case before the court involved Hector Ayala, who had been convicted and 
sentenced to die for shooting to death 3 men in the attempted robbery of an 
auto body shop in 1985. A 4th man had been shot, but survived and identified 
Ayala as the shooter.

Ayala has been on California's death row ever since his conviction a generation 
ago. The California courts upheld his conviction and death sentence, but 2 
years ago a U.S. 9th Circuit Court of Appeals panel overturned both. In a 2-1 
decision, the appeals court cited the trial judge's decision permitting 
prosecutors to remove all seven of the blacks and Latinos who were considered 
for the jury.

The Supreme Court reversed that decision and restored Ayala's conviction and 
death sentence. Justice Samuel A. Alito Jr. said the "conscientious trial 
judge" had spoken to each of the potential jurors and decided the prosecutor 
was justified in removing them. "His judgment was entitled to great weight," he 
concluded.

In his separate opinion, Kennedy said he agreed Alito's opinion was "complete 
and correct," but said he was nonetheless troubled to learn Ayala had been kept 
in solitary confinement. This means he has "been held for all or most of the 
past 20 years or more in a windowless cell no larger than a typical parking 
spot for 23 hours a day," he wrote. An estimated 25,000 inmates in the United 
States are being held in solitary confinement without regard to their conduct 
in prison, he added.

Kennedy's comments drew a short, but sharp retort from Justice Clarence Thomas.

"The accommodations in which Ayala is housed are a far sight more spacious than 
those in which his victims ... now rest. And, given that his victims were all 
31 years or age or under, Ayala will soon have had as much or more time to 
enjoy those accommodations as his victims had time to enjoy this Earth," Thomas 
wrote.

(source: Los Angeles Times)

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

Death-Row Inmate Loses High Court Habeas Case



Split by a hair, the Supreme Court overturned habeas relief Thursday for a 
death-row prisoner who was convicted by a minority-free jury.

Hector Ayala's conviction in 1989 stemmed from the brutal attempted robbery 4 
years earlier of a San Diego auto-body shop.

Though Ayala had accused the prosecutor of striking jurors unfairly based on 
race or ethnicity during the months-long jury-selection process, the court 
disagreed.

In the ensuing Batson hearing on Ayala's challenges to the peremptory strikes, 
the prosecutor explained his rationale to the judge ex parte to protect his 
trial strategy.

The California Supreme Court rejected Ayala's constitutional claim on the 
merits and found that any potential error was harmless, but the 9th Circuit has 
consistently supported habeas relief for Ayala since 2012.

In the latest version of its decision, denying the state a rehearing en banc, 
an indignant dissent condemns the 9th Circuit for performing an end-run around 
Supreme Court precedent.

By using de-novo review with the claims of death-row inmates in the 2009 
opinion Richter v. Hickman and the 2011 case Williams v. Cavazos, the 9th 
Circuit "brushed aside the deference we owe a state court's adjudication of a 
petitioner's claim under the Antiterrorism and Effective Death Penalty Act of 
1996 (AEDPA)," Judge Sandra Ikuta wrote, joined by six other dissenting 
colleagues.

Both opinions were reversed based on the Supreme Court's holding that "we must 
defer to a state court denial of a federal claim even if the state court issued 
only a summary denial, and even if the state court issued a reasoned opinion 
that did not expressly reject the federal claim," she added.

The Supreme Court took Ikuta's bait and reversed 5-4 Thursday.

"Ayala contends that his federal constitutional rights were violated when the 
trial court heard the prosecution's justifications for its strikes outside the 
presence of the defense, but we find it unnecessary to decide that question," 
Justice Samuel Alito wrote for the majority. "We assume for the sake of 
argument that Ayala's federal rights were violated, but that does not 
necessarily mean that he is entitled to habeas relief. In the absence of 'the 
rare type of error' that requires automatic reversal, relief is appropriate 
only if the prosecution cannot demonstrate harmlessness. The Ninth Circuit did 
not hold - and Ayala does not now contend - that the error here falls into that 
narrow category, and therefore Ayala is entitled to relief only if the error 
was not harmless."

Alito called it indisputable that any federal error tied to the ex parte 
portion of reviewing the prosecution's peremptory challenges was harmless.

"Ayala therefore must show that the state court's decision to reject his claim 
'was so lacking in justification that there was an error well understood and 
comprehended in existing law beyond any possibility for fair-minded 
disagreement," the majority opinion states.

Ultimate Ayala failed to show that his exclusion from the prosecution's 
explanation harmed him.

"In this case, the conscientious trial judge determined that the strikes at 
issue were not based on race, and his judgment was entitled to great weight," 
Alito wrote. "On appeal, 5 justices of the California Supreme Court carefully 
evaluated the record and found no basis to reverse. A Federal District Judge 
denied federal habeas relief, but a divided panel of the Ninth Circuit reversed 
the District Court and found that the California Supreme Court had rendered a 
decision with which no fairminded jurist could agree.

"For the reasons explained above, it was the Ninth Circuit that erred. The 
exclusion of Ayala's attorney from part of the Batson hearing was harmless 
error. There is no basis for finding that Ayala suffered actual prejudice, and 
the decision of the California Supreme Court represented an entirely reasonable 
application of controlling precedent." Justices Ruth Bader Ginsburg, Stephen 
Breyer and Elena Kagan joined a dissent by Justice Sonia Sotomayor that says 
"little doubt exists that counsel's exclusion from Ayala's Batson hearings 
substantially influenced the outcome."

Chief Justice Roberts joined the lead opinion in full as did Justices Antonin 
Scalia, Anthony Kennedy and Clarence Thomas.

The latter 2 also penned separate concurring opinions.

Kennedy's offers a striking objection, not on the merits of the case, but to 
the apparent confinement of Ayala in solitary for the past 20 to 25 years.

"125 years ago, this court recognized that, even for prisoners sentenced to 
death, solitary confinement bears 'a further terror and peculiar mark of 
infamy,'" Kennedy wrote.

He added that scholarly discussion and other commentary have nevertheless 
failed to make "the condition in which prisoners are kept ... a matter of 
sufficient public inquiry or interest."

New "research still confirms what this court suggested over a century ago: 
Years on end of near-total isolation exacts a terrible price," Kennedy added.

"In a case that presented the issue, the judiciary may be required, within its 
proper jurisdiction and authority, to determine whether workable alternative 
systems for long-term confinement exist, and, if so, whether a correctional 
system should be required to adopt them," the dissent states before concluding 
with a quotation by Dostoyevsky.

"The degree of civilization in a society can be judged by entering its 
prisons," that writer opined 150 years ago.

Kennedy added: "There is truth to this in our own time."

The separate opinion by Thomas offers 2 brief sentences to undercut Kennedy's 
plea.

No matter how restrictive, "the accommodations in which Ayala is housed are a 
far sight more spacious than those in which his victims, Ernesto Dominguez 
Mendez, Marcos Antonio Zamora, and Jose Luis Rositas, now rest," Thomas wrote. 
"And, given that his victims were all 31 years of age or under, Ayala will soon 
have had as much or more time to enjoy those accommodations as his victims had 
time to enjoy this Earth."

(source: Courthouse News)








USA:

Justice Thomas Focuses on Victims in 2 Death Penalty Cases



Justice Clarence Thomas took unusual steps Thursday in calling attention to 
crime victims as the Supreme Court ruled in 2 death penalty cases.

Thomas dissented from the 5-4 majority that barred Louisiana from executing a 
convicted killer who is mentally disabled, and at the end of his opinion, 
included a photo of Kevan Brumfield's victim, off-duty Baton Rouge police Cpl. 
Betty Smothers.

Thomas took the majority to task for its "disrespect for the human cost of its 
decision," noting that Brumfield "deprived the people of Baton Rouge of one of 
their police officers and six children of their mother" when he shot her during 
a robbery.

Thomas also referred to a video of Brumfield's confession that was posted on 
the Supreme Court's website. He devoted 2 full pages to discussing the life of 
one of Smothers' children, Warrick Dunn, who "quickly stepped into the role of 
father figure to his younger siblings" and would go on to become a star running 
back at Florida State and later in the NFL.

He noted that Dunn and Brumfield grew up with absent fathers, but "unlike 
Brumfield, Warrick did not use the absence of a father figure as a 
justification for murder."

The sentiments are not out of place for Thomas, who consistently takes a tough 
approach to criminal defendants and openly rejects hard-luck life stories as a 
reason for criminal behavior. They also reflect Thomas' own experience growing 
up in poverty after his father abandoned the family.

While Thomas was joined in dissent by Chief Justice John Roberts and Justices 
Antonin Scalia and Samuel Alito, those three other conservatives declined to 
join the part of Thomas' opinion that compared the lives of Dunn and Brumfield.

Alito wrote that Dunn's story was "inspiring," but the justice did "not want to 
suggest that it is essential to the legal analysis in this case."

In a 2nd 5-4 case Thursday, Thomas was in the majority with the court's 
conservatives in reinstating the conviction and death sentence of a California 
man convicted in a triple murder. The court ruled Hector Ayala was not entitled 
to a new trial even though a lower court made mistakes when it considered 
whether prosecutors illegally excluded blacks and Hispanics from the jury.

Noting that Ayala has been in solitary confinement for most of his 25 years in 
custody. Justice Anthony Kennedy used the case as an opportunity to repeat his 
long-held views that "years on end of near-total isolation exacts a terrible 
price."

In a brief retort, Thomas said "the accommodations in which Ayala is housed are 
a far sight more spacious than those in which his victims ... now rest."

(source: Associated Press)