[Deathpenalty] death penalty news----TEXAS, DEL., VA., GA., FLA., ALA., LA.

[Rick Halperin]

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)