[Deathpenalty] death penalty news---S.C., NEB., CALIF., ORE., USA

[Rick Halperin]

June 22


SOUTH CAROLINA:

Dylann Roof and the Death Penalty: Does it Matter What the Charleston Victims' 
Families Want?----The case taps into America's debate over the death penalty.



If convicted of killing 9 people during a Bible study at Emanuel African 
Methodist Episcopal Church in Charleston, South Carolina, Dylann Roof would 
almost surely face the death penalty.

South Carolina's Republican governor, Nikki Haley, has called for it. One of 
Roof's uncles has said that he would "push the button" himself if Roof is found 
guilty. Even Joseph Riley, the Democratic mayor of Charleston who opposes the 
death penalty, has said he has "no doubt" that the death penalty will be 
sought. "If you're going to have a death penalty, then certainly this case 
would merit it," he said.

A number of factors add perhaps a sliver of doubt. In South Carolina and 
beyond, mounting questions about the fiscal cost and practical application of 
the death penalty have cut death penalty convictions - though it's difficult to 
imagine those concerns influencing such a visceral case.

Instead, perhaps most interesting in the Charleston case is the wishes of the 
victims' families themselves. Only 2 days after the shooting, relatives were 
telling Roof - via a live video link - that they forgave him.

In the past, such statements have been of limited value in court proceedings. 
As recently as the Boston Marathon bombing, a plea to drop the death penalty 
from the parents of the youngest victim killed went unheeded.

But as Roof faces mounting calls to be executed, it is possible that the 
greatest advocates for this life could be the loved ones of the very people he 
is charged with killing.

The case comes at a time when support for the death penalty nationwide is 
dropping. Though 56 % of Americans support the death penalty, that's down 22 % 
from 1996, according to the Pew Research Center.

The exoneration of convicts on death row has played a part in the dropping 
support, but other factors have been just as powerful - if not more so - in a 
drop in death penalty convictions pursued by prosecutors.

Like many states, South Carolina is having difficulty procuring the right drugs 
to carry out executions humanely. Attempts with other drugs appear to have 
caused intense pain for those being executed, with Ohio establishing a 
temporary moratorium. Nebraska went so far as to abolish the death penalty 
earlier this year.

Nebraska was also concerned about the cost of putting someone on death row. 
Death-penalty cases involve a disproportionate number of appeals. According to 
a study by Seattle University, a death penalty case can add $1 million to the 
tab.

In South Carolina, these issues have led to a steady decline in death penalty 
convictions during the past decade, with no one sentenced to death since 2010.

For example, in 2012, 1 prosecutor at first planned to seek the death penalty 
for a mother who killed her 2 children, but he changed his mind. "Once you file 
for the death penalty, the clock gets moving and the money, the taxpayers start 
paying for that trial," he said, according to the Death Penalty Information 
Center, an anti-death penalty website.

The circumstances of the crime in Charleston last week could very well outweigh 
these concerns. "We will absolutely want him to have the death penalty,??? 
Governor Haley told NBC's "Today" show.

But calls for the death penalty are raising the question of whether the wishes 
of the victims' families matter.

In Boston, they did not. The parents of 8-year-old Martin Richard, the youngest 
victim killed in the attack, made a plea in The Boston Globe that Dzhokhar 
Tsarnaev not receive the death penalty. They argued that a death penalty 
conviction - with all its appeals - would harm their ability to heal.

"We know that the government has its reasons for seeking the death penalty, but 
the continued pursuit of that punishment could bring years of appeals and 
prolong reliving the most painful day of our lives," they wrote.

The jurors (who were already sequestered when the article was published) 
sentenced Tsarnaev to death.

But in Charleston, victims' families have already begun making very public 
statements of forgiveness. And while the Richards refused even to write 
Tsarnaev's name, the victims' families in Charleston addressed Roof directly, 
arguing for mercy - not for themselves, but for Roof.

"We already forgive him for what he's done, and there's nothing but love from 
our side of the family," teenager Chris Singleton, whose mother was killed, 
told BBC News.

It's unclear whether these statements reflect any bias against the death 
penalty. But the Rev. Clementa Pinckney, the state senator who was leading the 
Bible study at Emanuel AME Church in Charleston and was also killed, was 
working with the Death Penalty Resource and Information Center - an anti-death 
penalty group - to defeat a state law that would keep all information about 
executions secret.

(source: Christian Science Monitor)

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

Ted Cruz: Charleston Attack Shows Need for Death Penalty, Not Gun Control



At a Johnston, Iowa, gun range on June 20 Senator Sen. Ted Cruz (R-TX) said the 
attack on the Emanuel African Methodist Episcopal Church in Charleston shows 
the need for the death penalty, not gun control.

He made clear that we should be punishing the individual who commit such 
crimes, rather than responding with a gun control push that punishes the 100 
million law-abiding gun owners who did not.

According to The Des Moines Register, Cruz said, "If you have a violent felon, 
if you have a fugitive who is illegally trying to buy guns, we should come down 
on them like a ton of bricks. I want to know if there are murderers and rapists 
trying to buy guns. We should stop them."

Cruz explained that the death penalty is there as a response to those who 
commit heinous acts like the one we saw in Charleston.

"Gov. Nikki Haley in South Carolina said this individual who committed the 
heinous murder in South Carolina should be subject to the death penalty," he 
said. "I got to say the death penalty was designed for people who commit horrid 
crimes like this."

Cruz also took issue with Democrats for coming after the Second Amendment every 
time a high profile crime takes place. He highlighted the way they claim to 
honor the Second Amendment - all the while attacking it - then made clear that 
upholding the Second Amendment and enjoying gun rights are "altogether 
different and unconnected from a horrific murder committed by a sick and 
deranged individual."

Cruz's words lay down a clear marker - it's time to quit punishing law-abiding 
society for the actions of one criminal and it's time to make sure the 
punishment that the 1 criminal receives is severe enough to end his threat to 
society and to dissuade others who may otherwise want to emulate him.

(source: breitbart.com)








NEBRASKA:

Death penalty group making signature push in panhandle----Monday in Gering, 
Tuesday in Kimball, Chappell



Signature gathering to force a referendum on the repeal of the Nebraska Death 
penalty is beginning in the panhandle.

Chris Peterson with Nebraskans for the Death Penalty says signatures will be 
gathered this afternoon from 3:00 to 4:30p outside the Scotts Bluff County 
courthouse in Gering.

Tomorrow petition signatures will be gathered at the Diner in Kimball starting 
at 6:30 a.m. to 8:00 a.m., and petitions will be available outside the Deuel 
County courthouse in Chappell at 9:30 a.m. to 11:00 a.m.

Peterson says momentum is starting to build for the effort as more than a 
thousand signatures were gathered at Nebraskaland Days in North Platte this 
past weekend. Organizers have to gather roughly 57,000 signatures to place the 
law on the ballot and 115,000 to do so while suspending the law.

The deadline for signatures is August 27.

(source: KOTA TV news)








CALIFORNIA:

State Supreme Court denies appeal of mass killer David "Moochie" Welch



The California Supreme Court on Monday denied the appeal of 1 of Oakland's most 
notorious mass killers.

David Esco "Moochie" Welch, 57, is on San Quentin death row for killing 6 
people, including his 16-year-old ex-girlfriend and 2 toddlers, as they slept 
in an East Oakland home before dawn on Dec. 8, 1986. Justices considered 
whether Welch was entitled to relief on the grounds of jury misconduct based on 
communications between trial court jurors and bailiffs.

Welch's attorneys also argued that his defense team at trial failed to 
investigate and present evidence that he suffered from serious child abuse.

In an opinion, the state Supreme Court rejected both claims and held that Welch 
is not entitled to relief.

Welch was a 28-year-old, 3-time convicted felon when he broke into his teenage 
ex-girlfriend's family home on Pearmain Street and fatally shot her and her 
sleeping family members and friends in their beds because he was upset about 
the breakup.

An Alameda County jury in 1989 convicted him of 6 counts of 1st-degree murder 
and recommended the death penalty.

Killed in the massacre were Dellane Mabrey, 16, and her 3-year-old daughter, 
Valencia Morgan; Dellane's brothers, Darnell Mabrey, 20, and Sean Orlando 
Mabrey, 21; and family friend Kathy Walker, 34, and her 4-year-old son, Dwayne 
Miller.

Dellane's boyfriend, Leslie Morgan, then 24, and Dellane's 3-month-old son, 
Dexter, were wounded during the attacks.

(source: Contra Costa Times)








OREGON:

Death penalty discourse draws celebrity to Keizer



For Becky O'Neil McBrayer, "closure" is something that belongs solely in the 
realm of real estate.

"There isn't closure for murder family victims," said O'Neil at an annual 
meeting and fundraiser at Keizer Civic Center for the Oregonians for 
Alternatives to the Death Penalty. "Killing the killer doesn't bring anybody 
back, it doesn't solve anything, it protects no one, but what it does do is 
create more victims."

O'Neil McBrayer, whose mother and stepfather were killed by her brother, Joe in 
2006, was representing Murder Victim Families for Reconciliation during her 
talk. Her talk preceded celebrity keynote speaker actor Mike Farrell, famous 
for roles in M*A*S*H and Providence as well as being an outspoken opponent of 
the death penalty.

O'Neil McBrayer said her brother became "increasingly odd as a teenager and it 
progressed well into his 20s. My family didn't know much about family illness 
and even in the weeks leading up the murder, despite some red flags, we didn't 
really know how to help Joe even though we were trying."

She and another brother discovered the bodies of her mother and stepfather a 
day after they had each been stabbed 17 times.

"We were threatened or tempted - I'm not sure which - with the death penalty by 
Clackamas County prosecutors," she said. "1 prosecutor told us that our brother 
was exactly the kind of person the death penalty was designed for."

She said she pleaded with the judge to spare Joe's life. He is currently 
serving a life sentence without the possibility of parole after pleading guilty 
to 2 counts of murder.

"It was resolution in terms of judicial justice. I still relive it every day, 
but I never have to step foot in a courtroom again," she said. "Let's turn our 
attention to healing and growth. We can direct pain into meaningful activities, 
learn to smile again and love life again. Killing the killer won't achieve any 
of those things. Let's be one of the next states to say, 'Not in our name.'"

Farrell relayed numerous tales of getting to know death row inmates, but was 
far more fiery in his approach to the need to move beyond capital punishment.

"The death penalty is the lid to the garbage can and, once we take the lid off, 
we will be forced to look into the rotten, stinking maggot infested mess that 
is our criminal justice system," Farrell said. "(The death penalty) is 
primarily used against the poor and poorly-defended. It is far more expensive 
than life without parole."

A study published in January out of Seattle University estimated that the 
average death penalty case costs Washington taxpayers an average of about $1 
million more than cases where the death penalty was not sought.

"We imperil ourselves and our nation if we do not understand that at the core 
of all rights and struggles is the demand that we honor and value all of our 
citizens' unalienable right to life," Farrell said.

(source: Keizer Times)








USA:

Previewing the High Court's Upcoming Lethal-Injection Ruling



By the end of the month, the Supreme Court is slated to issue its ruling in 
Glossip v. Gross, one of the most significant challenges in years to the way 
the death penalty is administered in the U.S.

In June 2014, a group of death-row inmates in Oklahoma sued over the state's 
execution protocol, which consists of an initial dose of a drug called 
midazolam, a sedative. Several states, including Oklahoma, have seen executions 
using midazolam go awry.

The petitioners argued that the state's use of the drug to sedate inmates 
before the injection of more powerful drugs, violates the Eighth Amendment to 
the U.S. Constitution, which prohibits cruel and unusual punishment.

Legal experts say that the court is unlikely to strike down the death penalty 
as unconstitutional (it has repeatedly upheld the legality of capital 
punishment). Nor is it likely to strike down the use of lethal injection as an 
execution method. The court upheld a three-drug protocol in Kentucky back in 
2008, and, in so doing essentially gave its blessing to lethal-injection as a 
practice.

But the arguments in the case prompted unusually fractious discussion among 
some of the justices during oral arguments in April making it nearly impossible 
to guess at an outcome.

There are a few possibilities.

The court sides with the petitioners.

The broadest such ruling would, legal experts say, strike down the use of 
midazolam in lethal-injection protocols, saying the drug is untested and 
unreliable.

Such a ruling could have significant ramifications. Not only would it put a 
halt to the use of the drug in a number of states - Florida, Oklahoma, Ohio, 
among others - it could also pave the way for litigation against other drugs 
used, Deborah Denno, an expert on capital punishment and professor at Fordham 
Law School. "You'd likely see arguments that other drugs look and act like like 
midazolam," she said. "That could make it even harder for states to carry out 
executions."

Robert Dunham, the executive director of the Death Penalty Information Center, 
a group generally opposed to the way the death penalty is administered in the 
U.S, said such a ruling could cause death-penalty states to reconsider whether 
keeping their systems are worthwhile, given the lack of readily available 
alternatives.

The court could rule more narrowly, however, in favor of the challengers by 
shooting down the use of midazolam in the specific way that Oklahoma used it. 
That ruling would likely be far less disruptive to the system in general.

A majority of the justices sides with Oklahoma.

Justice Samuel Alito seemed sympathetic to the plight of states during oral 
arguments. "Let's be honest about what's going on here," he said, adding that 
opponents were conducting "a guerrilla war against the death penalty" by 
pressuring pharmaceutical manufacturers to deny access to more effective 
chemicals, then suing to block alternatives that raised the risk of pain.

In its 2008 ruling, called Baze v. Rees, the court seemed to allow that states 
do not have to eliminate all risk associated with a lethal-injection protocol, 
so long as they include safeguards to minimize the risk that something will go 
wrong. Things went wrong in Oklahoma and in several other executions that used 
midazolam. But the court could rule that what happened in Oklahoma doesn't 
necessarily amount to a constitutional violation. Such a ruling would 
presumably give states that use midazolam license to continue using the drug in 
the ways they deem appropriate.

The court sends the case back to the lower court to gather more evidence about 
midazolam.

Several justices during oral arguments voiced concern about the lack of 
evidence on either side.

Justice Sonia Sotomayor accused Oklahoma of slanting scientific evidence in its 
legal briefs to mislead the court about midazolam's effectiveness in preventing 
pain.

"Nothing you say or read to me am I going to believe, frankly, until I see it 
with my own eyes [in] context," Justice Sotomayor told Oklahoma's lawyer, state 
Solicitor General Patrick Wyrick. Without anesthesia, injection of potassium 
chloride causes excruciating pain akin to "burning you alive," she said.

Ms. Denno and others think it's possible the court could send the case back to 
the district court to develop a more robust evidentiary record.

(source: Wall Street Journal)

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

Justices' split on death penalty cases is par for the course



The Supreme Court reversed one death penalty sentence last Thursday while 
upholding another. Both decisions were 5-4, and eight of the justices voted 
consistently in the 2 cases, either for capital punishment or against it. The 
swing voter, in the majority both times, was -- you guessed it -- Justice 
Anthony Kennedy. The result is a continuation of the court's positively 
contradictory death jurisprudence -- which reflects, come to think of it, our 
collective national inconsistency on the topic.

The liberal win, Brumfield v. Cain, involved a defendant's claim that he had an 
IQ consistent with low functioning and that there was evidence in the record 
that suggested intellectual disability sufficient to give him a hearing to see 
if he was exempt from execution. Justice Sonia Sotomayor's opinion for the 
court reads like a throwback to the days of Thurgood Marshall and William 
Brennan, when five justices could sometimes block the death penalty by invoking 
a defendant's disadvantaged state.

First, Sotomayor rejected the notion that an IQ score of 75 proved Brumfield 
was intellectually capable enough to be executed. The cutoff score is 70, but 
the standard margin of error includes a score of 75, she pointed out.

Then she turned to the evidence of Brumfield's childhood. He had a low birth 
weight, she noted, suggesting that "something had gone wrong" in his mother's 
pregnancy. He'd been in special education as a child, and he never read above a 
fourth-grade level. He's also been treated with various unspecified 
antipsychotics and sedatives, she observed.

On this basis, Sotomayor concluded, Brumfield should've gotten a hearing as to 
whether he was intellectually disabled. Now, she didn't say the defendant 
actually was intellectually disabled -- just that he deserved a hearing on the 
question. But her approach signaled that 5 justices thought he probably 
shouldn't be executed -- which might affect proceedings in the lower courts.

Justice Clarence Thomas's dissent was a highly unusual one. It was normal 
enough that he rejected the majority's views and said no hearing was necessary 
because the lower court's determinations were reasonable. What was strange was 
his lengthy excursus on what he called a "study in contrasts" between the 
defendant and the victim's son.

Thomas contrasted the defendant's nearly 20-year effort to say that "his 
actions were products of circumstances beyond his control" with the laudable 
efforts of Warrick Dunn, the victim's son, to care for his siblings while 
playing football at Florida State and then for the Tampa Bay Buccaneers. While 
Dunn's actions no doubt deserve praise, they are legally completely irrelevant. 
One wonders if Thomas would've included them -- or even known of them -- had 
Dunn not been a professional athlete.

It's easy to feel Thomas's deep preference for self- responsibility coming 
through in the opinion. A self-made man born into extremely modest 
circumstances, he abhors the idea that anyone would disclaim responsibility for 
his actions. But to avoid execution, of course Brumfield must disclaim 
responsibility.

The result of the latest decisions is a continuation of the court's positively 
contradictory death jurisprudence.

The other case, Davis v. Ayala, arose from the prosecution's use of peremptory 
strikes to wholly exclude blacks and Latinos from the jury pool in a murder 
case. Hector Ayala, the defendant, objected. The prosecution then asked the 
judge to explain its jury selection strategy without Ayala's attorney present, 
so as not to reveal its trial strategy. The judge agreed, then found the 
exclusions weren't unlawful. Ayala was eventually convicted of murder and 
sentenced to death.

During the process of appeal and collateral review, the California Supreme 
Court held that even if Ayala's constitutional rights were violated by the 
judge hearing the prosecution's defense of its peremptory challenges outside 
his lawyer's presence, the constitutional error was harmless. The court's view 
was that the result would've been the same even if Ayala's lawyer had heard the 
prosecution's explanation of its strategy.

The question before the U.S. Supreme Court was whether Ayala could show what 
the courts call "actual prejudice" to his conviction and sentence from the 
assumed constitutional violation. For technical reasons arising from the 
Antiterrorism and Effective Death Penalty Act of 1996, that meant the U.S. 
Supreme Court would uphold the conviction unless it found the lower court's 
decision to be not merely wrong but also unreasonable.

Writing for the majority, Justice Samuel Alito marched through each of the 
juror challenges and concluded in each case that the California court's 
decision was reasonable. In a measured dissent, Sotomayor pointed out that the 
whole point of the adversarial process is for a party's lawyers to be able to 
argue against the approach used by the other side. Excluding Ayala's lawyer 
inherently raised questions about whether the procedure that led to his 
conviction and sentence would've been different had the lawyer been included.

The weird sideline to this otherwise normal case came in an exchange between 
Kennedy and Thomas in their separate concurrences. Although Kennedy provided 
the deciding vote to allow Ayala's execution, he wrote a separate four-page 
concurrence objecting strongly to the fact that Ayala has been held in solitary 
confinement for most of his 25 years in prison.

Astonishingly, Kennedy ended his concurrence by quoting Dostoyevsky: "The 
degree of civilization in a society can be judged by entering its prisons." 
This was particularly shocking as Kennedy clearly didn't mind executing Ayala 
-- that, in his view, is apparently a perfectly legitimate expression of 
civilization. It would seem that Kennedy, or his law clerks, are unfamiliar 
with the famous comments by Prince Myshkin in Dostoyevsky's "The Idiot" 
condemning the guillotine -- not to mention the fact that Dostoyevsky was 
himself sentenced to death and reprieved on his way to the firing squad.

Thomas didn't rebuke Kennedy for his literary Philistinism. But he did write a 
paragraph redolent of his Brumfield opinion: "The accommodations in which Ayala 
is housed," he wrote, "are a far sight more spacious than those in which his 
victims, Ernesto Dominguez Mendez, Marcos Antonio Zamora, and Jose Luis 
Rositas, now rest. And, given that his victims were all 31 years of age or 
under, Ayala will soon have had as much or more time to enjoy those 
accommodations as his victims had time to enjoy this Earth."

Kennedy's death penalty incongruity perhaps reflects that of our society in 
general. Thomas, for his part, knows where he stands: in the land of 
retribution, where the defendant's punishment can be compared to the suffering 
of the victim and the heroism of the victim's family. That view, too, resonates 
in our society.

(source: Noah Feldman is a professor of constitutional and international law at 
Harvard----Bloomberg news)

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

Intelligence Squared U.S. Debates: Should We Abolish the Death Penalty



Airs Sunday, June 28, at 6 p.m.

A recent Gallup poll found that Americans are still largely supportive of the 
death penalty, with 6 in 10 in favor as punishment for murder. At the heart of 
the debate are many complicated questions. Within a flawed criminal justice 
system, is it possible to know every person's guilt with a sufficient degree of 
certainty? Does the fear of death reduce crime? Are some crimes so heinous in 
nature that punishment by death is the only appropriate measure, or is capital 
punishment always immoral?

The debaters are:

For The Motion: Diann Rust-Tierney, Executive Director of the National 
Coalition to Abolish the Death Penalty; and Robert Blecker, Co-Director of the 
Innocence Project & Professor of Law at Cardozo Law.

Against The Motion: Barry Scheck, Professor of Law at New York Law School; Kent 
Scheidegger, Legal Director at the Criminal Justice Legal Foundation.

(source: redriverradio.org)