[Deathpenalty] death penalty news----VT., DEL., GA., FLA., ALA.

[Rick Halperin]

Dec. 10




VERMONT:

Juror whose conduct upset death penalty case loses state job


The Vermont Supreme Court has upheld the firing of a state Transportation 
Agency official whom the state Supreme Court accused of "serious misconduct" as 
a juror in a death-penalty trial.

The high court on Friday ruled John Lepore's dismissal as an environmental 
biologist with the state agency was proper.

Court documents say Lepore, of Northfield, secretly traveled to a crime scene 
in Rutland during the 2005 federal death penalty trial of Donald Fell in the 
abduction and killing of Terri King, 53, of North Clarendon, in November of 
2000. The documents say he later lied under oath about his actions and was 
dishonest with officials at the Transportation Agency.

The Burlington Free Press reports (http://bfpne.ws/2gm2euv ) the court said his 
actions brought discredit to the state.

Lepore could not be reached

(source: Associated Press)






DELAWARE:

Delaware quietly disbands death row


As Delaware's Supreme Court weighs whether 12 men sentenced to death should be 
spared from execution, prison officials have quietly disbanded the state's 
death row and moved its former occupants to other housing.

Prison officials say the move, which occurred in August, resulted in former 
death row inmates having 5 times more recreational time than they had before, 
and in some cases, sharing cells with other inmates who are not facing the 
death penalty.

"It's gone well," Department of Corrections Commissioner Robert Coupe told The 
Associated Press this week. "Some of the inmates initially preferred not to 
interact ... but we continued to work with them through our behavioral health 
folks and eventually all of them were moved out of what was formerly known as 
death row."

The former death row space is now being used as general maximum security 
housing.

Officials said the move comes amid evolving standards for treatment of inmates 
in restrictive housing settings and will help the DOC keep its American 
Correctional Association accreditation.

In an August revision of its standards, the ACA said inmates in extended 
restrictive housing should have access to educational services, commissary 
services, library services, social services, behavioral health and treatment 
services, religious guidance and recreational programs.

"Although services and programs cannot be identical to those provided to the 
general population, there should be no major differences for reasons other than 
danger to life, health, or safety," the ACA said.

Delaware officials said they were already working on a revision to restrictive 
housing standards when the ACA issued its guidance.

"It was already in the works," said DOC spokeswoman Jayme Gravell.

But Coupe said the change was not related to a recent settlement in a federal 
lawsuit by the Community Legal Aid Society alleging that mentally ill inmates 
in Delaware have been subjected to solitary confinement without proper 
evaluation, monitoring and treatment. Under the settlement, the Department of 
Correction agreed to limit the length of time inmates spend in disciplinary 
housing and increase the amount of unstructured recreation time available to 
inmates in certain maximum security settings.

Inmates in restrictive housing, formerly known as solitary confinement, 
traditionally have been kept in their cells for up to 72 hours at a time, with 
only three hours outside their cells each week for exercise and showers.

Officials said inmates sentenced to death will now be offered 17.5 hours of 
unstructured recreational time per week.

"They definitely have more freedom than they would in the SHU," Coupe said, 
referring to the secure housing unit at the maximum security prison in Smyrna.

Coupe said DOC officials believe the change is "humane" and beneficial to both 
the inmates and the institution.

Officials said 12 of the former death row inmates are now in "medium housing," 
where nine of them are sharing cells with other inmates who have not been 
sentenced to death.

One former death row inmate, whom prison officials would not identify, remains 
in a single cell in the secure housing unit.

Among the former death row inmates sharing a cell is Otis Phillips, a gang 
member who was sentenced to death after a 2012 soccer tournament shooting that 
left three people dead, including the tournament organizer and a 16-year-old 
player.

The state Supreme Court heard arguments earlier this week in an appeal by 
Phillips challenging his conviction. In response to Phillips' appeal, 
prosecutors acknowledged that because his conviction is on direct appeal and 
not considered final, he is covered under a Delaware Supreme Court ruling 
declaring Delaware's death penalty unconstitutional.

In August, a majority of Delaware justices concluded that Delaware's law was 
unconstitutional because it allowed a judge to sentence a person to death 
independently of a jury's recommendation and did not require that a jury find 
unanimously and beyond a reasonable doubt that a defendant deserves execution.

The Supreme Court is now considering whether that ruling applies retroactively 
to the 12 men already facing execution.

(source: Associated Press)






GEORGIA:

State rejected guilty plea from man facing death in 'ambush' killing of 
midstate cop


Legal arguments in the run-up to next summer's scheduled death penalty trial 
for a Monroe County man accused of murdering a sheriff's deputy 2 years ago 
continued Friday.

In a region that in recent days and months has seen more than half a dozen law 
enforcement officers shot dead, proceedings in the shooting death of Monroe 
sheriff's deputy Michael Norris were another reminder of the perils for those 
who wear the badge.

The proceedings in Monroe Superior Court also raised a question: Should 
Christopher Keith Calmer face a death penalty prosecution, at least in part, 
because his alleged victim is a cop?

Lawyers for Calmer, who is accused in Norris' 2014 slaying, contend that 
prosecutors in the Towaliga Circuit, which Monroe County has been a part of for 
about a decade and a half, have, at least in recent history, never taken a 
death penalty prosecution to trial.

Murderers in Monroe County have certainly on occasion been executed, but a 
trial with capital punishment as a possible sentence hasn't been held since the 
county became part of the Towaliga Circuit, which includes neighboring Butts 
and Lamar counties.

1 of Calmer's attorneys, Gabrielle Amber Pittman, asked the court during 
Friday's pretrial motions hearing, "What is the difference in this case and 
every other murder case that has come through the Towaliga Circuit since it's 
been in existence?"

Though Georgia's capital punishment law specifically mentions the murder of 
peace officers in the line of duty as one factor that can prompt a death 
penalty prosecution, Pittman said "the law should be applied equally ... not 
just (for) some victims in the circuit."

The "status of the victim in the community" should not set the case apart, she 
said.

"Frankly, the state's duty is to more than represent the people. It is to seek 
justice. And sometimes justice is hard, and sometimes justice makes people 
mad," Pittman said, her voice rising to a shrill. "And sometimes justice upsets 
people."

She later mentioned "the arbitrariness in which the death penalty is being 
sought," and said "this particular case is not clearly ... something that is 
much more severe than every other murder in the circuit."

That contention appeared to draw a scoff from someone in the courtroom gallery, 
where a few members of Norris' family were seated.

Calmer, a 49-year-old former computer-tech worker who suffered from chronic 
back and neck pain, was living with his parents near Bolingbroke in September 
2014 when he allegedly gunned down Norris and seriously wounded deputy Jeff 
Wilson when the officers answered a call at the Calmer house.

Pittman revealed in court Friday that before prosecutors decided to seek the 
death penalty for Calmer he had offered to plead guilty.

"And accept death in prison - life without parole," she said, "and the state 
has refused to engage ... in plea negotiations."

Prosecutor Scott Johnston stood to respond.

"Good-faith plea negotiation does not mean that the defense gets what it 
wants," Johnston said.

Johnston said Calmer's lawyers have previously contended that the fatal 
shooting happened while he was "coming down or suffering withdrawals from" the 
pain medication tramodol.

"The state," Johnston said, "tends to see this case an as ambush of this man 
against two police officers. One was killed almost immediately, before he could 
say a word. The other was shot while trying to get back to his vehicle. ... We 
have negotiated. ... And we believe the proper sentence is death."

Judge Tommy Wilson did not rule on the arguments Friday.

Calmer's trial is set for June.

(source: macon.com)






FLORIDA:

Florida's death penalty, a never-ending fight between state, opponents


Convicted murderer Ronald B. Smith reportedly coughed and heaved for 13 minutes 
Thursday night as the state of Alabama carried out its execution of the 
condemned murderer.

What does this have to do with Florida?

Maybe plenty.

Florida has applied the death penalty with enthusiasm since it was reinstated 
here in 1976. The state has executed 92 individuals, trailing only Texas, 
Oklahoma and Virginia. There are 384 people currently are on death row and 
awaiting their turn on the lethal injection gurney.

However, thanks to various legal challenges for how the state imposes the death 
penalty and its method of completing the task, the pace of executions has 
stalled here. The state has executed only 3 people in the last 2 years, its 
slowest pace since 1996-97 and far below the 15 men Florida sent to the great 
beyond in 2014-15.

No one can say with any reasonable certainty who will be next. The case in 
Alabama almost certainly will have an impact here, though, as opponents will 
use it as an example of what can go wrong.

Ken Faulk, who witnessed the procedure for Al.com, reported that Smith???s 
execution took 34 minutes to complete. Faulk wrote:

"During 13 minutes of the execution, from about 10:34 to 10:47, Smith appeared 
to be struggling for breath and heaved and coughed and clenched his left fist 
after apparently being administered the 1st drug in the 3-drug combination. At 
times his left eye also appeared to be slightly open.

"A Department of Corrections captain performed 2 consciousness checks before 
they proceeded with administering the next 2 drugs to stop his breathing and 
heart."

Smith's attorneys had challenged the Alabama execution law, claiming the drugs 
used might not fully sedate a condemned inmate. The drugs used in Florida 
executions also have been challenged in court.

The News Service of Florida reported this week that the state has been 
stockpiling the drug etomidate, a sedative that has never has been used in 
executions. Attorney General Pam Bondi also is challenging a state Supreme 
Court decision that a portion of the reworked sentencing law is 
unconstitutional.

Alabama plans to perform an autopsy on Smith's body to determine what happened 
during his execution. Its findings could spur more legal challenges that would 
keep Florida's death row population stable for the foreseeable future.

All of this comes at a time when public support for the death penalty is 
declining. Pew Research reported in September that 49 % of Americans favor 
capital punishment, its lowest level in about 4 decades and far below the 
high-water mark of 80 % in 1994.

Lethal injection, once seen as a humane way to kill inmates compared to the 
electric chair and other forms of execution, now is under siege. In his book 
"Gruesome Spectacles: Botched Executions and America's Death Penalty," Amherst 
College professor Austin Sarat identified 75 flawed executions by lethal 
injection - 7.12 % of all those carried out.

He specified the 2006 Florida execution of Angel Diaz, which took 34 minutes to 
complete after the needle inserted into his vein came out the other side. That 
prompted then-Gov. Jeb Bush to suspend executions.

Whatever the outcome of this latest misadventure with the death penalty, don't 
expect things to change in Florida. The state will keep fighting to execute 
people, and opponents will keep fighting to stop it. That's the only certainty 
here for capital punishment.

(source: The Ledger)






ALABAMA:

Alabama May Have Tortured an Inmate to Death


On Thursday night, Alabama executed Ronald Bert Smith Jr., who was convicted of 
murdering a convenience store clerk in 1994. Shortly after the executioner 
administered midazolam - the 1st chemical in a 3-drug cocktail - Smith 
struggled for breath, heaved, coughed, clenched his fist, raised his head, and 
opened his left eye. His lips also moved, but he could not speak, and he 
appeared to react to both "consciousness tests" that a prison guard performed. 
However, prison officials went ahead with the execution anyway, administering 
chemicals to paralyze Smith and stop his heart.

The Supreme Court permitted the use of midazolam in a 5-4 decision in 2015, 
though the drug appears to have caused multiple botched executions by failing 
to render an inmate truly unconscious. In dissent, Justice Sonia Sotomayor 
noted that the 3-drug cocktail administered to Smith may be "the chemical 
equivalent of being burned alive." Hours before his execution, Smith had asked 
the Supreme Court to halt his execution given the known problems with 
midazolam. The court refused. It seems quite likely that Smith was at least 
partly conscious when he was given the 2nd and 3rd chemicals of the cocktail. 
If so, he experienced a slow and brutally agonizing death but could not express 
his pain because the 2nd chemical had paralyzed him.

Smith had also asked the Supreme Court to stay his execution given lingering 
uncertainties surrounding the constitutionality of his capital sentence. The 
jury had sentenced Smith to life in prison by a 7-5 vote; the judge, however, 
overrode this determination and sentenced Smith to death. Alabama is the only 
state in America that currently permits judges to override life sentences and 
impose the death penalty instead. Judges are more likely to override a jury and 
sentence a defendant to death when they are facing re-election. The practice is 
likely unconstitutional. However, by a vote of 4-4, the Supreme Court justices 
refused to delay his execution while the court contemplated hearing his appeal.

If Smith's family decides to seek restitution, it is likely out of luck. After 
Oklahoma tortured Clayton Lockett to death for more than 40 horrific minutes, 
his family sued, alleging a violation of the Eighth Amendment's ban on "cruel 
and unusual punishments." In November, a federal appeals court threw out the 
family's lawsuit, calling the slow torture of Lockett an "innocent 
misadventure."

(source: Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ 
issues----slate.com)

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

Birmingham defense attorney believes death penalty's days are numbered in AL


Coughing repeatedly and heaving heavily for 13 minutes.

That's how reporters who viewed the execution of Alabama death row inmate 
Ronald Bert Smith, Jr. describe his reaction to the state's new execution 
injection cocktail.

Alabama Department of corrections officials say there was no evidence Smith 
suffered. Even so, the details concern those who oppose the death penalty, like 
Birmingham defense attorney, Richard Jaffe who points out that the U.S. is the 
only western country to still use it.

"And if we're going to be the only state practically no standards in doing it 
then we ought to do it humanely and do it right," Jaffe said.

Jaffe wrote the book Quest for Justice--Defending the Defamed after handling 
more than 60 death row cases. He calls the death penalty barbaric, archaic and 
beyond repair.

"We've tried to refine it since it came back in 1978 and we have failed to make 
it work. It doesn't work. And we know it will eventually be gone," Jaffe 
claimed.

He believes it will happen in the next 6 to 7 years.

Until then, he says Alabama death row inmates will be able to point to Smith's 
case to show Alabama's cocktail is torturous and unconstitutional.

Meanwhile, ADOC states the way the state executes inmates has already been 
upheld.

(source: WBRC news)

***********

Supreme Court deliberations on execution kept quiet


Late Thursday night as briefs and orders ricocheted through the clerk's office, 
the Supreme Court struggled again, at the last minute, with the death penalty.

2 times an execution was temporarily delayed by Justice Clarence Thomas in 
order to give the justices more time to consider the case. Ultimately, the 
execution of Alabama inmate Ronald Smith, was allowed to go forward - by a 
deadlocked court.

Chief Justice John Roberts, who in November sided with liberal justices as a 
courtesy to stay the execution in a similar Alabama death row case, gave no 
such temporary reprieve to Smith, who was convicted of killing convenience 
store worker Casey Wilson in 1994. While it takes only 4 justices to agree to 
hear a case, it takes 5 to block an execution.

The last-minute legal drama that unfolded will remain shrouded from public 
view; a justice's vote in a motion for stay of execution is rarely explained.

Unlike most Supreme Court cases, which are the subject of public arguments and 
lengthy opinions, last-minute deliberations on death row cases are usually 
opaque. One law professor calls it the court's "shadow docket."

When Chief Justice John Roberts provided the so called "courtesy vote" last 
month he did something rare: he explained why.

"I do not believe that this application meets our ordinary criteria for a 
stay," Roberts wrote, before saying he would vote to delay as a courtesy and to 
give his four liberal colleagues more time to review the case.

The same 4 colleagues wanted to delay Smith's execution, but Roberts issued no 
explanation on why he didn't think the case warranted his courtesy vote.

Smith's case highlights at least two brewing divisions on the court that won't 
be publicly aired in the coming days, especially since Smith was put to death 
at around 11 pm.

First there is the issue of why Roberts didn't supply a courtesy vote this time 
around. That lack of transparency raised more questions than it answered late 
Thursday night.

"In these shadow docket cases, the Justices don't write opinions," said William 
Baude of the University of Chicago Law School. "They usually don't write 
anything - they just vote and move on." Baude has written extensively on the 
issue in the NYU Journal of Law & Liberty noting that some of the court's 
orders "lack the transparency that we have come to appreciate in its merits 
cases." In the merits cases, which have justices have agreed to hear publicly, 
the court shows its work, dedicating pages to majority opinions and dissents. 
That doesn't often happen when the court is faced with an emergency 
application, such as a stay of execution.

"While the Court follows regular processes to produce public and reasoned 
opinions, its internal deliberations are afforded far more secrecy than the 
other two branches" Baude wrote.

Roberts most likely has very good reasons for choosing not to grant the 
courtesy vote, but they won't be revealed publicly.

The 2nd is whether a judge can overrule a jury's recommendation of life without 
parole, as happened with Smith.

The Supreme Court struck down a similar sentencing procedure in a case out of 
Florida called Hurst v. Florida.

Alabama's Attorney General, Luther Strange argued that Smith's petition 
presented "an unusually large number of procedural problems" and he noted that 
Hurst has "no retroactive application to Smith."

1 more issue involved in the case became relevant during the execution when 
witnesses say that Smith appeared to be struggling. According to local reports 
Smith - who had also challenged Alabama's lethal injection protocol-- coughed 
and heaved for about 13 minutes.

Alabama's protocol includes a drug called midazolam that has been linked -- in 
different doses -- to botched executions in other cases.

Controversy over the drugs used to kill death row inmates is not new. "Once 
again a state conducted an execution that was a failed experiment," said Dale 
Baich an Assistant Federal Public Defender in Arizona, who represents prisoners 
in lethal injection challenges. "As long as states continue to use midazolam as 
part of the lethal injection process, there will be more botched executions," 
he said noting that the issue is being litigated in Ohio.

Steve Vladeck, CNN contributor and professor at the University of Texas School 
of Law, says the unanswered questions provide less clarity to the litigants, 
the lower courts and the public. "It complicates any effort to divine some 
deeper lesson from the Court's decision - including whether it agrees with one 
side on the merits; whether some procedural obstacle prevented it from even 
reaching the merits; and so on."

"The problem is only exacerbated when the Court splits 4-4 , because although 
we at least know the vote, we have even less insight into the underlying 
reasoning," he said.

(source: CNN)

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

2 Death Row Inmates, 2 Late Nights, 2 Different Outcomes At Supreme Court


The state of Alabama executed Ronald Bert Smith on Thursday night, after the 
Supreme Court - split 4-4 along ideological lines - declined to intervene and 
issue a stay.

Just 1 month earlier, on Nov. 3, the Court postponed the execution of Thomas D. 
Arthur just hours before Alabama was scheduled to carry out his death sentence. 
In this instance, Chief Justice John Roberts furnished the requisite 5th vote 
required to grant a stay. In that case, Roberts indicated that he did not 
believe the case merited review, but was casting his vote as a "courtesy" to 
the 4 colleagues who supported a stay.

Courtesy votes are informal Supreme Court norms, so it is difficult to talk 
about them in general terms.

When the Court is reviewing petitions of this nature, 5 votes are need to grant 
a stay. If 4 judges support granting a stay and believe the case should be 
reviewed by the Court, typically 1 justice in the 5-member majority will cast a 
5th vote to grant.

Justice Antonin Scalia's death provoked a revival of the practice. Justice 
Stephen Breyer cast a courtesy 5th vote in August staying a lower court 
decision allowing a 17-year-old trans student to use the bathroom corresponding 
to his gender identity at his high school. Breyer, the Court's clarion death 
penalty opponent, could have done so in hopes of soliciting a courtesy vote on 
future capital punishment issues.

Still, none came from Smith in the waning hours of Dec. 8 as the justices 
wrestled with the decision late into the evening.

His lawyers filed a last-minute appeal at the high court, alleging Alabama's 
death penalty scheme is unconstitutional. Alabama is a so-called judicial 
override state, which allows judges to override jury recommendations and 
sentence convicts to death. The Court has previously ruled that the Sixth 
Amendment requires juries, and juries only, to find each fact necessary for a 
death sentence. Justice Clarence Thomas issued a temporary stay of execution 
around 8:30, pending a decision by the full Court. The Court denied the stay, 
splitting 4-4 along ideological lines.

Smith's lawyers filed another emergency appeal, protesting the Court's 
"inconsistent practices" regarding such petitions. They noted that in cases 
where 4 justices support hearing the convict's underlying appeal, a courtesy 
5th vote is usually furnished. The justices again denied the petition for a 
stay, and Smith was executed.

As University of Chicago law school professor William Baude explains at the 
Volokh Conspiracy, it's not clear why the justices elected to treat these 2 
similar cases differently, or that we will ever know their reasoning. One 
possibility is that there are 4 votes to grant review in Arthur's case, but 
that there were not in Smith's case. Another possibility is that death-penalty 
courtesy votes were adopted as a one-time experiment which have failed for 
reasons unknown to us. Still, some of the possibilities are deeply troubling.

(source: dailycaller.com)

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

Botched Alabama execution reignites concerns over execution drugs----During his 
execution, Alabama death row inmate Ronald Bert Smith Jr. appeared to move when 
he should have been sedated. It may raise questions - again - about the 
effectiveness of lethal injection drugs.


An execution in Alabama has reignited debate over the lethal injection 
procedure - even as some ask whether the inmate should have received the death 
penalty at all.

Ronald Bert Smith Jr., convicted of the 1994 murder of Huntsville, Ala., store 
clerk Casey Wilson, was executed on Thursday evening. It took 30 minutes for 
him to be pronounced dead, and 13 minutes in - when he should have been sedated 
- Mr. Smith heaved, coughed, and appeared to move during tests designed to 
confirm that he was unconscious.

For some, Smith???s movements have raised further questions about whether the 
sedative midazolam is effective enough to be used as part of executions by 
lethal injection. What's more, the very process that led Smith to the execution 
chamber has come under recent scrutiny.

The efficacy of the drug midazolam has been the subject of numerous appeals 
from death row inmates. Midazolam became the preferred sedative in multi-drug 
cocktails in many states since 2011, when a European Union ban prevented 
companies from selling sodium thiopental and pentobarbital to US states for use 
in capital punishment.

In appeals, Smith and others have argued that the drug is unreliable, pointing 
to 3 botched executions in 2014 - in Oklahoma, Ohio, and Arizona - as proof. In 
one, the Oklahoma case of Clayton Lockett, the inmate actually spoke, saying, 
"something's wrong," before dying of a heart attack 43 minutes into the 
procedure, rattling even staunch death penalty supporters.

Just as with Mr. Lockett's case, Smith's struggles may fuel debate about 
whether the current lethal injection protocol violates the Eighth Amendment 
prohibition on cruel and unusual punishment.

The US Supreme Court upheld the use of midazolam in a 5-4 decision in July 
2015, saying that increased dosage and monitoring procedures like consciousness 
checks have addressed the problem, The Christian Science Monitor's Warren 
Richey reported. But the consciousness checks may not have prevented Smith from 
suffering.

"He's reacting," 1 of his lawyers whispered during the procedure, according to 
the Associated Press, perhaps indicating that Smith was not as deeply 
unconscious as he should have been.

Alabama Corrections Commissioner Jeff Dunn said he did not see any reaction to 
the consciousness tests, AP reported. But he said that an autopsy will be done, 
adding that he hopes this will reveal any irregularities.

Smith's case has also shined a spotlight on Alabama's unusual death penalty 
law.

When he was convicted in 1995, the jury voted 7-5 for life imprisonment. But in 
Alabama, judges can override a jury's recommendation, and the judge sentenced 
him to death instead.

Alabama's death penalty law is an outlier among states that allow for capital 
punishment, The Marshall Project reports:

"31 states have the death penalty, and 30 of them require unanimity from a jury 
in crucial phases of sentencing. Not in Alabama, where a jury can impose a 
death sentence with a vote of at least 10 to 2. The jury may also recommend 
life imprisonment, as it did in Smith's case, but the judge can overrule 
jurors' findings no matter what they decide."

During appeals, Smith's lawyers argued that a judge alone should not be able to 
impose the death penalty, an argument supported by legal advocates Patrick 
Mulvaney and Katherine Chamblee of the Southern Center for Human Rights.

Mr. Mulvaney and Ms. Chamblee argued in an August Yale Law Journal article that 
politics can influence judges' decisions: in tough-on-crime states which elect 
their judges, like Alabama, there may be pressure to sentence an individual to 
death.

And though there's little debate over whether Smith committed the crime (which 
was captured on video), at least 3 Alabama inmates sentenced to death by judges 
after juries had recommended life imprisonment were later exonerated.

Similar issues have led to court cases like Hurst v. Florida, which led 
Delaware and Florida to end judicial override and require juries to be 
unanimous if they choose to sentence a defendant to death. Alabama maintains 
that its law is constitutional, though the US Supreme Court twice paused 
Smith???s execution to consider whether the penalty had been applied 
constitutionally in his case.

(source: Christian Science Monitor)