[Deathpenalty] death penalty news----TEXAS, N.C., FLA., MISS., LA., CALIF., USA

[Rick Halperin]

May 8



TEXAS:

Even in tough-on-crime Texas, death penalty convictions decline -- Have Texans 
lost their taste for capital punishment?



Polls still show strong support, but what's happening in Texas courthouses 
tells a different story.

I was struck by recent news accounts of a local murder trial. I remembered the 
crime well. Jacob Galen Everett, 22, was convicted of entering a Red Wing shoe 
store in Arlington, directing clerk Randy Pacheco to the back room and shooting 
him once between the eyes.

Robbery was the motive, and the evidence showed that Everett got away with 
$200.

A few years ago, that would have been a certain death penalty case -- a 
cold-blooded murder committed in the course of a robbery.

Instead, prosecutors sought life without parole and jurors went along.

I'm sure Texas still prides itself as a law-and-order state, but our 
hang-'em-high reputation may be in jeopardy.

"There is no doubt about it. We're seeing a reduction in the use of the death 
penalty in Texas," said Kathryn Kase, executive director of Texas Defender 
Service. That's a nonprofit that assists in death penalty defenses and 
advocates for fair trial policies.

"We have a reduction in death penalty cases going to trial, and we have a 
reduction in death verdicts," she said.

In 1999, Texas courts sent 39 people to death row. Last year, it was 11. And so 
far this year, none.

"Here it is May, and we have had only 2 death penalty cases in Texas," Kase 
said. "And in both, the jury chose life without parole instead. That strikes me 
as really significant."

A decline is also evident in the number of executions being carried out.

Yes, Texas still led the nation in executions last year, but it was with an 
asterisk. For the 1st time in decades, Texas shared that distinction. We tied 
with Missouri.

Both states executed 10 people. Florida was close behind with 8.

And those numbers reflected a downward trend in executions -- both in Texas and 
the other 31 states with the death penalty. Executions in Texas peaked at 40 in 
the year 2000.

Have we gone soft?

Not likely. It's a combination of several things.

On a most basic level, it's simply cost. Many counties just can't afford the 
expense of a death penalty case and its appeals, which can easily exceed $1 
million.

More important, Kase said, is eroding public confidence that our court system 
always gets it right.

"The innocence cases made possible through DNA testing have caused both jurors 
and prosecutors to think twice before sentencing someone to death," she said.

About the same time those doubts were growing, the Texas Legislature gave 
prosecutors and jurors a new tool -- the punishment option of life without 
parole.

"For jurors and prosecutors, life without parole works very well. If we 
discover later that a mistake was made, we can go back and get them. You can't 
dig them up after an execution," Kase said.

Other factors also come into play. Slowly, Texas has improved the legal 
representation for death penalty defendants. No more appointed defense lawyers 
dozing through trials.

Difficulty obtaining lethal-injection drugs has delayed some executions. And 
the back-up plans states are developing -- asphyxiation in Oklahoma, firing 
squad in Utah, electric chair in Tennessee -- don't win new friends for capital 
punishment.

The fact that we've also enjoyed a sustained period of falling crime rates also 
takes pressure off politicians to campaign on get-tough policies.

Harris County alone used to send more people to death row than any other whole 
state except Texas. That number has fallen off dramatically in recent years -- 
behind Dallas County, in fact, under former Dallas County District Attorney 
Craig Watkins.

Politically, I'd say don't look for Texas to abolish the death penalty. 
Practically, it's already happening.

(source: Dallas Morning News)








NORTH CAROLINA:

North Carolina bill pushes to execute inmates without doctors; In an effort to 
revive the death penalty, lawmakers want to allow nurses, physician assistants 
and other healthcare workers to oversee lethal injections



Marc Katz could perform an execution. The North Carolina physician assistant, 
who has practiced medicine since 1979, currently works with patients at an ear, 
nose and throat practice. He says many people in his profession, not just 
doctors, have the ability to administer lethal injection drugs to death row 
inmates. Whether they would choose to do so is a different question.

"It's not anything real technical," says Katz. "It's just finding a vein and 
just putting medicine in it."

North Carolina currently has 149 people on death row, but carried out its last 
execution in August 2006. Since then, North Carolina doctors have refused to 
work with the state's corrections department to carry out executions even 
though the death penalty remains legal. Under a proposed law, conservative 
state lawmakers are hoping to break through that stalemate by letting physician 
assistants, nurses, emergency medical technicians, and other healthcare workers 
oversee executions. But those elected officials face another set of challenges 
including opposition from the professional organizations representing the 
workers impacted in the bill.

In an effort to revive the death penalty, Republican state representative N Leo 
Daughtry has pushed a measure that would no longer require doctors to be 
present during executions. Instead of a doctor, nurses, physician assistants, 
or emergency medical technicians could oversee the death penalty. The bill 
would also keep secret the identities of medical professionals assisting in 
executions.

The North Carolina House of Representatives on 29 April voted 84-33 in favor of 
the legislation. Daughtry, who did not respond to the Guardian's request for 
comment, said the measure would allow North Carolina to move past the current 
impediments getting in the way of the death penalty.

"The fact that doctors are not willing to be there for the execution has caused 
a real stumbling block for us," Daughtry told WRAL-TV.

Democratic state representative Graig Meyer, who voted against the bill, says 
the measure provides an unnecessary workaround to a "de facto moratorium" 
caused by the state's flawed policy. He says doctors have refused to 
participate in executions due to their professional ethical codes that require 
them to preserve life when possible.

Meyer, who unsuccessfully added an amendment to the bill to repeal the death 
penalty, says executions violate the constitutional rights of the inmates 
currently spending their days on North Carolina's death row. Given the current 
US supreme court case looking at lethal injections, he says state lawmakers 
should not be moving forward to bring back the death penalty.

"The timing is interesting," Meyer says. "We debated this bill on the same day 
the US supreme court had their arguments. I question why the majority would 
want to take such a controversial issue when it's being played out at a much 
higher level on a much bigger stage nationally."

In other states were lethal injection remains legal, nurses and physician 
assistants face similar restrictions from their fields' ethical codes and the 
professional organizations enforcing those guidelines. To avoid that scrutiny, 
states such as Arizona and Georgia have enacted laws to conceal the identities 
of people assisting executioners with the death penalty. Hiding the medical 
team's experience levels has its costs: a paramedic who participated in the 
botched execution of Oklahoma inmate Clayton Lockett helped turned what's 
supposed to be a painless procedure into a slow, harrowing death described by 1 
witness as "torture".

In 2006, the North Carolina medical board revised its policies to take 
disciplinary actions against licensed doctors conducting executions. One year 
later, a state judge overruled the board in determining it could not sanction 
doctors for helping to carry out the death penalty. Though free from sanctions, 
physicians have continued to not work with the state's corrections department.

Katz, president of the North Carolina Academy of Physician Assistants, says 
turning to other medical professionals for executions might lead to similar 
results. Physician assistants also receive licenses from the North Carolina 
medical board. To obtain a license, he says physician assistants must outline 
their "scope of practice" defining their roles alongside their respective 
doctors, including the basics such as physical exams and more specialized 
procedures.

Participation in an execution would ultimately require the approval of a doctor 
agreeing to share responsibility. Katz says that's a probable nonstarter given 
doctors' opposition to executions over the past decade.

"If a physician isn't going to want to do it himself, why would he have you do 
that since he's overseeing you in your actions?" Katz says.

Although the NCMB couldn't issue a sanction, he says physician assistants 
helping out with executions could still lose NCAPA certification, which would 
hurt their future job prospects in the state.

In a prepared statement, the North Carolina Nurses Association's board of 
directors says the organization stands behind the American Nurses Association's 
policies in opposition to the death penalty. According to ANA guidelines, nurse 
participation in any part of the execution process runs contrary to the 
"fundamental goals and ethical traditions" of the profession.

"NCNA continues to believe that participation in executions should not be a 
required component of any nurse's job description and he/she should be able to 
object for ethical reasons without retribution or loss of employment," the 
board of director says. The legislation still requires approval from the North 
Carolina Senate followed by Governor Pat McCrory's signature. Representatives 
for both NCAPA and NCNA said their groups intend to lobby state lawmakers about 
the proposal in hopes of stopping its passage.

Even if it becomes law, David Weiss, a staff attorney with the Center for Death 
Penalty Litigation, doesn't think the policy will bring back executions across 
the state due to multiple lawsuits seeking to protect inmates' constitutional 
rights. He also says recent exonerations - including Joseph Sledge in January - 
and additional evidence of racial injustices on death row have further 
strengthened calls to end the death penalty.

But the hardest part might not be passing the law. It could be convincing 
people like Katz to put down his otoscope to place a needle into an inmate's 
arm prior to his death. Partaking in that process, Katz says, runs contrary to 
the work he's performed for the past 36 years. He's not alone in that regard.

(source: The Guardian)








FLORIDA:

Supreme Court hears concerns about lawyers in Jacksonville woman's death row 
case



When Tiffany Cole was on trial for the murders of Carol and Reggie Sumner, her 
lawyers argued she was an intelligent and good person who fell in with some bad 
men who were really responsible for the Sumners' death.

That argument didn't work, and Cole, 33, is now on death row.

It is now up to the Florida Supreme Court to determine whether Cole's trial 
lawyers were unprepared or incompetent in how they defended her or whether they 
engaged in a sound trial strategy that just didn't work.

Her appellate lawyer, Wayne Henderson, argued Thursday that attorneys Quentin 
Till and Gregory Messore were unprepared for Cole's trial during oral arguments 
in Tallahassee.

Till, who watched the oral arguments online from Jacksonville, told the 
Times-Union that his defense strategy was sound.

"I was prepared," Till said. "If I hadn't been prepared, I would have asked for 
a continuance."

Cole was 1 of 4 people who kidnapped Carol and Reggie Sumner, both 61, from 
their Jacksonville home in 2005 and drove them to Charlton County, Ga., where 
they were buried alive.

Cole was convicted of 2 counts of 1st-degree murder, armed robbery and 
kidnapping. A jury recommended death by a 9-3 vote and Circuit Judge Michael 
Weatherby concurred.

Michael James Jackson, 27, the mastermind of the murder plot, and Cole's 
boyfriend, Alan Lyndell Wade, 27, also are on death row. A 4th participant, 
27-year-old Bruce Nixon, testified against the others and was sentenced to 45 
years in prison for 2nd-degree murder.

Henderson is asking the Supreme Court to throw out Cole's conviction and grant 
her a new trial, or at least throw out her death penalty even if the conviction 
is upheld.

He said Till expected to reach a plea deal and wasn't prepared when Cole 
rejected the state's offer.

The trial lawyers also made a mistake by arguing that Cole was an intelligent 
person who was manipulated by the other defendants when in reality she had 
below-average intellect, a serious drug addiction and had both sold drugs and 
been a prostitute.

Had jurors known about her issues, they might have been reluctant to recommend 
Cole be sentenced to death, Henderson said.

The Supreme Court already denied 1 appeal for Cole. In the 1st appeal, usually 
called a direct appeal, lawyers could only raise issues where there was an 
objection during the original criminal trial. They can expand into things the 
trial lawyers failed to do.

Justice Barbara Pariente said she was surprised to learn about Cole's issues 
because she thought from the 1st appeal that Cole was a well-adjusted person.

"The impression we got from the direct appeal is that this is a woman who comes 
from a good background," Pariente said. "I'm very concerned that this 
defendant's attorney put forth a picture of this woman that wasn't really 
true."

Assistant Deputy Attorney General Carolyn Snurkowski agreed that defense 
attorneys sanitized Cole's life, but argued that was a sound legal strategy.

"They talked about how she took care of her father," Snurkowski said. "They 
didn't talk about her drug use and prostitution."

But Till has handled about 75 capital murder cases and knew what he was doing, 
she said.

Till, who was a private lawyer at the time of the case but is now an assistant 
public defender in Jacksonville, said he stands by his strategy.

Talking about Cole's drug use and prostitution would not have helped her in 
front of a jury, and it might have made the jury dislike her more, Till said.

Till confirmed that he tried to get Cole to take a plea similar to the one that 
Nixon got, but she was unwilling to do so.

Cole didn't believe she was guilty of 1st-degree murder because she didn't 
personally kill the Sumners. But under Florida law someone who participates in 
a crime can be found equally culpable for a murder even if they didn't pull the 
trigger or directly cause the death.

Messore could not be reached for comment.

Cole was the only 1 of the 4 who knew the Sumners. At one point the couple were 
friends and neighbors with Cole's father in South Carolina, and they had sold a 
car to Cole and told her she was welcome at their house if she was ever in 
Jacksonville.

The plan to rob and murder the Sumners evolved from knowledge Cole had about 
the couple.

It is unclear how long it will take the Supreme Court to rule, but 
death-penalty appeals usually take months to decide after oral arguments.

(source: jacksonville.com)








MISSISSIPPI:

Man Sentenced To Death



The Mississippi Supreme Court has upheld the death penalty for a man convicted 
of capital murder by a Harrison County Jury.

Timothy Ronk was found guilty of capital murder and sentenced to death back in 
2010. The jury also found Ronk guilty of armed robbery.

In August of 2008, Ronk killed Michelle Craite, a 37 year old Biloxi woman and 
set her house on fire.

The autopsy of Craite's body revealed multiple stab wounds and severe burns.

Ronk and Craite had been in a relationship at the time of the murder.

Today, The Mississippi Supreme Court affirmed Ronk's conviction and death 
sentence by lethal injection.

(source: WXXV news)








LOUISIANA----new death sentence

Jury recommends death penalty for Lee Turner Jr.



A jury has recommended the death penalty for Lee Turner Jr. after being 
convicted of killing 2 auto parts store workers during a robbery.

Attorneys gave their closing arguments Friday morning in the penalty phase of 
the Lee Turner Jr. death penalty trial.

The same jury deciding his fate convicted the 25-year-old of 2 counts of 
1st-degree murder in the deaths of Edward Gurtner, 43, and Randy Chaney, 54, at 
the CarQuest Auto Parts on Airline Highway in 2011.

The prosecutor told the jury 2 people were killed that day, but "a murder was 
born" and a "murder" never dies. The family has to live with that every day.

The jurors had to reach a unanimous decision for Turner to get the death 
penalty.

(source: WAFB news)



CALIFORNIA:

Sentenced to death | 'Living the dream'; Ernesto Salgado Martinez is one of the 
most dangerous prisoners in Riverside County. And he doesn't have to be here.

20 years ago, 40 police officers surrounded a trailer in Indio with their guns 
drawn. They had chased a cop killer for 300 miles, and now - after tracking his 
bloody trail through 2 states - they finally had him cornered.

"I'm not coming out," shouted Ernesto Salgado Martinez. He was only 19, but 
already a hardened criminal, prepared to die. "You will have to come in and 
shoot me."

It was Aug. 16, 1995. Over the prior 48 hours, Martinez had gunned down a 
policeman in Arizona and killed a storekeeper in Blythe, police said. Martinez 
had then fled to Indio, where an officer chased him into a mobile home with a 
barred door and barricaded windows. Police swarmed the scene, rushing in from 
beyond the state line to help end the manhunt.

4 hours crept by. The summer sun set, blanketing the standoff in darkness. 
Eventually, police decided it was time to break the stalemate. Officers 
prepared to launch tear gas into the house, then storm through the doors and 
windows. A negotiator blasted a bullhorn, offering one last chance for 
surrender.

At that last moment, Martinez gave up. He crawled out of a window, shirtless, 
with his hands in the air. Police surrounded him in a tight circle, demanding 
that he lie on his stomach. Martinez dropped to the dirt, scowling as policemen 
forced him into handcuffs and hauled him off to jail.

Today, nearly 20 years later, Martinez is one of the most dangerous prisoners 
in Riverside County. He is a convicted killer with known ties to an Arizona 
prison gang. He has a long history of jailhouse attacks that date back to age 
15, when he put a juvenile hall employee in the hospital.

Martinez is also doomed to die. He was sentenced to death in Arizona, where he 
has awaited execution for the past 17 years. In fact, the only reason Martinez 
is in Riverside County - draining county funds and endangering prison guards - 
is because local prosecutors want to sentence him to death a 2nd time, in 
California.

"I'm housed here in Riverside," Martinez told a judge on April 17, during his 
most recent court hearing. "All is well. Living the dream."

Martinez, now 39, has spent more than 1/2 of his life behind bars, most of 
those years in isolation. He is vicious, reckless and impulsive -- easily 
mistaken for just another caged gang banger.

But that would be wrong.

Martinez scored 120 on an IQ test, a score higher than 90 percent of the 
population, according to court documents. In another psychological test, 
Martinez was shown to have elite "non-verbal, problem-solving skills" which 
make him craftier than almost everyone.

In recent years, Martinez has effectively served as his own lawyer, 
meticulously planning his defense. He is as formidable with a fountain pen as 
he is with a prison shank.

"He is incredibly dangerous because he is so bright," Riverside County District 
Attorney Mike Hestrin said. "I would like to get him out of our system and out 
of our jail. And one of the ways to do that is to get this case to trial as 
quickly as possible."

2 decades have passed since Martinez was arrested in Indio, but he has not yet 
gone to trial in the shooting of Randip Singh, the Blythe storekeeper.

For any normal inmate, it would be an injustice to sit in jail this long 
without a trial, but Martinez is far from normal. Martinez has no motivation to 
go to trial in Riverside County because - regardless of whether he is convicted 
or acquitted in California - when the trial is over, he will be sent back to 
death row in Arizona.

Martinez was sentenced to death in Arizona in 1998 for the murder of Bob 
Martin, a veteran officer of the highway patrol. 12 years later, in 2010, local 
prosecutors extradited Martinez back to Riverside County, pulling him off death 
row so he could be tried for the shooting in Blythe.

At the time, desert prosecutors underestimated Martinez, expecting that he 
would be quickly convicted in the local courts, then sent back to Arizona for 
execution. Instead, Martinez fired his public defender and became his own 
attorney. He has mounted a thorough defense, challenging prosecutors at every 
turn, despite having no formal legal training.

Today - 4 1/2 years after Martinez was extradited - the inmate is still 
prepping his courtroom arguments. No trial date has been set.

Riverside County has spent more than $230,000 to jail Martinez since he was 
extradited in 2010. In addition, Martinez's court case has demanded countless 
hours from prosecutors. In 2011, more county money was needlessly diverted to 
the case when Martinez tricked an Indio judge into appointing his mistress as 
his government-funded paralegal.

Extradition also brought Martinez's violence back to Riverside County.

In 2011, about a year after Martinez returned to California, the notoriously 
dangerous inmate attacked his cellmate, stabbing him 50 times with a shiv, 
according to court documents. A similar attack would not have happened in 
Arizona, where death row inmates have no contact with each other.

Since the stabbing, Martinez is confined to an isolated cell. Martinez has 
pleaded not guilty to the stabbing and is awaiting trial on these charges, too.

The decision to extradite Martinez has had at least 1 other unforeseeable 
consequence. As Martinez has prepared to defend himself in California, he has 
used his jailhouse legal resources to bolster his appeal in Arizona. Martinez 
was able to successfully argue his case to a federal court last year, 
ultimately lengthening his appeal process and delaying his death for at least 
several more years.

(source: Desert Sun)








USA:

Is Capital Punishment Near a 'Tipping Point'?----Robert Dunham, new head of the 
Death Penalty Information Center, takes over as execution debate intensifies.



Robert Dunham became executive director of the Death Penalty Information Center 
in March at a time of escalating debate among policy makers and the public over 
capital punishment.

The frequent exoneration of death row inmates based on DNA evidence, as well as 
the botched lethal injection executions of the last year, has raised new 
questions about the death penalty.

On April 29, the U.S. Supreme Court heard contentious arguments in Glossip v. 
Gross over Oklahoma's lethal-injection protocol.

"We may be at a tipping point in the history of the death penalty in the United 
States," said Dunham, formerly an assistant federal defender in the capital 
habeas unit in Harrisburg, Pennsylvania. "There is no better time to be here."

Founded in 1990, the Death Penalty Information Center tracks executions and 
death penalty trends and provides analysis that is critical of the 
administration of capital punishment.

The interview that follows was edited for length and clarity.

NLJ: What did you make of the Glossip arguments?

Dunham: Glossip presented a very narrow legal question - whether Oklahoma's use 
of a particular chemical (midazolam) as part of a particular 3-drug execution 
procedure constituted cruel and unusual punishment. It didn't present a 
watershed issue about the death penalty or even about the constitutionality of 
lethal injection itself.

And yet, some justices clearly regarded the case as an assault on the death 
penalty itself, with Justice [Samuel] Alito describing it as part of a 
"guerilla war" against the death penalty. The justices' perceptions that the 
death penalty is in crisis may be correct, but that crisis is not the product 
of any "guerilla war."

The First Amendment permits people who support or oppose the death penalty to 
advocate for their positions on this issue. Lawyers who represent death row 
inmates have an obligation to fight for their clients and raise issues that are 
present in their cases. Drug companies have a right to say that participation 
in executions is against their corporate missions and is bad business. Medical 
professional societies have the right to say that participating in executions 
is unethical and to urge their members not to participate. And, as much as some 
people may not like it, Europe has a right to declare the death penalty a human 
rights violation and to adopt export regulations prohibiting sales of products 
to prisons that will be used for executing inmates.

What drew you to this new job?

Well, first of all, I wasn't looking to change jobs. I enjoyed litigating 
capital cases and felt that I was making a difference, both for my clients and 
in terms of bringing attention to important issues in their cases. And I could 
have very happily continued to represent my death-row clients in Pennsylvania 
and continued to teach my death penalty class at Villanova law school.

But jobs like executive director of the Death Penalty Information Center don't 
come along very often. As a capital litigator, you address issues as they occur 
in the context of a particular trial and based upon the facts of a given case.

The cases may present issues of systemic concern, but your focus is always on 
the client first and the policy implications are secondary. You are making a 
difference, enforcing the Constitution. But you are making a difference one 
case at a time.

DPIC, on the other hand, has a national and international audience and its 
focus is all about policy. [Former executive director] Dick Dieter has done a 
tremendous job in building the organization and establishing DPIC's reputation 
as a trustworthy provider of accurate and up-to-date information about the 
death penalty. If you???ve got a question about the death penalty, where do you 
go? To our website.

What do you see as the state of capital punishment nationally?

The innocence revolution and developments in DNA and the forensic sciences have 
exposed more and more fundamental flaws in the administration of the death 
penalty and further undermined public confidence in the accuracy of death 
verdicts. Recent exonerations underscore persistent problems with race bias, 
shoddy legal representation and police or prosecutorial misconduct. Many more 
death-row inmates have their convictions or sentences reversed than are 
executed.

The death penalty isn't fair, doesn't work, doesn't deter crime, costs much 
more than other alternatives, and diverts resources from programs that might 
make a difference. The botched lethal injections and the extreme responses by 
some states - to reintroduce the firing squad or the electric chair, to 
experiment with the gas chamber, or to???make the execution process more 
secretive - makes the death penalty look more and more like just another 
example of a program that you can't trust the government to get right. And at 
the same time, the lethal-injection failures and the gruesome responses by the 
states have destroyed the myth that there is such as a thing as a peaceful, 
humane execution.

What do you think is the Supreme Court's mood toward the death penalty? Has it 
changed, and is it close to a watershed moment?

For the most part, I don't think the court chooses watershed moments. I think 
they find their way to the court. But the times feel as though we are 
approaching that kind of moment.

Could it be throwing out execution methods? It could be. Could it be a case 
like California's systemic inability to provide judicial review? Maybe. It 
could also be a new study showing race discrimination that asks the court to 
reconsider its???McCleskey [v. Kemp] decision or a new challenge to the 
arbitrariness of a particular state's death penalty based upon the cumulative 
effect of unfairnesses in that state's administration of the penalty.

But it is just as likely - and maybe even more likely - to be an as of yet 
unknown case that presents very compelling individual facts or presents 
outrageous conduct by state officials that becomes simply too much for the 
court to ignore. My sense is that this court isn't looking to take "the big 
step." Historically, it has decided only the issue in front of it on as limited 
grounds as possible. There is a solid bloc of the court -the moderate wing 
-that is consistently concerned about unfairness in the administration of the 
death penalty. There is another solid bloc - the conservative wing - that is 
consistently committed to deferring to the judgments of state authorities. That 
leaves many of the most critical decisions the court faces in the hands of 
Justice [Anthony] Kennedy, who seems more comfortable with much smaller steps.

So the moment may find the court, but I don't think the court is looking for 
it. That could change if the composition of the court changes - and it could 
change in either direction.

Relatedly, the public's view of the death penalty has clearly been affected by 
the spate of exonerations in recent years. Do you think the trend has also 
influenced the Supreme Court's thinking? I think the court can't help but be 
affected. In their intellectual disability and juvenile death penalty 
decisions, they listed the risk of wrongful conviction and execution from false 
confessions as one of the reasons why the death penalty should be prohibited.

The court has also taken some steps to try to reduce the likelihood that an 
innocent person will be executed because of a procedural technicality. A 
federal court doesn't get to look at the facts of a case and correct errors, 
even if they are obvious and severe errors that may have made the difference 
between life and death. As a result, many, many death-row inmates have been 
executed without federal review of critical issues in their case.

In response, the court has held that actual innocence overcomes a variety of 
procedural barriers to judicial review that the habeas corpus statute would 
have imposed in other cases. The definition of "innocence" is very limited, but 
it is there, and it reflects the justices' concern about convicting and 
executing innocent men and women.

I also think that most of the justices are concerned by the possibility that 
the defendant in an individual case might in fact be innocent. They are surely 
aware that after Justice [Antonin] Scalia singled out the [Henry] McCollum case 
in North Carolina as the type of offense for which the death penalty surely 
should be imposed, new evidence showed that McCollum didn't do it. He and his 
brother were exonerated by the North Carolina Innocence Commission and he was 
taken off death row and released last year.

Are you optimistic that the Supreme Court will abolish the death penalty 
anytime soon?

I think the history of the death penalty in the Supreme Court is a history of 
buyer's remorse. Justices who have voted in favor of the death penalty at 
critical moments in the history of the death penalty have later concluded that 
they had been wrong to do so.

So, take for example, McCleskey v. Kemp, a 5-4 opinion that will go down in 
history with Dred Scott and Plessy v. Ferguson as the worst racial-justice 
decisions of all time. McCleskey denies capital defendants the ability to prove 
race discrimination in their case with the same type of statistical evidence 
that is used to prove discrimination in housing or employment or education 
cases. Justice [Lewis] Powell casts the deciding vote in McCleskey and writes 
the opinion for the court. Then, after he retires, he says that this is the one 
decision in his career as a justice that he most regrets.

Justice [Harry] Blackmun votes with the majority in Gregg v. Georgia and Jurek 
v. Texas bringing back the death penalty in the United States. Then, over time, 
as he sees the intractable problems with capital cases, his views evolve, and 
he famously says he will no longer tinker with the machinery of death.

The same type of process occurred with Justice [John Paul] Stevens, who voted 
to reinstate the death penalty in the United States, and voted to uphold any 
number of death sentences, and then, in the course of time, his views changed. 
After he left the court, he announced that he now opposes the death penalty.

I also think that justices don't want to be accused of legislating from the 
bench - which they are every time they take any action against the death 
penalty. Because of this, they are reluctant to make the "big decision."

(source: National Law Journal)