[Deathpenalty] death penalty news----MO., NEB., UTAH, USA

[Rick Halperin]

Nov. 1



MISSOURI----impending execution

Appeals court denies motion to stay execution of man convicted in triple murder


The Eighth U.S. Circuit Court of Appeals on Friday denied a motion to stay the 
execution of a man convicted of a 1994 triple murder at a north Columbia 
convenience store.

Ernest L. Johnson, 55, is scheduled to die by lethal injection at 6 p.m. 
Tuesday. Driven by his addiction to crack cocaine, Johnson on Feb. 12, 1994, 
robbed Casey's General Store, 2200 Ballenger Lane, and used a hammer and 
screwdriver to fatally bludgeon Mary Bratcher, 46, Mable Scruggs, 57, and Fred 
Jones, 58.

Kansas City attorneys W. Brian Gaddy and Jeremy Weis have been unsuccessful in 
stopping Johnson's scheduled execution.

In 2008, Johnson had surgery to remove part of a tumor in his brain and has 
since suffered seizures. His lawyers argued in a federal case that his brain 
condition combined with the pentobarbital creates a "substantial risk" that 
Johnson will have a violent seizure and a painful death that violates the 
Eighth Amendment's prohibition on cruel and unusual punishment.

U.S. District Chief Judge Greg Kays on Tuesday denied attempts to halt the 
execution, writing that Gaddy and Weis had not shown the case would win and 
that Johnson had not done enough to offer an alternative method of execution.

Gaddy and Weis appealed, and a 3-judge appellate court panel sided with Kays. 
The panel said Johnson did not present strong enough evidence that 
pentobarbital would cause pain because of his brain condition. The judges also 
said Johnson's case was unlikely to succeed because he did not identify an 
alternative method of execution that could be implemented quickly and would 
reduce the risk of pain.

His attorneys did argue lethal gas was an alternative execution method, but the 
court ruled that arguing lethal gas is "legally available in Missouri is not 
the same as showing the method is feasible or readily implementable alternative 
method of execution."

A case in Missouri's Supreme Court still is pending. In that court, Gaddy and 
Weis requested a judge be appointed to consider evidence that Johnson is 
intellectually disabled. Past attorneys for Johnson unsuccessfully tried to 
convince juries that his IQ is 67, well below the average of 100, and therefore 
it would be unconstitutional to execute him.

Neither Gaddy nor Weis responded to messages seeking comment Saturday 
afternoon.

Johnson is the latest inmate in the country to challenge lethal injection 
protocols. Paul Litton, a professor at the University of Missouri School of 
Law, said there probably are more death penalty states in the United States 
with lawsuits fighting lethal injection procedures than those that are not.

The inmates in nearly every case across the country are challenging the Eighth 
Amendment standard set by a U.S. Supreme Court decision in the 2008 case of 
Baze v. Rees.

"It's a heavy burden basically to show that the method of execution presents a 
substantial or objectively intolerable risk of pain when compare to known and 
available alternatives," Litton said.

If the Missouri Supreme Court appoints a judge to consider whether Johnson has 
an intellectual disability, that would delay his execution indefinitely, Litton 
said. The U.S. Supreme Court ruled in the 2002 case of Atkins v. Virginia that 
states cannot execute people who are mentally retarded.

Though a Boone County jury sentenced Johnson to death in 1995, that and a 
subsequent death sentence were overturned. A 2006 Pettis County jury's decision 
to put Johnson back on death row was upheld.

"There were issues that had to be litigated," Litton said. "There are reasons 
this has taken awhile. What the death penalty does in a sense to families, 
instead of helping them, to a great extent you can say this is a case in which 
the litigation has actually probably harmed" the victims' families.

(source: Columbia Tribune)

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

Bucklew attorneys file new complaint with execution method


Attorneys for Russell Bucklew have filed a 4th amended complaint in U.S. 
District Court to determine the method of his execution, and the court has 
ordered the state to respond by Friday.

Bucklew, 47, of Cape Girardeau, received a last-minute stay of execution last 
year because of a medical condition attorneys argued could make lethal 
injection cruel or bloody.

Bucklew has been on death row since 1997 after being convicted of murder, 
kidnapping and rape.

Bucklew suffers from extensive vascular tumors in his face and throat that have 
worsened the longer Bucklew has been in prison. He is incarcerated at Potosi 
Correctional Center in Potosi, Missouri.

"Mr. Bucklew has a very large tumor growing in his face, occupying his nose, 
throat and airway passages and causing him to experience constant facial and 
nasal cavity pain and pressure, as well as constant difficultly breathing," 
Emory University anesthesiology professor Joel Zivot wrote in the case. "Mr. 
Bucklew's airway is also friable, meaning it is weak and could readily tear or 
rupture. If you touch it, it bleeds."

Nanci Gonder, press secretary for the Missouri attorney general's office, said 
the state plans to file a motion to dismiss the case Monday.

"What happens next depends on how the state responds, and with what type of 
filing," one of Bucklew's attorneys, Lindsay Runnels, wrote in an email to the 
Southeast Missourian.

The complaint gives the state an alternate means of execution -- lethal gas as 
a "feasible and available alternative method that will significantly reduce the 
risk of severe pain."

According to media reports, the state of Missouri last used the gas chamber for 
executions in 1965.

This satisfies a requirement offered by the U.S. Supreme Court in its decision 
in Gossip vs. Gloss, which decided June 29 that Oklahoma could continue to use 
the lethal-injection drug midazolam. Lethal gas remains an option in Missouri 
but is not used, Gonder told ABC News in 2012.

Missouri has executed 6 prisoners in 2015, all by lethal injection. But only 1, 
Roderick Nunley, on Sept. 1, was executed by lethal injection since the Gossip 
vs. Gloss decision, according the Death Penalty Information Center.

Bucklew was sentenced to death by a jury in July 1997. He was convicted of 
murder, kidnapping and rape in April 1997.

He killed Michael Sanders in Cape Girardeau in front of Sanders' 6-year-old son 
and kidnapped and raped his former girlfriend, who had been living with 
Sanders.

The complaint in Bucklew's case argues that any attempt to execute him by 
lethal injection will "lead to a prolonged and tortuous execution, with Mr. 
Bucklew hemorrhaging, struggling to breathe and suffocating."

"These vascular abnormalities also create a great risk that the lethal drug 
will not circulate as intended in Mr. Bucklew's body, leading to a prolonged 
and very painful death," the complaint stated.

The complaint states execution by lethal injection would violate the Eighth 
Amendment of the U.S. Constitution, which prohibits cruel and unusual 
punishment.

"A punishment is cruel and unusual if it creates a substantial risk of severe 
and unnecessary pain," Runnels wrote.

Bucklew was one of 20 plaintiffs in a case filed in Missouri district court in 
2012, but his case was separated because of his unusual medical condition. 
Since that case was originally filed, the Missouri Department of Corrections 
announced it was changing its lethal-injection drug from propofol to 
pentobarbital in October 2013.

"The substance(s) that Missouri DOC uses to execute a prisoner by lethal 
injection makes no difference in Mr. Bucklew's case," Runnels wrote.

In 2011, the Missouri Supreme Court denied a writ of mandamus from Bucklew, 
asking for expert services for his medical care. He also was denied such a 
request in 2009.

(source: Southeast Missourian)






NEBRASKA:

FDA spells it out -- death drug illegal


Nebraska's death penalty repeal is legally on hold for a year.

But the death penalty itself is technically on hold because the state does not 
have the multi-syllable drugs -- sodium thiopental, pancuronium bromide -- 
needed to comply with state protocol in putting inmates to death. Sodium 
thiopental is a rapid-onset short-acting barbiturate used to put the inmate to 
sleep. Pancuronium bromide is a muscle relaxant that can stop breathing.

The drugs were ordered in April, but reportedly have not been delivered. Still, 
Gov. Pete Ricketts continues to give death penalty supporters an any-day-now 
assurance that the state not only has the resolve but also will have the means 
to execute the 10 men on death row.

It has become his mantra.

"When it comes to carrying out those sentences we're going to continue to look 
for ways to be able to do that and working with federal officials on that."

"We're looking to secure these drugs. We're working with the DEA."

"The state continues to work with the DEA to import the drugs."

Nebraska repealed the death penalty in May, but a successful referendum has 
suspended the repeal and forced a vote of the people in November 2016 to decide 
the fate of capital punishment here.

In the meantime, a University of Nebraska law professor is calling Ricketts' 
statements on securing the drugs a "red herring," meant to be misleading or 
distracting.

"And even if the drugs somehow did enter the country illegally, their arrival 
in Nebraska would spark extensive and expensive litigation," said Eric Berger, 
who has a law degree from Columbia University, lists the death penalty as one 
of his areas of expertise and has written extensively about lethal injection.

So what does the often referred to DEA, the federal Drug Enforcement 
Administration, have to say about working with the state on importing the 2 
drugs the Department of Correctional Services has paid $54,400 to a broker from 
India to purchase?

In July, Nebraska, Texas and Arizona were told that any foreign manufactured 
sodium thiopental was disallowed across the board under a 2012 federal court 
injunction through the federal Food and Drug Administration, DEA spokesman 
Lawrence "Rusty" Payne said Friday.

According to the FDA, sodium thiopental does not have an approved application 
in this country. If a shipment came through, it would automatically be illegal, 
Payne said.

"So even if you have every permit, import license, registration, everything 
else, the drug has to be approved in the U.S., and right now sodium thiopental 
isn't," he said.

The Corrections Department in late August had its shipment of the drug -- 3 
packages -- turned back from a New Delhi FedEx facility to the sender because 
of improper paperwork, according to FedEx documents.

In distinguishing the duties of the 2 federal agencies, Payne said it's the 
FDA's job to worry about the foreign source, while the DEA manages whether the 
recipient in the United States is registered to handle and import a controlled 
substance.

Payne said the DEA has heard from the states over the past several months, but 
there's not a lot the agency can do.

"Sodium thiopental is not importable. This is not a DEA issue. It's more of an 
FDA issue right now," he said.

And so, states like Nebraska, Ohio, Texas, Arizona and Oklahoma which rely on 
that drug for executions are in a bind.

In June, the FDA's director of import operation sent a letter to the Ohio 
Department of Rehabilitation and Correction reminding him that if he intends to 
obtain any form of sodium thiopental from an overseas source, it would be 
illegal.

On Oct. 9, Stephen Gray, chief counsel of the Ohio Department of Rehabilitation 
and Correction, challenged the FDA in a letter, contending Ohio would be able 
to legally import sodium thiopental if it comes from an FDA-registered source, 
is on the source's list of drugs in commercial distribution in the United 
States, is not misbranded or adulterated, and is in a shipment examined by the 
FDA.

The state has 24 executions scheduled beginning in January and extending 
through 2019. But the state must ensure there are sufficient execution drugs 30 
days prior to the execution date, according to regulations.

Ohio has not executed an inmate since Jan. 16, 2014, when Dennis McGuire 
struggled and gasped for several minutes before succumbing to a combination of 
drugs being used for the 1st time anywhere in the U.S., the Columbus Dispatch 
reported.

The issue is heating up in several states.

Federal authorities confiscated imported sodium thiopental in Arizona and Texas 
a week ago. Officials in Arizona said they believed the drugs impounded there 
are legal, The Associated Press reported. And Texas officials said they went 
through proper federal channels, obtaining an import license from the Drug 
Enforcement Administration and notifying FDA and Customs.

"The department is contesting FDA's legal authority to continue to withhold the 
state's execution chemicals," Arizona Corrections Department spokesman Andrew 
Wilder said.

Meanwhile, 22 states, the federal government or courts have either put formal 
holds on executions, indefinitely stayed scheduled executions, officially 
declared moratoriums, granted reprieves while the issue is studied, or 
abolished the death penalty -- many of them because of problems with the lethal 
injection drugs.

So is it realistic that Nebraska can obtain the drugs needed?

Ricketts said last week that historically Nebraska and other states have been 
able to do that.

"We still need to be able to work through the process. And we're going to 
continue to look at all our options ... to be able to carry out these 
sentences," he said.

(source: Lincoln Journal Star)






UTAH:

Murder defendant appeals court's Miranda ruling


A St. George murder defendant is asking the state's highest courts to consider 
overruling a local judge's decision that found the man's Miranda rights were 
properly protected by police during questioning about 2 women's deaths.

Brandon Perry Smith, 34, filed the appeal through his attorney, Gary Pendleton, 
a week ago and was notified Monday by the Utah Supreme Court that the Court of 
Appeals will review the matter.

Earlier this month, 5th District Judge G. Michael Westfall denied Smith's 
motion to suppress evidence gathered from the December 2010 police interview 
after officers found the bodies of 20-year-old Jerrica Christensen and 
27-year-old Brandi Sue Dawn Jerden in a downtown St. George townhome.

Smith is accused of killing Christensen, while a co-defendant - Paul Clifford 
Ashton - has already been sentenced to life in prison for the murder of Jerden 
and another man unrelated to the women's case, as well as the non-fatal 
shooting of friend James Fiske at the time of the women's slaying.

Westfall's decision found St. George Police officers met the legal requirements 
for informing Smith of his right to an attorney and that Smith appeared able to 
understand his right to not say anything that might be contrary to his own 
interests.

"He was presented with a full Miranda warning, he understands and speaks the 
English language, and he acknowledged both verbally ... and through conduct ... 
that he understood his rights," Westfall's ruling states. "The Court also finds 
that Defendant then abandoned those rights by speaking to Detective (Chris) 
Trani and answering his questions."

Pendleton's "Petition for Permission to Appeal Interlocutory Order" asks the 
higher court to find, contrary to the local court's ruling, that Smith may not 
have understood he was already in trouble and entitled to the help of an 
attorney during police questioning, rather than facing the possibility that he 
might need an attorney's help at some future point in court.

Pendleton also challenges the court's finding that the interviewing detective 
didn't have to clarify if Smith's comment about being unable to afford an 
attorney was an oblique request to wait for the court to appoint a 
publicly-funded attorney, and if the detective's failure to inform Smith of an 
attorney's offer to represent the defendant somehow affected Smith's 
understanding of his rights.

Pendleton wrote that it is important to review the appeal now rather than 
waiting until after trial, because he says the prosecution aims to have jurors 
draw inferences from Smith's comments that would form the "sum and substance of 
the evidence" prosecutors are using to justify the death penalty if Smith is 
found guilty.

While an appellate court's ruling to suppress the interview evidence would not 
stop the criminal prosecution, "such a ruling would ... likely result in an 
abandonment of the State's efforts to impose the death penalty," Pendleton 
wrote. "There is no direct evidence establishing any of the alleged aggravating 
circumstances."

The 1st of 4 aggravating circumstances acknowledged by now-retired Judge James 
Shumate in allowing the death penalty as a possible outcome was the 
prosecution's evidence that Christensen's death took place as part of incident 
in which other people were murdered or the victims of attempted murder.

The prosecution acknowledged during arguments in 2013 that the other 3 
"aggravators" were the result of what it regarded as reasonable inferences 
Christensen was killed in an attempt to prevent her from testifying about 
another murder, that her murder was part of an attempted kidnapping plot, and 
that the murder was the result of unusual cruelty demonstrated by the killer's 
depraved behavior.

Then-Deputy County Attorney Brian Filter, who has since moved to Nevada, was 
particularly pointed in arguing that Smith acted brutally and dispassionately 
when he allegedly beat Christensen with a light-weight socket wrench as she was 
trapped in a rear bathroom before pounding her head against objects, choking 
her and ultimately cutting her throat with a pocket knife, all while carrying a 
semiautomatic pistol that could have made her death more immediate.

"That's haunted me since the beginning of the case," Filter said at the time. 
"If he was going to kill her, for heaven's sake, (why not) just shoot her?"

A 2-week trial in the nearly-5-year-old case had been scheduled to take place a 
month ago, but in May the trial was postponed indefinitely to handle remaining 
defense motions with the expectation that it will be longer than 2 weeks when 
it is eventually rescheduled.

The parents of Smith and Christensen have consistently been present at the 
court hearings, awaiting disposition of the case.

Ellen Hensley, Christensen's mother, held a candlelight vigil attended by 
friends, prosecutors and law enforcement in December amid a call for swifter 
justice on behalf of crime victims.

"It is very painful to sit in court and listen to the rights of Brandon Smith 
being discussed and defended, knowing that he gave no thought to Jerrica's 
right to life that fateful night," Hensley said at the time. "I must say that I 
am losing my faith in the judicial system when a cold blooded murderer has more 
constitutional rights than the grieving mother of a murdered daughter."

(source: The Spectrum)






USA:

Justices hear all-white jury case


Prosecutor Stephen Lanier's meaning was unmistakable when he urged jurors in 
north Georgia to sentence the defendant to death in part to deter other people 
"out there in the projects."

Almost everyone in the public housing apartments near the scene of the killing 
of a 79-year-old woman in Rome, Ga., was black, as was defendant Timothy Tyrone 
Foster. And after Lanier got through picking a jury of Foster's peers, all the 
jurors were white. So was the victim.

Foster has been on death row for nearly 30 years, but his case still is making 
its way through the courts. The actions of Lanier and his staff will be in 
front of the Supreme Court on Monday, when the justices will consider whether 
the exclusion of all the black prospective jurors is a form of racial 
discrimination in violation of Foster's constitutional rights under a test the 
high court laid out in 1986.

Georgia courts have consistently rejected Foster's claims of discrimination, 
even after his lawyers obtained the prosecution's notes that revealed 
prosecutors' focus on the black people in the jury pool. In 1 example, a 
handwritten note headed "Definite No's" listed 6 people, of whom 5 were the 
remaining black prospective jurors.

The case arrives at the court a few months after Justices Stephen Breyer and 
Ruth Bader Ginsburg said the court should consider declaring the death penalty 
unconstitutional. Foster's case highlights several issues in the wider debate 
over capital punishment, including questions about his mental capabilities and 
the length of time he has lived under a death sentence.

The only issue before the justices Monday deals with the way this particular 
jury was put together. Lanier, who did not respond to requests for an 
interview, has consistently denied any intent to discriminate, and the state 
argues in defending his actions that prosecutors actually wanted a black juror 
to avoid defense accusations that the jury was a "white lynch mob."

But Stephen Bright, a veteran death penalty lawyer representing Foster at the 
Supreme Court, said evidence of a racial motive is extensive and undeniable.

As senseless killings go, Queen Madge White's death was as brutal and pointless 
as they get.

White had the misfortune to use her bathroom in the middle of the night. Only 
when she returned to her bedroom and turned on the lamp beside her bed did she 
notice Foster in her living room, according to Foster's confession to police. 
Foster said he was just out to rob White's home, but things got out of hand 
when she grabbed a knife and chased him around a living room chair.

He picked up a fireplace log and hit White hard enough to break her jaw. Then 
he sexually molested her with a salad-dressing bottle and strangled her to 
death.

Foster's trial lawyers did not so much contest his guilt as try to explain it 
as a product of a troubled childhood, drug abuse and mental illness. They also 
raised their objections about the exclusion of African-Americans from the jury. 
On that point, the judge accepted Lanier's explanations that factors other than 
race drove his decisions. The jury convicted Foster and sentenced him to death.

The jury issue was revived 19 years later, in 2006, when the state turned over 
the prosecution's notes in response to a request under Georgia's Open Records 
Act.

The name of each potential black juror was highlighted on 4 different copies of 
the jury list and the word "black" was circled next to the race question on 
questionnaires for the black prospective jurors. 3 of the prospective black 
jurors were identified in notes as "B#1," "B#2" and "B#3."

An investigator working for the prosecutors also ranked the black prospective 
jurors against each other in case "it comes down to having to pick 1 of the 
black jurors."

Still, Georgia courts were not persuaded.

Eddie Hood was "B#1" in the prosecutors' notes. Now 75, Hood said he hasn't 
spent much time thinking about that case, although he said he told his wife he 
had an inkling race played a role in his dismissal.

He said Lanier had no reason to fear he'd go soft on Foster. "I had no problem 
with the death penalty," Hood said at his home in Rome.

But he said he was bothered by Lanier's comment about the projects when a 
reporter related it to him. "If I had heard that, it would have created some 
thoughts I wouldn't have been comfortable with," he said.

The Supreme Court tried to stamp out discrimination in the composition of 
juries in Batson v. Kentucky in 1986. In that case, the court ruled that jurors 
could not be excused from service because of their race and set up a system by 
which trial judges could evaluate claims of discrimination and the race-neutral 
explanations by prosecutors. Foster's conviction came just a year after the 
court handed down that decision.

Yet despite the decision, "race discrimination persists in jury selection," 
said a group of former prosecutors that includes author Scott Turow and former 
Deputy Attorney General Larry Thompson, who served in the George W. Bush 
administration.

"If this court does not find purposeful discrimination on the facts of this 
case, then it will render Batson meaningless," the ex-prosecutors wrote in 
support of Foster.

In the course of selecting a jury, lawyers question potential jurors and first 
try to weed out people for specific reasons including the inability to impose a 
death sentence in a capital case or personal relationships with people involved 
in the case.

Both sides also can excuse a juror merely because of a suspicion that a 
particular person would vote against their client. Those are called peremptory 
strikes, and they have been the focus of the complaints about discrimination.

Justice Thurgood Marshall warned in the Batson case that the court's decision, 
which he supported, would not cure the problem.

"The decision today will not end the racial discrimination that peremptories 
inject into the jury selection process. That goal can be accomplished only by 
eliminating peremptory challenges entirely," Marshall wrote.

Among the current justices, only Breyer has echoed Marshall's concerns that 
discrimination is too hard to prove and allegations of bias are too easy to 
evade.

(source: Associated Press)

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

John Roberts' Supreme Court May Take Case to End the Death Penalty


Court watchers say that the John Roberts-led U.S. Supreme Court may at last 
take a case that directly pertains to whether or not the death penalty is a 
constitutional punishment.

Those who are working against the death penalty note that the 4 liberal 
justices are likely opponents of the sentence. Even conservative Justice 
Antonin Scalia recently noted that the court could get to such a case sooner 
rather than later.

Though he said he thinks the Constitution allows for it, during a September 
speech at Rhodes College in Tennessee, Scalia said he "wouldn't be surprised" 
if the court takes a case that directly pertains to the constitutionality of 
the sentence.

As The Hill reported, advocates for invalidating the death penalty are enthused 
over the possibility that the court could take the case.

"There is a feeling that this is not a long shot with the court anymore," 
Cassandra Stubbs, director of the American Civil Liberties Union's Capital 
Punishment Project, told the Washington-based paper. "I think there is no 
question we have 4 votes."

In fact, some activists against the most final of penalties point to a recent 
SCOTUS case, Glossip v. Gross, the dissent of which seems to invite lawyers to 
bring a broad challenge to the legitimacy of the penalty.

In the case, liberal justice Breyer issued a decision that Justice Ruth Bader 
Ginsburg joined that lays out several problems inherent in the death penalty.

"Today's administration of the death penalty involves 3 fundamental 
constitutional defects: serious unreliability, arbitrariness in application, 
and unconscionably long delays that undermine the death penalty's penological 
purpose," Breyer wrote in June. "Perhaps as a result, most places within the 
United States have abandoned its use."

Still, even in Glossip v. Gross, the final ruling was that Oklahoma's use of 
the drug midazolam in executions did not count as cruel and unusual punishment. 
Some felt it was a blow to those who want the abolition of the sentence.

Abolitionists feel that the death penalty is cruel and unusual punishment and 
that it should be ruled unconstitutional. However, the Constitution does lay 
out specific crimes for which the penalty may be applied, so clearly the death 
penalty is not strictly unconstitutional.

Supporters of the penalty, though, point out that a strong majority of 
Americans still support the death penalty in theory. As recently as October 7, 
61 % said they still favored the death penalty.

(source: breitbart.com)