[Deathpenalty] death penalty news----TEXAS, DEL., FLA., ALA., TENN.

[Rick Halperin]

Dec. 8



TEXAS:

34 Years Ago, the First Person Died by Lethal Injection. It Was Controversial 
Then, Too

It was seen as more humane and relatively painless, but that's not certain

When Charles Brooks Jr. lay down on a gurney in the execution chamber, there 
was no way to know exactly what would happen next.

On this day in 1982, Brooks was the first person to be executed by injecting a 
cocktail of drugs intended to numb his body and mind, paralyze him and stop his 
heart. His death, the 1st by lethal injection, sparked an ethics debate among 
the public and physicians about whether the procedure is humane, one that 
continues today.

Brooks was convicted of murdering David Gregory, an auto mechanic, wrote Dick 
Reavis for Texas Monthly in early 1983. Gregory rode with Brooks during a test 
drive at the used-car lot where he worked. That night, he was found tied up in 
a motel room. He had been shot in the head. In separate trials, both Brooks and 
partner in crime Woodie Loudres were sentenced to die for the crime. Loudres 
was able to reduce his sentence, but Brooks was not, although no weapon was 
ever found and officials never determined who shot Gregory.

Lethal injection was seen to be more humane than other execution methods, like 
gas, electrocution or hanging, according to an article on History.com. Because 
one of the drugs used was supposed to put the condemned in a state of deep 
sedation, it was also perceived to be painless. In spite of physician protests 
that lethal injection was a violation of medical ethics, wrote Robert Reinhold 
of The New York Times, it was seen as acceptable. But conflicting witness 
reports at Brooks's death led Reinhold to report that "the procedure did not 
seem to settle the question of whether such a death was painless."

The conviction that landed Brooks on death row wasn't his 1st. What was 
different this time: he knew that if the state didn't intervene in his case, he 
could become the 1st man on death row to be killed by a cocktail of drugs 
designed to numb his mind and stop his heart. "In his best mood," Reavis wrote: 
"Charlie thought that there was nothing to fear in death by injection. He 
believed that he could set it up to be like the surgery after the 1st of his 
bullet woundings."

Brooks and Reavis made an agreement: if the condemned man felt pain during his 
execution, he would shake his head, like he was saying "no," and Reavis would 
understand. They repeated the agreement at each meeting.

In the end, the state didn't grant Brooks a stay of execution. "For the 1st 
time in American penal history," Reavis wrote, "men who were neither physicians 
nor sorcerers got ready to execute a prisoner with the forbidden tools of 
medicine and pharmacology,"

"According to 4 reporters who witnessed the execution in a tiny room at the 
edge of the prison's Walls unit, Mr. Brooks appeared to have suffered some 
pain," Reinhold wrote.

Reavis was one of those reporters. He wrote:

It was perhaps a minute, perhaps 2 minutes, before he felt death creeping in. 
The [sic] he slowly moved his head towards the left shoulder, and back towards 
the right, then upward, leftward again, as if silently saying no.

I snapped to erectness. Charlie was wagging his head: was that his signal to 
me?

He couldn't be sure one way or the other.

Today, those killed by lethal injection are almost as likely to be guinea pigs 
for the procedure as Brooks was. Supplies of known lethal-injection cocktails 
are running out across the United States, reports Tess Owen for Vice. 
Injections nationwide are at a 25-year low, she writes, partially because it's 
increasingly hard for corrections departments to get the drugs they need to 
perform them. This deficit has led to correctional departments trying untested 
mixes of drugs to replace the old standards they aren't able to get anymore, 
with grim results. Only Texas, Georgia and Missouri are using the death penalty 
"with any regularity," writes Mike Brantley for AL.com. But the death penalty 
remains legal, and those who face the prospect of death at state hands may 
potentially be killed using untried cocktails of drugs.

(source: smithsonianmag.com)






DELAWARE:

Fate of Delaware inmates on death row rests with Supreme Court


Delaware's Supreme Court justices are mulling whether their ruling declaring 
the state's death penalty law unconstitutional can be applied retroactively to 
a dozen men already sentenced to death.

The court heard arguments Wednesday in an appeal filed by Derrick Powell, who 
was sentenced to death in 2011 for killing Georgetown police officer Chad 
Spicer in 2009.

Deputy Attorney General John Williams, used Danforth vs. Minnesota, made the 
argument that the change in law does not apply to those currently on death row.

"The question of retroactivity is what to do when the law changes," argued 
Deputy Attorney General John Williams. "States are free to adopt whatever 
retroactivity rule they think is most appropriate."

Powell's defense attorney argued retroactivity shouldn't apply.

"I think this court should considering evolving standards of decency as to 
whether Mr. Powell's death sentence can be carried out," said defense attorney 
Patrick Collins. "Executing Derrick Powell would far and away be an extreme 
outlier."

Delaware Supreme Court Justice Collis J. Seitz Jr. appeared to agree with 
Collins.

"How could it ever be just to execute someone who was sentenced under a flawed 
statute," he said. "I don't understand how that's just."

In August, a majority of the Supreme Court justices declared that Delaware's 
death penalty law was unconstitutional because it allowed judges too much 
discretion in sentencing and did not require that a jury find unanimously and 
beyond a reasonable doubt that a defendant deserves execution.

Attorney General Matt Denn declined to appeal that ruling in federal court but 
said he believes that it cannot be applied retroactively to offenders already 
sentenced to death.

In a separate case Wednesday, the court also heard an appeal by Otis Phillips, 
who was convicted of murder in the 2012 killing of soccer tournament organizer 
Herman Curry at Wilmington's Eden Park. He was also convicted of manslaughter 
in the death of 16-year-old soccer player Alexander Kamara.

Otis Phillips was convicted of killing three people at a soccer tournament in 
Eden Park.

In answering Phillips' appeal, prosecutors said that because his conviction is 
on direct appeal and not considered final, he is covered under an August state 
Supreme Court ruling declaring Delaware's death penalty unconstitutional.

(source: WDEL news)






FLORIDA:

Death penalty sought for man accused of burning girlfriend


Prosecutors in Florida say they'll seek the death penalty in the case of a man 
accused of setting fire to his girlfriend inside a buffet restaurant where she 
worked.

Darryl Whipple pleaded not guilty to a 1st-degree murder charge in court 
Tuesday. At the hearing, prosecutors filed notice saying they intended to seek 
the death penalty at trial against the 58-year-old man for the attack Oct. 12 
at a Golden Corral eatery in Jacksonville.

Authorities say Whipple doused his girlfriend, 56-year-old Carol Demmons, with 
lighter fluid and ignited her with a lighter as she ran from the restaurant.

Jacksonville television station WJXT reports Demmons had burns on almost 
two-thirds of her body and later died at a hospital.

Relatives of Demmons attended Tuesday's hearing, WJXT reported.

(source: Associated Press)

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

Florida AG challenges death penalty ruling


Florida Attorney General Pam Bondi will ask the U.S. Supreme Court to appeal a 
state high court ruling in a case where the justices deemed unconstitutional a 
rewritten sentencing rule for the state's death penalty.

In a request to delay a resentencing hearing for convicted murder Timothy Lee 
Hurst, Bondi's lawyer wrote to the Escambia County Circuit Court that the 
Florida Supreme Court misinterpreted the U.S. high court decision. The federal 
justices ruled the state's death penalty sentencing system violated the 
constitution because it placed the decision in the hands of a judge. The 
Legislature subsequently rewrote the rule, which the state justices still found 
unconstitutional because it did not require a unanimous death sentence verdict 
from a jury.

Bondi's lawyers want the U.S. Supreme Court to clarify its ruling.

"The State of Florida believes this expansive reading to be in error and will 
be seeking a discretionary review in the United States Supreme Court," 
according to the request, which was first reported by the News Service of 
Florida.

Karen Gottlieb, co-director of the Florida Center for Capital Representation at 
Florida International University, believed the U.S. Supreme Court would not 
grant the state grant writ of certiorari - a review of the state Supreme Court 
decision.

The state justices added to the U.S. court decision and did not interpret it, 
Gottlieb said.

"I do not anticipate the United States Supreme Court is going to grant writ of 
certiorari," said Gottlieb, who filed briefs in the Hurst case.

Bondi told reporters her office only wanted the U.S. Supreme Court to better 
define the terms of its ruling but she is planning an appeal.

"We just really want clarification," Bondi said, later adding the appeal would 
would be tied to death penalty cases that now could be resentenced. There are 
currently 396 people on Florida's death row and some of them could be eligible 
for new sentences.

"We will be seeking further review," she said.

Hurst was convicted in 1998 of stabbing and beating his coworker to death 
during a robbery at a Pensacola fast food restaurant where he worked.

In January, the U.S. Supreme Court ruled Florida's death penalty sentencing 
rules violated the constitutional right to a trial by jury because the 
punishment was decided by a judge. In response, the Legislature changed the 
rules to require a jury to agree on 1 aggravating factor in a death penalty 
sentence. The new rules also required 10 out of 12 jurors to agree on the 
overall sentence, a change from the simple 7-5 majority.

In October, the Florida Supreme Court ruled the supermajority jury 
recommendation still violated the constitution and ordered the Legislature to 
require juries to be unanimous. The state high court sent Hurst's case back to 
the Escambia County Circuit Court for resentencing

(source: Naples Daily News)






ALABAMA:

11th Circuit Court of Appeals won't block Thursday execution of Alabama inmate


A federal appeals court on Wednesday rejected Alabama death row inmate Ronald 
Bert Smith's request to block his scheduled execution Thursday.

The 11th Circuit Court of Appeals stated in its ruling that it also affirmed 
U.S. District Court Judge Keith Watkin's ruling that dismissed a lawsuit by 
Smith challenging Alabama's method of lethal injection. Watkins also had ended 
"negotiations" over whether Smith should be executed using a single dose of the 
drug midazolam, rather than the state's 3-drug protocol.

While his appeal failed over Alabama's lethal injection method, Smith still has 
an appeal and a request for stay of execution pending before the U.S. Supreme 
Court. That appeal challenges Alabama's death penalty sentencing scheme in 
which a judge can override a jury's recommendation for life without parole and 
instead impose death.

The U.S. Supreme Court had not ruled on Smith's request for a stay as of 5 p.m. 
Wednesday.

Smith was convicted in 1995 in the shooting death of Casey Wilson, a clerk at a 
Circle C convenience store in Huntsville, on Nov. 8, 1994. The jury, in a 7-5 
vote, recommended Smith be sentenced to life without the possibility of parole. 
The judge, however, overrode the verdict and imposed the death sentence.

Alabama is alone now in allowing judges to override jury recommendations to 
impose the death penalty. 2 other states - Florida and Delaware - did have 
similar override laws until this year. The U.S. Supreme Court struck down 
Florida's law in January in Hurst v. Florida and the Delaware Supreme Court 
struck down that state's law in August.

This U.S. Supreme Court has remanded four cases this year back to the Alabama 
Court of Criminal Appeals to be reviewed in light of its decision in Hurst v. 
Florida, according to a response by Smith's lawyers in a court filing 
Wednesday. The Alabama Court of Criminal Appeals has not acted on those cases.

"None of these cases have been decided and none of them involve a death 
sentence imposed by a judge in the face of a jury verdict for life," Smith's 
response states. "Even so, the Alabama Supreme Court has already announced its 
belief that post-Hurst, Alabama's capital-sentencing scheme remains entirely 
constitutional. And, consistent with that belief, it denied Mr. Smith's stay 
motion."

The U.S. Supreme Court also has three cases before it other than Smith's 
raising issues challenging Alabama's capital sentencing statute, Smith's 
response states. Among them is one by Tommy Arthur, a death row inmate whose 
execution set for Nov. 3 was stayed by the U.S. Supreme Court at the last hour.

"It is appropriate for this Court to stay Mr. Smith's execution in order to 
consider how it will resolve the issues raised by these cases, and the others 
sure to follow from Alabama," according to Smith's response. "Granting a stay 
of execution to Mr. Smith and granting his petition for certiorari will resolve 
at least some of these issues."

(source: al.com)

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

87 lawyers ask Alabama governor to remove certain inmates from death row


A group of 87 lawyers and law professors from around Alabama this week asked 
Alabama Gov. Robert Bentley to remove inmates from death row who had judges 
override jury recommendations for life without parole.

"Currently, there are individuals on Alabama's death row who originally 
received recommendations for life in prison without parole from the juries that 
sat on their cases, but whose recommendations for life in prison without parole 
were overridden by their trial judges," according to the letter. "We believe 
the Alabama statute, and practice of judicial override of life recommendations, 
is unconstitutional. These individuals should be removed from death row."

There are currently 180 men and 5 women who are on Alabama's death row.

According to a 2011 study by the Equal Justice Initiative on jury overrides in 
Alabama, about 21 percent of those on death row at the time were sentenced 
through judge overrides. There were 199 on death row with 41 sentenced to die 
by a judge overriding a verdict at the time of the study.

Alabama is now alone in allowing judicial override in death penalty cases after 
court rulings this year in Florida and Delaware, which were the only other 
states that had allowed override.

Florida's law was found unconstitutional by the U.S. Supreme Court in January 
in the case Hurst v. Florida. Then in August the Delaware Supreme Court struck 
down that state's death penalty sentencing law.

The letter states that as governor, Bentley can "use his voice to encourage the 
state legislature to right this wrong, by drafting a new statute."

"Judicial override of life recommendations is unconstitutional and simply 
wrong. You have the power to right this wrong by urging the legislature to act 
now to stop this process, and by granting commutations and returning the life 
without parole sentence originally deemed appropriate by the jurors. We 
respectfully request that you use that power," the petition states.

The petition states that the lawyers who signed the petition are not writing as 
lawyers representing the death row inmates. "Rather, we are asking, as citizens 
of Alabama, that you use your voice and authority as Governor to ensure that 
men and women on Alabama's death row are there solely because a jury decided 
that they should be, and not based on the decision of a single, elected judge," 
according to the petition.

Among the attorneys listed on the letter is John Palombi, an attorney with the 
Federal Public Defenders' Office for the Middle District of Alabama who 
represents death row inmate Ronald Bert Smith who is set for execution on 
Thursday for the 1994 shooting death of a convenience store clerk in 
Huntsville.

The petition to Bentley, however, does not specify Smith or any other death row 
by name.

Smith has already submitted a clemency request to Bentley.

The petition includes a statement from 1 of the jurors at Smith's trial that 
says the majority of the jurors thought Smith should get a sentence of life 
without the possibility of parole.

The U.S. Supreme Court invalidated Florida's jury-override statute, holding in 
Hurst v. Florida that "the Sixth Amendment requires a jury, not a judge, to 
find each fact necessary to impose a sentence of death. A jury's mere 
recommendation is not enough," the petition states.

"Alabama's capital sentencing procedure is supposed to ensure the fundamental 
fairness of the trial, yet life-and-death decisions are made by judges facing 
intense electoral pressure," the petition states. "As a result, Alabama's 
capital sentencing scheme -- particularly with respect to life-to-death 
overrides -- produces unreliable results. Significantly, life-to-death 
overrides in Alabama are more frequent in election years," the petition states.

"There is no evidence that criminal activity is more heinous in Alabama than in 
other states, or that Alabama juries are particularly lenient in weighing 
aggravating and mitigating circumstances," the petition states. "The only 
answer that is supported by empirical evidence is one that, in my view, casts a 
cloud of illegitimacy over the criminal justice system: Alabama judges, who are 
elected in partisan proceedings, appear to have succumbed to electoral 
pressures," the petition states.

"By permitting a single trial judge's view to displace that of a jury 
representing a cross-section of the community, Alabama's sentencing scheme has 
led to curious and potentially arbitrary outcomes," the petition states. "In 
addition, as of late 2013, Alabama judges were responsible for 26 of the 27 
instances since 2000 in which a judge in any state has overridden a jury's 
advisory sentencing verdict of life without parole."

The petition states that it is apparent that Alabama is a "clear outlier" among 
states administering the death penalty -- even during the time that two other 
states allowed judicial override, the petition states.

To vote for a life sentence, jurors must either find that the aggravating 
factors argued by the state were not proven beyond a reasonable doubt or that 
the mitigating factors in evidence outweighed the aggravators.

"Juries are carefully instructed about the burden of proof and their duties in 
this regard. When asked to sit on a capital jury, we ask a great deal of our 
citizenry. That service is undermined when the decision they carefully made is 
overridden by a single elected official," the petition states.

The petition also references Bentley's statements in the past in responding to 
death row clemency requests. The governor has stated in those responses that he 
wanted to honor the decisions of the juries recommending death.

Commuting death sentences to life in prison without parole is not without 
precedent, the petition states. Several governors have commuted the sentences 
of their states' entire death row populations, since the death penalty was 
upheld by the Supreme Court in 1976: Governor Martin O'Malley, Maryland, 2015; 
Governor Jon Corzine, New Jersey, 2007; Governor George Ryan, Illinois, 2003; 
Governor Tony Anaya, New Mexico, 1986, the petition states.

(source: al.com)

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

Alabama judges should follow jury recommendations on death-penalty cases


When discussing Alabama and the death penalty, our state can only bow its head 
in shame.

That form of eye-for-an-eye justice is nearly eradicated from western nations, 
but not the United States. 31 states, including Alabama, and the federal 
government continue to allow the sanctioned killing of condemned inmates.

What's more, only 1 state - Alabama - still allows judges to override 
life-in-prison jury recommendations and send an inmate to death row. A group of 
87 Alabama lawyers this week has asked Gov. Robert Bentley to remove inmates 
from death row if they were sent there by a judge's override.

One of those inmates, Ronald Smith, convicted of a murder in Huntsville, is 
scheduled to be killed Thursday night.

Judges should follow jury recommendations in death-penalty cases.

(source: The editorial board of the Anniston Star)






TENNESSEE:

Lawmaker backtracks on call for death penalty in wildfire


An East Tennessee lawmaker tweeted earlier this week the state should call for 
the death penalty for arson in light of the raging fires that tore through 
Gatlinburg last week - but backed off that proposal after 2 teenagers were 
charged Wednesday with setting the fire.

Jeremy Faison, R-Cosby, represents Cocke and parts of Jefferson and Greene 
counties. He owns a pest control business.

"TN should strengthen the penalty for arson," Faison tweeted Sunday. "Forest 
(fire emoji) on purpose = death penalty if (fire emoji) leads to death of 
innocent."

In response to a reporter's tweet after 2 juveniles were arrested and charged 
with aggravated arson, Faison said juvenile cases are different.

"Juveniles are protected from the death penalty," he tweeted. "I would not be 
in favor of changing that."

Faison said in a phone interview unless a minor has done it, purposefully 
starting a fire amounts to an act of terrorism, "worse than a bomb going off," 
and he thinks the death penalty would be appropriate. The U.S. Supreme Court 
has held juvenile defendants cannot be subject to the death penalty.

Faison said when he tweeted the original comment he was frustrated and never 
thought a teenager would be charged with starting the blaze. He said he figured 
it was "some jerk in the woods."

Still, he said, the state could look into increasing the penalty for adults who 
intentionally start fires that kill people.

"Here's where I???m at: If an adult has purposely, for the reason of terrorism 
if you will, lit a fire on purpose ... see, we've lost people, animals and 
businesses," Faison said. "If we have witnesses and it is beyond the shadow of 
a doubt, then maybe we do look at it (as) terrorism (and a capital offense)."

Tennessee law treats aggravated arson as a Class A felony, punishable by up to 
60 years in prison. An intentionally set fire resulting in death can lead to 
separate charges of murder, depending on the circumstances, and prosecutors 
have obtained death-penalty convictions in such cases in Tennessee, which have 
been upheld by the state Supreme Court.

The fire has killed 14 people and injured more than 175 others. The flames 
damaged or destroyed more than 2,400 homes and businesses.

The National Park Service has said the fire began on the Chimney Tops trail in 
the Great Smoky Mountains National Park on Nov. 23 and raged there for days 
before spreading to Gatlinburg during a windstorm Nov. 28, when gusts reached 
nearly 90 mph.

(source: Knoxville News Sentinel)