[Deathpenalty] death penalty news----MO., NEB., COLO., CALIF., WASH., USA

[Rick Halperin]

Aug. 2


MISSOURI:

Columbia death penalty case starts again in court----Attorneys will once more 
argue whether or not Ernest L. Johnson should receive lethal injection.


Arguments in a Missouri death penalty case questioning the state's use of 
lethal injection started again in district court Monday, and offered a new, 
potential, method of execution.

Attorneys for Ernest Lee Johnson, sentenced to death for the 1994 murders of 3 
people at a Columbia convenience store, filed their opening argument in federal 
court. Johnson's case made it to the U.S. Supreme Court before justices sent it 
back down to an appellate court for review, just hours before Johnson's 
execution in November 2015. That court also sent it back to the district level, 
claiming that court needed to give a final ruling on the matter before it had 
any authority over it.

Kansas City-based lawyers Brian Gaddy and Jeremy Weis argued then, and again on 
Monday, that Missouri's use of pentobarbital would qualify as "cruel and 
unusual punishment" when applied to Johnson. A 2008 brain surgery to remove a 
tumor left scar tissue, noticed during an MRI done in 2011. Pentobarbital would 
cause Johnson "violent and uncontrollable seizures," they argue, based on a 
2015 examination by Dr. Joel Zivot of Emory University.

Monday's filing suggests the use of "nitrogen-induced hypoxia," where a person 
would conceal their face with a hood or mask, and fill it with nitrogen. In 
2015, Oklahoma became the 1st state to approve the use of this method, while 
the courts reviewed that state's use of lethal injection. A state-commissioned 
review panel there found it to be a more "humane" method of execution, 
rendering the person unconscious within 20 seconds and "can assure a quick and 
painless death of the offender." However, no state has ever used 
nitrogen-induced hypoxia as a method of execution, which means there is little 
medical research surrounding it.

"The available literature regarding the nitrogen gas method of execution 
strongly suggests that the subject will have no allergic reaction to the gas, 
will experience a loss of consciousness, and will suffer no pain," Gaddy wrote.

While the Missouri Attorney General's Office doubts that pentobarbital would 
cause such a reaction, both sides have also argued whether or not Johnson 
should instead receive lethal gas. It is the only other legal form of capital 
punishment in the state, but has not been used since 1965, and Missouri does 
not have an operable gas chamber. The attorney general argued that Johnson's 
lawyers have never proved lethal gas would cause a less painful death, nor how 
the state would carry it out without a gas chamber currently in place.

The issue of Johnson's death has lasted for the 2 decades. A jury first 
convicted him to death for the killings of Mabel Scruggs, Mary Bratcher and 
Fred Jones at the old Casey's General Store at Ballenger Lane and Rice Road. 
Johnson entered the store while the 3 were closing it on a February night, 
killing them with a hammer in an attempt to rob the store. Witnesses at trial 
claimed Johnson was trying to rob the store to satisfy his cocaine addiction, 
having just recently been paroled and seeking the help of a rehabilitation 
facility. Various courts overturned the death penalty 2 times in Johnson's 
case, a Pettis County jury last convicting him to the death in 2006.

The attorney general's office has until August 22 to respond.

(source: KMIZ news)






NEBRASKA:

Even With Voter Approval, Death Penalty Could Not Function


Attorney General says even with voter approval, it is unknown how long before 
the death penalty would be functioning again.

According to Republican State Senator Colby Coash with approval in November it 
isn't known how long it could take for the legislature to get the death penalty 
up and running again.

In an interview in 2009 with 10/11 news, Former Attorney General Jon Bruning 
said that executions could resume as quickly as 1 or 2 years afterwards.

"Voters should know they're not voting to fix a system," Coash said. "They're 
voting to keep a system that hasn't worked for 20 years and will continue to 
not work should the Legislature's decision be reversed."

(source: KWBE news)






COLORADO:

Photo of 2 Colorado Supreme Court justices adds new controversy to death row 
inmate's appeal ---- Justices had picture taken with state Rep. Rhonda Fields, 
who is a victim in the case


A photo of 2 state Supreme Court justices and a lawmaker has added new 
controversy to a Colorado death row inmate's case - further complicating a 
legal morass enveloping the state's only 2 active capital punishment appeals.

Lawyers for Robert Ray say the photo calls the justices' impartiality into 
question and that the justices should now remove themselves from deciding 1 of 
Ray's appeals.

The photo shows Chief Justice Nancy Rice and Justice Nathan Coats in their 
robes and sitting closely on either side of state Rep. Rhonda Fields in the 
Capitol building. All 3 smile for the camera, and Coats' left hand rests atop 
Fields'.

Rice and Coats, along with their 5 other colleagues on the Supreme Court, are 
currently deciding whether to hear the appeal by Ray. He was sentenced to death 
in 2009 for the murders of Fields' son and Fields' son's fiancee.

Fields, who is running for the state Senate, used the photo without comment 
this year in a newsletter and fundraising pitch to supporters. The newsletter 
also had photos of Fields at a bill signing and speaking at a news conference.

In a motion filed last month, attorneys for Ray say the photo with the justices 
"presents an appearance of partiality" in favor of Fields and, thus, against 
Ray.

"[R]ecusal is required to maintain the integrity of these proceedings and 
ensure public confidence in the impartiality of the Justices who will decide 
this important case," the attorneys wrote in the motion.

Ray and another man, Sir Mario Owens, were convicted in the 2005 murders in 
Aurora of Javad Marshall-Fields and Vivian Wolfe. Both men were sentenced to 
death.

Both were also convicted in connection with an earlier murder in Aurora - a 
shooting at Lowry Park that Marshall-Fields witnessed and in which he was 
wounded. That earlier case provided a legal basis for prosecutors to seek the 
death penalty against Ray and Owens for the later murders.

Under Colorado law, Rhonda Fields is considered a victim with certain legal 
rights in both her son's murder and the Lowry Park case. The motion was filed 
in Ray's appeal of his conviction for the Lowry Park case, which, because of 
its link to Marshall-Fields' and Wolfe's killings, could topple his death 
sentence if overturned.

"I think they're just looking for reasons to avoid accountability for murdering 
my son and his fiancee," Fields said of the motion in a telephone interview.

Fields said she doesn't have any kind of relationship with the justices outside 
of legislative work and said the photo was a typical snapshot that lawmakers 
and justices often take at official events. She said the photo was taken at the 
State of the State speech in 2015, though the motion says it was taken at this 
year's speech.

"I'm offended that they would take this approach," Fields said of Ray's 
defense.

Melissa Hart, a University of Colorado law professor, said judges must recuse 
themselves from a case when they aren't impartial - for instance, when they 
worked for 1 side on the case in a previous job - or when there is a strong 
appearance of impartiality. But it's often a nuanced decision, and, for Supreme 
Court cases, there is nowhere to appeal a justice's decision not to recuse.

Hart said the photo itself probably isn't enough for the justices to take 
themselves off the case, but the fact that it was used in a political 
fundraising e-mail complicates the matter.

"That does create an appearance of closeness between them that I think is not 
likely there, but it does create a different feel to the problem," Hart said.

There is no time frame for the justices to rule on the recusal motion.

Regardless of their decision, the motion adds further complications to Ray's 
and Owens' cases. Both of their appeals of their death sentences are stuck at 
the 1st step of the process with months or years still to go before even an 
initial ruling. Ray's attorneys in the death penalty case have threatened to 
quit in a dispute with a judge, while Owens' attorneys unsuccessfully sought to 
have a different judge - fired abruptly from their case - reinstated.

(source: The Denver Post)






CALIFORNIA:

Exonerated Man Gets $10 Million, but What He Wants Is to End the Death 
Penalty----Californians will choose in November whether to abolish or to speed 
up capital punishment.


Franky Carrillo spent 20 years in prison for a murder he didn't commit before 
being exonerated and released in 2011. The 42-year-old doesn't seem to have 
wasted 1 day since. He's purchased a home and proposed to his girlfriend, and 
his 2nd son was born in 2013.

Recent months brought two major life changes: He earned his bachelor???s degree 
after 4 years of studying sociology at Loyola Marymount University, and he 
reached a settlement for $10.1 million with Los Angeles County for his wrongful 
conviction, which breaks down to $500,000 for every year he spent in prison.

But he's not taking that life-changing sum as an excuse to stop trying to save 
the lives of others.

Carrillo is advocating for a new initiative, Proposition 62, which would 
abolish the death penalty in California at the ballot box. Although he was not 
sentenced to death himself, He knows firsthand that people are wrongly caught 
up in the criminal justice system, and he is fighting to make sure others who 
are wrongfully incarcerated have the same chance to prove their innocence that 
he did.

"[The criminal justice system] cannot guarantee that the people who are 
prosecuted and given the death sentence had a fair trial, and more importantly 
for me, that they were actually guilty," Carrillo said. "Many people who have 
been executed have been found to be innocent, and we shouldn't do that."

Proposition 62 would abolish the death penalty and replace it with a life 
sentence without the possibility of parole, including for those already sitting 
on death row. It would also require those given the sentence to work in prison, 
and 60 percent of the wages earned could go to benefit victims and their 
families.

Getting it passed won't be easy - Carrillo has tried and failed once before. 
Soon after he was exonerated, he felt compelled to join the "Yes on 34" 
campaign, advocating for the 2012 ballot initiative that would have abolished 
the death penalty in California. After months of long hours of campaigning and 
voter outreach, the proposition was defeated 52 % to 48 %. For Carrillo, it was 
a tough loss.

"I was devastated, to be completely honest," he said. "But the idea was that we 
would try again, and here we are 4 years later."

Part of Carrillo's determination stems from his college education, where I can 
attest he was an involved student. In the Restorative Justice class we both 
took during our last semester at LMU, for example, he never shied away from 
sharing his opinions. He offered a valuable perspective, uniquely suited for a 
class that challenged many students' notions of the fairness of the criminal 
justice system in the United States. It's an experience from which he says he 
gained a broader understanding of people from varied backgrounds and with that 
understanding of others, how important it is to encourage individual thinking 
in education to inspire social change.

"It's reassuring to know that these young people, who are obviously not immune 
or separated from the realities of our world, are knowledgeable," Carrillo 
said. "They're aware of the social circumstances and ramifications of the 
society that we live in."

Educating the public on the benefits of eliminating the death penalty - as well 
as increased turnout by millennials who either sat out or were not eligible to 
vote in 2012, like many Carrillo studied with at LMU - will be key to that 
effort.

The United States is the only Western country that still uses the death 
penalty. California leads the nation in prisoners awaiting execution, with 743 
prisoners stuck in the backlog. Only 13 people have been executed in the state 
since voters reinstated the death penalty in 1978, at a cost of $4 billion, 
according to a 2011 study.

Among the supporters of Proposition 62 are the ACLU and Democratic politicians 
including former President Jimmy Carter, Lt. Gov. Gavin Newsom, and Rep. 
Loretta Sanchez, who is running for California's open U.S. Senate seat.

Abolishing the death penalty, however, will not be the only option for 
California voters this fall, raising the stakes for those aligned with 
Carrillo. A competing measure, Proposition 66, would accelerate and streamline 
the process of executing those on California's death row, the largest in the 
United States. Those advocating for this measure say the death penalty in the 
state should be reformed but argue that prosecutors should have the option in 
certain cases. The measure would increase funding to expand the pool of 
available defense attorneys and require that those sentenced to death be 
appointed a lawyer at the time of the sentence. Death row inmates in California 
often wait 5 years or more before being assigned an attorney. Supporters of the 
proposition include most of the state's district attorneys and county sheriffs 
and former Republican Govs. Pete Wilson and George Deukmejian.

"The death penalty...occurs in less than 2 % of murders across this state," 
Sacramento County District Attorney Anne Marie Schubert, who also is the "Yes 
on 66" campaign cochair, said in a press conference in May. "It is a rare event 
but is an option that prosecutors should have."

31 states including California use capital punishment, while 19 have rejected 
it, according to the National Conference of State Legislators.

Both propositions' advocates claim that each measure would decrease the immense 
cost of maintaining California's death row. Passing Proposition 62 could save 
the state about $150 million per year, according to fiscal impact statement 
released by the state's legislative analyst. Proposition 66 would initially 
increase death row spending, but the fiscal impact statement indicates that 
long-term savings could be in the tens of millions of dollars.

But for Carrillo, who knows that not everyone caught up in the criminal justice 
system is guilty of a crime, saving money is not the point, and fast-tracking 
executions is not a risk worth taking.

"It took me 20 years to prove my innocence. You need time. You need evidence to 
surface. You need great attorneys to do the work," he said. "If you fast-track 
it, if you want to rush through the process, you're jeopardizing those who are 
wrongfully convicted to be executed. There is no way around that."

(source: takepart.com)

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

Death penalty upheld for man convicted of murder, rape of 
octogenarians----California Supreme Court orders non-capital portion of his 
punishment to be recalculated through a new jury trial.


The death penalty was upheld Monday, Aug. 1, for 45-year-old Bailey Lamar 
Jackson, who was found guilty of murdering an elderly woman and raping another.

The California Supreme Court on Monday, Aug. 1, upheld the death sentence of a 
Riverside man convicted of abducting and killing an 81-year-old woman and 
torturing and raping an 84-year-old woman in 2001.

Bailey Lamar Jackson, 45, has been on death row for 1st-degree murder since 
October 2005. Jackson also was convicted of other crimes including attempted 
murder, torture, rape, burglary and robbery, and was sentenced to 212 years to 
life for those offenses.

While state Supreme Court justices upheld the death penalty, they called for a 
new jury trial to recalculate the non-capital portion of Jackson's sentence.

That's because the trial court imposed consecutive sentenced for the sex crimes 
against the 84-year-old woman. A 2001 ruling in a separate case called for 
sentencing for sex crimes on "a single victim during a single occasion" to 
result in a single sentence.

Geraldine Myers, 81, who lived near Riverside Plaza, disappeared May 13, 2001 - 
Mother's Day. The following month, in the same neighborhood, the 84-year-old 
woman was robbed, tortured, raped and left for dead.

The woman was severely injured but survived and called 911. Police found her 
purse a few houses away, inside a trash container near where Jackson was 
staying, and her stolen television in his room, according to trial testimony.

The rape victim suffered a stroke and died in 2004.

Myers' body has never been found. Police did find her car the day after she 
disappeared - a teenager admitted seeing it in a parking lot, key in the 
ignition, stealing it and driving it to North Las Vegas. A Macy's bag with 
Myers' blood on it was inside.

Authorities linked Jackson to Myers' disappearance by using scent evidence left 
on a crumpled envelope the victim kept money in. A bloodhound sniffed the 
envelope, then led her handler to Jackson, sitting in the police station a few 
days his arrest.

In December 2004, a jury convicted Jackson of all charges and the special 
circumstances that made him eligible for the death penalty. But those jurors 
deadlocked on Jackson's punishment, causing a mistrial in the penalty phase and 
prompting the Riverside County district attorney's office to retry that 
portion.

While California has the death penalty, the state has not executed anyone in 10 
years. Of the 747 people currently on death row, 89 - about 11 % - were sent 
there from Riverside County, which has about 6 % of the state's population.

(source: Press-Enterprise)

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

Sierra LaMar judge refuses to postpone trial


The judge in the Sierra LaMar capital case refused Monday to postpone the 
murder trial of Antolin Garcia-Torres and tentatively set jury selection for 
Sept. 19.

But defense attorneys Brian Matthews and Al Lopez warned Judge Vanessa A. 
Zecher that they will probably have to ask again for a delay in the death 
penalty case.

"It's not like the case sat there. We have been working on it,'' Matthews told 
the Santa Clara County Superior Court judge. "We need the extra time.''

The defense attorneys reminded Zecher that if the trial proceeds before they 
are prepared, an appellate court judge could find they provided "ineffective 
assistance of counsel,'' and overturn the verdict.

Both Matthews and Lopez are court-appointed government attorneys who have been 
representing clients in other serious cases, including other murder trials, 
since being assigned to the LaMar case.

District Attorney Jeff Rosen's office is seeking the death penalty against 
Garcia-Torres, 22, for the alleged killing of LaMar near Morgan Hill. The 
15-year-old vanished on her way to a school bus stop on March 16, 2012. 
Garcia-Torres has pleaded not guilty to the murder charge and to attempted 
kidnappings of other women.

About a dozen of LaMar's relatives and supporters attended the brief hearing 
Monday to demonstrate their desire for the trial to get under way.

"We've been extremely patient so far,'' Steve LaMar told the judge. "We 
respectfully request the court proceed as soon as possible.''

Outside court, he said the family is frustrated and anxious to know more about 
what happened to the teen. "We want answers,'' he said.

Also Monday, the defense attorneys made it clear that if Garcia-Torres is 
convicted, they will ask the jury to spare him from the death penalty, based in 
part on the fact that his father was convicted of sexually molesting a female 
relative when she was a child. Genaro Garcia Fernandez, 51, was sentenced to 
life in prison in 2012, just seven months after LaMar disappeared. The 
attorneys are likely to argue that his conviction and previous domestic 
violence arrests offer a glimpse into Garcia-Torres' dysfunctional childhood.

Before trial, Zecher must decide several motions, including whether to move the 
trial out of Santa Clara County. His attorneys claim massive media coverage has 
made it impossible to find impartial jurors. The last time a change of venue 
was granted in Santa Clara County was in 1980, when the county population -- 
and the jury pool -- was much smaller.

The defense is also asking Zecher to hold a separate trial on the kidnapping 
allegations Garcia-Torres faces, a request opposed by prosecutor David Boyd.

The judge has already rejected requests by TV stations and this newspaper to 
film or photograph the upcoming trial.

(source: Mercury News)

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

Competing death penalty ballot measures reel in $6 million


Campaign contributions poured into dueling death penalty campaigns in 
California, reaching more than $6 million as of June 30, according to the 
latest campaign finance reports.

The highest total amount of contributions -- $3.6 million so far in 2016 -- 
has flowed to Proposition 62, which seeks to abolish capital punishment and 
replace it with life in prison without parole. The Nov. 8 ballot measure 
reported raising $1.3 million in donations during the latest reporting period, 
which spanned from April to June.

But campaign efforts to stop Proposition 62 and pass Proposition 66, which 
seeks to speed up executions through limited and expedited appeals, have not 
been far behind, pulling in $2.4 million in total contributions this year. Of 
that, $2.2 million came in during the latest reporting period.

(source: Los Angeles Times)






WASHINGTON:

Accused killer with Nazi tattoos may face death----Brent Luyster accused of 
killing 3, wounding 1 on July 15


Brent Luyster, accused of killing 3 people and wounding a 4th in Woodland in 
July, is facing new charges of aggravated murder.

The upgrade in the charge means it's possible Luyster could face the death 
penalty if convicted, Clark County prosecutor James Smith said. A charge of 
1st-degree murder - which Luyster already faces - carries a mandatory prison 
term of years, but not the death penalty.

No decision has been made whether to actually seek the death penalty, Smith 
said.

The accused killer was scheduled to be arraigned on the charges Monday, but his 
defense attorney said he needed more time to go over the evidence. The 
arraignment is now set for August 24.

But Smith said that date, too, could be pushed back.

Luyster remains in jail without bail.

His girlfriend, Andrea Sibley, faces charges of helping him after the killings. 
Her defense attorney, Jeff Sowder, told KOIN 6 News Sibley was only doing what 
she was told to do by Luyster, who had a gun and just killed 3 people.

"The idea is to take the state's case at face value that Luyster shot 4 people 
in front of Andrea Sibley," Sowder said. "What's she supposed to do if he says 
let's go? She goes, particularly compounded if she's with her 2-year-old son 
and his 12-year-old son."

Sibley also remains in jail, though her bail was reduced to $250,000.

The case

Court documents paint a harrowing picture of the July 15 triple murder. The 
bodies of 3 victims were found at a Woodland home, and all 3 appeared to have 
been shot in the head.

The victims were identified as Joseph Lamar, Janell Knight and Zach Thompson. 
The wounded woman - shot through the left side of her face - is Breanne Leigh, 
who is the mother of Thompson's children.

Lamar and Thompson were found outside in the driveway next to each, both shot 
at point blank range. Knight was inside lying on a couch, also shot in the 
head.

According to the affadavit, a deputy knew the shooting happened at the house of 
1 of the victims, Joseph Lamar. The deputy asked Leigh if she knew who shot 
her, she wrote, "pretty sure Brent Lyster (sic) Luyster. He's in big trouble. 
Fed."

(source: KOIN news)

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

Arraignment delayed for suspect in Woodland triple homicide----Suspect's 
girlfriend arraigned on charge of rendering criminal assistance


The arraignment for a man potentially facing the death penalty in a Woodland 
triple homicide was pushed back to August while his attorney does further 
investigation and assembles a defense team.

Brent Ward Luyster, 35, was in Clark County Superior Court on Monday to be 
arraigned on 3 counts of aggravated 1st-degree murder with the use of a 
firearm, attempted 1st-degree murder with the use of a firearm, and 1st- and 
2nd-degree unlawful possession of a firearm.

The Clark County Prosecuting Attorney's Office last week amended the charges 
against Luyster to include aggravated murder, which allows for the possibility 
of the death penalty.

Luyster, who has been described by the Anti-Defamation League as a white 
supremacist, is accused of fatally shooting Joseph Mark Lamar, 38, Zachary 
David Thompson, 36, and Janell Renee Knight, 43, on July 15 at a rural home 
southeast of Woodland. A 4th victim, Breanne L.A. Leigh, 31, was seriously 
wounded. Luyster was apprehended the following day on Ocean Beach Highway, west 
of Longview.

His girlfriend, 27-year-old Andrea Sibley, was also in court Monday to be 
arraigned on 1st-degree rendering criminal assistance - a Class B felony that 
carries a maximum sentence of 10 years in prison. She pleaded not guilty to the 
charge and was given a trial date of Sept. 26. Judge Robert Lewis additionally 
lowered her bail from $400,000 to $250,000.

Sibley is accused of being present at the time of the fatal shooting, driving 
Luyster away from the scene and assisting him in fleeing the area, according to 
a probable cause affidavit.

The 2 appeared separate in court.

Luyster was initially being represented by Vancouver attorney Susan Stauffer 
but was appointed new counsel during his hearing.

Veteran defense attorney Bob Yoseph was assigned to Luyster's case because he 
is 1 of few attorneys designated by the Supreme Court to handle potential death 
penalty cases. Yoseph requested his client's arraignment be set over while he 
investigates and presents evidence to the prosecution on why Luyster should not 
face capital punishment.

In the meantime, Luyster is being held at the Clark County Jail without the 
possibility of bail. Yoseph said he will likely address bail at Luyster's new 
arraignment date Aug. 24.

Deputy Prosecutor James Smith, who's handling Luyster's case along with Deputy 
Prosecutor Laurel Smith, did not indicate during the hearing whether they will 
seek the death penalty. The prosecution has 30 days from arraignment to file 
the notice.

State law allows prosecutors to pursue aggravated murder and capital punishment 
if any one of 14 factors apply to the case. An aggravating factor is any 
circumstance that increases the severity or culpability of a crime.

Gov. Jay Inslee announced in 2014 that he would suspend all executions in the 
state while he's in office but that doesn't preclude prosecutors from pursuing 
capital punishment.

(source: columbian.com)






USA:

Black Lives Matter releases platform calling for an end to the death penalty


More than 50 organizations linked to the Black Lives Matter movement came 
together to draft its 1st policy platform, released Monday. "We seek radical 
transformation, not reactionary reform," Michaela Brown, a spokeswoman for 
Baltimore Bloc, an organization that worked on the platform, said. "As the 2016 
election continues, this platform provides us with a way to intervene with an 
agenda that resists state and corporate power, an opportunity to implement 
policies that truly value the safety and humanity of black lives, and an 
overall means to hold elected leaders accountable." The platform demands 
reparations for slavery, investment in education and jobs, an end to the death 
penalty, the "demilitarization" of police departments, and decriminalization of 
prostitution and drug-related offenses.

(source: theweek.com)

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

Dylann Roof Challenges Constitutionality Of Federal Death Penalty 
Law----Lawyers for the accused Charleston church shooter argue that the death 
penalty itself, as well as the federal death penalty law, are unconstitutional.


Lawyers for Dylann Roof on Monday filed a motion challenging the federal 
government's intention to seek the death penalty in his murder trial, arguing 
that the penalty is unconstitutional.

"[T]his Court should rule that the federal death penalty constitutes a legally 
prohibited, arbitrary, cruel and unusual punishment prohibited by both the 
Fifth and Eighth Amendments," lawyers write in defense of Roof, who is charged 
with murder for the shooting deaths of 9 people inside a historically black 
South Carolina church this past summer.

In the filing, the lawyers argue that the death penalty itself is 
unconstitutional, as is the federal death penalty law.

"[T]he [Federal Death Penalty Act] may have been designed with as much care as 
possible under the circumstances, the capital sentencing process that the 
statute provides is constitutionally inadequate in practice," the lawyers 
write. "The results of jurors' good-faith grappling with the law - arbitrary, 
biased, and erroneous death verdicts - are intolerable as a matter of due 
process and proportional punishment."

The challenge is only being brought, the lawyers write, because the federal 
government is seeking the death penalty in Roof's case after rejecting his 
offer to plead guilty and accept multiple life sentences without the 
possibility of parole.

The federal death penalty also is under challenge in other cases, the filing 
notes. Most notably, a federal judge in Vermont just recently finished a 9-day 
hearing over issues raised by Donald Fell's lawyers about the constitutionality 
of the death penalty in the federal stystem.

In addition to the 2 broad constitutional challenges, Roof's lawyers are also 
challenging the jury selection process referred to as "death qualification" - 
finding a jury willing to impose the death penalty. As the lawyers note, 
"conscientious objectors to the death penalty are systematically excluded" from 
such juries.

"Because the practice of death qualifying a jury has no constitutional or 
statutory underpinnings, distorts the jury function, introduces arbitrariness 
into capital sentencing and increases the influence of racism and sexism on the 
death determination, there is no justification for maintaining it," the lawyers 
write.

The lawyers are also challenging related to the use of the Matthew Shepard and 
James Byrd, Jr. Hate Crimes Prevention Act (HCPA) in the prosecution, noting 
that the legislation considered including the death penalty as a punishment but 
ultimately rejected it.

"[D]espite Congress's deliberate decision not to provide for the death penalty 
in HCPA prosecutions, the government has effectively amended the statute to 
permit a death sentence to be imposed," the lawyers argue.

The lawyers also raise several other challenges relating to Roof's charges, and 
to the sentencing procedures at issue in a federal death penalty trial.

(source: buzzfeed.com)

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

The Sordid Ways Death-Penalty States Obtain Execution Drugs


One afternoon, Donnie Calhoun, owner of Calhoun Compounding Pharmacy in 
Anniston, Alabama - "Compounding for Life's Problems" - came back from a 
meeting to find a strange request from the Alabama Department of Corrections. 
The girl who'd answered the phone had written the question down on a notepad: 
Did he want to make a lethal-injection drug that would be used to carry out an 
execution?

"I went, what? They do this?" Calhoun recalled. He called them back and let 
them know that he would not make a drug that could be used to kill. "For me, as 
a healthcare professional, I want to help people live longer. The last thing I 
want to do is help someone die."

Other sterile-compounding pharmacists in the state were similarly unenthused 
about requests to help Alabama execute its death-row inmates. Of the nearly 30 
compounding pharmacies contacted by the state, all refused, according to court 
records. "Of course, we said absolutely not," says one of the owners of Eagle 
Pharmacy in Hoover, Alabama. "It's something no one wants to do, and it's quite 
understandable."

? Another pharmacist in Virginia adds that someone from the attorney general's 
office recently popped into his store and asked about lethal injection drugs. 
"No one will do it," he says. "Maybe you should try executing them with 
heroin," the pharmacist wise-cracked about a drug that's a whole lot easier to 
obtain in the state of Virginia.

--------------------------------------------------------------------------------

Life is getting increasingly complicated for officials in states intent on 
carrying out the death penalty.

For the past few years, executions have been hindered by an unlikely obstacle: 
the moral compass of the pharmaceutical industry - or, more precisely, Pharma's 
concern over bad PR.

This is especially evident in Europe, where there's widespread opposition to 
the US death penalty. The EU, which bans capital punishment, also prohibits the 
sale of drugs for lethal executions in America, so pharmaceutical companies 
that do business in Europe have to actively take steps to ensure their products 
aren't used in American executions. Many large companies not only refuse to 
make drugs for lethal injection but make their distributors sign contracts 
forbidding them from selling drugs to US Departments of Correction. Many have 
written US states asking that they don't use drugs they already have in stock.

Of course, that hardly guarantees that their product won't end up in a syringe 
in an execution chamber: States tend to ignore their requests that their 
medicine isn't used to kill.

Documents obtained by the Influence show that two of the substances in 
Virginia's stash of execution drugs - rocuronium bromide to induce paralysis 
and potassium chloride to stop the heart - were manufactured by Mylan and APP 
Pharmaceuticals respectively. Both companies have European branches and have 
denounced the use of their drugs in executions.

There are clear incentives for doing this: In 2014, Mylan lost $70 million when 
a German investor pulled out, after it was discovered Alabama was using 
Mylan-produced rocuronium bromide to put prisoners to death. The drug was part 
of a previously untested execution cocktail, according to NBC News.

In October 2015, Mylan published a statement decrying the use of its drugs for 
capital punishment:

"Recently Mylan received information indicating that a department of 
corrections in the US purchased Mylan's rocuronium bromide product from a 
wholesaler for possible use outside of the labeling or applicable standard of 
care. Mylan takes very seriously the possibility its product may have been 
diverted for a use that is inconsistent with its approved labeling or 
applicable standards of care."

Mylan confirms to the Influence that the Department of Corrections it wrote in 
2015 - asking that the drugs only be used for approved-medicinal purposes, not 
death - was the one in Virginia.

"Mylan takes seriously the possibility that one of its products may have been 
diverted for a use that is inconsistent with its approved labeling," the 
company wrote in 2015. "We appreciate that the Department of Corrections may 
purchase Mylan products for therapeutic purposes. Nevertheless, we would 
request your assurances that the Department of Corrections has not acquired 
Mylan's rocuronium bromide or any other Mylan product for a purpose 
inconsistent with their approved labeling and applicable standards of care, and 
that it will not do so in the future."

And yet here are Mylan's drugs, still sitting in Virginia's execution arsenal 
as of this June:

"Pharmaceutical companies have never wanted medicines they make to save and 
improve the lives of patients used in executions designed to end the lives of 
prisoners," says Maya Foa, director of the death-penalty team at Reprieve, an 
advocacy organization for criminal justice. "They have taken concrete steps to 
prevent this by implementing rigorous distribution controls to prevent sales of 
these medicines to Departments of Corrections for use in lethal-injection 
executions. States like Virginia should respect the wishes and interests of the 
industry and stop the misuse of medicines in executions."

More documents obtained by the Influence indicate the wholesaler that sold 
Mylan's drugs to the state of Virginia before the company put contractual 
controls in place was Cardinal Health???a large drug distributor based in North 
Carolina.

There's no evidence that Cardinal Health has sold drugs to Department of 
Corrections since the companies instituted their controls. It's a sign that the 
public pressure campaigns of groups like Reprieve will continue to diminish the 
drug supply as the drugs in stock expire.

Alfredo Prieto was killed by the state of Virginia on October 1, 2015. The 
Virginia Department of Corrections confirms that he was executed using Mylan's 
rocuronium bromide and APP's potassium chloride. The latter drug has effects 
likened to "being burned alive from the inside," if the prisoner is not fully 
sedated.

The potassium chloride from APP expired this June, according the the Virginia 
Department of Corrections. But the Mylan-produced rocuronium bromide is good 
until 2017.

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Somehow, using pharmaceutical companies' drugs despite their protests isn't 
even the sketchiest way states have gone about conducting lethal injections.

A few years ago, Texas, Arizona, and Nebraska paid $80,000 to a businessman to 
obtain the sedative sodium thiopental from India. That plan went awry when the 
FDA confiscated the drugs in 2015 - turns out, you're not allowed to order 
large quantities of powerful barbiturates from foreign countries via mail.

When a Nebraska official asked the vendor for a refund, he (obviously) 
declined, pointing out that he'd met his end of the bargain. The FDA is likely 
still warehousing them, Chris McDaniel reported for Buzzfeed.

The shady sources of drugs and the secrecy surrounding execution protocols have 
had nightmarish outcomes. In 2010, the state of Arizona likely used an expired 
batch of sodium thiopental from overseas to sedate Jeffrey Landrigan before 
administering the paralytic, as Liliana Segura reported at the Intercept.

Because the sedative forming the 1st part of the execution-drug trio had likely 
expired, Landrigan was probably fully conscious when the 2nd drug paralyzed 
him, and when the 3rd drug stopped his heart. His eyes were open when he died.

Neither does using a US pharmacy to obtain execution drugs guarantee that 
things will be handled professionally.

In 2014, the Apothecary Shoppe, a compounding pharmacy in Tulsa, Oklahoma - 
"Because your prescription matters" - was revealed as the source for 
lethal-injection drugs used in 3 Missouri executions.

A year later, regulators inspecting the pharmacy found more than 1,000 code 
violations - including questionable sterilization practices and drug potency, 
Buzzfeed reported. The Apothecary Shoppe had also fudged the expiration dates 
on its drugs.

As Buzzfeed pointed out, years before, Missouri's death-row inmates had 
expressed their concerns that products made by compounding pharmacies didn't 
"meet the requirements for identity, purity, potency, efficacy, and safety that 
pharmaceuticals under FDA regulation must meet."

The state dismissed such concerns.

"[This] allegation does not make plausible claim that Missouri's execution 
procedure is sure or very likely to cause serious illness or needless suffering 
and give rise to sufficiently imminent dangers," the state wrote, arguing that 
the lawsuit should be dismissed.

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Even turning to seemingly well-run compounding pharmacies hasn't been working 
so well for death-penalty states lately.

It's bad business strategy for a pharmacy to wade into the deeply divisive 
issue of lethal injections. Set against the potential awful publicity, the 
financial incentives offered by death-penalty states are not particularly 
tempting.

Several pharmacists in death penalty states who spoke with the Influence said 
they would not make drugs for executions, either for ethical reasons - even one 
who supports the death penalty said he couldn't bring himself to make the 
drugs, not even for a good fee - or because it's too controversial. The 
International Academy of Compounding Pharmacists (IACP), the largest trade 
group of compounding pharmacists, has advised members not to make the drugs.

"No, no, no," one pharmacist in Virginia said. "I would not want to. In a word, 
no."

So over the past few years, more and more death-penalty states have tried a new 
tack: passing gag orders that keep the identity of the manufacturer and parts 
of the execution protocol secret, in the hopes that if they can guarantee total 
anonymity, they'll find more takers.

The latest state to pass a secrecy law is Virginia - the law went into effect 
this month. A spokesperson for the Virginia Department of Corrections tells the 
Influence the state has begun its clandestine search for more execution drugs.

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There are 7 people on death row in Virginia. 2 of them were scheduled to die 
this year, but their executions have been temporarily stayed.

Ricky Gray is on death row for taking part in a robbery spree for which he and 
his accomplice were convicted of killing seven people, including two children. 
Ivan Teleguz, a Ukrainian national, was convicted of having his ex-girlfriend 
murdered - but there are major holes in the state's case against him, including 
key witnesses admitting they lied in exchange for a deal from prosecutors.

Whether and how Gray and Teleguz are killed may come down to a strange 
compromise struck between pro-death penalty lawmakers and the Virginia 
governor, Terry McAullife.

In late 2015, state lawmakers introduced a bill to bring back the electric 
chair, so that executions could proceed even if the state ran out of execution 
drugs. The bill passed the House and Senate. But when the law landed on 
Governor Terry McAuliffe's desk, he made it clear it would not pass.

"I personally find it reprehensible," McAuliffe said at the time. "We take 
human beings, we strap them in a chair, and then we flood their bodies with 
1,800 volts of electricity, subjecting them to unspeakable pain until they 
die."

He proposed an alternative: Instead of going back to the electric chair, the 
state would acquire drugs from sterile compounding pharmacies - but through the 
passage of a state secrecy clause that would protect the identities of the 
pharmacies.

"These manufacturers will not do business in Virginia if their identities are 
to be revealed," McAuliffe said at the time, according to the Washington Post. 
McAuliffe made it clear that if his secrecy amendment didn't pass, he would end 
executions in the state rather than resort to the chair.

McAuliffe's compromise effectively ensured the death penalty would continue - 
even though he could have stopped it.

"I am pleased the governor agrees that the death penalty must remain available 
in order to preserve the full measure of justice," Delegate Jackson Miller 
(R-Manassas), the electric chair bill's sponsor, told local news sources.

Senator Scott Surovell (D), who helped lead the charge against both the 
electric chair bill and McAullife's secrecy clause, tells the Influence he was 
deeply disappointed by the governor's move.

"Our governor purports to be against capital punishment. He kept it alive in 
Virginia instead of imposing a moratorium like other governors have done," he 
says. "Nothing good happens in secret. I don't think the government should do 
anything in secret - especially kill a human being."

The warden of Oklahoma State Penitentiary sat in front of a grand jury, 
attempting to explain how the state accidentally used the wrong drug to kill 
Charles Warner in 2015 - and how nobody even noticed.

"I assumed that what the pharmacist provided was that [sic] we needed. So in my 
mind, that potassium acetate must have been the same thing as potassium 
chloride," the warden testified.

"My body is on fire," were Warner's last words, uttered after he was 
administered midazolam, the first drug in the lethal cocktail.

If ever a compelling argument were needed for why execution procedures should 
have far more scrutiny and transparency - rather than more secrecy - Oklahoma's 
most recent executions provide it. A damning 106-page jury report released this 
May found failure at almost every step of the process - as well as a decent 
amount of attempted cover-up - in both the execution of Charles Warner and the 
attempted execution of Richard Glossip later that year.

And those failures came after the state had tried to reform its execution 
protocol in response to the botched execution of Clayton Lockett in 2014, who 
appeared to writhe in pain and even attempt to get up from the gurney multiple 
times after being administered the sedative midazolam.

It took 43 minutes for Lockett to die.

According to court filings, officials at the Corrections Department settled on 
using midazolam as the sedative in part with the aid of a cursory online search 
when they couldn't find any pentobarbital, the officially sanctioned drug.

As they discovered, midazolam takes much longer to work than pentobarbital.

"I did have a discussion with our medical director at the time and he said, 
'Yeah Midazolam probably when administered will, will render sedation.' And 
that's all he would say," said the former general counsel for the Corrections 
Department who was involved in Lockett's execution, according to the report. 
"Then, you know, I did my own research, I looked on-line, you know. Went past 
the key Wiki leaks, Wiki leaks or whatever it is, and I did find out that when 
administered, Midazolam would administer, would render a person unconscious. 
That's what we needed ... So we thought it was okay."

After the political fallout from Lockett's botched execution, the state was 
forced to investigate and reform its execution processes before going through 
with the executions of Charles Warner and Richard Glossip.

(source: vice.com)