[Deathpenalty] death penalty news----OHIO, ARK., ARIZ., NEV., CALIF., USA

[Rick Halperin]

March 18



OHIO:

Romell Broom ruling allowing serial execution attempts sets up nightmare 
scenario


How many times should a state be able to try to execute someone without running 
afoul of the Constitution? Little noted amidst this week's headline-grabbing 
news of Donald Trump's latest Republican primary victories and President Barack 
Obama's nomination of Merrick Garland to the U.S. Supreme Court, the Ohio 
Supreme Court ruled on Wednesday that neither the federal nor the state 
constitution forbids Ohio from trying to execute someone more than once.

While this ruling may set up another opportunity for the U.S. Supreme Court to 
consider the constitutionality of capital punishment, it nonetheless allows the 
nightmarish possibility that the state can proceed in a negligent manner in 
carrying out an execution and, if it fails in the first attempt, to try, try 
again. This should shock and trouble those who support capital punishment as 
well as those who oppose it.

The Ohio decision gave the state the green light to proceed with another 
execution attempt of Romell Broom, only the 2nd person in the last century and 
a quarter to survive a botched execution.

On Sept. 15, 2009, Broom, who had been convicted of kidnapping, rape, and 
murder, was brought to Ohio's death chamber where he was to be executed by 
lethal injection. His executioners repeatedly attempted to insert an 
intravenous line into Broom's arms and legs. As they did so, Broom winced and 
grimaced with pain. At one point, he covered his face with both hands and 
appeared to be sobbing, his stomach heaving.

After an hour had passed, Broom tried to help his executioners, turning onto 
his side, sliding the rubber tubing that served as a tourniquet up his left 
arm, and alternatively squeezing his fingers together and apart. Even when 
executioners found what they believed to be a suitable vein, it quickly 
collapsed as they tried to inject the saline fluid. Broom was once again 
brought to tears.

After more than 2 hours of executioners sticking Broom's arms and legs with the 
needle, the prison director decided that the execution team should rest. The 
governor of Ohio issued a reprieve stopping the execution.

Neither simple decency nor the 8th Amendment can tolerate carrying out a death 
penalty sentence in a shoddy manner.

Broom was put back on death row, and his lawyers soon mounted a legal challenge 
designed to prevent the state from returning Broom to the gurney. They claimed 
that doing so would amount to punishing him twice for the same crime in 
violation of the constitutional prohibition of double jeopardy and that it 
would also be cruel and unusual to do so.

In Wednesday's 4-3 decision, the Ohio Supreme Court rejected both of these 
claims. Deploying a fine bit of legal hairsplitting, the majority reasoned that 
since the drugs designed to kill Broom never reached him, that he had not been 
"punished" during the aborted execution. The effort to establish a viable IV 
line was merely a "necessary preliminary step (which) does not, by itself, 
place the prisoner at risk of death." Under this reasoning, nothing would 
prohibit Ohio from returning Broom to the death chamber 2, 3, or 4 times, each 
time strapping him down and inserting IV lines so long as it did not go beyond 
these "preliminaries."

In addition, the Ohio court found that the state's "intention" in going forward 
with a 2nd effort to execute Broom is not "to cause unnecessary physical pain 
or psychological harm ...." As a result, doing so would not amount to 
unconstitutional cruelty.

Here the Ohio court followed the U.S. Supreme Court's 1947 decision in the case 
of Willie Francis, who had survived Louisiana's 1st effort to put him to death 
by electrocution when the current of electricity proved insufficient to kill 
him. As the Court saw it, whether Louisiana's plan to return Francis to the 
electric chair would violate the Constitution had little to do with Francis, 
and any pain he might have suffered during the 1st execution attempt or his 
painful anticipations of the 2nd. The Constitution, the Court said, clearly 
permits "the necessary suffering involved in any method employed to extinguish 
life humanely."

The constitutional question, in the Francis as in the Broom case, turned on the 
behavior of those in charge of the "1st" execution. The Supreme Court found 
that those officials carried out their duties in a "careful and humane manner" 
with "no suggestion of malevolence" and no "purpose to inflict unnecessary 
pain." The failure of the 1st effort to execute Francis was, as the Court 
described it, an "unforeseeable accident ... for which no man is to blame."

The courts in these 2 cases seem to have accepted a kind of stereotypical 
Jewish mother defense ..."But I meant well." What Francis experienced, or what 
Broom has and will experience in his return to the death chamber, was 
irrelevant.

It is almost certain that the Bromell case now will make its way to the U.S. 
Supreme Court and that it will offer that court the chance to revisit the 
unfortunate precedent it set more than 60 years ago.

One can only hope that the Court will now insist that if the government is 
going to carry out executions that there be no room for error. Neither simple 
human decency nor the 8th Amendment can tolerate a government carrying out a 
death penalty sentence in a shoddy manner. If we are going to have a death 
penalty, we cannot allow death, as the dissenting justice in the Francis case 
put it, to be carried out on the installment plan.

(source: Opinion; Austin Sarat is the William Nelson Cromwell professor of 
jurisprudence and political science and the associate dean of the faculty at 
Amherst College in Massachusetts. He is the author of "Gruesome Spectacles: 
Botched Executions and America's Death Penalty."----cleveland.com)





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

Former Ohio prisons director Terry Collins dies


Chillicothe native and former Ohio prison director Terry Collins died suddenly 
Thursday.

His wife of 44 years, Linda Collins, was working when she got the call he had 
collapsed while working out and was taken to Adena Medical Center. She said he 
had felt fine in recent days and the apparent heart attack "took him very 
quickly."

"He was a wonderful man, respected by everybody in his field; a wonderful 
husband and father and grandfather. Certainly not ready (for him to go)," Linda 
Collins said, adding they had just celebrated his 63rd birthday on Tuesday.

Terry Collins oversaw the prison system for more than 3 years before his Feb. 
1, 2010, retirement. He had started his career in corrections in 1977 as a 
social worker at the Southern Ohio Correctional Facility. He served as warden 
at Lorain Correctional Institution, Southern Ohio Correctional Facility, and 
Ross Correctional Institution.

He became deputy director of institutions in 2000, assistant corrections 
director in 2005 and director in May 2006 on an appointment from then-Gov. Bob 
Taft. He was reappointed by Strickland in February 2007.

Current prisons director Gary Mohr, also of Chillicothe, worked alongside 
Collins for many years, and the 2 were wardens at the same time at 
Chillicothe's 2 prisons.

"The entire DRC family is saddened by the tragic loss of former Director Terry 
Collins ... Terry was a solid person and professional who cared deeply about 
our agency and understood the importance of having a balance between his career 
and family," Mohr said in a statement released Thursday. "The Collins family 
continues to be in our thoughts."

Mohr praised Collins in a letter to the Chillicothe Gazette in 2010, saying 
Collins was "anchored to principles of always trying to do the right thing with 
honorable intentions and treating people with unconditional regard."

Teri Minney, who recently retired as an Adult Parole Authority regional 
administrator, called Collins death an "enormous loss."

"Terry was a leader not just to the department, but nationally. He cared about 
the staff ... he cared about the offenders and truly wanted to see a change in 
their lives and it made the rest of us want to see a change," Minney said.

Collins' respect by his peers was evident when the state opted to name its 
first reentry center, located in the former honors camp at Ross Correctional 
Institution, in his honor. Minney said despite challenges in creating the 
center, which initially called for a new building on the grounds of Chillicothe 
Correctional Institution, Collins was always ready with a smile and positive 
outlook that the project would move forward.

"(The reentry center) was something I promoted for years at (the Ohio 
Department of Rehabilitation and Corrections)," Collins said at the July 2014 
dedication of the Terry Collins Reentry Center. "It's always been a passion of 
mine to help individuals and provide them the opportunity to change."

In recent years, Collins had become a vocal opponent of the death penalty and 
joined Ohioans to Stop Executions in an October march from Lucasville to 
Columbus.

"He was courageous," Minney said. "He would speak out against things that 
weren't always popular (to speak against)," Minney said.

Funeral arrangements will be will be under the direction of Haller Funeral 
Home.

(source: Chilligothe Gazette)






ARKANSAS:

Ruling: Inmate facing execution owed an appeal


A man facing the death penalty for raping and killing his niece -- the daughter 
of a legislator -- can go back to trial court for post-conviction relief after 
an Arkansas Supreme Court ruling Thursday.

Karl Roberts was mentally unfit when he waived his rights to post-conviction 
reviews, according to a majority of the Arkansas Supreme Court, which sent 
Roberts' most recent appeal of his execution sentence back to Polk County 
Circuit Court.

Roberts, now 48, was first convicted and sentenced to death in 2000 in the 1999 
murder of Andi Brewer, 12, whose body was buried outside Mena.

His execution has been delayed by a range of appeals as well as a competency 
hearing held in 2014 in which Circuit Judge J.W. Looney found that Roberts both 
"knowingly and intelligently" waived his rights to a post-conviction appeal.

The girl's mother is state Rep. Rebecca Petty, R-Rogers. Last year, Petty 
sponsored legislation that would become known as "Andi's Law," which expanded 
the number of family members that could be present for an offender's execution.

After his conviction, Roberts waived his rights to an appeal. But on the day of 
his scheduled January 2004 execution, he asked for and was granted a stay in 
federal court. The case was then sent back to state court.

After hearing evidence and testimony from two mental-health experts, Looney 
ruled that Roberts had "the capacity to choose between life and death" when 
Roberts sent the court a letter in September 2013 once again waiving his right 
to relief. Looney then dismissed Roberts' challenge of his sentence.

The majority of the state's justices, 4, and all but 1 of the 3 dissenters, 
agreed that the testimony showed that Roberts' mental health was suspect.

Writing for the majority, Justice Rhonda Wood said death-row inmates can waive 
their rights only to post-conviction relief if they understand the distinction 
between life and death and can "knowingly and intelligently" waive their 
rights.

A psychological expert who testified for the state found Roberts suffered from 
schizophrenia as well as auditory and visual hallucinations and delusions.

The expert would not venture a guess as to whether Roberts was of sound mind, 
but said Roberts' decision-making was "colored by his psychotic experiences" 
and there was "significant concern" over whether the inmate could make a 
rational choice about life and death.

A psychologist brought in by Roberts' attorney testified that Roberts' thinking 
was "clouded by his psychosis," and that expert testified he didn't think 
Roberts could distinguish between life and death.

"The evidence before [Looney] evinces that it is undeniable that Roberts 
suffers from schizophrenia, that these symptoms of his psychological disorder 
clearly impact his ability to choose between life and death and to knowingly 
and intelligently waive his appeal rights," Wood wrote. "And the State's own 
expert could not conclusively find that Roberts' rational reasoning was greater 
than his psychotic reasoning."

Dissenting justices wrote that Looney's order did not follow procedure and it 
left justices with no insight to his ruling.

Joined by Justice Paul Danielson in a dissenting opinion, Chief Justice Howard 
Brill wrote that the majority overstepped its bounds and should have sent the 
case back to lower court for a better ruling.

"The majority engages in fact-finding that is within the exclusive province of 
the circuit court," Brill wrote. "This court has repeatedly stated that it does 
not try issues of fact. ... Further, as a matter of policy, this court should 
be wary of making conclusive findings of fact on a competency issues in a 
death-penalty case."

In her separate dissenting opinion, Justice Courtney Goodson wrote that she 
would uphold Looney's ruling.

(source: arkansasonline.com)






ARIZONA:

Court to review ruling that overturned man's death sentence


The Arizona Supreme Court has agreed to review a trial judge's decision that 
threw out a death sentence for a man convicted of killing a prostitute in 
Phoenix in 1993.

The state high court said Tuesday it will schedule oral arguments on 
prosecutors' appeal of a 2015 ruling by now-retired Judge Roberts Gottsfield in 
the case of Darrel Peter Pandeli.

Gottsfield ruled that Pandeli's former attorney was "deficient" in presenting 
evidence during Pandeli's original sentencing and that jurors weren't told the 
defendant suffered from a mental illness that affects his brain function.

The judge ordered a new penalty phase trial.

Pandeli was convicted for the 1993 killing of 43-year-old Holly Iler. She was 
found in an alley with her throat slashed and her breasts cut off.

(source: Associated Press)






NEVADA:

Judge rejects man's guilty plea in Vegas death penalty case


A Nevada judge rejected Las Vegas man's guilty plea in a capital murder case 
stemming from the rape, torture, killing and mutilation of a 15-year-old girl 
on her way home from school.

The Thursday ruling set the more than 4-year-old case in the slaying of Arbor 
View High School student Alyssa Otremba on an uncertain path.

Javier Righetti's trial in October likely will be delayed pending appeals to 
the Nevada Supreme Court.

Righetti pleaded guilty Feb. 11 with no promise that he won't be put to death 
for the September 2011 slaying. He was 19 at the time.

His fate was to be decided by a Clark County District Court jury.

Prosecutors asked to undo the plea because Righetti didn't specifically admit 
the slaying was willful, premeditated and deliberate.

(source: Associated Press)






CALIFORNIA:

Attorneys go over DNA evidence a month before start of alleged killer's 
death-penalty trial


Attorneys for Antolin Garcia Torres, charged in the 2012 kidnapping and 
presumed killing of South County teen Sierra LaMar, appeared in court Thursday 
to discuss a handoff of DNA evidence from prosecutors in the lead-up to the 
highly anticipated death-penalty trial slated to begin next month.

Thursday's proceeding revolved around the Alternate Defender's Office's request 
for discovery involving DNA evidence that attorneys contend has 11 partial DNA 
matches on top of biological evidence from Garcia Torres. A call to the 
attorneys representing Garcia Torres was not immediately returned Thursday.

Deputy District Attorney David Boyd said the two sides reached an agreement 
over the requested evidence.

The hearing was among a marathon of procedural touchstones before Garcia 
Torres' trial, which is scheduled to begin April 25.

Garcia Torres has been in jail since his May 2012 arrest in connection with the 
presumed death of 15-year-old Sierra, who disappeared March 16, 2012 while 
walking to a bus stop in an unincorporated part of Santa Clara County near 
Morgan Hill. The teen's body has not been found.

A grand jury in 2014 indicted Garcia Torres for kidnapping and murder in 
Sierra's case, and attempted kidnapping and carjacking related to three 
separate 2009 incidents. The grand jury report obtained by this newspaper 
revealed that Sierra's hair was found on a rope in Garcia Torres' car trunk. 
His DNA was discovered on her pants and his own words unknowingly implicated 
him to authorities, according to the transcript.

Family and friends of Sierra gathered in Fremont on Wednesday to commemorate 
the 4th anniversary of her disappearance, and a search for her is scheduled for 
Saturday in the area around the Uvas Reservoir near Morgan Hill. The searches 
were conducted in South County regularly for over 3 years and are still 
intermittently performed by volunteers.

(source: Mercury News)






USA:

Rodriguez Could Get New Defense Attorneys For Death Penalty Appeal


New attorneys could be taking over the death penalty appeal of Alfonso 
Rodriguez Jr.

The Minnesota Federal Public Defender's Office has asked a federal judge to 
withdraw from the case.

2 additional court-appointed death penalty experts are also seeking to be 
removed.

Court documents say "personnel changes" at the Minnesota office, plus changes 
in the federal system "prevent the office from continuing to perform its role."

Federal prosecutors in Fargo plan to file a response to the request within 10 
days.

Rodriguez is on death row for the 2003 murder and kidnapping of Dru Sjodin.

(source: KVRR news)

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

Defense alleging juror misconduct during Alfonso Rodriguez trial


Another possible delay in the Alfonso Rodriguez death penalty case.

He is on death row for the kidnapping, rape, and murder of UND student Dru 
Sjodin back in 2003.

The defense is alleging juror misconduct during the trial. Some of those appeal 
hearing aren't scheduled until next year. But that may be delayed even longer.

His defense team is seeking a new lawyer to take over the case. They argue the 
switch is needed because of staffing changes in both the federal system and the 
Minnesota office where one of his lawyers worked.

(source: WDAZ TV news)

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

Merrick Garland: Where Does Supreme Court Pick Stand on Guantanamo, Death 
Penalty, Abortion?


Terry O'Neill----president of the National Organization for Women. NOW released 
a statement on Wednesday calling Garland "a real nowhere man."

As Democrats and Republicans gear up for a battle over whether the 
Republican-controlled Congress will hold hearings to consider President Obama's 
Supreme Court nomination of Judge Merrick Garland, we take a look at Garland's 
judicial record. Merrick Garland is the chief judge for the U.S. Court of 
Appeals for the D.C. Circuit. He was named to his current post by Bill Clinton 
in 1997, winning confirmation from a Republican-led Senate in a 76-23 vote. 
Prior to that, Garland worked in the Justice Department, where he prosecuted 
the Oklahoma City bombing case. Garland is widely viewed as a moderate judge, 
who he has received bipartisan support in the past. With the 9-member Supreme 
Court now evenly split with 4 liberal and 4 conservative justices, Garland 
could tilt the court to the left for the 1st time in decades. But some 
organizations have expressed concern that his record on certain issues, 
including abortion rights, is unclear. To examine his views, we are joined by 
Terry O'Neill, president of the National Organization for Women, and Ian 
Millhiser, author of the book "Injustices: The Supreme Court???s History of 
Comforting the Comfortable and Afflicting the Afflicted."

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

NERMEEN SHAIKH:After weeks of speculation, President Obama has announced his 
nominee to replace the late Justice Antonin Scalia on the Supreme Court.

PRESIDENT BARACK OBAMA: I've selected a nominee who is widely recognized not 
only as one of America's sharpest legal minds, but someone who brings to his 
work a spirit of decency, modesty, integrity, evenhandedness and excellence. 
These qualities and his long commitment to public service have earned him the 
respect and admiration of leaders from both sides of the aisle. He will 
ultimately bring that same character to bear on the Supreme Court, an 
institution in which he is uniquely prepared to serve immediately. Today I am 
nominating Chief Judge Merrick Brian Garland to join the Supreme Court.

AMY GOODMAN: Republicans have vowed to block the nomination of Judge Merrick 
Garland. Senate Majority Leader Mitch McConnell said the Senate will wait until 
a new president is in place next January before even holding a hearing on a 
nominee.

MAJORITY LEADER MITCH McCONNELL: President Obama made this nomination not - not 
with the intent of seeing the nominee confirmed, but in order to politicize it 
for purposes of the election.

AMY GOODMAN: President Obama criticized Republicans for threatening not to hold 
confirmation hearings.

PRESIDENT BARACK OBAMA: It is tempting to make this confirmation process simply 
an extension of our divided politics - the squabbling that's going on in the 
news every day. But to go down that path would be wrong. It would be a betrayal 
of our best traditions and a betrayal of the vision of our founding documents.

NERMEEN SHAIKH: Many analysts say Obama chose Judge Garland to make it harder 
for Republicans to outright reject him without facing a political backlash. 
Merrick Garland is the chief judge for the U.S. Court of Appeals for the D.C. 
Circuit. He's widely viewed as a moderate judge who has received bipartisan 
support in the past. He was named to his current post by Bill Clinton in 1997, 
winning confirmation from a Republican-led Senate in a 76-to-23 vote. Prior to 
that, Garland worked in the Justice Department, where he prosecuted the 
Oklahoma City bombing case. At 63 years old, Garland is the oldest Supreme 
Court nominee in 4 decades, a move some consider a concession by President 
Obama. The 9-member Supreme Court is now evenly split with 4 liberals and 4 
conservative justices. Garland could tilt the court to the left for the 1st 
time in decades, though some organizations have expressed concern that his 
record on certain issues, including abortion rights, is unclear. On Wednesday, 
Merrick spoke briefly about his legal views.

JUDGE MERRICK GARLAND: Fidelity to the Constitution and the law has been the 
cornerstone of my professional life, and it is the hallmark of the kind of 
judge I have tried to be for the past 18 years. If the Senate sees fit to 
confirm me to the position for which I have been nominated today, I promise to 
continue on that course.

AMY GOODMAN: For more, we're joined by 2 guests. Terry O'Neill is president of 
the National Organization for Women. NOW released a statement on Wednesday 
calling Judge Garland, quote, "a real nowhere man." And we're joined by Ian 
Millhiser, senior fellow at the Center for American Progress Action Fund and 
the editor of ThinkProgress Justice. He's the author of the book Injustices: 
The Supreme Court's History of Comforting the Comfortable and Afflicting the 
Afflicted.

We welcome you both to Democracy Now! Ian Millhiser, why don't you review his 
record? Talk about Judge Garland, what he is known for, the decisions that he 
has made.

IAN MILLHISER: Sure. I mean, he is definitely to the left of center, but, you 
know, I think it's accurate to call him a fairly centrist judge. He comes from 
a long-standing progressive tradition of judicial restraint that really 
stretches back to the Roosevelt administration. And what that means is that as 
a justice, I think that he is likely to want the courts to do much less than 
conservatives have wanted them to do in the last 7 years over the course of 
Obama's presidency. A big reason I think that Obama probably picked Garland is 
because Obama has spent his presidency being harassed by lawsuits, and I think 
he's tired of that. He wants a little more judicial restraint. What it means if 
Garland is confirmed is that the sort of aggressive judicial activism we've 
seen over the last 7 years probably gets halted. It also means, however, that 
some things that liberals might want from the court, they're probably not going 
to get from Judge Garland.

AMY GOODMAN: Well, talk about some of his key decisions.

IAN MILLHISER: Well, I mean, I think that since he's a judge on the D.C. 
Circuit - the D.C. Circuit's primary role is reviewing the regulatory actions 
of federal agencies. And there, he's been fairly deferential, and generally 
deference to federal agencies is something that's going to be good for the 
party that wants to be able to govern.

2 areas where he has shown a strain of conservatism: He is a federal 
prosecutor, and he does tend to be more conservative than other Democratic 
appointees on criminal justice; there's also a Guantanamo Bay opinion where he 
sided with the Bush administration. It's worth noting that the precedents that 
were in place at the time of that opinion were not good precedents. They were 
written in haste. They go back to World War II. And so, some people have 
defended him by saying that he was just following precedents. But he was also 
reversed by the Supreme Court, and he was reversed to his left. So, you know -

AMY GOODMAN: And explain what he ruled.

IAN MILLHISER: Sure. So there was a question then dealing with whether or not 
Guantanamo Bay detainees were allowed to go to civilian courts or whether they 
had to go through the military tribunal system. He joined a ruling saying that 
they had to go through the tribunal system. At the - I believe he relied on a 
World War II precedent called Eisentrager, which is not a great decision. And 
that - and then his opinion was reversed by the Supreme Court 5 to 4 in the 
Rasul case.

NERMEEN SHAIKH: And, Terry O'Neill, your organization, the National 
Organization for Women, has called Judge Garland a "nowhere man." What are some 
of the concerns that you have about Judge Garland?

TERRY O'NEILL: You know, Amy, we don't know where Judge Garland stands on some 
key issues for women. And this, actually - this concern actually sort of 
predates the nomination of Judge Garland. For a long time, it seems, presidents 
have decided that they must nominate people that we don't have much of a record 
on.

I think it's time for us to take a step back and look at values. President 
Obama is absolutely right: You want to put a person on the Supreme Court who 
has impeccable credentials, who is - who really, truly has a strong 
intellectual capability and a record of excellent performance. But we also need 
justices on the Supreme Court who will uphold the values that this country 
stands for - equality, a recognition of basic human rights, expansion of voting 
and political engagement for all of our citizens. If - we need to have some 
assurance that those values are held by the Supreme Court nominee. And this is 
what I was getting at when I said, OK, so, "Nowhere Man" from The Beatles, a 
little quote there. But my point is that we don???t know.

I also think it's important to have more diversity on the Supreme Court. I have 
joined with other women's - women of color organizations. NOW has joined in 
calling for the appointment of an African-American woman. There are many highly 
qualified African-American women that could fill that seat.

NERMEEN SHAIKH: And, Terry O'Neill, what have you heard or what do you know 
about the position that Judge Garland has taken on women's issues?

TERRY O'NEILL: Honestly, Amy, I just don't know. We are obviously digging into 
it now, and we are trying to find out. But let's be clear: The United States 
Congress, certainly the House of Representatives, has been very aggressive at 
trying to block women's access to basic healthcare. We know that state after 
state after state is not only going after basic reproductive healthcare, but in 
another area, states are suppressing the vote. It turns out when you target 
communities of color and immigrant communities and older people and younger 
people to suppress the vote, women are disproportionately impacted by that. So 
there's a range of issues that are coming, that have been before the Supreme 
Court, are going to be before the Supreme Court, that dramatically impact 
women. And we are trying to dig through and find out what we can about Judge 
Garland on those issues.

AMY GOODMAN: Actually, Terry, Nermeen asked you those questions. But I did want 
to ask Ian Millhiser, how is it - I mean, isn't he the longest-reigning judge 
of any -

IAN MILLHISER: Right.

AMY GOODMAN: - Supreme Court justice, any Supreme Court justice ever did - what 
was he? 18 years on the bench? It's interesting that there is no record of his 
stand on women's reproductive rights.

IAN MILLHISER: Right. I mean, I actually don't think that's unusual. I mean, 
big abortion cases are not very common in the federal courts. Most federal 
court of appeals judges will go their entire career, never hear an abortion 
case. You know, this issue we have coming up now that's now in front of the 
Supreme Court again, dealing with whether or not women's bosses get to decide 
if they have access to birth control, that's a fairly new issue. That issue 
really didn't exist in the federal courts 5 years ago. And so, most federal 
judges just haven't heard those sorts of cases, either. There was a case in the 
D.C. Circuit, but Garland was not on that panel. So, I mean, I don't think that 
it would be fair to accuse him of being evasive. When you're a U.S. court of 
appeals judge, you are randomly assigned to panels, and I believe a computer 
does it. And if there was an abortion case that came up during his tenure, he 
just wasn't randomly assigned to the panel. It's fair to say that we don't know 
as much about him as we might want to know, because he wasn't randomly assigned 
to it. But I think that this is just simply a creature of the fact that those 
cases aren't particularly common, they're randomly assigned, and Garland didn't 
draw that straw.

AMY GOODMAN: He's most well known for overseeing the prosecution and 
investigation of the Oklahoma City bomber Timothy McVeigh, which would put him 
also on the side of the death penalty?

IAN MILLHISER: Potentially, yes. Now, a lot has happened in the death penalty 
since then. There's a lot of new concerns that have been raised about not just 
racial profiling in the death penalty, but about the method we use to execute 
people and whether it amounts to torture. You know, Hillary Clinton said the 
other night that she supports the death penalty for someone like Timothy 
McVeigh, but she thinks that the states shouldn't be using it. So, you know, 
there are nuanced positions between total abolitionism and using it with the 
frequency that we use it now. And I could only speculate, based on his record, 
whether he would join some of the more nuanced cases saying, for example, that 
lethal injection is too cruel - is too cruel a method of execution and 
shouldn't be used, or that there need to be more protections to prevent race 
from playing the role that it does right now.

NERMEEN SHAIKH: And, Ian, since Judge Garland has had largely bipartisan 
support 'til now, what do you make of President Obama's decision to nominate 
him?

IAN MILLHISER: I think there's 2 things at play. I mean, 1 is simply that I 
think this is the person that Obama wanted. You know, Obama believes in 
judicial restraint. I think that his experience as president has enhanced that 
belief. And this is someone who aligns with what Obama believes.

I also think there's a strategic play here, which is that as it becomes clearer 
and clearer that Senate Majority Leader McConnell's position is that Donald 
Trump should get to pick the next Supreme Court justice and not Barack Obama, 
the fact that Obama has offered a very moderate, very reasonable guy, who's had 
a lot of bipartisan support, I think the White House is hoping that that puts 
Republican senators in a box, and it might be possible to peel some of them 
off. I don't know if I necessarily agree with that calculation, but I think 
that's part of the calculation, is he thinks that, faced with constant attacks, 
pointing out that their position is Donald Trump should pick the next Supreme 
Court nominee, eventually, he thinks, some of them are going to buckle.

AMY GOODMAN: Prior to his time as federal judge, Merrick Garland served as a 
prosecutor in the Clinton Justice Department, as we said, overseeing the 
prosecution of Timothy McVeigh. That was April 19, 1995, killing 168 people. 
Merrick Garland spoke about the case on Wednesday.

JUDGE MERRICK GARLAND: Years later, when I went to Oklahoma City to investigate 
the bombing of the federal building, I saw up close the devastation that can 
happen when someone abandons the justice system as a way of resolving 
grievances and instead takes matters into his own hands. Once again, I saw the 
importance of assuring victims and families that the justice system could work. 
We promised that we would find the perpetrators, that we would bring them to 
justice and that we would do it in a way that honored the Constitution. The 
people of Oklahoma City gave us their trust, and we did everything we could to 
live up to it.

AMY GOODMAN: Ian Millhiser, if you can talk about now the politics of what's 
going to happen, the whole issue of who will meet with him, who won't? Senator 
Grassley, who's going to come under a lot of pressure because he's up for 
re-election this year, has said he will meet with him. Mitch McConnell spoke to 
him on the phone but says he will not meet with him. Talk about precedent for 
this.

IAN MILLHISER: Well, this is completely unprecedented. A third of all 
presidents have had someone confirmed during the last year of - the last year 
of their presidency to the Supreme Court. This idea that there's some sort of 
rule that you are less - that Barack Obama is less the president because he's 
in his last year, that's something that hasn't existed before. And Mitch 
McConnell has said that he will not guarantee the next president's nominee a 
vote, depending on who that president is. So what's really going on here is 
that the rule that the Senate Republicans want to set is that you don't get 
your nominee confirmed if you are a Democrat.

The question is whether they're going to be able to hold to that. And, you 
know, there's going to be a lot of silly dances going on. You know, who's going 
to meet with him? Who's going to not meet with him? Is he going to get a 
hearing? Is he not going to get a hearing? At the end of the day, though, Obama 
has offered them a pretty good deal. You know, Obama has offered them a pretty 
moderate guy. He's offered them an older justice, who won't serve as long as 
someone younger would. And if they hold out too long, they risk having 
President Clinton come in next year and pick a 49-year-old. So, at the end of 
the day, I think that Republicans need to be smart about this and realize that 
Obama has put a deal on the table that's actually a pretty good deal for them. 
And if they want to hold out for Donald Trump or whoever they want the next 
president to be, they can try to do that, but they could wind up with President 
Clinton in the White House picking someone that they're going to like even 
less.

AMY GOODMAN: I want to thank you both for being with us, Ian Millhiser, senior 
fellow at the Center for American Progress Action Fund and editor of 
ThinkProgress Justice. And I also want to thank Terry O'Neill, president of the 
National Organization for Women.

This is Democracy Now!, democracynow.org

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