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

[Rick Halperin]

Jan. 15



TEXAS:

State has enough drugs to carry out scheduled executions


With the 1st execution of the new year scheduled next week, Texas prison 
officials said Wednesday that the state has a large enough supply of drugs to 
carry out the executions already scheduled for 2016.

The Texas Department of Criminal Justice has been forced to find nontraditional 
suppliers of execution drugs in recent years because the usual vendors refused 
to make their drugs available following scrutiny from death penalty opponents.

The state was struggling to replenish its supply of the powerful sedative 
pentobarbital over the summer, but was able to obtain enough doses to execute 6 
inmates between June and November.

There are 9 lethal injections scheduled this year.

"The agency's supply of pentobarbital was purchased from a licensed pharmacy 
that has the ability to compound," TDCJ spokesman Jason Clark said Wednesday.

Condemned murderer Richard Masterson is set to be put to death Jan. 20 for the 
2001 slaying of female impersonator Darrin Honeycutt in Houston. Masterson 
strangled the victim and stole his vehicle following the murder.

The Houston Chronicle reports that the Texas Criminal Court of Appeals recently 
denied a petition filed by Masterson's attorneys to stay Masterson's execution, 
bringing into question the findings of the medical examiner who performed 
Honeycutt's autopsy. The petition also stated that Masterson was suffering from 
withdrawal symptoms when he confessed to the murder to authorities.

According to the Chronicle, the high court rejected the petition because the 
arguments could have been brought up in previous appeals. Masterson's attorneys 
plan to file additional appeals at the federal and state level.

There is 1 more execution scheduled this month, 1 in February, 3 in March, 2 in 
April and 1 in June.

1 of the inmates scheduled to die this year is Robert Pruett, who was given a 
new execution date this week. His lethal injection has been set for April 27.

Pruett came within hours of being put to death last April for the 1999 murder 
of a correctional officer over a dispute about a sack lunch at the McConnell 
Unit in South Texas. He was granted a reprieve to allow additional DNA evidence 
to be tested.

Testimony and evidence at trial showed that Pruett was upset that officer 
Daniel Nagle wrote him up for eating in an unauthorized area. Nagle was found 
stabbed to death in his office. The disciplinary reports was found torn up by 
the body.

(source: Huntsville Item)

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

Echoes of 'Making a Murderer': The man released after 10 years on death row


Last summer, a man won freedom after spending a decade on death row in Texas 
for a crime he says he didn't commit. But 7 months out, his fate continues to 
hang in the balance, as a new investigation into the case remains ongoing.

Alfred Dewayne Brown - known as Dewayne to his family - was released from 
prison in June after prosecutors dismissed charges against him, following 
revelations of key evidence withheld in the case. Brown on Wednesday spoke to 
MSNBC in an exclusive interview - his first on television - about life on death 
row.

"I didn't let myself think like that, that I was gonna die," Brown told MSNBC. 
"I was thinking that I was gonna go home."

Brown was sentenced to death in 2005 for the armed robbery of a check-cashing 
business that ended in the murder of the store clerk and a Houston police 
officer on April 5, 2003. At trial, Brown's attorney said Brown had been at his 
girlfriend's apartment at the time. Jurors were told that Brown called his 
girlfriend from the apartment after he saw reports of the shooting, but 
telephone records, which would have supported Brown's alibi, were never found.

In 2013, a Houston homicide detective discovered the phone records in a box of 
documents while cleaning his garage. The records show a phone call from the 
apartment's land line that day around the time of the murders. According to the 
Houston Chronicle, the district attorney's office sent the phone records to 
Brown's attorneys, and agreed to a new trial.

In order to clear the way for a new trial, the Texas Criminal Court of Appeals 
reviewed Brown's case, and in November 2014 an order was issued throwing out 
Brown's 2005 conviction and death sentence. As prosecutors prepared a new 
trial, they determined they didn't have enough evidence - and dropped the 
charges against Brown.

On June 8, Brown walked out of prison a free man.

Brown told MSNBC that during his time behind bars, he taught himself how to 
read, draw, corresponded overseas with pen pals, and even practiced yoga in his 
cell.

"Have you ever seen a person who is claustrophobic and you put em in a closet. 
That's what it's like ... If you don't get control of it right then you're 
going to be forever messed up."

Harris County District Attorney Devon Anderson said during a press conference 
on the day of Brown's release that they had come up short. "We re-interviewed 
all the witnesses. We looked at all the evidence and we're coming up short," 
Anderson said, according to the Houston Chronicle. "We cannot prove this case 
beyond a reasonable doubt, therefore the law demands that I dismiss this case 
and release Mr. Brown."

However, the case remains an open investigation, and according to the 
Chronicle, law enforcement officials have said they continue to suspect Brown 
is guilty.

"I'm convinced that this is the person that we need to focus on," Houston 
Police Chief Charles Mclelland told reporters after Anderson, the DA, announced 
she would dismiss Brown's case.

It is not clear if prosecutors plan to re-charge Brown.

MSNBC's reporting comes as the popular Netflix series "Making a Murderer" 
entrances viewers with its examination of the case of a Wisconsin man serving a 
life sentence for a murder more than 10 years ago. The series has inspired a 
discussion about the criminal justice system, and has raised questions about 
the man's guilt.

Brown's journey from death row was covered in detail by Houston Chronicle 
columnist Lisa Falkenberg, who won a Pulitzer Prize last year for her coverage 
of Brown's story. The Chronicle's reporting also pointed to problems with the 
Texas grand jury system. Citing a transcript of the girlfriend's 2003 grand 
jury testimony, which was entered into the public record by attorneys for 
Brown, the Chronicle reports that grand jurors pressured Brown's girlfriend 
into testifying against him.

Reached by MSNBC on Wednesday, the Harris County District Attorney's office 
said it had no comment on Brown's case. The Houston Police Department, also 
reached by MSNBC, declined to comment.

In the meantime, Brown remains free after prosecutors dismissed the charges.

According to the Death Penalty Information Center, Brown is among 6 death row 
inmates freed from death row during 2015.

The group, which tracks death penalty convictions, says more than 150 people 
have been released from death row since 1973 on evidence of their innocence. (A 
1972 decision by the U.S. Supreme Court halted executions; a separate decision 
in 1976 reinstated executions.)

Even after spending 10 years behind bars for a crime he didn't commit, Brown is 
not angry or bitter.

"I wake up every day and am happy," Brown said. "I get to smell odors and it's 
not another inmate, and I get to smell food cooking on the stove and it's not 
Ramen noodles."

(source: msnbc.com)






PENNSYTLVANIA:

Defense: Bar death penalty in murder case against inmate


Defense attorneys asked a federal judge Wednesday to bar prosecutors from 
seeking the death penalty against an inmate accused of using a homemade weapon 
to attack and kill a guard at a federal prison in northeastern Pennsylvania.

Attorneys for Jessie Con-ui, 38, asked the judge to declare capital punishment 
unconstitutional in the case against their client.

Con-ui is charged with 1st-degree murder in the February 2013 stabbing death of 
Eric Williams at the Canaan federal prison in Waymart. Dressed in an orange 
jumpsuit, he said little during his appearance by video Wednesday from a 
federal super-maximum prison in Colorado.

Prosecutors argued last fall that execution would be justified if Con-ui is 
convicted, citing what they called the defendant's history of violence, 
including a 2002 murder conviction and what they allege was a premeditated 
attack on a federal public servant.

Defense attorney David Ruhnke cited declining use of the death penalty and 
called the system "just too imperfect." He said the federal death penalty 
"evolves as our society evolves" and should be barred as a violation of the 
constitutional ban on cruel and unusual punishment.

But Justice Department attorney Amanda Haines cited a recent survey she said 
showed that 60 % of Americans support capital punishment, particularly in 
violent cases.

"We haven't quite evolved to the point where we don't want to seek it or impose 
it, especially in egregious cases like this," Haines said.

Williams, 34, was working in a housing unit at the prison when he was attacked. 
Prosecutors allege Con-ui was angry after the guard ordered a search of his 
cell the previous day. They say in court documents that Williams was stabbed 
more than 200 times; they allege Con-ui also stomped on Williams' head and 
throat and slammed his head onto the floor.

Jury selection for Con-ui's trial is to begin July 11.

(source: Associated Press)






DELAWARE:

Will the Supreme Court ruling on Florida's death penalty affect Delaware?


A U.S. Supreme Court decision striking down part of Florida's death penalty 
system will not immediately impact cases in Delaware, but could pave the way 
for future legal challenges in both states, experts say.

On Tuesday, the Supreme Court ruled 8-1 that Florida's procedure for death 
sentences is unconstitutional because it gives too much power to judges - and 
not enough to juries.

Delaware, Alabama and Florida are the only states that allow judges to override 
a jury's recommendation of life, and, instead, impose a sentence of death. 
However, judges in Delaware have not been using that power.

For that reason, the U.S. Supreme Court ruling is not expected to impact the 14 
people currently on death row in Delaware, according to Robert Dunham, 
executive director of the nonprofit Death Penalty Information Center in 
Washington, D.C.

Local attorneys are still reviewing the decision - and are waiting to see what 
the impact will be on Delaware's death penalty statute.

The Department of Justice issued a statement saying the opinion is still under 
review. Brendan O'Neill, the state's chief defender, said the court opinion 
could restrict the application of the death penalty in Delaware.

"It's my opinion that it really casts doubt on the validity of Delaware's death 
penalty scheme," he said.

The ruling comes at a time when Delaware's death penalty statute is being 
scrutinized.

Lawmakers attempted to repeal Delaware's death penalty in May, but were blocked 
in a 6-5 vote by a crucial House committee for the 2nd time in 2 years. Gov. 
Jack Markell has said he would sign a repeal bill if it made its way to his 
desk.

Juries that are not in agreement

The Supreme Court ruling Tuesday is part of a larger trend of the courts trying 
to eliminate death penalty practices in states that deviate from the norm. The 
most obvious deviation that will have to be considered in the future is the 
practice of allowing juries that are not unanimous to recommend death 
sentences, Dunham said.

If the Supreme Court were to consider that narrow issue, it could affect 
Delaware, he said.

"Almost the entire country rejects the practice of non-unanimous juries, except 
in Delaware, Alabama and Florida," he said. "Delaware's practice of permitting 
non-unanimous jury recommendations will remain in the spotlight, and it is very 
likely there will be constitutional challenges."

Kristin Froehlich, of Delaware Citizens Opposed to the Death Penalty, agreed 
that legal challenges could be coming.

"I definitely think [Tuesday's decision] will make everyone take a look at 
Delaware's death penalty law," she said. "I would rather have Delaware as a 
state make the choice to get rid of the death penalty, instead, of waiting for 
the Supreme Court to do that for us."

A Harvard Law School study found that requiring juries to be unanimous in 
Florida, Alabama and Delaware would have caused a drop in death sentences over 
the last 5 years. The 3 states would have returned 26 death sentences since 
2010, instead of 117, according to the Death Penalty Information Center.

Had these states followed the sentencing system used by all other death penalty 
states, the total number of death sentences imposed in the United States would 
have decreased by 21 %.

The process of sentencing someone to death in Delaware requires three steps.

Once a person is found guilty of 1st-degree murder, the jury must unanimously 
agree that the evidence shows beyond a reasonable doubt that at least 1 of 22 
statutory aggravating factors has been met. Factors can include that the victim 
was an on-duty law enforcement officer, pregnant, severely handicapped, over 
age 62, under age 14, or was killed to prevent he or she from testifying in 
court.

Finally, each juror has to decide whether the aggravating factors outweigh the 
mitigating factors. That decision does not need to be unanimous, and the judge 
is not bound by those findings and can reach a different conclusion.

For example, in the case of Derek Powell, the man accused of killing a 
Georgetown police officer, the jury found two statutory aggravators beyond a 
reasonable doubt. On the 2nd issue, the jury found 7-5 that the aggravating 
factors outweighed the mitigating factors, and recommended Powell be sentenced 
to death.

The judge evaluated the evidence and sentenced Powell to death. Powell is 
currently Delaware's youngest death row inmate.

The Pensacola murder

The Supreme Court opinion for Florida did not consider the issue of unanimous 
juries - only the issue of judge's having the final say for death sentences.

The opinion in Florida stemmed from the case of Timothy Lee Hurst, who was 
convicted of the 1998 murder of his manager at a Popeye's restaurant in 
Pensacola. A jury was divided 7-5 in favor of death, and a judge imposed a 
death sentence.

Florida's solicitor general argued that the system was acceptable because a 
jury first decides if the defendant is eligible for the death penalty.

Writing for the court, Justice Sonia Sotomayor said a jury's "mere 
recommendation is not enough."

"The Sixth Amendment requires a jury, not a judge, to find each fact necessary 
to impose a sentence of death," Sotomayor said.

The justices sent the case back to the Florida Supreme Court to determine 
whether the error in sentencing Hurst was harmless, or whether he should get a 
new sentencing hearing.

Justice Samuel Alito dissented, saying that the trial judge in Florida simply 
performs a reviewing function that duplicates what the jury has done.

Sotomayor said Florida's system is flawed because it allows a sentencing judge 
to find aggravating factors "independent of a jury's fact-finding."

Three of Florida's current death row inmates were sentenced over the jury's 
life recommendation. But no judge had overridden a jury recommendation in a 
death penalty case since 1999, according to state officials.

Froehlich said Delaware's death penalty statute, which is similar to Florida, 
needs to be examined.

"In Delaware, people say we have such a strong law, it will prevent errors, but 
in fact, we have one of the broadest death penalty statutes," she said. "We 
have the highest number of aggravating factors; we don't require unanimous 
juries; and we have the judge override. It really is ripe for error."

(source: The News Journal)






FLORIDA:

New study finds vast racial, geographic disparities in Florida executions


2 days after the U.S. Supreme Court struck down Florida's death sentencing 
system as unconstitutional, a new report says the state???s death penalty is 
plagued by vast racial, gender and geographic inequities.

The report, written by University of North Carolina political science professor 
Frank Baumgartner, looked at executions carried out in Florida between 1976 and 
2014. His conclusion includes that the race and gender of the victim, as well 
as the county where the crime occurred, improperly influences who's sentenced 
to death and executed.

"The most troubling finding is that these racial and geographic disparities are 
not measured by a few percentage points of difference," Baumgartner writes. 
"Rather, they differ by orders of magnitude, demonstrating that Florida's death 
penalty is plagued by vast inequities, which will undermine public confidence 
in the state's ability to carry out the death penalty in a fair and impartial 
manner."

"This research raises troubling questions about the administration of the death 
penalty in Florida," said John K. Cochran, a professor in the Department of 
Criminology at the University of South Florida. "The race or gender of a 
victim, and the location of the crime, should not influence who is sentenced to 
die, but this new study shows that it does. Florida citizens and lawmakers 
should review the findings of this important research."

Among the findings produced in the report:

--Homicides involving white female victims are 6.5 times more like to result in 
an execution than homicides involving black male victims. --72 % executions 
carried out in Florida between 1976 and 2014 were for crimes involving white 
victims despite the fact that 56 % of all homicide victims are white.

--Only 26 % of all homicide victims are female, but 43 % of all executions 
carried out in Florida were for homicides involving female victims.

--To date, no white person has been executed in Florida for a homicide 
involving a black victim. In contrast, 71 % of the executions carried out 
against black inmates were for homicides involving white victims. In cases 
where black inmates were executed, 56 % of the victims were white.

--Just 6 out of Florida's 67 counties are responsible for more than 1/2 of the 
state's 89 executions.

--Only 4 counties (Miami-Dade, Orange, Duval, and Pinellas) have produced more 
than 5 executions. More than 1/2 of all Florida counties (36) have never 
produced an execution.

--7 Florida counties (Bradford, Wakulla, Santa Rosa, Madison, Columbia, Lake, 
and Hernando) have execution rates that are more than triple the state's 
average execution rate of 0.30 executions per 100 homicides.

--The homicide rate in counties that have produced no executions (1.11 
homicides per 1,000 population) is significantly lower than the homicide rate 
in counties that have produced executions (1.62 homicides per 1,000 
population).

The information collected in this report is consistent with national studies on 
the administration of the death penalty.

According to the National Coalition to Abolish the Death Penalty, in 1990 the 
Government Accountability Office conducted a review of over 25 studies of 
capital sentencing procedures. Its analysts concluded that 82 % of the studies 
found that the victim's race influenced the likelihood of the defendant being 
charged with capital murder or receiving the death penalty. They also concluded 
that the synthesis of the studies showed a pattern of evidence indicating 
racial disparities in capital sentencing. Although there are comparable numbers 
of black and white murder victims in the United States, 77 % of the people 
executed since 1976 were convicted of killing white victims and only 13 % were 
convicted of killing black victims.

"Florida executions are supposed to be reserved for the 'worst of the worst.' 
However, as this report indicates, it's more about the race of the victim and 
the extreme application of the death penalty by a handful of counties," said 
Mark Elliot with Floridians for Alternatives to the Death Penalty. "Add to this 
that almost all those convicted could not afford a lawyer and that the only 
jury decision in Florida law that's not required to be unanimous is the simple 
majority jury vote to recommend a death sentence. It's no wonder that we have a 
government program that is not only biased and uneven in application, it has 
also sent more innocent people to death row than in any other state."

"Elected officials frequently justify the use of the death penalty by citing 
the needs of the victims' families for 'justice' and closure," said Punta Gorda 
resident, Marietta Jaeger Lane, whose 7-year-old daughter Susie was kidnapped 
and subsequently killed by a mentally ill man in 1973. "I know that this is a 
fallacy. For many of those families, the outrageously prejudicial (as reported 
by Baumgartner) death penalty prolongs their anguish and grief by dragging them 
through years of waiting and uncertainty, having their wounds opened raw and 
bleeding again with each Supreme Court???mandated appeal.

"We should be looking for meaningful ways to support families touched by 
violence instead of relying on a costly, racist death penalty system plagued by 
inequalities, error, and which demeans and degrades Floridians' own worth and 
dignity, insulting the victim by taking on the same means of resolution, which 
was used by the offender," said Jaeger Lane, a member of Floridians for 
Alternatives to the Death Penalty.

(source: Florida Politics)

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

Attorney to attempt to get Bessman Okafor off death row


Bessman Okafor's attorney said on Thursday he will be trying to get his client 
off death row using the Supreme Court decision on the death penalty.

"We're going to definitely include it in there. Definitely. We couldn't ignore 
it," said Dean Mosley, Okafor's attorney.

Okafor was sentenced to death for the execution-style shooting death of Alex 
Zaldivar, 19, in 2012.

Zaldivar was set to testify against Okafor in a separate home invasion case.

Thursday, prosecutors and Okafor's defense attorney gathered for a hearing at 
the Orange County Courthouse, where they began tracking transcripts and 
evidence in the case. They're getting them ready to send to the Florida Supreme 
Court for Okafor's 1st appeal.

On Tuesday, the U.S. Supreme Court ruled the court procedures used to sentence 
defendants to death was unconstitutional.

Justices ruled judges had too much power in the decision, and juries didn't 
have enough power.

Outside the Orange County Courthouse Thursday, State Attorney Jeff Ashton took 
questions for the 1st time surrounding Okafor's case as it pertains to the U.S. 
Supreme Court ruling.

He said Okafor's case won't be affected by the ruling.

"The United States Supreme Court has had the opportunity to stay executions of 
a number of individuals who were similarly situated with Mr. Okafor," he said. 
"That is they had prior convictions, and so on, and they chose to let those 
executions go forward."

His comments come as lawmakers in Tallahassee craft new laws regarding how the 
death sentence is handed down by a jury.

House Bill 157 and Senate Bill 330 both would require a jury's unanimous vote 
on the death penalty.

They would also require unanimous votes by the jury on aggravating factors, 
such as a defendant's lack of remorse, the violence of the crime or if a child 
witnessed the crime.

"I think Florida is coming to the reality of this late, but thank God they're 
coming to the reality that it should be unanimous," said Mosley.

Ashton said he's not in favor of the bill.

"That particular bill, I think, is honestly a death penalty killer bill. Its 
intention is to make the death penalty almost impossible to obtain," Ashton 
said.

(source: clickorlando.com)

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

U.S. Supreme Court death-penalty ruling will have little effect


2 days after the U.S. Supreme Court struck down Florida's death penalty, 
questions are lingering in Central Florida over how the historic ruling will 
affect ongoing and past capital cases.

As lawmakers puzzled over a recent U.S. Supreme Court opinion dismantling 
Florida's death-penalty sentencing processes, Orange-Osceola State Attorney 
Jeff Ashton offered his 1st public remarks on Thursday, anticipating the 
decision would have little impact on local capital cases.

"So, what [the justices] basically said is, 'Your statute has the potential to 
render a death sentence that is unconstitutional,' but that's going to be in a 
very rare set of circumstances," Ashton told reporters outside the downtown 
courthouse, referring to the Hurst v. Florida opinion that was handed down on 
Tuesday.

"We believe that even if the statutes were not to be changed, we can still 
proceed under the existing statute."

His comments came on the heels of the high court's 8-1 opinion finding that 
Florida's capital sentencing scheme - in which a jury makes an "advisory 
recommendation" to a judge, who then makes the final decision - violates the 
Sixth Amendment. While Ashton declared the ruling was narrow in its scope, the 
decision has left many with questions over how to proceed.

There are 22 inmates on death row from sentences handed down by judges in 
Orange and Osceola counties, according to Ashton's office.

One of them, Bessman Okafor, convicted in August of first-degree murder in a 
witness execution, had a hearing on Thursday.

His attorney did not raise the Hurst issue at the hearing, which had been 
previously scheduled for different matters.

But afterwards, Dean Mosley, who is representing Okafor, said he believes the 
decision will help convert his client's maximum punishment to life in prison 
instead of lethal injection.

"Any lawyer representing him on appeal would be committing malpractice not to 
use this," Mosley said.

Like the state's other criminal defense attorneys, Mosley must wait until the 
Florida Supreme Court and the Legislature clarify what changes could stem from 
Hurst.

Still, Mosley believes the ruling will help Okafor because he is just starting 
his appeals process and can raise the issue.

It remains unclear as to whether the Hurst decision applies to Florida's death 
row inmates who have exhausted their reviews.

Another issue is ongoing capital cases. There are currently 7 death-penalty 
cases pending in Orange and Osceola counties.

"As to existing cases, since the court has oxnly found our process to be 
procedurally flawed and not substantively flawed, the courts have the authority 
to create new procedural rules to effect the will of the legislature in a 
constitutional manner," Ashton said in a statement.

Though Ashton believes he could move forward with the cases if he needed to, 
his attorneys will be urging judges to delay any capital cases until the 
legislative session ends in March.

Some other prosecutors agree that cases should be on hold due to the 
uncertainties.

In Volusia County, prosecutors have asked to postpone the upcoming trial of 
Luis Toledo, a gang member accused of killing his wife and her two children, in 
light of the high court's ruling. Toledo's trial is due to begin Tuesday in St. 
Augustine.

In a motion filed on Wednesday, prosecutors in the Toledo case asked for the 
trial continuance "to allow time for the issues raised in Hurst to be properly 
addressed."

They have requested a delay of 60 days, according to a spokesman from the 7th 
Judicial Circuit State Attorney R.J. Larizza's office, which is prosecuting the 
case.

The extra time is needed to ensure the death penalty remains on the table as 
questions swirl about whether Florida's statute is currently functional.

Defense attorneys for Toledo have opposed the delay, according to news reports. 
They insist the trial should move forward and that Toledo, if convicted, can 
receive only a maximum punishment of life in prison since Florida's law guiding 
a death sentence is now defunct.

Circuit Judge Raul A. Zambrano said he would issue his decision on Friday.

Exactly how broad the Hurst ruling is remains unclear.

The U.S. Supreme Court ruling found Florida's death-penalty sentencing 
procedure unconstitutional because it gives too much power to the judge. A 
12-person jury should be the only entity deciding whether a factual-basis has 
been met to impose the death penalty, the court held.

Under the past death-penalty sentencing scheme, a jury made an advisory 
recommendation, which the judge considered with "great weight." But the judge 
made the final call.

Jurors were required to submit in writing a recommendation of life in prison or 
death, but did not put on paper whether an aggravating circumstance justifying 
the death penalty was proven.

Ashton said the questions about whether a unanimous jury must impose the death 
penalty was not addressed in the Hurst ruling, adding that he wouldn't support 
a bill that required the condition.

Such a bill has already been filed in the Florida House and Senate.

"That particular bill, I think, honestly, is a death-penalty killer bill," 
Ashton said. "Its intention is to make the death penalty virtually impossible 
to obtain."

(source: Orlando Sentinel)

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

Getting death sentences right in Florida


So the U.S. Supreme Court has declared unconstitutional our state's way of 
sentencing killers to die - a method that gives judges, and not juries, the 
final say.

The news, reverberating to Tallahassee and beyond, made me think of one case 
where this might have actually worked.

Except it didn't.

Humberto Delgado, once a police officer himself, had a history of delusions and 
psychotic behavior and had at some point believed police were out to kill him. 
Tampa police Cpl. Mike Roberts could not have known this on the night in 2009 
when he stopped Delgado, who was homeless and pushing a shopping cart on his 
way to a veterans hospital. The officer could not have known about the four 
guns in Delgado's shopping cart.

Death penalty cases are always terrible, and that courtroom filled with sorrow 
for the senseless loss of a father, husband and cop. Death, a jury of ordinary 
citizens recommended by an 8-4 vote.

It should also be noted that this was no bank robber who murdered a cop to get 
away or a serial killer who had lain in wait. Doctors testified that Delgado 
was paranoid and bipolar with degrees of psychosis, that he was mentally ill.

So here is the unusual way we get to a death sentence in Florida: A jury hears 
evidence and recommends death or life in prison, knowing the judge will have 
final say. The judge, who is supposed to give the jury's recommendation great 
weight, decides whether sufficient specific aggravating circumstances exist to 
justify death. Some examples: The murder was especially heinous, atrocious or 
cruel; it was cold, calculated and premeditated; the defendant killed for 
monetary gain; the victim was a police officer.

I always assumed Florida adopted this method so dispassionate, level-headed 
judges were the final gatekeepers in cases that are tragic and emotional. You 
would hate to believe anyone decided we should do it this way so jurors would 
find it easier to say death knowing it was a mere recommendation. Or that 
anyone was thinking elected judges might be loath to appear soft on murder.

Some legal experts thought Delgado could rate a judicial override for a life 
sentence, something that has been sparingly applied in Florida. The judge said 
death. Last year, the Florida Supreme Court overturned his death sentence in 
favor of a life in prison - not surprising, given evidence of extreme mental 
illness. I guess you could argue the system worked, though a state-ordered 
execution is a scary thing with which to gamble.

This week's U.S. Supreme Court decision took specific issue with Florida's 
sentencing "scheme" - an interesting word choice - that gives judges final say. 
State officials are now grappling with fixing this. Smart people who deal in 
death cases say some remedies are obvious: Juries should be required to name 
aggravating factors that led to their decision. Juries, not judges, should make 
the call.

It's too bad the opinion did not address another critical aspect: whether a 
jury's decision for death should be unanimous. We are the only state in which 
it takes just a simple majority - 7 of 12 jurors. Many are on Florida's death 
row on a split vote. Lawmakers would be wise to address that now, too.

As this week's decision made clear, if we are going to sentence people to die 
for their crimes, that ultimate penalty is far too important not to get the 
rules right.

(source: Sue Carlton, Tampa Bay Times)






ALABAMA----impending execution

Alabama death row inmate waiting to see if court will block next week's 
execution


With a week to go until his execution, Christopher Brooks is now awaiting a 
decision by the U.S. 11th Circuit Court of Appeals to step in to halt Alabama 
from carrying out his death sentence.

It would be the first execution in Alabama since July 2013 and the 1st using a 
new cocktail of lethal injection drugs - a combination Brooks and other death 
row inmates say could cause cruel and unusual punishment.

Attorneys for the Alabama Attorney General's Office, however, argue that Brooks 
was late in filing his challenges to the state's new lethal injection protocols 
as well as his motion to stay the execution.

"In this case, appellees (the state) would be harmed by the granting of the 
stay, as would the people of the State of Alabama, who are entitled to have 
their criminal laws enforced," according to a brief the the AG's Office filed 
with the 11th Circuit on Wednesday.

Brooks was convicted in the 1992 murder and rape of Jo Deann Campbell at her 
Homewood apartment.

Brooks' attorneys on Tuesday had asked that appeals court for an emergency stay 
of his scheduled Jan. 21 execution at Holman prison in Atmore until the 
litigation challenging Alabama's new lethal injection protocol is fully 
decided. Brooks also had appealed to the 11th Circuit the federal judge's 
denial of a stay.

Brooks' attorneys say that a judge doesn't have a hearing scheduled until April 
18 for a group of 5 death row inmates who filed lawsuits that say the 1st drug 
in the new cocktail - the sedative midazolam - doesn't work well enough to ward 
off the pain of the 2 other drugs designed to stop breathing and the heart. 
Brooks joined in on the lawsuit in November, after the Attorney General's 
Office had requested the state's supreme court set an execution date.

Suicide burden

Brooks also contends that this is the 1st time an appeals court will have 
addressed the scope of new rules for inmates to challenge the constitutionality 
of an execution method as cruel and unusual punishment. The new rules - further 
defined in the 2015 Glossip case out of Oklahoma - require the inmates to plead 
an alternate form of execution that wouldn't be cruel and unusual.

The requirement to suggest an alternate way of execution has been referred to 
by death row inmates as the "suicide burden."

"Glossip clarified, to a certain extent, what plaintiffs challenging a method 
of execution are required to plead," the motion states. "It said that they had 
to plead an available and feasible method of execution that significantly 
reduced the risk of pain as compared to the challenged protocol. What the 
opinion did not do is define what "available" and "feasible" meant in this 
context. This case is the first case to raise this issue to this Court, or 
indeed to any Circuit Court, and directly ask that question."

Brooks' attorneys have proposed 3 alternative methods - a single dose of 
pentobarbital, sodium thiopental, or midazolam. Each carries less risk of pain 
and suffering than Alabama's new 3-drug protocol which uses midazolam, a drug 
implicated in a series of botched executions, the attorneys argue.

The lawsuit involving Brooks and the 5 other inmates say the Alabama Department 
of Corrections has not proved that it is unable get pentobarbital, a powerful 
barbiturate that was used as the anesthetic in Alabama's lethal injection 
protocol until September 2014, when the state announced it was switching to 
midazolam, an anti-anxiety medication often used to help individuals relax 
prior to surgery, according to a statement from assistant federal public 
defender John Palombi, who represents Brooks.

An attorney for the Alabama Department of Corrections testified on Tuesday in 
the trial of another lawsuit filed by death row inmate Tommy Arthur that she 
had tried unsuccessfully to get pentobarbital through more than 2 dozen sources 
- compounding pharmacies and other states' prison systems. Arthur makes similar 
claims as the lawsuit involving Brooks and the other inmates.

Arthur's attorneys argue that other states have supplies of pentobarbital and 
that compounding pharmacies also can make the drug. Some pharmacies and drug 
manufacturers in the U.S. and Europe have refused to allow their drugs to be 
used in executions.

"Brooks is well aware that unless he receives clemency or obtains relief in 
different litigation, it is inevitable that he will be executed. What is not 
inevitable is Brooks being executed in an unconstitutional manner," according 
to Brooks' motion to stay the execution.

Midazolam, a sedative in the same family as Valium and Xanax, has been involved 
in several botched executions, including the April 29, 2014 execution of 
Oklahoma inmate Clayton Lockett, Palombi wrote. According to reporters who 
witnessed the execution, Lockett "writhed, groaned and convulsed as the 3-drug 
cocktail was being administered," dying 43 minutes after the 1st drug, 
midazolam, was injected, according to the statement.

"After Lockett's torturous ordeal, attorneys for four other Oklahoma inmates 
requested stays of execution to give time for a court to hear evidence about 
the problems with midazolam, which is not FDA-approved for the induction of 
anesthesia. They ultimately petitioned the United States Supreme Court for 
certiorari on the issue of whether the stay should have been granted. Their 
request was granted, but not before one of their number, Charles Warner, was 
executed," Palombi wrote.

Palombi argues Brooks is in the same position as Warner.

Brooks' attorneys are asking the 11th Circuit "not to let Alabama experiment on 
Mr. Brooks, but rather to wait until the district court holds a full 
evidentiary hearing on the suitability of midazolam as the first drug in a 
three-drug procedure," Palombi writes.

"It is in the public interest for this Court to decide these nationally 
important issues raised in Brooks' appeal in a reasonable time, not in a 
timetable pushed by the Attorney General's Office and set by the Alabama 
Supreme Court," Palombi wrote.

Allowing Alabama to change its protocol without showing what it has done to 
obtain pentobarbital, the court "allows a state to control the meaning of the 
Eighth Amendment merely by what efforts they take, or do not take, to obtain 
drugs that would allow for a more humane execution," according to one court 
brief filed by Brooks' attorneys. That "will encourage states to look for the 
easiest way to carry out the most solemn duty that a State can undertake."

Attorneys for the Alabama Attorney General's Office argued in briefs to the 
11th Circuit this week that Brooks asked to intervene in the other death row 
inmates' lawsuit late and also missed the deadline for filing an emergency 
stay.

The Alabama Supreme Court announced on November 3 that Brooks would be executed 
on January 21, 2016, the AG's office stated. Later that day, the district court 
agreed to allow Brooks to intervene in the "midazolam litigation."

"Although Brooks styles his request to this Court as an 'Emergency Motion,' 
this designation does not meet the plain requirements of this Court's local 
rules. To qualify as an emergency motion, the motion must be filed 'within 7 
days of the filing of the district court order or action sought to be 
reviewed,'" the AG's office argued.

The federal judge denied Brooks'request for a stay of execution on Dec. 22 and 
the "emergency" motion was not filed until Jan. 12, which was long past the 
deadline, the AG's Office stated.

Palombi responded on Thursday.

"The State argues that Brooks' motion should be denied because it is untimely 
and does not meet the standards of this court for granting emergency relief. 
Neither of these statements is true. Brooks' motion is timely under this 
Court's rules," Palombi wrote in a brief.

(source: al.com)

**********

Executions should be outlawed


There are plenty of reasons Alabama should ban execution in favor of life 
sentences without chance of parole.

The current lethal-injection execution method is rightly stalled here and in 
other states by legal challenges and because pharmaceutical companies have 
backed off supplying fatal drug-cocktail components.

One case now being litigated is that of Thomas Arthur, in the U.S. District 
Court for the Middle District of Alabama. Part of the death-row inmate's 
complaint protests use of midazolam, the 1st of 3 drugs in the state's 
execution protocol, claiming it fails to sufficiently anesthetize prisoners 
from pain before the next 2 drugs are given.

Questions about midazolam aren't just legal ploys - it has been linked to at 
least four botched executions in 4 states.

Even if a noncontroversial drug cocktail were readily available, executions 
should still be halted. Alabama's sordid history of racial bias in the 
application of death-penalty sentences is beyond dispute. Black defendants are 
far more likely to receive death-penalty verdicts than white defendants, for 
the same crimes.

Add in the heinous matter of eight Alabama death-row prisoners being exonerated 
since 1973 after serving decades in prison for crimes they didn't commit.

On those grounds alone, executions should surely be outlawed.

But the U.S. Supreme Court this week supplied another strong argument against 
the death penalty. The case came out of Florida, but likely also applies to 
Alabama's sentencing system.

The high court ruled Florida's death-penalty process violates Sixth Amendment 
guarantees of an impartial jury trial because it lets judges impose death 
sentences even if a jury calls for a life sentence.

The ruling has thrown Florida's judiciary into chaos and could necessitate 
appeals and re-sentencing procedures for some of the 390 individuals sitting on 
death row in that state.

Get ready for similar, costly upheaval in Alabama courts, which allows judges 
to dole out death penalties against the recommendation of the jury with even 
fewer restrictions than Florida.

The override loophole opens the door to political corruption in capital cases, 
especially by judges eager to show they're tough on crime in an election year. 
It also greases the door for racial bias. Research by the Montgomery-based 
Equal Justice Initiative shows judges ignore life-sentence recommendations from 
juries more frequently when a white victim is involved.

Alabama judges have overridden jurors to hand out death-penalty sentences 98 
times since 1976, according to EJI.

The Legislature would be well advised to quickly halt the tainted practice. 
Otherwise, the nation's high court may just come knocking at Alabama's death 
row door, with a big legal bill.

(source: Editorial, Montgomery Advertiser)