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

[Rick Halperin]

July 9



TENNESSEE:

Court Case Over The Method for Executing Prisoners Is Underway


After more than a year of delays, a trial challenging Tennessee's method for 
executing prisoners has begun.

Steve Kissinger represents 33 death row inmates who say lethal injection is 
unconstitutional. In opening statements, Kissinger said the state's use of 
prison guards to inject the drug creates a substantial risk that it will be 
administered incorrectly and cause extreme pain.

Assistant Attorney General Scott Sutherland countered that the U.S. Supreme 
Court has said inmates aren't guaranteed a painless death. Sutherland says the 
execution method is cruel and unusual only if it involves things such as 
torture or the deliberate infliction of pain.

Tennessee has yet to carry out an execution using the questionable drug. But 
Sutherland says Texas, Ohio and Georgia have carried out more than 30 
successful and painless executions with the drug.

The lawsuit is one of several challenges to various execution protocols 
nationwide.

Capital punishment has existed in Tennessee off and on throughout its history, 
although the methods have changed. Prior to 1913, the method of execution was 
hanging and there are few records of those executed by this method. 
Electrocution became the method of execution in 1916 after a 2-year hiatus from 
the death penalty from 1913-1915. Then there was a period in the state when 
death row was empty. From 1972 until 1978, there were no offenders sentenced to 
death in Tennessee because of the U.S. Supreme Court declaring it 
unconstitutional. When the death penalty became legal in the state again in 
1978, those offenders sitting on death row from 1960 to 1978 had their 
sentenced commuted mostly to life.

In 1998, the state legislature added lethal injection giving those offenders 
committing their crimes before January 1, 1999 the choice of electrocution or 
lethal injection. Legislation enacted in March 2000 specifies lethal injection 
as the primary method of execution. Offenders who committed their offense and 
were sentenced to death prior to January 1, 1999 may request electrocution.

When capital punishment was reinstated in 1916, records were kept of those 
sentenced to death by the warden in an "official ledger" that accounted the 
name, crime, and the time of death of the 125 executed in Tennessee. From 1916 
to 1960, all executions took place at the Tennessee State Penitentiary located 
in Nashville. Tennessee's 1st execution in nearly 40 years took place April 19, 
2000 at Riverbend Maximum Security Institution where Robert Glen Coe was 
executed by lethal injection.

On February 1, 2007 Governor Bredesen issued an executive order directing the 
TDOC to review the manner in which the death penalty is administered. All 
executions were put on hold. On April 30, the department delivered revised 
death penalty protocols to Governor Bredesen. The moratorium was lifted on May 
2, 2007.

On September 12, 2007 Daryl Keith Holton became the 1st person to be executed 
by electrocution since 1960.

(source: WGNS news)






OKLAHOMA:

Oklahoma sets execution dates for inmates who lost Supreme Court case


An Oklahoma court on Wednesday set execution dates for 3 inmates who lost a 
battle to have the U.S. Supreme Court put their capital punishment on hold 
because of problems they claimed with the state's lethal injection mix.

The Oklahoma Court of Criminal Appeals set Sept. 16 for the execution of 
Richard Glossip, Oct. 7 for Benjamin Cole and Oct. 28 for John Grant, a court 
clerk said.

Glossip arranged for his employer to be beaten to death. Cole killed his 
9-month-old daughter. Grant stabbed a correctional worker to death.

The attorney general had asked the court to resume executions as soon as 
August.

The state suspended all executions after the troubled April 2014 lethal 
injection of convicted murderer Clayton Lockett.

He could be seen twisting on the gurney after death chamber staff failed to 
place the intravenous line properly. The execution was called off but he died 
about 45 minutes after it started because of lethal injection chemicals that 
had accumulated in his tissue.

Lawyers for the 3 inmates facing execution argued that a drug in the state's 
lethal injection mix, a sedative named midazolam, cannot achieve the level of 
unconsciousness required for surgery, making it unsuitable for executions.

On June 29, the Supreme Court found the drug did not violate the U.S. 
Constitution's ban on cruel and unusual punishment, a ruling that provoked a 
caustic debate among the justices about the death penalty in America.

Florida, which has used the drug in 11 lethal injections, had placed a hold on 
executions while the case was before the court. It plans to resume executions 
soon.

The drug is also used in Ohio and Arizona, which do not have any executions 
currently planned for the rest of the year, according to the Death Penalty 
Information Center, which monitors U.S. capital punishment.

(source: Reuters)






WYOMING:

State judge moves on Eaton death penalty issues

A Wyoming judge is considering appointing lawyers to represent inmate Dale 
Wayne Eaton in a possible new death penalty hearing even as a federal judge 
considers whether the state has forfeited standing to seek to execute him.

U.S. District Judge Alan B. Johnson of Cheyenne last fall overturned Eaton's 
death sentence in the 1988 slaying of 18-year-old Lisa Marie Kimmell of 
Billings, Montana. Johnson ruled Eaton didn't receive an adequate defense.

Johnson is considering whether the state may again seek to execute Eaton even 
though the state failed to follow Johnson's order last fall to appoint new 
attorneys within 120 days.

District Judge Daniel L. Forgey of Casper held a hearing Monday on a request 
from Casper District Attorney Michael Blonigen to appoint lawyers for Eaton. 
Forgey didn't rule immediately.

(source: Associated Press)






CALIFORNIA:

3 Men Ordered to Stand Trial for Berkeley Murder in December----2 San Leandro 
men and a Hayward man are scheduled to return to court on July 20 to have a 
trial date set.


A judge has ruled that prosecutors produced sufficient evidence to have 3 men 
stand trial on murder charges for the shooting death of a Pinole man in 
Berkeley in December during a marijuana deal that went wrong. Alameda County 
Superior Court Judge Thomas Reardon made his ruling on Monday at the end of a 
lengthy preliminary hearing for 18-year-old Khalil Phanor of San Leandro, Carl 
Young, 20, of San Leandro, and Gregory Foote, 19, of Hayward, for the fatal 
shooting of 36-year-old Kamahl Middleton in a parking lot near San Pablo and 
University avenues at about 9:45 p.m. on Dec. 29.

In addition to murder, the 3 men will stand trial on robbery and assault with a 
firearm charges as well as the special circumstance of committing a murder 
during the course of a robbery, which carries a potential penalty of death or 
life in prison without parole. The assault charge stems from a gunshot that 
wounded Middleton's fiancee, Rebekah Cleberg, who was with him during the 
incident.

Prosecutors allege that Young set up the botched marijuana deal, Phanor was the 
gunman and Foote was the driver. Cleberg was the prosecution's key witness in 
the hearing, which began on May 27 and spanned parts of 5 days, because she 
identified Phanor and Young but defense lawyers questioned her reliability.

Cleberg said she and Middleton had a license to grow medical marijuana at their 
residence in Pinole and agreed to sell marijuana to a man who called them to 
respond to an ad they had placed on Craigslist about selling to qualified 
medical marijuana patients. The buyer, who she identified as Young, agreed to 
pay $3,200 to buy 1 1/2 pounds of a strain of medical marijuana called "Girl 
Scout Cookies," Cleberg said.

Berkeley was chosen as the place to consummate the deal because it was halfway 
between the Pinole residence where she and Middleton lived and the buyer's home 
in San Leandro, Cleberg said. She and Middleton only expected to meet with the 
buyer and his girlfriend and were surprised when the buyer showed up with 3 
other males, she said.

Cleberg said they felt reassured when a man whose face matched the photo ID of 
the prospective buyer approached their car. But she said the man, who she 
identified as Young, then asked to look at some of the marijuana and later 
tried to take a bag of marijuana. Cleberg said she and Middleton struggled with 
Young and then a man she identified as Phanor stuck his head into their car, 
said, "This is a stickup" and fired a single shot that struck Middleton and 
her.

A 17-year-old suspect was also arrested in connection with the shooting but 
he's being prosecuted separately in juvenile court. Phanor, Young and Foote are 
scheduled to return to court on July 20 to have a trial date set.

(source: Bay City News)





USA:

Does Recent Ruling Suggest the Eventual Demise of the Death Penalty?


There doesn't seem to be an endeavor more conducive to someone reversing their 
thinking on capital punishment than spending 2 decades on the United States 
Supreme Court. In a recent ruling regarding the use of a controversial sedative 
during lethal injections, 2 justices called into question whether it is at all 
possible to employ the death penalty in a constitutional manner.

Justices Breyer and Ginsburg, who have served 22 and 21 years, respectively, 
each dissented with the court's 5-4 ruling in Glossip v. Gross (a case that 
challenged the use of a controversial sedative used in lethal injections) on 
the grounds that they found it unlikely that the death penalty, in any form or 
by any method, could be employed without running afoul of the 8th Amendment's 
prohibition on cruel and unusual punishment.

Breyer and Ginsburg follow former Justices Harry Blackmun and John Paul 
Stevens, who converted to that way of thinking after 23 and 24 years, 
respectively, on the bench. Justice Lewis Powell reached the same conclusion 
during his retirement, even though he twice ruled in favor capital punishment 
in landmark SCOTUS cases. Former Justice Sandra Day O'Connor also came to 
question its implementation in retirement, while Chief Justice Thurgood 
Marshall and Justice William J. Brennan were opposed to it throughout their 
careers, largely for the same reason.

This raises the very interesting question as to why so many Supreme Court 
Justices (even conservative ones appointed by Republican Presidents) are 
informed by their experience on the court to convert to opposing the death 
penalty, while there is not a single example of a Supreme Court Justice who was 
against capital punishment when appointed to the bench but was then informed by 
their experiences on the court to become a supporter of the practice.

Because of the 1976 ruling in Gregg v. Georgia, which reaffirmed the death 
penalty after a 4-year hiatus via the 1972 ruling in Furman v. Georgia, it 
would seem that an act of Congress would be required to end the death penalty. 
As Justice Scalia put it writing for the court in this case, "not once in the 
history of the American Republic has this Court ever suggested the death 
penalty is categorically impermissible. The reason is obvious: It is impossible 
to hold unconstitutional that which the Constitution explicitly contemplates." 
Justice Scalia is referring to the 5th Amendment's due process clause, which 
states that "No person shall be held to answer for a capital, or otherwise 
infamous crime ..... nor be deprived of life, liberty, or property, without due 
process of law ..."

The decision in the '72 Furman case was based on the argument that 
implementation was not being achieved in a constitutional manner, largely 
because of racial discrepancies, which the court ruled to have been cured in 
Gregg, though there's not much evidence that that's the case. That being said, 
the door seems to be open only to argue that a particular method of execution 
is unconstitutional, though previous decisions have ruled that such challenges 
must provide for a feasible and better alternative, even if they do 
successfully argue the 1st part.

Recently, the court voted not to even hear a case challenging the judicial 
oversight in Alabama, where elected judges can actually refuse a jury's life in 
prison sentence and instead impose the death penalty (Alabama sentences more 
people to death per capita than any other state and is also the only state in 
the country without a state-funded program to provide legal assistance to death 
row prisoners).

Nonetheless, the increasingly popular and exceedingly rational opinion of even 
a minority of members on our highest court espouses that the question is not 
really one of moral imperative but of practicality, and that the potential for 
constitutional implementation under any circumstances is unlikely to end 
capital punishment through a SCOTUS ruling. But it could influence public 
opinion, and public opinion can and does influence political outcomes.

While reading To Kill a Mockingbird together this summer, which involves a 
capital trial and is coincidentally set in Alabama, my 11 year-old son asked 
whether I believe the death penalty should be used in our society. I gave him 
my standard answer. I agree, in theory, that there are crimes that warrant 
capital punishment. My experiences have, however, informed my opinion in such a 
way that I have come to believe that we are incapable of effectively, 
impartially and/or equitably enforcing the death penalty.

First, there is simply too much evidence that the criminal justice system gets 
it wrong. This was demonstrated to an utterly shocking degree in the advent of 
DNA testing, most notably through the Innocence Project. Additionally, we 
should consider the many more instances in which decisions have been overturned 
in cases where the person had been convicted of a capital crime and the death 
penalty wasn???t sought, meaning they could have very easily been executed for 
a crime they hadn't committed.

The implementation of the death penalty is also heavily skewed toward the poor 
and racial minorities, who are sentenced to death at a much higher rate. Of 
course, this is often related to their inability to afford expensive legal 
defense teams. Even among minorities and the poor, there often seems to be 
little rhyme or reason as to when the death penalty is sought. It seems 
counterintuitive that a punishment so severe and permanent would be so randomly 
opposed, leading to such very different outcomes even among very similar cases. 
Justice Breyer once spoke to this element of its implementation, writing that 
capital punishment is cruel and unusual in the same way that getting struck by 
lightning is.

Then there is the glacial pace of the process. Since the death penalty was 
reinstated in 1976, over 1,300 Americans have been put to death, but that 
represents only about 16 % of those who were under death sentences during that 
time. Because most of the sentences are commuted to life, overturned, or the 
inmates die of natural causes before their execution, the enormous financial 
cost of the process should be considered. The average length of time that a 
prisoner sits on death row before an execution is 15 years, which, as Ginsberg 
has pointed out, also seems to contradict the intent of the punishment.

Supreme Court Justices are perhaps more aware of our system's imperfections 
than nearly anyone else in the land, and the effect that experience seems to so 
often have on their thoughts as to whether the United States should be in the 
business of executing its citizens should provoke serious conversation and 
debate among those empowered to reverse course.

(source: Dennis Maley, The Bradenton (Fla.) Times)

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

Prosecutor grills Colorado movie massacre trial defense expert


The lead prosecutor in Colorado's movie massacre trial attacked the testimony 
of the defense's star witness on Wednesday, challenging her diagnosis that the 
gunman, James Holmes, suffers schizophrenia and could not tell right from 
wrong.

Holmes, 27, could face the death penalty if convicted of killing a dozen people 
and wounding 70 when he opened fire inside a packed midnight premiere of the 
Batman film "The Dark Knight Rises" at a Denver-area multiplex in July 2012.

The California native, who dropped out of a neuroscience graduate program at 
the University of Colorado after failing exams just weeks before the rampage, 
has pleaded not guilty by reason of insanity.

Testifying for the defense, Raquel Gur, director of the University of 
Pennsylvania's Schizophrenia Research Center, told jurors on Tuesday she 
believes Holmes suffers from schizophrenia and was not in control of his 
actions.

A "severe defect" in the defendant's brain meant he could not distinguish right 
from wrong when he committed the crime, said Gur, who once examined Unabomber 
Ted Kaczynski and Arizona mass murderer Jared Loughner.

District Attorney George Brauchler picked over her testimony in detail, calling 
into question her note-taking and interview methodology, asking why she did not 
video record her 6 meetings with the defendant, and querying why it took her 
almost 2 years to meet with his parents.

2 court-appointed psychiatrists have testified Holmes was sane when he planned 
and carried out the attack.

The prosecutor also asked repeatedly why parts of Gur's account of her sessions 
with the gunman were not written down.

"My report does not include every word that I exchanged with Mr. Holmes," the 
psychiatrist responded.

"It was difficult to conduct the interview. It was important for me to obtain 
as much information as I could, and pay attention to him, and encourage him to 
talk more."

Brauchler said she referenced videos of the defendant acting oddly in custody 
but asked her if she saw others showing him trying to fashion a club from a 
handicap bar, attempting to slip out of his handcuffs, and trying to take the 
cover off an electrical wall outlet. Gur said she could not remember.

The cross-examination often got held up as Brauchler pushed her to give "yes" 
or "no" answers.

"I know you want me to answer with one word, but it's hard," she replied after 
one lengthy exchange.

(source: Reuters)

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

Aurora Gunman Legally Insane, Psychiatrist Says

A star witness for the defense in James E. Holmes's murder trial testified this 
week that Mr. Holmes was schizophrenic and legally insane in July 2012, when he 
opened fire in a crowded movie theater in the neighboring suburb of Aurora, 
killing 12 people and injuring 70.

The witness, Dr. Raquel Gur, was 1 of 4 psychiatrists who examined Mr. Holmes 
after the shootings, and her observations bolstered the defense's position that 
while Mr. Holmes was indeed the gunman, he met the legal standard for insanity 
at the time.

Dr. Gur, who began her testimony on Monday, explained that she had questioned 
Mr. Holmes for 28 hours over 6 days, starting in late 2012. "The severity and 
intensity of his psychosis," she said on Tuesday, "was so high, so severe, as 
to render him incapable of distinguishing between right and wrong."

It was crucial testimony in a trial that started on April 27 in the Arapahoe 
County courthouse in Centennial, Colo., a Denver suburb, and that could go to 
the jury next week. If jurors find Mr. Holmes insane, the state will send him 
to a psychiatric hospital. If they deem him sane, the trial will proceed to a 
sentencing phase, and he could face the death penalty.

So far, 2 court-appointed psychiatrists have said that Mr. Holmes was severely 
mentally ill during the shooting, but legally sane. A third, Dr. Jonathan 
Woodcock, was enlisted by Mr. Holmes's defense team and testified in late June 
that Mr. Holmes was insane. Prosecutors questioned that testimony vigorously, 
pointing out that Dr. Woodcock had made his determination before interviewing 
people like Mr. Holmes's parents or discussing the planning of the attack with 
Mr. Holmes.

Dr. Gur, a professor and researcher at the University of Pennsylvania, 
described Mr. Holmes as an exceptionally intelligent man whose self-esteem had 
plummeted as he obsessed over what he saw as his imperfections. He began to 
believe he could replenish his own worth only by killing others, Dr. Gur said.

She recalled asking him why he had not killed himself instead. "He said he 
couldn't," she said. "I told him, 'But you could kill others.' And he was a 
little bit shaken."

"I followed, 'How did you think other people will feel?'" Dr. Gur added. "He 
was like shocked that other people will have a reaction at all - that they 
would not want to die." But on Wednesday, the prosecution, led by George 
Brauchler, the Arapahoe County district attorney, questioned whether Dr. Gur's 
written reports accurately reflected Mr. Holmes's mental state in the days 
before and after the shooting.

"You'd agree with me that nowhere in this report of June of 2013 do you include 
any of the details of his activities in terms of working out on a regular 
basis, shopping for healthy food on a regular basis, continuing virtually 
uninterrupted in every other single activity that's documented in his life?" 
Mr. Brauchler asked.

Dr. Gur responded: "It's not in my report. Correct."

Dr. Gur did not record her interviews with Mr. Holmes, though she could have 
elected to do so.

"When you make that decision," Mr. Brauchler said, "you've made that decision 
not just for you, but you've made that decision for everybody who is going to 
review what you did in the case, correct?"

"Correct," Dr. Gur answered. "I thought that my verbal report, written notes 
obtained, and being under oath, I would portray accurately all the information 
that I've obtained during the interview."

Mr. Holmes had just quit a graduate neuroscience program when he opened fire in 
the movie theater, in one of the worst mass murders in the United States in 
recent years. The shooting left a trail of victims that included the 12 dead, 
their family members and others who were emotionally broken, physically injured 
or paralyzed by the event.

(source: New York Times)

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

Death penalty by geography


A story in Wednesday's New York Times described Dale Cox, acting district 
attorney in Caddo Parish, La., and his opinion that the death penalty is about 
revenge and that the state needs to "kill more people."

>From 2010 to 2014, more people per capita were sentenced to death in Caddo than 
in any other county in the United States.

"Retribution is a valid societal interest," Cox says. In 1 case last year, he 
wrote that the defendant "deserves as much physical suffering as it is humanly 
possible to endure before he dies."

Cox's opinions and practices run counter to the national trend in capital 
cases, in which prosecutors increasingly opt for sentences of life without 
parole instead of the death penalty and its lengthy and expensive appeals 
process.

Cox also illustrates the arbitrariness of the death penalty in the U.S., which 
Supreme Court Justice Stephen Breyer referred to last week in his dissenting 
opinion on a lethal injection case.

Breyer wrote that just 29 counties, less than 1 % of counties in the nation, 
accounted for 1/2 the death sentences from 2004 to 2009.

Geography and prosecutor personality should not determine how our justice 
system deals with crime, even heinous crime.

(source: Editorial, Fort Worth Star-Telegram)