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

[Rick Halperin]

Dec. 5



NEBRASKA:

Ricketts' plan to shield ID of execution drug supplier echoes that of Missouri


In an effort to carry out Nebraska's 1st execution by lethal injection, Gov. 
Pete Ricketts has set in motion a plan that involves shielding the identity of 
the state's drug supplier.

While death penalty opponents say the state's revised lethal injection protocol 
is sure to ignite legal challenges, secrecy laws and procedures have been 
employed for years in other death penalty states. So far, they've threaded the 
needle in the courts.

Missouri has worked as hard as any to keep from revealing the source of the 
drug it uses. It ranks with Texas as a top death penalty state over the past 5 
years. That fact hasn't been lost on Ricketts, a staunch death penalty backer 
who has held up Nebraska's neighbor to the southeast as an example for keeping 
capital punishment viable.

"November's vote was a mandate by Nebraskans on capital punishment, and my 
administration will make every effort to carry out the will of the people," 
said the governor, referring to a vote in which 61 % of voters rejected the 
Legislature's 2015 repeal of the death penalty.

Missouri officials have successfully argued that secrecy is essential to 
keeping the drug pipeline flowing. They have even gone so far as paying their 
suppliers in cash to avoid filing state and federal tax documents, a practice 
death penalty opponents have said is a blatant violation of the law.

Ricketts knows firsthand the challenges of obtaining lethal injection drugs in 
an era when U.S. and European pharmaceutical manufacturers won't sell their 
products for execution chambers. His efforts to obtain 2 lethal chemicals from 
a broker in India failed last year, costing the state $54,400 in public funds.

Yet, as Nebraska embarks on its own confidentiality strategy, Missouri finds 
itself fending off a barrage of legal attacks aimed directly at secrecy laws 
and practices.

Missouri officials recently escaped having to disclose their drug provider in a 
federal court lawsuit brought by 2 death row inmates. The 8th U.S. Circuit 
Court of Appeals, which covers Nebraska, reversed its own earlier decision that 
held that the supplier should be identified. That case could be appealed to the 
U.S. Supreme Court, according to the lawyer for the inmates.

Meanwhile, Missouri is appealing a state court judgment in 3 separate cases 
that successfully challenged the secrecy provision as a violation of the 
state's open records laws. Oral arguments in that appeal are scheduled for this 
month.

About a dozen of the 31 death penalty states withhold the identities of their 
drug suppliers. So far, successful challenges of secrecy laws in the lower 
courts have been overturned on appeal, said Robert Dunham, executive director 
of the Death Penalty Information Center.

He and other lawyers think the U.S. Supreme Court needs to squarely address the 
constitutionality of states withholding key information about lethal drugs from 
condemned inmates and the public.

"It's going to be raised in every case until they do," Dunham said.

Nebraska came to lethal injection relatively late because it relied for decades 
on the electric chair as its sole method of execution. The Nebraska Supreme 
Court struck down the chair in 2008, ruling it cruel and unusual in violation 
of the State Constitution.

The following year, state lawmakers adopted lethal injection as the sole 
execution method (some other states also have backup methods, such as lethal 
gas or the firing squad). Nebraska's law gives the authority to establish a 
lethal injection protocol to the director of the Department of Correctional 
Services.

Nebraska's original protocol called for the use of 3 drugs, in sequence, to 
carry out an execution. At the time, most states used a similar 3-drug 
procedure, but now 2 of those drugs are impossible to obtain through 
conventional manufacturers.

States such as Missouri and Texas faced the same challenges, and so they have 
switched to a single-drug protocol using pentobarbital, a fast-acting sedative 
also used by veterinarians to euthanize animals.

"Nebraska extensively reviewed the protocols of many other states in the 
development of this protocol," said Taylor Gage, the governor's spokesman.

Last week, prison officials proposed substantial changes to the state's lethal 
injection procedure. A public hearing is scheduled Dec. 30.

Nebraska's revised protocol makes several changes aimed at giving Corrections 
officials much greater flexibility in obtaining lethal drugs. The department's 
director, for example, would decide the types and dosages of drugs as well as 
whether to use one or more drugs.

The new protocol also calls for the addition of a pharmacist or a 
pharmaceutical chemist to the official execution team. And it adds language 
about not disclosing the identity of the drug supplier.

The state's lethal injection law authorizes the Corrections director to 
"designate an execution team composed of 1 or more executioners and any other 
personnel deemed necessary to effectively and securely conduct an execution."

And in a related section, the law says the director may "perform or authorize 
any other details deemed necessary and appropriate."

During a press conference last week, Ricketts said the drug supplier would be a 
member of the execution team. By law, the identities of team members must not 
be revealed to the public.

Missouri has used a similar approach of shrouding their drug supplier by 
putting it on the execution team.

Missouri and other death penalty states also have relied on independent 
compounding pharmacies to supply their drugs. Such pharmacies produce 
custom-made medicines in sterile environments, but their practices failed to 
meet safety standards in some cases.

Lawyers for inmates have argued that their constitutionally guaranteed right to 
due process should compel the states to identify their lethal drug makers. That 
way, the inmates can investigate whether the drug they will be given is pure 
and potent.

The question is important because the Constitution also prohibits a condemned 
inmate from experiencing cruel and unusual punishment while strapped to the 
gurney. Some lawyers and death penalty opponents wonder whether compounded 
drugs could factor into the sorts of botched executions that have left inmates 
writhing in pain, gasping for air or describing an extreme burning sensation 
before their deaths.

"The consequences can be torturous," said Staci Pratt, executive director of 
Missourians for Alternatives to the Death Penalty.

Earlier this year, it looked as if Missouri was on the verge of having to 
reveal its supplier after a 3-judge panel of the 8th Circuit ruled in favor of 
2 inmates who sought the information. State lawyers argued that their supplier 
would stop selling the drugs if the identity was revealed, essentially 
preventing Missouri from carrying out an otherwise constitutional punishment.

Because the state provided no evidence from the supplier, the court ruled in 
favor of the inmates.

So the state submitted an affidavit from the supplier - identified as M7 in 
court documents - saying disclosure would end the pharmacy's lethal injection 
sales over fears of public backlash or harassment by death penalty opponents. 
The pharmacy also argued that selling drugs for executions is political speech 
that is protected by the First Amendment.

The 3 judges granted the state's motion to keep the drug supplier's identity 
confidential.

"I find it extraordinary that somebody can sell to a taxpayer entity in 
secret," said Jim Craig, a lawyer with the Roderick & Solange MacArthur Justice 
Center in New Orleans. He represents the 2 inmates in the Missouri lawsuit.

Newspapers and other media organizations have argued in their legal challenges 
that the identity of the drugmakers should be open to public scrutiny. There's 
too much at stake when a state engages in a task as monumental as execution, 
said Adam Marshall, a staff attorney with the Reporters Committee for Freedom 
of the Press, a Washington, D.C., organization that is party to 1 of the 
lawsuits.

"It's really not a question of whether you're for or against the death 
penalty," Marshall said. "It's really about government transparency in carrying 
out the functions of the criminal justice system."

(source: Omana World-Herald)






CALIFORNIA:

Old death penalty needs to be laid to rest


During the 2016 elections, Californians voted on 2 separate but intimately 
connected propositions: Propositions 62 and 66.

Proposition 62, or "The Justice That Works Act," was meant to repeal the death 
penalty in California, while Proposition 66 was intended to change the death 
penalty to be more cost-effective. The results were "No" on 62 and "Yes" on 66.

The task of redesigning the state's executions to be more cost-effective is 
going to be difficult because it's already so convoluted. However, a change is 
necessary.

The death penalty was introduced in this state in 1978. Since then, more than 
$4 billion has been spent to put only 13 people to death.

Currently, roughly 750 prisoners are still waiting for their date of execution 
and since 1977, 70 prisoners have died of natural causes, 24 by suicide and 
half a dozen from drug overdose and murder, according to a 20 study by the 
California Department of Corrections and Rehabilitation.

Clearly, it's about time California reformed this ancient and clearly broken 
system.

While waiting, inmates can appeal to higher courts and remain in incarceration. 
This is where costs are incurred.

California has spent over $4 billion on the death penalty system since 1978, 
which boils down to about $384 million on each execution, according to 
deathpenalty.com.

1/4 of the total cost is due to costs of incarceration. The other $3 billion 
has gone to trials and appeals.

Proposition 66 is designed to cut these costs by removing special housing for 
death row inmates, disregarding frivolous claims of innocence and speeding up 
trials, appeals and executions.

The vast majority of those who wanted to repeal the death penalty are 
attorneys, the very professionals who are largely responsible for the life, 
death and justice of these prisoners.

Meanwhile, those who contributed funds to keep the death penalty but redesign 
it were made up of a variety of people, including various police associations 
and several district attorneys.

There is a fundamental divide in the death penalty. Those who are responsible 
for executions and those who maintain and execute the prisoners have polarized 
opinions of what should be done.

Considering this division, it's going to be nearly impossible to come to a 
conclusive method accepted for reform.

But no fear, there are more archaic methods of execution that could have added 
benefits to the executioners, prisoners and taxpayers alike.

A far more reasonable, cost-effective, expedient and downright draconian fix 
would be to bring back the firing squad.

Currently, only Oklahoma and Utah allow execution by firing squad but only 
under the circumstances of lethal injection drugs not being available or found 
unconstitutional.

Since 1976, only 3 people have been executed by firing squad in the U.S. due to 
this stipulation.

The firing squad can be highly scrutinized by the sensitive public, but also 
dignified.

The costs would be kept relatively low, since some guards carry rifles with 
live ammunition, blindfolds can be optional and reusable and most importantly, 
this method would provide a unique training experience for the executioners 
involved.

Tom Aveni, head of the Police Policy Studies Council, cross referenced Los 
Angeles County officer-involved shootings with several other police 
organizations around the country, including New York City, Portland, Oregon and 
Washington D.C.

While reviewing this information, Aveni discovered several important variables 
in police shooting.

Incidents with 1 officer shooting resulted in an average of 51 % of the rounds 
fired by the officer actually hitting the target. When more than 2 officers 
were firing, the average hit ratio was 9 %.

In Los Angeles County, with a single officer shooting, the average amount of 
rounds fired was 3.59, but with multiple officers shooting, the average amount 
of bullets fired per officer was 6.48.

Simply put, officers firing guns in the line of duty are more hazardous to the 
surrounding environment than it is for the intended target. The accuracy gets 
dangerously lower while the rounds being fired increase dramatically when three 
or more officers are involved.

"I've been looking at gunfight data now for nearly 40 years, and I haven't seen 
any significant changes," Aveni said.

What might change these facts is an experience for the officer to reference 
back to. The slow, controlled, execution of a prisoner found worthy of 
execution by the state.

The firing squad will undoubtedly create untold amounts of mental stress on 
those involved, but if it is part of the job, it is logical to train these 
professionals on the most unpredictable and dangerous parts of the job.

A byproduct of this method of execution could help to weed out the weak willed 
officers who managed to convince themselves that the academy was the only 
training they needed.

Californians voted to keep the death penalty, but also to stop it from bleeding 
money. What the state needs now is a method that benefits the taxpayers, 
officers and prisoners.

(source: Ediotiral, The (Cal State Fullerton) Daily Titan)






OREGON:

Oregon's death penalty: True justice costs money ---- Clatstop County District 
Attorney Josh Marquis argues the question of cost is irrelevant in the death 
penalty debate. Even if it's abolished, he says, defense attorneys would drive 
up costs fighting other sentences.


In its November 20th editorial, The Oregonian devoured hook, line, and sinker, 
2 more studies churned out by academics and legal experts who think they know 
what's best for the public.

The "study," undertaken last fall, claimed seeking the death penalty costs a 
lot of money. It is pretty clear the inspiration for this particular argument 
came from Nebraska state lawmakers' move last year to repeal the state's death 
penalty. The sole issue was cost. Yet 2 weeks ago, Nebraskans, who rarely use 
the Oregon-born initiative process, voted 61 % to 39 % to over-rule the 
legislature and reinstate the death penalty.

We've already had this discussion many times. In Oregon, there have been seven 
votes on the death penalty, the last in 1984. And while Nebraska may be 
considered a "red state," voters in California -- a state as famously liberal 
as Oregon - rejected outlawing capital punishment by an 8-point margin, up from 
the 4-point margin in a 2012 refusal to abolish the death penalty.

The public doesn't need another study or more discussion. People understand 
what is driving up the costs of capital punishment, and it isn't prosecutors. 
It's the direct result of defense attorneys spending as much as possible on as 
many witnesses and experts - literally from across the globe - to represent 
their clients. It's the direct result of dragging out, for as long as possible, 
as many appeals as possible when a killer's guilt isn't in doubt.

The studies cited by The Oregonian are an attempt to reduce justice to dollar 
signs. That's easy to do when you're sitting in a law office or ensconced on a 
college campus. Try putting a dollar sign on the cost of human suffering when 
it's your loved one who has been cruelly murdered, and the murderer not only 
gets to enjoy life but also has a fan club of educators and legal experts 
wrapping him in compassion.

End the death penalty, and watch what happens to the cost of defending a killer 
facing life without parole. Defense attorneys will employ the same extravagant 
tactics to fight a different ultimate punishment. We know this because they 
already spend huge amounts on non-capital murders.

Beyond that, the budgets of prosecutors -- like the office I've managed 
(financially and otherwise) for more than a quarter century - have no cost 
attributable to seeking a death sentence. Unlike the defense, we don't get 
extra staff or funding.

When former Gov. John Kitzhaber and death penalty opponents lined up with 
Haugen, they weren't taking the high road. In the most arrogant and callous 
manner, they were forcing their sanctimony on victims who can't talk back.

The public sees through the deliberate, almost malicious, efforts by death 
penalty opponents to bully drug manufacturers into refusing to make appropriate 
drugs available to prisons. These are the same drugs that veterinarians use 
when our pets are given a humane death, yet opponents argue that these drugs 
are cruel.

The public craves justice, not vengeance. They understand how wrong it is when 
a man like Gary Haugen can rape and kill a woman, then speak on her behalf when 
he says he was motivated to kill her because she was in favor of abortion. Even 
then, Haugen was given a chance to redeem himself in prison and go free. 
Instead, he killed a fellow inmate he thought had informed on him.

When former Gov. John Kitzhaber and death penalty opponents lined up with 
Haugen, they weren't taking the high road. In the most arrogant and callous 
manner, they were forcing their sanctimony on victims who can't talk back.

If death penalty opponents insist on continuing this discussion, it's time for 
the public to call them on it. Let's talk about the real reason the United 
States has the death penalty: The people want it, and we get to vote on it.

"Every European country abolished the death penalty in the teeth of 
overwhelming popular support for it," notes New York Law School criminal law 
professor Robert Blecker in his book, "The Death of Punishment." As he points 
out, "It's European elites who overwhelmingly oppose the death penalty. They've 
also managed to abolish life without parole, allowing mass murderers like 
Norwegian Anders Breivik to be sentenced to 21 years for killing 77 people."

To which America's death penalty opponents would likely reply, "Yes, but think 
of the money they're saving."

True justice costs money.

(source: Guest Columnist; Joshua Marquis has been the District Attorney of 
Clatsop County since 1994. He has prosecuted and defended death penalty cases 
and is one of the authors of "Debating the Death Penalty," published by Oxford 
University Press----oregonlive.com)






USA:

Fell attorneys seek mental health records


The defense team for Donald Fell is seeking access to criminal and mental 
health records they say could have an impact on the guilt and penalty phases of 
their client's upcoming retrial.

In motions filed last week, the defense asked US District Court Judge Geoffrey 
Crawford to issue subpoenas for records from Vermont law enforcement, the 
Vermont Department of Corrections, Pennsylvania state police, and Evergreen 
Substance Abuse Services, an addiction treatment center in Rutland.

A request to seal the motions on the grounds that they would reveal aspects of 
the defense team's trial strategy was denied.

"A request for everything from multiple agencies which had contact with the 
defendant or others involved in the case reveals nothing about strategy any 
more than requesting a menu reveals your choice of dinner," Crawford wrote.

Crawford said the more vexing question was how to address the "requests for 
broad discovery in advance of trial."

The defense argues that the records sought are not only necessary for their 
preparation in a "complex capital case," but may also provide mitigating 
information about Fell's alleged childhood abuse and neglect in the guilt and 
penalty phases of the trial.

The government has until next Thursday to file a response.

Fell and his childhood friend Robert Lee were charged in the November 2000 
killing of North Clarendon resident Teresca King. The two men abducted King and 
stole her car after killing Fell's mother and a friend. They traveled to Dover, 
N.Y, where they beat King to death and fled to Arkansas where they confessed to 
all 3 murders.

Lee died in prison in 2001, and Fell was convicted 4 years later. Because the 
killings took place in New York state, prosecutors pursued the death penalty 
for Fell and he was later sentenced to death.

The trial decision, however, was overturned in 2014 after revelations of 
egregious juror misconduct came to light. Fell's retrial is set to begin in 
late February or early March.

Until the age of 14, Donald Fell lived with his mother Debra in Pennsylvania. 
According to the motion seeking access to Pennsylvania State Police records, 
the defense has reason to believe that Debra Fell was a "negligent and abusive 
parent" who abandoned her teenage son. She moved to Rutland County around 1994 
and is believed to have had numerous interactions with the Rutland Police 
Department, according to the defense. Defense is also seeking any criminal 
records pertaining to Fell's father and sister.

The defense also believes Debra Fell was screened on more than one occasion by 
Evergreen Substance Abuse Services. Donald Fell moved to Rutland to live with 
his mother in September 2000. 2 months later, he and Robert Lee allegedly 
stabbed Debra Fell and her friend Charles Conway to death. The defense is also 
asking for Conway's criminal records and information about his own history of 
substance abuse.

In the 1st trial the government was successful in admitting statements made by 
Debra Fell that she feared her son. Testimony about her character was also 
admitted.

"Ms. Fell's Evergreen records may contain information that tends to impeach 
that testimony," the defense wrote.

The defense also argues that Lee's criminal and mental health records may be at 
odds with the government's assertion that Fell was the ringleader and Lee the 
obedient "follower" in the alleged killing of Teresca King. In an earlier 
motion the defense asked Judge Crawford to issue a subpoena for Lee's legal 
files, which are bound by attorney client privilege. Crawford has yet to rule 
on that motion. "Mr. Fell cannot confront the Government's evidence and 
otherwise prepare his defense without any records that law enforcement may have 
regarding Mr. Lee," the defense wrote.

In making their argument, the defense cited a 2003 Supreme Court case, Wiggins 
v. Smithin which the court faulted the defense for "failing to adequately 
investigate" their client's background. According to Fell's attorneys had they 
done a more thorough review "they would have discovered highly relevant, 
mitigating, information."

Case law is somewhat less clear on the question of issuing subpoenas seeking 
materials from a third party by a criminal defendant. In USA v. Nixon, which 
involved the infamous Nixon tapes, the Supreme Court ruled that the party 
seeking a subpoena must meet certain criteria of relevance, admissibility and 
specificity. But that case dealt strictly with subpoenas issued to the 
government and has been criticized for setting an unusually high bar for 
criminal defendants. However according to a 2013 article in the New York Law 
Journal, "Courts have begun to depart from the rote application of the 
so-called Nixon standard."

In their motion, the defense makes the case for a more flexible standard but 
also asserts that they have met the legal criteria set forth in the Supreme 
Court decision. In addition they argue that because it is a capital case, 
Eighth Amendment considerations, which prohibit "cruel and unusual punishment" 
should be weighed.

"The exceptional nature of death penalty cases and the corresponding need to 
ensure that a death sentence is reliable and based on all relevant mitigating 
evidence, requires production of these documents so that the defense can 
properly prepare for trial," they wrote.

Questionnaires will be sent out to 1,500 potential jurors statewide beginning 
in January, according to a court filing. Slightly less than 1/2 of those 
individuals will be asked to complete a 2nd questionnaire pertaining 
specifically to issues surrounding the death penalty. The court will eventually 
seat 12 jurors and 4 alternates. The trial is scheduled to take place in US 
District Court in Rutland though Judge Crawford has not yet ruled on a motion 
for change of venue.

(source: vtdigger.org)

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

Dylann Roof wants attorneys back until penalty phase of hate crimes trial


Accused Emanuel AME Church shooter Dylann Roof filed a motion Sunday asking a 
federal judge to let his defense team represent him again, but only through the 
guilt phase of his death penalty trial set to begin in 3 days.

After a 2-sentence formal motion filed by his advisory lawyers, Roof 
hand-penned a note to the federal judge overseeing his case. In printed block 
letters on lined notebook paper, he wrote: "I would like to ask if my lawyers 
can represent me for the guilt phase of the trial only. Can you let me have 
them back for the guilt phase, and then let me represent myself for the 
sentencing phase of the trial?"

If U.S. District Judge Richard Gergel grants the request, it would would allow 
Roof's former defense team to take over for opening statements and the portion 
of the trial when prosecutors must prove Roof's guilt. The defense attorneys 
already have offered for Roof to plead guilty and serve life in prison without 
parole, but federal prosecutors are seeking the death penalty for 33 counts 
including hate crimes.

Roof still wants to act as his own attorney during the last part of the trial, 
when jurors decide whether he will get death or life in prison without parole. 
That would give the self-avowed white supremacist control over what evidence is 
presented on his behalf when the time comes for the defense to try and sway 
jurors to give him life in prison.

During the penalty phase, defense attorneys typically offer evidence about a 
defendant's serious mental illness or other brain impairments, history of 
abuse, severe family upheaval and similar issues as possible mitigating factors 
in a killing. Earlier court filings show the defense team Roof discharged last 
week had planned to provide evidence of a "mental disease or defect or any 
other mental condition."

Nationally known death penalty defense attorneys describe often working with 
killers who either cannot, or will not, admit they suffer serious mental 
illness and will vehemently argue against offering evidence that could prove 
it. Some even move to represent themselves to avoid doing so.

"Most people with mental illness don't want to be thought of as mentally ill 
and will frequently take steps against that kind of defense from being offered 
-- particularly those with paranoid thought disturbances," said Robert Dunham, 
executive director of the Death Penalty Information Center in Washington, D.C.

Last month, Roof's defense team raised questions that led Gergel to order a 
psychiatric evaluation. However, the nature of the questions and the exam's 
findings remains hidden in sealed court documents and a closed-door hearing 
after which Gergel found Roof competent to stand trial.

Roof's latest motion adds yet another potential upheaval during an already 
turbulent past month leading up to the start of testimony and comes just three 
days before opening statements are set to begin on Wednesday. Roof will deliver 
his own if he is representing himself.

Late last week, Roof and his former attorneys disagreed over whether the 
defense lawyers should be able to present evidence on his behalf. Roof told 
Gergel that he didn't want the attorneys allowed to do so.

The defense team, led by renowned capital defense attorney David Bruck, then 
filed a motion arguing the Eighth Amendment precludes allowing Roof to continue 
as his own attorney and block evidence from being introduced that could help 
spare him from the ultimate punishment. The 22-year-old is unprepared to handle 
the complexities of a 33-count death penalty case, the motion adds, and 
allowing him to proceed would deprive him of protection against cruel and 
unusual punishment.

Roof sought to act as his own attorney a week ago just as jury selection was 
set to begin. Gergel cautioned against the move, calling it "strategically 
unwise" and noting the defense team's considerable legal expertise. However, he 
granted the request noting he'd found Roof mentally competent and underscoring 
Roof's constitutional right to act as his own attorney.

Roof then represented himself throughout the questioning of potential jurors 
last week. For 5 days, he sat in court wearing a striped grey jail jumpsuit and 
asked short, often halting questions and made occasional objections as his 
former top-flight defense team was relegated to passing him handwritten notes.

Roof is accused of gunning down 9 black worshipers at the historic Charleston 
church's Bible study in June 2015. Authorities say he targeted his victims 
because of their race. The Eastover man faces charges including violations of 
hate crime laws and religious freedoms.

While acting as his own attorney, Roof will be able to question survivors of 
the shooting, which include 2 little girls, if they are called to testify about 
what happened and who committed the horrific shooting. The survivors also 
include Polly Sheppard, a retired nurse who cowered under a table praying as 
the gunman fired 77 times, killing 9 people including the woman Sheppard was 
sitting beside as the group studied scripture. Roof told Sheppard that he was 
letting her live so that she could tell the story of what he had done.

However, if the defense attorneys are allowed to represent Roof again during 
the guilt phase, they would handle witness questioning during that portion of 
the trial.

Meanwhile, Roof also faces the death penalty in state court where authorities 
have charged him with nine counts of murder and other offenses. That trial is 
scheduled to begin in mid-January.

(source: The Post and Courier)