[Deathpenalty] death penalty news----WYO., NEV., CALIF., USA

[Rick Halperin]

July 2



WYOMING:

A stay has been granted in Dale Wayne Eaton death penalty case


A stay in the Dale Wayne Eaton case was granted Tuesday by U. S. District Court 
Judge Alan B. Johnson. A sentencing hearing had been set, but the court ordered 
a stay to proceedings to pursue a reinstatement of the death penalty at this 
time.

Prosecution and defense were told to pursue further research and determine a 
timeline for the next sentencing hearing.

"The depreciating mental condition of Eaton and the aging of witnesses and 
evidence is what drives the court to order a stay on this case," said Johnson.

The judge will be briefed at a later date on whether or not the State has 
waived the right to pursue the death penalty and writ of habeas corpus that 
would make pursuing the death penalty in a new sentencing hearing not possible.

Eaton is housed in solitary confinement in Rawlins and suffers from dementia. 
It is to be determined whether or not his mental state will play a factor in 
future sentencing.

Eaton was convicted in Natrona County of the death of Lisa Kimmel, a college 
student from Montana. The case came be known as the "Lil Miss" case, as that 
was her personalized vehicle license plate. Kimmel's missing car was found 
buried on Eaton's property at Moneta and subsequent DNA testing linked the 
murder to Eaton.

His 1st death penalty sentence was overturned on a writ of Habeas Corpus 
claiming that his previous attorney failed to provide an adequate defense in 
the case. The fact that he had killed the 18-year-old, repeatedly raped her, 
killed her and tossed her body into the North Platte River was never disputed.

(source: county10.com)






NEVADA:

Bean 'intellectual disability' motion is denied


With the court last week issuing an order that murder defendant Jeremiah Diaz 
Bean was not intellectually disabled, as defense attorneys had argued in a 
motion, Bean's 1-month trial is still on to start on July 13.

Bean's trial on charges of the murder of 5 people - 4 in Fernley - in early May 
2013 and multiple other burglary, grand larceny, arson and other charges - is 
scheduled to run through Aug. 14.

Bean, who was 25 at the time of his arrest, is charged with killing 2 couples 
in 2 homes in Fernley and a newspaper deliveryman at an Interstate 80 exit east 
of Reno near the Mustang Ranch brothel, and overall 19 felony charges (10 1st 
degree murder charges).

The Third Judicial District Court clerk's office sent out 300 jury requests and 
that office estimated about 285 of those people called for jury duty would show 
up for the start of jury duty on July 13.

Juror selection has been scheduled for 3 days, with opening arguments possibly 
starting on the 3rd day.

2 prior trial dates have been set for Bean, with the prior date of June 2014 
postponed almost on the eve of the trial after Bean's attorneys, Richard 
Davies, a Reno attorney certified under Supreme Court rules to serve as 1st 
chair in a death penalty trial, and Kenneth Ward, a public defender for Lyon 
County, announced the intent to file a motion seeking an evaluation to declare 
the defendant intellectually disabled.

Under Nevada Revised Statutes 174.098, if Bean had been found intellectually 
disabled, the notice of intent to seek the death penalty would have been 
stricken, making him ineligible for the death penalty.

District Court Judge John Schlegelmilch, however, after a hearing on this issue 
April 30 and May 1, wrote in an order denying the motion dated June 24, "The 
Defendant has failed to meet his burden to establish that he is intellectually 
disabled and, as such, the State may move forward with pursuing the death 
penalty."

The district court previously found Bean competent to stand trial and help in 
his defense.

District Attorney Steve Rye, who is prosecuting the case with chief deputy 
district attorney Jeremy Reichenberg, still intends to seek the death penalty.

Last May Davies and Ward had filed for a stay of the trial set to start in June 
2014, largely due to a U.S. Supreme Court ruling, Atkins v. Virginia, which 
declared execution of mentally retarded individuals violated the Eighth 
Amendment's ban against cruel and unusual punishment.

That case prompted Nevada passing the law found in NRS 174.098.

In the motion, the defense wrote there were "serious legitimate concerns as to 
defendant Jeremiah Diaz Bean's intellectual abilities."

Bean was accused in 2013 of murdering Fernley residents Bob and Dorothy Pape, 
both 84, at their home on May 10; Angie Duff, 67, and Lester Lieber, 69, at a 
nearby home on May 13; and Eliazar Graham, 52, of Sparks, in Mustang, also on 
May 13. He also faces charges in relation to the theft of vehicles from the 
Papes and Graham, setting fire to the Pape home and other theft-related 
charges.

At one time in late 2013, Bean had signed a plea negotiation that would have 
dropped all but the murder charges and removed the death penalty as an option 
in return for a guilty plea. However, when it came time for him to plead in 
court, Bean pleaded not guilty instead and this ultimately led to removal of 
the first death-penalty-certified attorney and Davies' appointment.

Bean at that time invoked his right to a speedy trial. However, one request for 
a delay by Davies was granted, delaying an initial December 2013 trial date, 
but a 2nd request to delay the trial, then set in June 2014, was denied by the 
court as Bean rejected that request, still seeking a speedy trial. That was 
until the motion in late May 2014 asking for the evaluation and hearing 
regarding potential intellectual disability.

The judge's order regarding the intellectual disability issue in NRS 174.098, 
said that the defendant must prove by a preponderance of the evidence that he 
is intellectually disabled.

It then quotes the statute where it defines intellectual disability, saying 
Bean must show that he has "significant subaverage general intellectual 
functioning which exists concurrently with deficits in adaptive behavior and 
manifested during the development period."

Expert witnesses, one from the defense and one for the prosecution, testified 
at the hearing.

Dr. Richard Weihar, the defense's expert witness, "testified that the Defendant 
fit the technical definition of an intellectually disabled person."

Dr. Martha Mahaffey testified on behalf of the state that the defendant "did 
not fit the definition of an intellectually disabled person under NRS 
178.098(7) as the Defendant did not score within the extremely low range of 
intellectually functioning," leaving the judge to decide.

Mahaffey, who judged Bean to be "in the borderline to low average ranges of 
intelligence (IQ of 78-83)," and not meeting the 1st criteria for intellectual 
disability. She cited differences in IQ scores to attention and concentration, 
that perhaps she caught him on a better day or at a better time of day.

Schlegelmilch's order cited 11 conclusions of law, including that "the 
Defendant has failed to meet the 1st prong of intellectual disability 
[significant subaverage general intellectual functioning"] and the motion must 
be denied."

He also noted, "Any deficits in adaptive behavior do not exist concurrently 
with significant subaverage general intellectual functioning."

Lyon County District Attorney Steve Rye said of the decision, "We never 
believed that he was (intellectually disabled). We're happy the court ruled 
that way."

(source: Reno Gazette-Journal)






CALIFORNIA:

Prosecutors to seek death penalty against mother, boyfriend in torture, killing 
of her son


The Los Angeles County district attorney's office will seek the death penalty 
against a mother and her boyfriend, who are accused of torturing her 8-year-old 
son to death, prosecutors announced Wednesday.

Gabriel Fernandez died in May 2013. His mother, Pearl Fernandez, 31, and her 
boyfriend, Isauro Aguirre, 35, were indicted by a grand jury on a charge of 
murder and a special circumstance of torture.

Grand jury testimony revealed that Pearl Fernandez had called 911 after she and 
Aguirre allegedly beat Gabriel for not picking up his toys. After the beating, 
the boy went silent and stopped responding. When paramedics arrived, they found 
Gabriel naked in a bedroom, not breathing, with a cracked skull, 3 broken ribs 
and BB pellets embedded in his lung and groin. He died 2 days later.

"It was just like every inch of this child had been abused," testified James 
Cermak, a Los Angeles County Fire Department paramedic.

Fernandez and Aguirre have pleaded not guilty.

Gabriel's death sparked a larger probe into the county Department of Children 
and Family Services, which found that there was a long history of reports of 
abuse in the Fernandez home.

In the months before the boy was killed, several agencies had investigated 
allegations of abuse without removing him from the home.

(source: Los Angeles Times)

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

DA Wants Death Penalty In Slaying Of Fallbrook Family


The San Bernardino County District Attorney decided Monday to seek the death 
penalty against a man accused of murdering four members of the McStay family.

The San Bernardino County District Attorney's Office announced Monday that it 
would seek the death penalty against the man charged in the murders of 4 
members of the McStay family.

Charles Merritt was led out of the courtroom after his arraignment, where he 
pleaded not guilty in the slayings of the McStay family. Merritt was arrested a 
year ago.

The case has progressed relatively swiftly since then.

Defense attorneys didn't present evidence at a preliminary hearing earlier this 
month.

They also testified about suspicious activity in an online business bookkeeping 
account that included checks cashed by Merritt in the time period after the 
family was believed to have gone missing in 2010, a DNA match to the defendant 
on the steering wheel of the family's vehicle and cellphone tracking that put a 
phone used by Merritt in the vicinity of the desert burials.

Joseph McStay and Summer were identified through dental records.

Merritt has said he is innocent. "This is a serious crime and the people 
responsible for these heinous acts should be held accountable and should pay 
the ultimate price".

"We are confident Mr. Merritt will be acquitted and we are hopeful the actual 
perpetrators will be brought to justice", he said.

(source: belljarnews.com)






USA:

The End of the Death Penalty?----Recent Supreme Court opinions suggest there 
are 5 votes to abolish capital punishment.


On the surface, the Supreme Court's opinion in Glossip v. Gross appears to give 
death penalty proponents something to celebrate. After all, the court allowed 
states to continue to use the sedative midazolam as part of a multidrug formula 
for lethal injections, despite Justice Sonia Sotomayor's warning that such 
executions "may well be the chemical equivalent of being burned at the stake." 
But the bitterly divided 5-4 opinion has implications that extend far beyond 
the narrow question. This case may become an example of winning a battle while 
losing the war.

In a dissent, Justices Stephen Breyer and Ruth Bader Ginsburg concluded that it 
is "highly likely" that the death penalty violates the Eighth Amendment's 
prohibition on cruel and unusual punishments. While acknowledging that the 
Supreme Court settled the constitutionality of the death penalty 40 years ago, 
Breyer wrote that the "circumstances and the evidence of the death penalty???s 
application have changed radically since then."

They are not the 1st sitting justices to call capital punishment's 
constitutionality into question. Justices Thurgood Marshall and William Brennan 
routinely dissented from decisions upholding a death sentence on the grounds 
that capital punishment is always a cruel and unusual punishment. Shortly 
before his retirement, Justice Harry Blackmun famously wrote that he would "no 
longer tinker with the machinery of death." Justice John Paul Stevens similarly 
concluded that the death penalty is an excessive punishment.

But Glossip feels different. Breyer's dissent is more of an invitation than a 
manifesto. "Rather than try to patch up the death penalty's legal wounds one at 
a time," he wrote, "I would ask for full briefing on a more basic question: 
whether the death penalty violates the Constitution." It also feels different 
because it is no longer unthinkable that there are 5 votes for ending the death 
penalty.

Part of this plausibility stems from a political mood far more favorable to 
abolition than at any other point in the modern era. In the past few years, a 
number of states - Connecticut, Illinois, Maryland, New Jersey, New Mexico, New 
York, and Nebraska - have formally abandoned capital punishment. The governors 
of 4 other states - Colorado, Oregon, Pennsylvania, and Washington - have vowed 
not to execute anyone. And a number of states, including the 4 moratorium 
states and also places like Kansas, Montana, New Hampshire, and Wyoming, have 
performed 1 execution or fewer per decade over the past half-century. It is no 
surprise, then, that death sentences have reached historic lows nationally. The 
death penalty is disappearing even in the Deep South, as Louisiana, 
Mississippi, North Carolina, and South Carolina have seen major drops, such as 
70 % declines in new death sentences. Texas, a state that reached a high of 48 
death sentences in a single year, had no new death sentences in the 1st half of 
2015.

The Supreme Court's own struggle with capital cases further underscores this 
sense of plausibility. Justice Anthony Kennedy - who presumably would have the 
deciding vote on whether to abolish the death penalty - recently emphasized 
that the court's capital punishment jurisprudence law lacks a "unifying 
principle" and that it "has produced results not altogether satisfactory." The 
court has taken a piecemeal approach to try to ensure that the death penalty is 
reserved for the worst of the worst offenders. The reality, though, is that 
even after prohibiting the execution of juveniles, the intellectually disabled, 
and individuals who participated in a crime but did not do the killing, the 
court's approach is still, as Kennedy says, "not altogether satisfactory."

Kennedy finally articulated a vision of a fluid, sophisticated approach to 
gauging societal norms.

The most damning problem is the inability to guarantee the factual guilt of the 
people juries send to death row. Justice Antonin Scalia once underscored that 
lethal injection was an "enviable" death compared with that suffered by an 
"11-year old girl raped by 4 men and then killed by stuffing her panties down 
her throat." Last year, DNA evidence demonstrated that Henry Lee McCollum and 
Leon Brown, the 2 men sentenced to death for the crime Scalia used as his 
poster case for the death penalty, are innocent. Or consider the case of Paul 
House, an inmate sentenced to death who claimed that the scratches on his arm 
came from "tearing down a building, and from a cat" - not as the result of a 
struggle with the victim. Chief Justice John Roberts mockingly commented on 
House's version of events: "Scratches from a cat, indeed," he wrote. In 2009, 
DNA evidence exonerated Paul House.

Even among those who are guilty of an aggravated homicide, the Constitution 
limits the death penalty to those people "whose extreme culpability makes them 
the most deserving of execution." Thus, as Kennedy recently explained in Hall 
v. Florida, "to impose the harshest of punishments on an intellectually 
disabled person violates his or her inherent dignity as a human being." 
Similarly, in Roper v. Simmons, Kennedy reasoned that "the lesser culpability 
of the juvenile offender" renders persons younger than 18 categorically 
ineligible for execution. These categorical prohibitions have not guaranteed 
that only the most deserving offenders will be executed. In fact, most 
offenders who were recently executed possess signs of significant mental 
deficits. 2 examples from this year: Georgia executed Andrew Brannan, a 
bronze-star earning Vietnam veteran who developed severe post-traumatic stress 
disorder and had twice been hospitalized as a result of his bipolar disorder. 
Texas executed Robert Ladd, a man with an IQ score of 67 who could not prove to 
the satisfaction of the state courts that he was intellectually disabled.

Justice Breyer highlighted these flaws in his Glossip dissent. And he deemed 
them fatal: "The Court in effect delegated significant responsibility to the 
States to develop procedures that would protect against those constitutional 
problems," he wrote. "Almost 40 years of studies, surveys, and experience 
strongly indicate, however, that this effort has failed." In response, Scalia 
referred to Breyer's arguments as "surrealism." Justice Clarence Thomas 
described the idea that the Eighth Amendment prohibits arbitrary death 
sentencing as "imaginary." He then suggested to Breyer that if he wants to 
eliminate arbitrary outcomes, "the best solution is for the Court to stop 
making up Eighth Amendment claims in its ceaseless quest to end the death 
penalty through undemocratic means."

Justice Scalia wrote, "not once in the history of the American Republic has 
this Court ever suggested the death penalty is categorically impermissible." 
But the Supreme Court has affirmed time and time again that the prohibition on 
cruel and unusual punishments is drawn from society's current standards of 
decency as they have evolved over time.

As Kennedy wrote last week in the context of marriage equality:

The nature of injustice is that we may not always see it in our own times. The 
generations that wrote and ratified the Bill of Rights and the Fourteenth 
Amendment did not presume to know the extent of freedom in all of its 
dimensions, and so they entrusted to future generations a charter protecting 
the right of all persons to enjoy liberty as we learn its meaning. When new 
insight reveals discord between the Constitution's central protections and a 
received legal stricture, a claim to liberty must be addressed.

Kennedy has embraced a view of societal norms that is much more holistic than a 
simple exercise that counts state legislative decisions. For instance, in 
Graham v. Florida, the case in which the Supreme Court barred sentences of life 
without parole for nonhomicide juvenile offenders, Kennedy looked beyond the 
law on the books to see how the law was used in practice. Even though most 
states allowed the sentence, Kennedy found that sheer infrequency reflected a 
consensus against its use, as did the fact that sentences were concentrated in 
a handful of states. Most recently, in Hall v. Florida, Kennedy counted Oregon, 
a state that formally retains capital punishment, "on the abolitionist side of 
the ledger" because it "suspended the death penalty and executed only 2 
individuals in the past 40 years."

In Glossip, Breyer fine-tuned Kennedy's approach, looking not only at how 
infrequently states resort to the punishment but also at how "the number of 
active death penalty counties is small and getting smaller." (It might be 
particular personalities within counties as much as it is particular counties 
responsible for most death penalty sentences.)

It was Justice Kennedy, though, in Obergefell v. Hodges, the marriage case, who 
finally articulated a vision of a fluid and sophisticated approach to gauging 
societal norms:

There may be an initial inclination in these cases to proceed with caution - to 
await further legislation, litigation, and debate. The respondents warn there 
has been insufficient democratic discourse before deciding an issue so basic as 
the definition of marriage. ... Yet there has been far more deliberation than 
this argument acknowledges. There have been referenda, legislative debates, and 
grassroots campaigns, as well as countless studies, papers, books, and other 
popular and scholarly writings. There has been extensive litigation in state 
and federal courts. Judicial opinions addressing the issue have been informed 
by the contentions of parties and counsel, which, in turn, reflect the more 
general, societal discussion of same-sex marriage and its meaning that has 
occurred over the past decades.

After Kennedy's opinion in Obergefell, the flashlight is shining brightly on 
Kennedy's death penalty jurisprudence. His road map for considering the 
evolution of contemporary societal norms, coupled with Breyer's invitation to 
challenge the death penalty in its entirety, plausibly heralds the twilight of 
the death penalty in America.

(source: Robert J. Smith is an assistant professor of law at the University of 
North Carolina at Chapel Hill----slate.com)

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

Time for a death penalty debate?


It's always appropriate to talk about the state's most awesome power.

As soon as the Supreme Court's death penalty decision was issued this week, the 
calls started coming for Indiana to do away with capital punishment.

"So the question is, Hoosiers," wrote columnist Dave Bangert in Lafayette 
Courier & Journal, "should Indiana stick with this? ... There's no sympathy 
here for criminals who commit the most heinous crimes. But isn't the same 
purpose met - and at less expense, factoring in an appeals process that can 
take 2 decades to wind out - with life without parole?"

Bangert was reacting not so much to the 5-justice majority, which ruled that a 
new capital-punishment cocktail was permissible even though it had led to some 
botched executions and unintended agony for the recipients. He was moved by the 
4 justices who dissented, especially Stephen Breyer.

Is it time, Breyer asked, to reconsider whether capital punishment goes against 
the Eighth Amendment's protection against cruel and unusual punishment? He 
called out the death penalty for "fundamental constitutional defects: 1. 
Serious unreliability. 2. Arbitrariness in application. 3. Unconscionably long 
delays between sentencing and execution."

The death penalty may have a lot of defects, including some that Breyer 
complains about, but violating the Constitution isn't one of them.

The plain words of that document make clear that the Founders believed capital 
punishment appropriate under certain circumstances. And as Chief Justice Earl 
Warren wrote in 1958, "Whatever the arguments may be against capital 
punishment...the death penalty has been employed throughout our history, and, 
in a day when it is still widely accepted, it cannot be said to violate the 
constitutional concept of cruelty..."

But just because we can execute legally and constitutionally, that doesn't 
necessarily mean we should. As Warren also said, the Eighth Amendment "must 
draw its meaning from the evolving standards of decency that mark the progress 
of a maturing society."

And the fact is that the history of capital punishment has been a search for 
ever more humane ways of carrying out executions. This would not be a bad time 
in Indiana to consider the humanity of capital punishment itself. The usually 
reliable drugs used for executions are no longer available, which means we must 
either "pick our poison" and hope for the best or revert to methods perceived 
as less humane like the electric chair or the firing squad.

Capital punishment is the most awesome power the state has, so it is 
appropriate that it receive the most thoughtful deliberation.

(source: Editorial, News-Sentinel)

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

The Death Penalty Has an Innocence Problem - and Its Days Are Numbered


The demise of the death penalty is upon us. While the Supreme Court ruled this 
week to allow the continued use of a controversial lethal injection drug, 
Justice Stephen Breyer's sweeping dissent invited the nation to question 
capital punishment's constitutionality. If you have any doubt about the answer, 
just ask Henry McCollum or Paul House.

Henry McCollum was convicted and sentenced to death in North Carolina for the 
murder and rape of a young girl. Paul House was convicted and condemned by the 
state of Tennessee for raping and murdering a woman. Both men suffered from an 
all-too-common syndrome in death penalty cases: they were innocent. McCollum 
was exonerated in 2014, and the state dropped its charges against House in 
2009.

But in 1986, 2 years after McCollum was convicted and sentenced, Justice 
Antonin Scalia held him up in a separate Supreme Court decision as the kind of 
person who demonstrates the need for the death penalty. House was Justice John 
Roberts' choice in his attempt, joined by Justices Clarence Thomas and Scalia, 
to narrow the availability of an innocence exception to the death penalty.

Just as Justices Roberts, Thomas, and Scalia thought McCollum and House should 
be executed, the lower courts too often have condemned innocent people to die. 
No one should be killed because the government made a mistake, yet 154 people 
on death row have been exonerated since 1976. We know that this total, which 
climbs steadily every year, is much lower than the actual number of people on 
death row who are - or were - innocent. One study estimates that one in every 
25 defendantssentenced to death is innocent.

The death penalty's innocence problem is not lost on the American public. 
Support for the death penalty is at its lowest point in 30 years. A majority of 
Americans today prefer life without parole to the death penalty. Nebraska and 6 
other states have repealed the death penalty in recent years. The governors of 
Colorado, Oregon, Pennsylvania, and Washington have each suspended future 
executions indefinitely. As a country, we exercise the death penalty less and 
less - more evidence that we are moving away from capital punishment. Last 
year, nationwide, we had the lowest number of executions in twenty years (35) 
and the fewest new death sentences in 40 years (73).

As Justice Breyer noted, geography plays a huge role in who gets a death 
sentence and who gets life. A tiny fraction of U.S. counties - just 62 counties 
out of more than 3,000 nationwide - are responsible for sentencing the majority 
of people to death. The justice pointed to these stark statistics: 1/2 of all 
of the new death sentences from 2004 to 2009 came from less than 1% of the 
counties in the country, and all of the new death sentences in 2012 came from 
fewer than 2% of the counties in this country.

The death penalty is forever entwined with the history of lynching, and racial 
disparities continue to taint capital punishment. Many studies show that the 
race of the victim drives death penalty decisions - no surprise to the 
BlackLivesMatter movement. When the victims are white, prosecutors are far more 
likely to seek the death penalty, and juries are far more likely to return 
death sentences, than when the victims are African-American. Prosecutors 
routinely prevent black people from serving on capital juries.

Justice Breyer also notes that those facing death sentences typically receive 
poor legal representation, making death row more likely. The personal 
preferences of individual prosecutors can also heavily affect who lives and who 
dies. Together, as Justice Breyer and Ginsburg conclude, this evidence 
"strongly suggests that the death penalty is imposed arbitrarily."

The death penalty is not only applied unfairly, it doesn't even achieve its 
ostensible purpose: deterrence. After 30 years of research, there is no 
reliable evidence that executing people stops others from committing crimes. 
Justice Breyer summarizes this literature and then makes the common sense 
point: In our system, the death penalty is more likely to be overturned because 
of error and unfairness than carried out, and the alternative to the death 
penalty - life without parole - is severe, so why would we expect the threat of 
the death penalty to influence behavior?

In his dissent, Justice Breyer (joined by Justice Ruth Bader Ginsburg) issued 
an open invitation for cases that challenge the constitutionality of the death 
penalty. This is a demand that the supply can meet. Geographically arbitrary, 
racially biased, and contrary to American standards of decency, each new 
capital case follows a trail of injustice that will bring down the death 
penalty.

(source: Cassandra Stubbs is the Director of the ACLU Capital Punishment 
Project----aclunc.org)

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

Justice Alito Defends Lethal Injection Expert Who Did His Research on Drugs.com


On Monday, the Supreme Court voted 5-4 to uphold Oklahoma's use of midazolam, a 
controversial sedative that is used as part of its 3-drug lethal injection 
protocol.

The case, first brought by 4 condemned Oklahoma inmates, came after several 
high-profile botched executions in 2014 involving midazolam. The petitioners 
argued that the use of midazolam presented a "substantial, constitutionally 
unacceptable risk of pain and suffering."

As ProPublica has previously detailed, the doctor Oklahoma relied on as its 
expert witness had never given a patient anesthesia and based much of his 
research on drugs.com.

That witness, Roswell Lee Evans, ended up being a contentious part of the 
decision. Writing for the majority, Justice Samuel Alito repeatedly defended 
his testimony. In dissent, Justice Sonia Sotomayor questioned Evans' 
credibility. Here are the best bits.

Alito defended Evans' use of drugs.com.

Alito: Dr. Evans relied on multiple sources and his own expertise, and his 
testimony may not be disqualified simply because 1 source (drugs.com) warns 
that it "is not intended for medical advice" (pg 30)

However, Sotomayor viewed Evans' use of the consumer website differently. Not 
only did the website fail to support the most contentious parts of Evans' 
testimony - the information from the website may have even supported the 
petitioners??? arguments:

Sotomayor: [T]here were no statements from drugs.com that supported the 
critically disputed aspects of Dr. Evans' opinion. If anything, the Web site 
supported petitioners' contentions, as it expressly cautioned that midazolam 
"[s]hould not be used alone for maintenance of anesthesia." (pg 108)

Alito: Midazolam is not a pain reliever, but inmates will feel no pain.

Alito supported Evans' testimony that midazolam would keep inmates unconscious 
and unable to feel pain during an execution, even though Evans himself 
testified that the drug was not an analgesic:

Alito: Petitioners argue that midazolam is not powerful enough to keep a person 
insensate to pain after the administration of the 2nd and 3rd drugs, but Dr. 
Evans presented creditable testimony to the contrary. (pg 24)

However, Sotomayor emphasized that just because a supposed expert makes a claim 
does not mean that the claim is a fact:

Sotomayor: To be sure, as the Court observes, such scientific testimony may at 
times lie at the boundaries of federal courts' expertise. But just because a 
purported expert says something does not make it so. (pg 107)

Sotomayor compares lethal injection to being burned at the stake

In 1 of the more colorful passages of her dissent, Sotomayor compares the new 
court ruling to a former execution technique that would be considered torture 
today:

Sotomayor: [I]t leaves petitioners exposed to what may well be the chemical 
equivalent of being burned at the stake. (pg 98)

In the closing paragraph of the opinion, Alito directly responds to this 
medieval allusion, asserting that Sotomayor's words are but "outlandish 
rhetoric," further illustrating the supposed deficiencies of the dissenting 
argument:

Alito: Finally, we find it appropriate to respond to the principal dissent's 
groundless suggestion that our decision is tantamount to allowing prisoners to 
be "drawn and quartered, slowly tortured to death, or actually burned at the 
stake." That is simply not true, and the principal dissent's resort to this 
outlandish rhetoric reveals the weakness of its legal arguments. (pg 33) Alito: 
Death-row inmates should have suggested another way to die.

Alito affirms that one of primary reasons the use of midazolam was upheld was 
because the inmates challenging the drug did not suggest another execution 
method in its place:

Alito: [T]he prisoners failed to identify a known and available alternative 
method of execution that entails a lesser risk of pain (pg 5)

Sotomayor replied in her dissent, asserting that it is the state's 
responsibility to find a method that is not unusual or cruel should they want 
to execute someone:

Sotomayor: Certainly the condemned has no duty to devise or pick a 
constitutional instrument of his or her own death. (pg 124)

Breyer challenges lethal injection in its entirety. Scalia calls that 
"gobbledy-gook."

Rather than focusing on the minute legal details of majority opinion, Justice 
Stephen Breyer, writing in a separate dissent, challenges the legality of the 
death penalty:

Breyer: The circumstances and the evidence of the death penalty's application 
have changed radically since then. Given those changes, I believe that it is 
now time to reopen the question. (pg 52)

In a sneering rebuke, Justice Antonin Scalia ridicules his fellow justice, 
calling him out by name over 15 times, and concluding:

Scalia: Even accepting Justice Breyer's rewriting of the Eighth Amendment, his 
argument is full of internal contradictions and (it must be said) 
gobbledy-gook. (pg 35)

(source: Annie Waldman is a reporting and data intern. She recently graduated 
with honors from the dual masters program at Columbia's School of International 
and Public Affairs and the School of Journalism----truthout.org)

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

The death penalty has an innocence problem - and its days are numbered


The demise of the death penalty is upon us. While the Supreme Court ruled this 
week to allow the continued use of a controversial lethal injection drug, 
Justice Stephen Breyer's sweeping dissent invited the nation to question 
capital punishment's constitutionality. If you have any doubt about the answer, 
just ask Henry McCollum or Paul House.

Henry McCollum was convicted and sentenced to death in North Carolina for the 
murder and rape of a young girl. Paul House was convicted and condemned by the 
state of Tennessee for raping and murdering a woman. Both men suffered from an 
all-too-common syndrome in death penalty cases: they were innocent. McCollum 
was exonerated in 2014, and the state dropped its charges against House in 
2009.

"Both men suffered from an all-too-common syndrome in death penalty cases: they 
were innocent." -- Cassandra Stubbs, ACLU

But in 1986, 2 years after McCollum was convicted and sentenced, Justice 
Antonin Scalia held him up in a separate Supreme Court decision as the kind of 
person who demonstrates the need for the death penalty. House was Justice John 
Roberts' choice in his attempt, joined by Justices Clarence Thomas and Scalia, 
to narrow the availability of an innocence exception to the death penalty.

Just as Justices Roberts, Thomas, and Scalia thought McCollum and House should 
be executed, the lower courts too often have condemned innocent people to die. 
No one should be killed because the government made a mistake, yet 154 people 
on death row have been exonerated since 1976. We know that this total, which 
climbs steadily every year, is much lower than the actual number of people on 
death row who are - or were - innocent. One study estimates that one in every 
25 defendants sentenced to death is innocent.

The death penalty's innocence problem is not lost on the American public. 
Support for the death penalty is at its lowest point in 30 years. A majority of 
Americans today prefer life without parole to the death penalty. Nebraska and 6 
other states have repealed the death penalty in recent years. The governors of 
Colorado, Oregon, Pennsylvania, and Washington have each suspended future 
executions indefinitely. As a country, we exercise the death penalty less and 
less - more evidence that we are moving away from capital punishment. Last 
year, nationwide, we had the lowest number of executions in 20 years (35) and 
the fewest new death sentences in 40 years (73). As Justice Breyer noted, 
geography plays a huge role in who gets a death sentence and who gets life. A 
tiny fraction of U.S. counties - just 62 counties out of more than 3,000 
nationwide - are responsible for sentencing the majority of people to death. 
The justice pointed to these stark statistics: Half of all of the new death 
sentences from 2004 to 2009 came from less than 1% of the counties in the 
country, and all of the new death sentences in 2012 came from fewer than 2% of 
the counties in this country.

The death penalty is forever entwined with the history of lynching, and racial 
disparities continue to taint capital punishment. Many studies show that the 
race of the victim drives death penalty decisions - no surprise to the 
BlackLivesMatter movement. When the victims are white, prosecutors are far more 
likely to seek the death penalty, and juries are far more likely to return 
death sentences, than when the victims are African-American. Prosecutors 
routinely prevent black people from serving on capital juries.

Justice Breyer also notes that those facing death sentences typically receive 
poor legal representation, making death row more likely. The personal 
preferences of individual prosecutors can also heavily affect who lives and who 
dies. Together, as Justice Breyer and Ginsburg conclude, this evidence 
"strongly suggests that the death penalty is imposed arbitrarily."

The death penalty is not only applied unfairly, it doesn't even achieve its 
ostensible purpose: deterrence. After 30 years of research, there is no 
reliable evidence that executing people stops others from committing crimes. 
Justice Breyer summarizes this literature and then makes the common sense 
point: In our system, the death penalty is more likely to be overturned because 
of error and unfairness than carried out, and the alternative to the death 
penalty - life without parole - is severe, so why would we expect the threat of 
the death penalty to influence behavior?

In his dissent, Justice Breyer (joined by Justice Ruth Bader Ginsburg) issued 
an open invitation for cases that challenge the constitutionality of the death 
penalty. This is a demand that the supply can meet. Geographically arbitrary, 
racially biased, and contrary to American standards of decency, each new 
capital case follows a trail of injustice that will bring down the death 
penalty.

(source: Cassandra Stubbs is the director of the ACLU Capital Punishment 
Project. Her clients have included Levon "Bo" Jones, a North Carolina death row 
prisoner who was exonerated in 2008 when the state dismissed all charges 
against him, and Richard C. Taylor, a severely mentally ill man who was 
sentenced to death after a sham trial in Tennessee, but who won a new trial on 
appeal and was subsequently sentenced to life imprisonment----MSNBC)

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

>From Italy: The Death Penalty as Seen Within the Context of July 4th


July 4th is hardly noticeable as it approaches, here in the lush but quieter 
hills close to Lucca in Italy. It's nearly impossible, though, not to notice it 
in some way. A seafood restaurant owned by a new friend seems perfect as an 
outing for a few people close enough to us to get that the date has power, 
tradition, and that it resonates perhaps with layers of meaning.

This looking at things in America from far away tends to bring certain things 
into a clearer perspective, or at least one that looks different than it might 
look at home. And one of the issues that looks that way--somewhat different in 
other words--is the issue of the death penalty, in general and in relation to 
the massacre in South Carolina on June 17,2015. On the one hand it is clear 
from here, that not only does the European Union stand against the death 
penalty but that in addition it will not permit membership of countries who 
legalize it. As one note of contrast, by June 19th, South Carolina Governor 
Nikki Haley, was already calling for the death penalty to be used against 
Dylann Roof, the 21-year-old suspect in Charleston.

It is from Europe that America seems especially young, and young also even in 
its abolishing slavery, an institution was once a matter of national 
acceptance, at least on paper and in terms of Congress. The massacre in 
Charleston (I apologize for making this act of degradation sound like a good 
thing) seems to have struck a chord, permitted the beginnings of a broader and 
deeper discussion about race. I'm not sure if this is because the killings took 
place in a church and the gathering around the sense of sacred may have an 
impact on our national consciousness. I'm not sure either if the belief system 
of the congregants and families of the victims including the notion of mercy 
and human dignity in their prayers and statements is in fact also making an 
impact. Of course many factions are still quiet who no doubt will make 
divergent statements later on. There is, however, one exception to the talk of 
compassion that I for one find very striking and that has to do with capital 
punishment.

My own question, for July 4th, has more to do with our humanity and with how 
many of us see dignity not only as a right, but also something that we are 
obliged to protect. And in that case my question is whether we are ready to 
look at how much what and how we do things changes us, in some way or other. 
Freedom, says my own voice of the spiritual (okay, and sometimes preachy) 
agnostic, is also responsibility. We can't be free unless we are ready for 
truth, and complexity, unless in the famous words of Jack Nicholson's character 
in "A Few Good Men", we can "handle the truth". And okay again, perhaps it's 
not being ready but finding how we might get readier.

It's one way of seeing things, this one. It would include that we are obligated 
to include in our vision of things as much real information as is available to 
us. And this means that it isn't just our appetites that stand to get satisfied 
by killing a killer, in this one case (and no doubt in many others) but that 
our efforts to become better at being human get exercised.

We can't kill the killer in us by killing any other person, even if the thrill 
of the trigger and its being pulled as if by us can satisfy in some a thirst 
for revenge. Vengeance, as written about by the prolific and innovative 
psychiatrist Harold Searles, can really be an attempt to cover over anxieties 
about loss as well as actual grief. It can be exciting and even satisfying, but 
it is rarely enough. Even an act of justice doesn't bring back our loved ones 
from the dead, or turn back a history of terrible things. We live with 
vulnerability at best combined with enough resilience and supports to get 
through the darkest of times.

Although we may be limited in our ability to understand, whether it is the 
greed of those who would poison our air, and poison our food and our capacity 
to figure out who we might want to vote for without sensing the elections are 
being bought, there is still obviously a modicum of freedom around. I seem 
(unless I'm fooling myself, which is always possible) to be thinking right now, 
and whether or not lots of people read this right here, I am free enough to 
write it as well.

Never really good at prolonged cynicism, I've come to think of myself in mixed 
terms, as a timid outlaw, and as a reluctant optimist. Maybe this is what is 
moving me to consider how I really feel about July 4th. Is it a big weekend, a 
barbeque, or is it--particularly in another country where all the American 
flags ever made don't seem to be waving--something that even with ambivalence, 
rings in some personal way.

I can't pretend it has no meaning, and even with mixed feelings I can't pretend 
there aren't so many things that I cherish. I for one have embraced the idea of 
change as possible, even if so scary often enough. It's not that change isn't 
scary for me too; it's just that staying still has also felt like a kind of 
death, emotionally and intellectually. So I stretch, or I try at the very 
least.

Capital punishment, says the European Union, is both immoral and ineffective. 
They are right; it's been proven.

So the question: can we talk, within the field of race and beyond it about our 
tendency to reward our hatred and not to work it harder.

Maybe it's just human to think harder on anniversaries, it's after all a 
commemoration. Here's to it.

(source: Carol Smaldino Become, Psychotherapist; Huffington Post)