[Deathpenalty] death penalty news----PENN., S.C., GA., ARK., CALIR., ORE., USA

[Rick Halperin]

May 13




PENNSYLVANIA:

More than 25 years later, Cambria death row inmate still seeking new trial


A Huntingdon County man on death row for the rape and murder of a toddler in 
1989 brought his latest attempt for a new trial to the Cambria County 
Courthouse Friday.

A Cambria County jury found Stephen Rex Edmiston, 57, guilty of the 1988 rape 
and murder of 2-year-old Bobbi Jo Matthew. Following several appeals, 
Edmiston's attorneys now allege that DNA analysis of hair follicles presented 
to the jury should be revisited in a new trial.

During trial testimony, prosecutors told jurors that the toddler was partially 
scalped, showed blunt force injuries to the torso, received a skull fracture 
and her genitals obliterated before she was burned. Authorities located 
Matthew's body in Reade Township, Cambria County, two days after Edmiston took 
her from her Clearfield County home.

On Friday, Centre County Senior Judge David Grine heard arguments from attorney 
David Zuckerman, assistant federal defender for the Federal Community Defender 
Office for the Eastern District of Pennsylvania's Capital Habeas Unit in 
Philadelphia, filed under Pennsylvania's Post Conviction Relief Act on behalf 
of Edmiston.

Zuckerman said a widespread FBI investigation in April 2015 revealed overstated 
hair analysis in dozens of trials and also showed that examiners were trained 
to give flawed testimony beyond the scope that science allowed.

"The hair was the only scientific evidence that linked Mr. Edmiston to the 
crime," Zuckerman said. "And we've been challenging the reliability of that 
evidence for years."

Based on that investigation, Zuckerman asked Grine to release the hair 
follicles for another round of DNA evidence.

Senior Deputy Attorney General Susan DiGiacomo said the Pennsylvania Supreme 
Court and other judges have dismissed nearly identical requests from Edmiston 
before.

"It was old news then and it's old news now," she said. "We've been through 
this."

In 2009, Senior Judge Eugene Fike of Somerset County dismissed a motion from 
Edmiston's attorneys that sought DNA testing on blood found in Edmiston's truck 
after the crime, which was ruled inconclusive at the time of trial.

Fike's ruling cited Supreme Court panel opinions that barred Edmiston from 
further DNA testing after conviction because of his confession to the crime.

State police testified at the trial that Edmiston drew a map with an "X," 
marking the location of where the body was found, saying "you'll find a dead, 
raped little girl."

"He confessed," DiGiacomo said.

In addition to the hair follicles taken from the scene, Matthews' shorts were 
found in Edmiston's truck and tire marks beside where her corpse was found 
matched those of Edmiston's vehicle, she said.

DiGiacomo turned over motions dismissing Edmiston's previous appeals and a 
similar case in Lackawanna County that was recently dismissed to Grine, who 
took the matter under advisement.

Former Gov. Tom Corbett signed a death warrant for Edmiston's execution in 
2014, but that was delayed by the federal court system the same year until all 
of Edmiston's appeals are exhausted.

In February 2015, Gov. Tom Wolf declared a moratorium on the death penalty, 
stalling all executions statewide until a report from Pennsylvania Task Force 
and Advisory Committee on Capital Punishment is complete. This report, expected 
in 2016, is supposed to evaluate the cost, fairness and effectiveness of the 
death penalty in light of the numerous appeals filed on behalf of death row 
inmates.

(source: Johnstown Tribune Democrat)






SOUTH CAROLINA:

Solicitor targeted blacks while defense removed whites from death penalty jury, 
opponents argue


In picking the Charleston jurors who would vote to sentence a man to death in a 
now decade-old murder, a prosecutor removed black people from the jury pool 
while a defense attorney targeted only whites, according to dueling court 
testimony this week.

By highlighting how the man's lawyers threw out only white jurors during the 
2009 trial, the S.C. Attorney General's Office sought Friday to show that 9th 
Circuit Solicitor Scarlett Wilson had reasons other than race when she removed 
black people.

A day after Wilson took the witness stand, Columbia lawyer Jeffrey Bloom 
testified about how he represented William O. Dickerson Jr., 39, who was 
convicted in the brutal murder, kidnapping and sexual assault of a James Island 
man in 2006.

Dickerson hopes that a study commissioned by his defense team will prompt a 
judge to grant him a new trial. The analysis indicates that Wilson was seven 
times more likely to strike black prospective jurors than whites in the nine 
trials that were analyzed. Dickerson, like his victim, is black.

Bloom's testimony revealed opposite statistics in his handling of jury 
selection in Dickerson's case. The lawyer said he struck 10 potential jurors, 
and all of them were white. But their race wasn't a factor in the decisions, 
Bloom said.

"You really have to put race, ethnicity and gender aside and really listen to 
their answers" during jury selection, he said. "Even though I acknowledge all 
10 strikes were used on Caucasians, we determined they were all pro-death 
penalty."

The testimony in downtown Charleston came during a hearing on Dickerson's 
application for post-conviction relief. The proceeding already has lasted for 
days over the past months, and a decision by Circuit Judge Thomas Cooper is 
likely weeks away.

In fighting the case, Senior Assistant Attorney General Melody Brown has aimed 
to show shortcomings in the study that focuses on statistics related to the 
jurors' race.

This week, Wilson testified - voluntarily, she said - and defended her record, 
arguing that the statistics do not show she is racist. The issue comes at a 
sensitive time for Charleston's top prosecutor: She is leading the cases 
against the white police officer who killed Walter Scott and of the white 
supremacist who shot nine black people at Emanuel AME Church.

During jury selection of a trial, attorneys can remove, or strike, possible 
jurors without giving a reason. Opposing lawyers can issue a challenge if 
racial motivation is suspected.

Bloom did that when Wilson struck 3 black people. During the resulting hearing, 
she gave 3 separate reasons: 1 potential juror needed to work, 1 had past 
arrests, 1 gave inconsistent answers to questions.

Ultimately, Bloom's challenge failed. A judge ruled in Wilson's favor on those 
3 jurors.

Some black people made it on the jury, which voted to convict Dickerson and 
sentence him to death.

Now at issue, though, is whether Bloom should have put up more of a fight. He 
testified that he didn't question Wilson's reasons at the time because they 
appeared to be true.

"If Solicitor Wilson stands up in court and says a juror had a prior record, I 
took her at her word," he said. "Obviously, she was right."

Of the 31 possible jurors remaining at that stage, 23 were white. Wilson did 
not challenge Bloom's removal of 10 of the white ones.

Charles Grose of Greenwood, Dickerson's current attorney, has made various 
arguments in the bid to spare his client's life. On top of the study, he has 
contended that Bloom should have presented testimony during the penalty phase 
that Dickerson suffered lead poisoning as a child.

Bloom testified that he handled 1 other death penalty case with a defendant who 
had high levels of lead in his bloodstream. Bloom told Grose that the defendant 
was sentenced to life in prison instead of death.

(source: The Post and Courier)






GEORGIA:

Calmer sits in recliner during death penalty hearings in Monroe deputy's 
slaying


Hearings in the case against Christopher Keith Calmer, accused of murder in the 
2014 shooting death of Monroe County sheriff's deputy Michael Norris, are 
continuing today.

The proceedings in Superior Court here are part of the yearlong runup to a June 
2017 death penalty trial.

Calmer's courtroom behavior on Thursday, moans and groans about being in pain, 
was widely reported and became an unignorable focal point as the day unfolded.

Calmer, who in the past has complained of chronic back and neck pain, was 
examined by a doctor Thursday and on Friday, at least as he trudged into the 
courtroom, showed no signs of distress.

Even so, officials today had an easy chair, a brown recliner, brought in from a 
local furniture store to make Calmer more comfortable for Friday???s 
proceedings, which are expected to include testimony from GBI agents.

Before the day's hearing began, soon after Calmer sat down in the recliner 
beside his defense lawyers, the courtroom was cleared so the attorneys could 
discuss an undisclosed matter with Judge Tommy Wilson.

When court opened shortly after 10 a.m., prosecutors sought to introduce 
surveillance video of Calmer in jail before and after court on Thursday. The 
video may speak to his behavior in court, incessant moans and groans, and 
whether, as District Attorney Richard Milam suggested on Friday, "what we saw 
here in the courtroom was a little bit of play acting."

Evidentiary hearings in the Monroe County death penalty trial for Christopher 
Keith Calmer were delayed Thursday while Calmer received medical treatment. The 
judge ruled that the hearings would go on despite Calmer's lawyers' arguments 
that they should be (postponed). Judge Wilson called a recess about 10:15 a.m. 
for attorneys on both sides to confer and will likely soon rule whether Calmer 
is "competent and cognizant to go forward" with Friday's hearing.

Calmer's defense team objected to the surveillance video or testimony from a 
jailer who has observed Calmer and noted his behavior at the undisclosed county 
lockup where Calmer is being held.

During hearings Thursday, Calmer complained of pain, and at one point, he was 
taken out by an ambulance.

(source: macon.com)


ARKANSAS:

Arkansas running out of time to execute prisoners


Arkansas is running out of time to put 8 prisoners to death before one of its 
lethal drugs expires next month, even if the state Supreme Court gives a quick 
green light after hearing an inmate challenge next week.

The state finds itself against a deadline because its supply of the paralytic 
vecuronium bromide - 1 of the 3 drugs in Arkansas' lethal drug protocol - has a 
June 2016 expiration date. Pharmacy experts said that means they'll expire June 
30, and the drug supplier has said it won't sell the state more.

The Arkansas Supreme Court will hear oral arguments on May 19 in the inmates' 
constitutional challenge to the state's execution secrecy law, which allows the 
state to keep secret the manufacturer, seller and other information about the 
lethal drugs.

Gov. Asa Hutchinson set dates last year for the 1st executions since 2005, but 
the court granted stays until the inmates' challenge was heard.

If the justices rule quickly and in favor of the state, Arkansas would have 
five weeks or less to conduct the executions because of the looming expiration 
date.

In that time, the Arkansas Parole Board would have to arrange clemency hearings 
- though it would have to waive a policy that sets a deadline of 40 days before 
their execution for inmates to apply for a hearing.

"We generally try to stay within the parameters of the policy as best as we 
can," Parole Board Chairman John Felts said. "Certainly it would be a situation 
where we would have to do a lot of coordination. It would be something we have 
certainly not done before."

The Department of Correction would also have to consider whether it can conduct 
8 executions because of a protocol requiring that 2 sets of drugs be prepared 
for each inmate - in case something goes wrong with the initial dose.

Arkansas had enough doses for 8 executions, but after sending some of the drugs 
for potency and purity tests, inventory records show there are only 15 complete 
doses of 2 of the drugs.

Under the protocol, 2 sets of syringes are prepared for each inmate. Once the 
drugs are drawn from vials into a syringe, they must either go into the inmate 
or be "properly disposed of."

Department of Correction spokesman Solomon Graves would not clarify whether a 
backup dose for one inmate can be used for another execution, if two are 
scheduled for the same day. He said ongoing litigation prevented the department 
from commenting.

The attorney general's office also declined to comment on questions related to 
the likelihood executions would occur, citing the lawsuit.

Executions are stalled in many states because of court challenges or drug 
shortages caused by pharmaceutical companies objecting to their drugs being 
used in death chambers.

Only Texas has executed 8 inmates in 1 calendar month during the last 4 decades 
- 8 each in May and June of 1997, according to a database of state executions 
kept by the Death Penalty Information Center, a nonprofit group that opposes 
executions and tracks the issue. Oklahoma had 7 executions in January 2001.

"Even in the days when you had multiple executions on the same day, I don't 
know if anyone was faced with having to sign that many (execution) warrants 
potentially in such a short window of a time," said Matt DeCample, a 
communications consultant who worked as a spokesman for former Arkansas Gov. 
Mike Beebe's administration.

Hutchinson's office wouldn't say whether he'd consider setting execution dates 
for just some inmates.

"We're following the action by the court, and we will address those questions 
once a decision is made by the court," Hutchinson spokesman J.R. Davis said.

(source: CBS news)






CALIFORNIA:

Reports: Iraq War veteran says he doesn't remember killing mother, stepfather


A Bakersfield man accused of killing his mother and stepfather told a lengthy, 
bizarre tale to investigators in which he arrived home to find the couple dead, 
chugged a few beers, laid next to his mother's body with his arm draped around 
her and then tried cleaning up the blood before aimlessly driving around while 
thinking about which funeral home to deliver the bodies to for cremation.

Derek Connell acknowledged he never took the time to call police, according to 
recent court filings.

"I probably didn't handle the situation like I was supposed to," he said.

A few days later, Derek Connell admitted he made everything up, the filings 
say. He said he's responsible for the killings, but doesn't remember what 
happened.

"I mean obviously I think there was, you know, I think it was me, but I don't 
know how," the filings say Connell told Bakersfield police detectives.

Connell, 29, has pleaded not guilty to 2 counts of 1st-degree murder and is 
eligible for the death penalty in the April 30 killings. Prosecutors have not 
yet decided whether to seek death.

He's being held without bail.

Connell's attorney, Deputy Public Defender Paul Cadman, has said Connell is a 
veteran of the Iraq War suffering post-traumatic stress disorder.

Connell said in the filings that he served in the U.S. Army from 2005 to 2008, 
and was less than honorably discharged due to an incident involving alcohol. 
The incident is not further explained.

According to the filings, he told detectives his platoon routinely raided Iraqi 
pharmacies for steroids and other drugs. He said he used steroids for 13 months 
while overseas, and most of the other soldiers did too.

Upon returning to the U.S., he worked in the oilfields in Colorado and Texas, 
he said in the filings. He said it's the only work he knows how to do, and he 
returned to Bakersfield and moved in with his mother and stepfather after being 
laid off a few months ago.

Connell told investigators he has multiple arrests for DUI and public 
intoxication, both in Texas and Bakersfield. He said he drinks often, sometimes 
to the point of passing out, but he never let his drinking interfere with his 
work.

On the day of the killings, he went to an immigration office in Fresno to deal 
with what he called "green card" issues, the filings say. Connell was born in 
Scotland.

He said he returned home, ate a salad and talked about his immigration status 
with his stepfather, Christopher Tare Higginbotham. He said they didn't argue 
or become angry.

He then went to his room.

Connell said he doesn't remember what happened after that, but recalls cleaning 
up blood, the filings say.

Police responded to the house after a relative of Connell's living in Scotland 
called them. She said Connell had shown her bodies of his mother and stepfather 
by using FaceTime.

Police found the bodies of Christopher and Kim Higginbotham, both 48, lying in 
pools of blood inside the house. A number of guns were seized from the home.

(source: Bakersfield Californian)

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

Can Californians Afford 18 Scheduled Executions In A Row?

On January 15, the Contra Costa Times reported on a new poll showing that "48 
percent of registered voters would support proposals to accelerate" executions 
in California. One of many reasons these voters may want to reconsider: Cold 
hard cash starting with the "$718,632 for 18 executions in addition to 
unspecified fees" the L.A. Times reports (in a May 10, 2016 article) such a 
move would cost the already financially-burdened state.

Add to this the fact that on its website, the California Travel and Tourism 
Commission notes that California had 16.5 million "international person-trips" 
in 2014, and of that number, 686K came from the UK, 445K from France, and 439K 
from Germany. And so, in addition to the already well-documented costs of 
capital punishment in California - on our morals, our judicial system and on 
our taxes - do we as Californians really want to ramp executions up when we 
risk offending, even alienating, so many potential new and return European 
tourists (even the Pope)?

If we don't care so much about what they think of our refusal to, as the New 
York Times Editorial Board wrote, "join the rest of the civilized world and end 
the death penalty," don't we at least want their dollars?

We already know how much Europeans hate the death penalty by their refusal to 
ship us lethal injection drugs, but what would happen if the 18 people who have 
exhausted all their state and federal appeals - out of California's massive 
death row population of close to 750 souls - started having their execution 
dates set like wildfire? Are Californians prepared to stomach the steady 
drumbeat of publicized death that would result, with the possibility, each 
time, of a gruesome botch, like the infamous Oklahoma execution of Clayton 
Lockett on April 29, 2014. Called "deeply troubling" by President Obama and 
generating an avalanche of negative press abroad, reporters witnessing the 
execution said Lockett "writhed, groaned, and convulsed" taking 43 minutes to 
die. Imagine 18 potential Lockett-like executions lined up like ducks over the 
course of a fiscal year . . . . How much negative publicity would California 
see as a result?

How much condemnation from foreign countries would we reap - countries whose 
tourism dollars our fragile economy depends upon? Just recently, after Saudi 
Arabia executed 47 prisoners, it was reported on January 15 by Eve Hartley of 
the Huffington Post that "the brutal Saudi justice system [had] strain[ed] 
relations between" Saudi Arabia and the United Kingdom.

Before Californians head out to the polls in November, they ought to look real 
hard - not only at the very many good reasons already advanced to end the death 
penalty - but also, in our wallets; is there really so much green in there that 
accelerating - instead of ending the death penalty - is worth it?

(source: Stephen Cooper is a former D.C. public defender who worked as an 
assistant federal defender in Alabama between 2012 and 2015 litigating death 
penalty cases in postconviction----berkeleydailyplanet.com)






OREGON:

Man guilty in 2012 Eugene slaying, faces death penalty----A.J. Scott Nelson was 
convicted of aggravated murder and more than a dozen other felony charges 
Thursday

A 26-year-old man faces the death penalty after being found guilty in the 2012 
slaying of a Eugene man.

The Register-Guard reports that A.J. Scott Nelson was convicted of aggravated 
murder and more than a dozen other felony charges Thursday. A second trial 
phase to decide if Nelson should be sentenced to death will start Tuesday.

Nelson is the 3rd and last defendant to be found guilty in the kidnapping, 
robbery and murder of Celestino Gutierrez Jr.

Co-defendant David Ray Taylor is now on Oregon's death row and Mercedes 
Crabtree is serving a life sentence.

Nelson's attorney had previously asked a judge to rule out the death penalty 
for her client, arguing that he suffers from post-traumatic stress disorder and 
a brain injury from his time in the Army.

(source: Associated Press)






USA:

Pfizer Blocks the Use of Its Drugs in Executions


The pharmaceutical giant Pfizer announced on Friday that it has imposed 
sweeping controls on the distribution of its products to ensure that none are 
used in lethal injections, a step that closes off the last remaining 
open-market source of drugs used in executions.

More than 20 American and European drug companies have already adopted such 
restrictions, citing either moral or business reasons. Nonetheless, the 
decision from one of the world's leading pharmaceutical manufacturers is seen 
as a milestone.

"With Pfizer's announcement, all F.D.A.-approved manufacturers of any potential 
execution drug have now blocked their sale for this purpose," said Maya Foa, 
who tracks drug companies for Reprieve, a London-based human rights advocacy 
group. "Executing states must now go underground if they want to get hold of 
medicines for use in lethal injection."

The obstacles to lethal injection have grown in the last 5 years as 
manufacturers, seeking to avoid association with executions, have barred the 
sale of their products to corrections agencies. Experiments with new drugs, a 
series of botched executions and covert efforts to obtain lethal chemicals have 
mired many states in court challenges.

The mounting difficulty in obtaining lethal drugs has already caused states to 
furtively scramble for supplies.

Some states have used straw buyers or tried to import drugs from abroad that 
are not approved by the Food and Drug Administration, only to see them seized 
by federal agents. Some have covertly bought supplies from compounding 
pharmacies while others, including Arizona, Oklahoma and Ohio, have delayed 
executions for months or longer because of drug shortages or legal issues tied 
to injection procedures.

A few states have adopted the electric chair, firing squad or the gas chamber 
as an alternative if lethal drugs are not available. Since Utah chooses to have 
a death penalty, "we have to have a means of carrying it out," said State 
Representative Paul Ray as he argued last year for reauthorization of the 
state's death penalty.

Lawyers for condemned inmates have challenged the efforts of corrections 
officials to conceal how the drugs are obtained, saying this makes it 
impossible to know if they meet quality standards or might cause undue 
suffering.

"States are shrouding in secrecy aspects of what should be the most transparent 
government activity," said Ty Alper, associate director of the death penalty 
clinic at the University of California, Berkeley, School of Law.

Before Missouri put to death a prisoner on Wednesday, for example, it refused 
to say in court whether the lethal barbiturate it used, pentobarbital, was 
produced by a compounding pharmacy or a licensed manufacturer. Akorn, the only 
approved company making that drug, has tried to prevent its use in executions.

Pfizer's decision follows its acquisition last year of Hospira, a company that 
has made seven drugs used in executions including barbiturates, sedatives and 
agents that cause paralysis or heart failure. Hospira had long tried to prevent 
diversion of its products to state prisons but had not succeeded; its products 
were used in a prolonged, apparently agonizing execution in Ohio in 2014, and 
are stockpiled by Arkansas, according to documents obtained by reporters.

Because these drugs are also distributed for normal medical use, there is no 
way to determine what share of the agents used in recent executions were 
produced by Hospira, or more recently, Pfizer.

Campaigns against the death penalty, and Europe's strong prohibitions on the 
export of execution drugs, have raised the stakes for pharmaceutical companies. 
But many, including Pfizer, say medical principles and business concerns have 
guided their policies.

"Pfizer makes its products to enhance and save the lives of the patients we 
serve," the company said in Friday's statement, and "strongly objects to the 
use of its products as lethal injections for capital punishment."

Pfizer said it would restrict the sale to selected wholesalers of seven 
products that could be used in executions. The distributors must certify that 
they will not resell the drugs to corrections departments and will be closely 
monitored.

David B. Muhlhausen, an expert on criminal justice at the Heritage Foundation, 
accused Pfizer and other drug companies of "caving in to special interest 
groups." He said that while the companies have a right to choose how their 
products are used, their efforts to curb sales for executions "are not actually 
in the public interest" because research shows, he believes, that the death 
penalty has a deterrent effect on crime.

Pressure on the drug companies has not only come from human rights groups. 
Trustees of the New York State pension fund, which is a major shareholder in 
Pfizer and many other producers, have used the threat of shareholder 
resolutions to push 2 other companies to impose controls and praised Pfizer for 
its new policy.

"A company in the business of healing people is putting its reputation at risk 
when it supplies drugs for executions," Thomas P. DiNapoli, the state 
comptroller, said in an email. "The company is also risking association with 
botched executions, which opens it to legal and financial damage."

Less than a decade ago, lethal injection was generally portrayed as a simple, 
humane way to put condemned prisoners to death. Virtually all executions used 
the same 3-drug combination: sodium thiopental, a barbiturate, to render the 
inmate unconscious, followed by a paralytic and a heart-stopping drug.

In 2009, technical production problems, not the efforts of death-penalty 
opponents, forced the only federally approved factory that made sodium 
thiopental to close. That, plus more stringent export controls in Europe, set 
off a cascade of events that have bedeviled state corrections agencies ever 
since.

Many states have experimented with new drug combinations, sometimes with 
disastrous results, such as the prolonged execution of Joseph R. Wood III in 
Arizona in 2014, using the sedative midazolam. The state's executions are 
delayed as court challenges continue.

Under a new glaring spotlight, deficiencies in execution procedures and medical 
management have also been exposed. After winning a Supreme Court case last year 
for the right to execute Richard E. Glossip and others using midazolam, 
Oklahoma had to impose a stay only hours before Mr. Glossip's scheduled 
execution in September. Officials discovered they had obtained the wrong drug, 
and imposed a moratorium as a grand jury conducts an investigation.

A majority of the 32 states with the death penalty have imposed secrecy around 
their drug sources, saying that suppliers would face severe reprisals or even 
violence from death penalty opponents. In a court hearing this week, a Texas 
official argued that disclosing the identity of its pentobarbital source 
"creates a substantial threat of physical harm."

But others, noting the evidence that states are making covert drug purchases, 
see a different motive. "The secrecy is not designed to protect the 
manufacturers, it is designed to keep the manufacturers in the dark about 
misuse of their products," said Robert Dunham, executive director of the Death 
Penalty Information Center, a research group in Washington.

Georgia, Missouri and Texas have obtained pentobarbital from compounding 
pharmacies, which operate without normal F.D.A. oversight and are intended to 
help patients meet needs for otherwise unavailable medications.

But other states say they have been unable to find such suppliers.

Texas, too, is apparently hedging its bets. Last fall, shipments of sodium 
thiopental, ordered by Texas and Arizona from an unapproved source in India, 
were seized in airports by federal officials.

For a host of legal and political reasons as well as the scarcity of injection 
drugs, the number of executions has declined, to just 28 in 2015, compared with 
a recent peak of 98 in 1999, according to the Death Penalty Information Center.

(source: New York Times)

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

Death penalty divides Supreme Court after Scalia's death


The death of Justice Antonin Scalia has left the Supreme Court divided down the 
middle on the death penalty at a time when its constitutionality is coming 
under increased scrutiny.

The justices deadlocked 4-4 late Thursday night over the scheduled execution of 
an Alabama prisoner who killed a police officer 3 decades ago. Without Scalia's 
vote, they could not overrule a state court that had blocked the execution 
based on the inmate's mental state.

The issue of intellectual disability may return to the court as early as 
Monday, when the justices could decide whether to hear a case next fall 
challenging Texas courts' standard for determining mental competency. The state 
leads the nation in executions with 537 since 1976, including 6 this year.

The Texas case also raises a more far-reaching issue: whether decades in 
solitary confinement awaiting execution violates the Constitution's ban on 
cruel and unusual punishment.

Since Scalia's death in February, the court has deadlocked f4 times, with more 
almost certainly to come. The most notable tie vote denied an anticipated 
victory to opponents of public employee unions who had sought to end mandatory 
fees from non-members, now required in about half the states.

Although Thursday night's tie vote spared just 1 man - Vernon Madison, 
convicted of the 1985 murder of Mobile, Ala., police officer Julius Schulte - 
it highlighted the justices' deep divide over the death penalty.

That divide prompted an angry exchange from the bench on the last day of the 
court's term in June, when the justices ruled 5-4 that states could continue to 
use a controversial sedative as part of their lethal injection protocols. 4 
justices spoke up - 2 in favor, 2 against - and Justice Stephen Breyer said the 
court should consider the overall constitutionality of the death penalty.

Breyer raised 4 issues - the potential for mistakes, racial and other 
disparities, decades-long delays, and increasing numbers of states and counties 
abandoning capital punishment. Justice Ruth Bader Ginsburg signed on to his 
dissent.

"Rather than try to patch up the death penalty's legal wounds one at a time, I 
would ask for full briefing on a more basic question: whether the death penalty 
violates the Constitution," Breyer wrote.

Though it was not his opinion or dissent, Scalia spoke from the bench that day 
to complain about the growing trend. "Maybe we should celebrate that 2 justices 
are willing to kill the death penalty outright instead of pecking it to death," 
he said sarcastically.

Since then, the court has refused to take on a case testing whether capital 
punishment remains constitutional. But viewing Breyer's dissent as an 
invitation, lawyers for death-row inmates continue to try.

The Texas case of Bobby James Moore, who shot and killed a grocery store clerk 
during a botched robbery in 1980, is the latest such effort. His attorneys say 
Moore's mental competency was gauged using a 23-year-old definition of 
intellectual disability, rather than current medical standards. They also say 
his execution after 35 years on death row, largely alone in his cell, would 
violate the Constitution.

"Prolonged confinement for many decades under sentence of death represents a 
sword of Damocles perpetually hanging just above the condemned individual's 
head," Moore's attorney, Clifford Sloan, argued in court papers.

In response, Texas defended the standard used by its Court of Criminal Appeals 
and noted that lengthy periods of confinement have much to do with defendants' 
appeals. "Because any such delay is largely of the defendant's own making, no 
court - state or federal - has held that a lengthy stay on death row renders 
his sentence unconstitutional under the Eighth Amendment," the attorney 
general's office said.

While Scalia's death gives the court's liberals equal footing on some death 
penalty questions, the court has been reluctant with only 8 members to take on 
controversial cases. Testing the overall constitutionality of capital 
punishment would fit that category.

But Justice Anthony Kennedy has switched sides on major cases involving 
intellectual disability. He voted with the majority in a 2002 Virginia case 
that ended capital punishment for people with intellectual disabilities, and he 
wrote a 2014 opinion that barred states from using only a strict IQ standard to 
determine a prisoner's competency.

Kennedy also has been the court's most outspoken justice on the issue of 
solitary confinement. Last year, he told a congressional panel that "solitary 
confinement literally drives men mad."

(source: USA Today)