[Deathpenalty] death penalty news----TEXAS, PENN., FLA., ALA., LA.

[Rick Halperin]

April 25



TEXAS:

Man Sentenced To Die After 'Expert' Testified That Black People Are Dangerous


Duane Edward Buck's lawyers were a disaster.

After Buck was convicted of murder, his own attorneys retained a 
now-discredited psychologist who testified that Mr. Buck is more likely to be a 
danger to society in the future because he is black. This testimony then went 
unchallenged at a later, crucial state court proceeding even though Buck was 
then represented by a new lawyer. The only new claim that lawyer raised at this 
proceeding was "based on a non-existent provision of the penal code."

Now, nearly 2 decades after his conviction, no court has considered whether the 
racist testimony elicited at Buck's trial caused him to be sentenced to death. 
Moreover, thanks to errors committed by his previous lawyers and an array of 
laws and legal doctrines that often elevate the finality of convictions ahead 
of the need to ensure that innocents are not punished and that the death 
penalty is not doled out unnecessarily, it is far from clear that any court 
will examine the impact of this racist testimony before Mr. Buck is put to 
death.

The specific legal issue in Buck v. Stephens is complex enough to make a 
lawyer's brain bleed. Specifically, Mr. Buck is seeking permission to seek a 
determination of whether "extraordinary circumstances" exist that would permit 
a lower court to determine whether the racist testimony elicited by his own 
counsel prejudiced the outcome of his sentencing proceeding. If he somehow 
succeeds in navigating this maze, he wins a new sentencing hearing - which 
could very well determine that he should be re-sentenced to death.

It's a giant procedural mess. And it's a mess that Texas, at one point, 
appeared willing to set aside. In 2000, then-Texas Attorney General John Cornyn 
(now a U.S. Senator) determined that Dr. Walter Quijano, the psychologist who 
testified in Buck's case, had a record of appearing in capital sentencing 
proceedings and offering racist testimony. In Buck's case, Quijano testified 
that African-Americans and Hispanics are especially likely to be dangerous as 
they are "over represented in the Criminal Justice System."

This is not simply a case of ineffective assistance of counsel, this is a case 
of ineffective assistance of counsel aggravated by even more ineffective 
assistance of counsel.

Cornyn's office found 6 additional cases where Dr. Quijano offered similar 
testimony, and it announced that it "will not object" if the inmates sentenced 
to die in these cases "seek to overturn the death sentences based on Mr. 
Quijano's testimony." As Cornyn's office admitted in a brief filed in one of 
these cases "infusion of race as a factor for the jury to weigh in making its 
determination violated [a defendant's] constitutional right to be sentenced 
without regard to the color of his skin."

Nevertheless, when Buck sought relief from his death sentence four years later 
in federal court, the state did not keep its promise. Texas now claims that 
Buck's case differs from the other 6 cases specifically because Dr. Quijano's 
racist conclusions were placed before the jury by Buck's own counsel. As 
Justice Samuel Alito argued in a 2011 opinion explaining why he did not believe 
that the Supreme Court should have heard a previous iteration of Buck's case, 
"only in Buck's case did defense counsel elicit the race-related testimony on 
direct examination. Thus, this is the only case in which it can be said that 
the responsibility for eliciting the offensive testimony lay squarely with the 
defense."

That may very well be true, but it is an odd conclusion for a judge charged 
with interpreting a Constitution that not only forbids race discrimination in 
sentencing, but that also forbids sentencing someone to die without adequate 
assistance of counsel. Buck argues that he is the victim to 2 overlapping 
constitutional violations - he did not receive adequate assistance of counsel 
and, for that very reason, his own lawyer introduced unconstitutional evidence 
against him. Justice Alito, by contrast, appears to claim that the 1st of these 
2 constitutional violations excuses the 2nd.

In fairness, the real reason why Buck has previously been unable to assert his 
claim that he received ineffective legal assistance is a bit more complicated. 
For this is not simply a case of ineffective assistance of counsel, this is a 
case of ineffective assistance of counsel aggravated by even more ineffective 
assistance of counsel.

In 1999, some time after Buck received a death sentence, a new lawyer was 
appointed to represent the inmate in state habeas proceedings - a round of 
proceedings Texas state law permits for individuals seeking to challenge a 
death sentence. That lawyer, according to the petition now pending before the 
Supreme Court, "had a history of deficient representation of death-sentenced 
prisoners," including one case where he "threw his client 'under the bus' by 
filing an initial state habeas application that was 'only 4 pages long and 
merely state[d] factual and legal conclusions.'"

While Buck's original lawyers' sin was a sin of commission - that is, they were 
the ones who introduced Dr. Quijano's racist testimony - the new lawyer's sin 
was a sin of omission. The new lawyer did not challenge the original legal 
team's decision to present Quijano's testimony to the jury. That failure to 
assert what may be Buck's strongest legal claim at a relatively early stage in 
this litigation had devastating consequences once Buck's case reached federal 
court. As a federal district judge explained, Buck's claim that his original 
lawyers screwed up was "procedurally defaulted" because his new lawyer failed 
to raise this claim soon enough. Thus Buck risks losing the ability to assert 
this claim forever.

Then, in 2013, Buck finally got a piece of good news. In a pair of cases, 
Martinez v. Ryan and Trevino v. Thaler, the Supreme Court held that there 
should be a "narrow exception" to the previously existing rule that "an 
attorney's ignorance or inadvertence in a postconviction proceeding does not 
qualify as cause to excuse a procedural default." Thanks to these decisions, 
Buck now has a shot at overcoming the two rounds of ineffective legal 
representation he received over a decade ago.

To be sure, the path ahead for him will not be easy. Buck still must navigate a 
maze of procedural obstacles, and his only chances of finding the end of this 
maze depends on legal doctrines that use phrases like "narrow exception" and 
"extraordinary circumstances." Buck's path to relief from his death sentence is 
riddled with obstacles that very few litigants manage to surmount.

Which brings us to the final irony in Mr. Buck's case. At the earliest stages 
of the many rounds of litigation concerning his sentence, Buck faced none of 
these nearly insurmountable procedural obstacles. And yet he appears to have 
received 2 rounds of unconstitutionally ineffective legal assistance.

Now, however, when Buck is hemmed in by almost immovable legal barriers, he is 
backed by a simply staggering array of legal talent. The team of attorneys 
representing Buck in the Supreme Court includes 6 lawyers from the NAACP Legal 
Defense Fund, the historic civil rights organization founded by future Justice 
Thurgood Marshall. It also includes a partner in a large law firm who 
previously clerked for a Supreme Court justice. That's enough legal firepower 
to level a mountain.

This is not an uncommon practice in capital cases, where high-octane lawyers 
frequently take over cases that present issues worthy of Supreme Court review 
years after a death row inmate received far-from-outstanding representation.

Excellent attorneys - and certainly, the kind of extraordinary attorneys who 
now represent Mr. Buck - are a sparse resource. It's not realistic to expect 
lawyers of the caliber of his current legal team to represent every criminal 
defendant who faces a death sentence. Nevertheless, there is something 
profoundly misguided about a system that assigns such defendants' lawyers who 
aren't even minimally adequate when those defendants need good lawyers the 
most.

Mr. Buck's case, in other words, is a tale of racism compounded by double 
standards, poor legal representation, and a system that often says that it is 
more important to have certainty in death sentencing than it is for courts to 
reach the proper result. And now that he finally has more-than-adequate 
representation, Buck could very well learn that the cavalry arrived too late.

(source: thinkprogress.org)






PENNSYLVANIA:

Appeals court denies bid to examine DNA program in slayings


An appeals court has declined to give defense attorneys a look inside a 
computer program used to link their client's DNA to the shooting deaths of 2 
people, including a local hip-hop performer.

The Pennsylvania Superior Court last week declined 29-year-old Michael 
Robinson's request in the Allegheny County case in the May 2013 shooting deaths 
of 29-year-old Lawrence Short and 18-year-old Tyrone Coleman in May 2013.

Another judge denied a similar request in the trial of a man charged in the 
murder of 2 sisters of an Iowa state lawmaker. His attorneys said they will 
pursue the issue if their client is convicted.

Short was known as a member of the hip-hop group Hardcore Entertainment. 
Prosecutors say they will seek the death penalty if Robinson is convicted of 
1st-degree murder.

(source: Associated Press)






FLORIDA:

Man who killed Plant City worker wants execution sped up ---- Twice-convicted 
killer Wayne Doty says he prefers to be executed by electrocution because he 
has an aversion to needles

Wayne Doty, who shot to death a worker at a manufacturing plant in Plant City 
in 1996, wants to die in Florida's electric chair.

Immediately.

The twice-convicted killer - Doty murdered a fellow inmate at Florida State 
Prison, also in 1996 - doesn't want to be represented by attorneys and refuses 
to appeal his death sentence.

On April 1, a Bradford County judge, based on testimony from doctors, Doty's 
spiritual advisor and others, ruled that Doty was competent to make such 
decisions about his future, but it is unclear when the death sentence might be 
carried out.

In a recent letter to The Tampa Tribune, Doty, 42, said his death might help 
bring closure to his victims' families and that money spent on his defense 
would have been better used in efforts to help steer troubled youth away from 
"the path I've traveled in life."

"There's no question of doubt attached to guilt or innocence in my case," he 
wrote. "I've pled guilty and the evidence (substantiates) such guilt. The state 
slips cases like this between the cracks or under the rug, holding defendants 
in solitary confinement for years before exhausting the defendant's executive 
clemency review and compelling the governor to sign that person's death 
warrant.

"This deprives victims' families of closure in justice and taxes the citizens 
of the state, who pay for all litigation costs and to house that particular 
inmate. Every prisoner on death row is entitled to fight their case, if they so 
choose, and the same right goes toward anyone who chooses to accept their 
responsibilities and the consequences of their actions."

While Judge James Nilon ruled Doty competent, it is not clear when he will 
decide whether or not he may discharge his counsel and dismiss pending 
post-conviction proceedings in both state and federal courts.

The prosecutor, State Attorney Bill Cervone of Florida's Eighth Judicial 
Circuit, said that even if Nilon sides with Doty on those matters, the issue 
would still have to be heard by the state Supreme Court.

"It's impossible to predict when the courts may do something," Cervone said. 
"It won't happen this month or next. I can't imagine the Supreme Court will 
resolve the necessary appeal on him discharging his appeals before the end of 
this year."

Cervone said Doty has acted as his own attorney for years. Doty is known for 
filing his own pleadings and speaking at length during court proceedings, he 
said. While Doty does not always use proper legal phrasing, Cervone 
characterized him as "articulate" and "rational."

"He clearly knows what he's talking about," Cervone said.

Doty also has been clear that if he continues to live, he may take more lives.

"He's been very direct in admitting what he did in both cases," Cervone said. 
"When he testified at the penalty phase of his (latest) trial, in essence, he 
said: I can't tell you I won't kill again, given what would be adequate 
provocation. And I would hope a guard doesn't get in the way, because I 
wouldn't want to kill a guard."

More recently, Doty has claimed to be in a "better place, spiritually," Cervone 
said.

"He believes his only path toward redemption is taking responsibility for what 
he's done, which is carrying out the death penalty that's been lawfully 
imposed," he said.

The last time a person was put to death in Florida's electric chair - commonly 
known as "Ol' Sparky" - was in 1999. But things didn't go as planned when 
electricity coursed through the 350-pound body of triple murderer Allen Lee 
"Tiny" Davis.

"His body reared back against the chair's restraints, giving witnesses a 
grotesque glimpse under a black hood designed to hide the faces of the 
condemned," The New York Times reported. "His round, moon face contorted 
grossly, the flesh seeming to knot, and colored a vivid purple. Blood poured 
from his nose, ran down the wide leather strap that covered his mouth and 
soaked his white shirt."

Davis was still alive when the power was turned off. Witnesses said his chest 
rose and fell about 10 times before he went still.

Despite experiences such as Davis', Cervone said Doty had sound reasons for 
choosing the chair over lethal injection, Florida's other method of execution.

"He says, 1st, that he has an aversion to needles," Cervone said. "2nd, before 
he was incarcerated for the Plant City case, he has said he spent time working 
(with electricity). He believes the amounts of electricity used would pretty 
instantaneously and painlessly kill him or render him insentient, until he is 
technically dead. He thinks it's a surer, swifter method and just doesn't like 
needles."

Florida's 3-legged electric chair was made from oak by Department of 
Corrections personnel in 1998 and installed at Florida State Prison in Raiford 
in 1999.

Alberto Moscoso, a press secretary for the state corrections department, said 
the chair is tested regularly and "maintained for functionality."

Doty is eager for his turn in the hot seat.

"My election of execution by electrocution is a statutory right and my choice 
to utilize," he wrote. "This shouldn't set my sentence back from being 
(completed) once the litigation process has been resolved. If the state is 
afraid of the repercussion in using a form of execution, then they should have 
abolished that means of execution."

(source: The Tampa Tribune)






ALABAMA:

Is Alabama death row inmate competent to be executed? Judge to decide


Attorneys for an Alabama death row inmate convicted of killing a police officer 
31 years ago say that several strokes have caused mental decline so severe 
their client no longer understands why the state plans to execute him.

Madison's attorney in February filed a motion seeking to stop his execution, 
saying he suffers "from significant cognitive decline, acute mental health 
disorders, and severe medical problems that render him incompetent to be 
executed."

A competency hearing was held in Vernon Madison's case on April 14 in Mobile 
County circuit court. Testimony was given by Dr. Karl Kirkland, a clinical and 
forensic psychologist; Dr. John Goff, a psychologist; and Carter Davenport, the 
warden at W.C. Holman Correctional Facility.

The next day, Judge Robert Smith issued an order asking attorneys to submit a 
brief within one week. Those filings appeared in online court records Thursday 
evening.

Madison is represented by attorneys with the Equal Justice Initiative. In a 
brief filed on his behalf, they argue that executing Madison would violate his 
constitutional rights because he does not have a rational understanding of the 
situation.

In a brief filed by the state attorney general's office, attorneys argue that, 
based on testimony from both Goff and Kirkland, Madison does understand why the 
state is moving to execute him.

Corporal Julius Schulte was a 22-year veteran of the Mobile Police Department 
when he was shot and killed April 18, 1985, while responding to a domestic 
violence call.

Madison, who has been on death row since Nov. 12, 1985, was convicted in 
September 1985 and sentenced to death in Mobile County in the April 18, 1985 
slaying of police Officer Julius Schulte, who was responding to a domestic 
disturbance call. Madison was on parole at the time.

Madison had 3 trials, the last one in 1994. State appellate courts twice had 
sent the case back to Mobile County, once for a violation based on race-based 
jury selection and once based on improper testimony for an expert witness for 
the prosecution. He is 1 of Alabama's longest-serving death row inmates.

According to the brief filed by Madison's attorneys, he had a stroke in May 
2015 and another in January of this year, causing memory loss and slurred 
speech, making it difficult for him to move and rendering him legally blind.

Goff conducted neuropsychological testing and evaluated Madison's competence to 
be executed. Goff determined that, because of the strokes, Madison has 
retrograde amnesia and dementia, and his IQ score has declined significantly to 
72 from previous scores.

"Mr. Madison cannot independently recall the facts of the offense he is 
convicted of or the previous legal proceedings in his case," the EJI brief 
states. "Mr. Goff reported that Mr. Madison was unable to recollect the 
sequence of events from the offense, to his arrest, to his trial and could not 
recall the name of the victim."

Madison's attorneys are requesting a stay of execution.

Representatives from the attorney general's office argue that Madison's 
contention that he was unjustly convicted demonstrates that he has a rational 
understanding of the case and his sentence.

"Madison is aware that he was convicted of murder in Mobile County, has spent 
30 years on death row appealing that conviction through numerous appeals, that 
he is going to be executed for the murder, that the judge sentenced him to 
death because of who the victim was (a police officer), and that he will die as 
a result of his execution," the brief states.

The attorneys also argue that testimony from both experts also shows that he 
does not suffer from psychosis or delusions, and no mental illness or defect 
would cause Madison to lack an understanding of reality.

The Alabama Supreme Court issued an order setting May 12 as the date for 
execution. Madison was 1 of 3 death row inmates for which the Alabama Attorney 
General's Office had requested the court in February to set execution dates.

The inmates are being held on death row at Holman Correctional Facility at 
Atmore where the executions take place.

(source: al.com)






LOUISIANA:

Judge: La death row inmate not intellectually disabled


A state judge has ruled that a Baton Rouge man sentenced to death for killing 
an elderly couple is not intellectually disabled, and therefore may be 
executed.

Gary Clements, an attorney for 48-year-old Allen "Lil Boo" Robertson Jr., told 
The Advocate (http://bit.ly/22Xl7R2 ) that he will ask the Louisiana Supreme 
Court to Friday's ruling by District Judge Mike Erwin.

Robertson was convicted of fatally stabbing Morris and Kazuko Prestenback on 
Jan. 1, 1991, during a break-in for money to buy drugs. Robertson was 23.

A defense psychologist said Robertson is intellectually disabled, but Erwin 
said there is no evidence of that in his school records.

Erwin gave Clements until Sept. 21 to file his appeal with the state Supreme 
Court.

(source: Associated Press)