June 1 TENNESSEE: Court delays execution of man who fatally shot children The Supreme Court agreed to delay the execution of a Shelbyville, Tenn., man convicted of murdering his three young sons and his ex-wife's daughter. Daryl Keith Holton, scheduled to be executed June 3, is now scheduled for execution June 8, 2005. He had asked the court for a stay, pointing out that he has an appeal in front of the U.S. Supreme Court. The Tennessee Supreme Court in an order released yesterday gave Holton's appeal more time. Holton, 42, has said he was suffering from severe depression when he lined the children up and shot them with a rifle in November 1997 in Bedford County. Holton told the children Steven, 12, Eric, 6, Brent, 10, and their half-sister Kayla, 4, that they were going Christmas shopping when he picked them up from their mother, Crystal Holton. (source: The Tennessean) ALABAMA: Lethal-injection drug under attack The muscle-paralyzing drug used during lethal injections in Alabama is under attack by death penalty opponents in several states who argue the chemical cocktail is not as humane as once advertised. The drug, which has the trade name Pavulon, is one of those "absolutely condemned" for use in animal euthanasia by the American Veterinary Medical Association. About 30 states, including Alabama, use Pavulon as part of a three-drug recipe to execute condemned prisoners. Death penalty opponents say that arguing against its use in the death chamber is even easier than their previous claims about the electric chair's ability to inflict cruel and unusual punishment. "It's so bad that vets won't even use it to put animals to sleep. How on earth can you justify using it to kill people?" asked Michael Mello, a professor at Vermont Law School. But nationally, prosecutors, prison officials and some judges have said the chemical combination causes a clean and clinical death. Any pain is eliminated because the inmate is first knocked unconscious, they say. "While there is no guarantee that error will not occur," a panel of federal judges wrote in a recent California case, the defendant could not show "that he is subject to an unnecessary risk of unconstitutional pain or suffering." The first drug through the IV, sodium pentothal, causes anesthesia. Then the Pavulon, also known as pancuronium bromide, paralyzes the muscles. The third drug, potassium chloride, stops the heart. Defense attorneys suggest that because sodium pentothal is a short-acting drug that induces - but does not maintain - its anesthetic effect, it could wear off too quickly. And the complete paralysis caused by the Pavulon could mask any reaction the inmate has to the pain of suffocation or cardiac arrest. "This is so clearly wrong and so clearly barbaric," said Mello, a former public advocate for condemned prisoners in Florida. There is a groundswell of legal cases tackling lethal injection as a violation of the Eighth Amendment protection against cruel and unusual punishment. None has reached the U.S. Supreme Court, so there has been no definitive decision on the method's constitutionality. But opponents say they are making headway. A Tennessee judge last year said the method was allowable, but she was critical of the state's use of Pavulon. And a state appeals court in New Jersey is demanding corrections officials provide more medical evidence to back their claims that the injections are relatively painless. "It's really extraordinary. It might seem as if this is going very slowly, but it's being done actually incredibly quickly," said Deborah Denno, a professor of law at Fordham University. "Even though there has been no big winning case, the fact that at least 12 to 15 courts are staying executions as a result of this, it's almost a mini-moratorium in and of itself." 'Legitimate fear': Similar legal challenges to electrocution continued for years. But when state legislatures sensed the possibility that it could have been ruled unconstitutional, they pre-emptively changed their methods to lethal injection. Alabama switched in 2002. Since then, 4 prisoners have been executed in Alabama. First, the IV is started and the drugs are prepared by contracted medical personnel, not corrections officers. 2 doses of sodium pentothal are given, the 2nd as "insurance" that the anesthesia is definite and complete, said Department of Corrections spokesman Brian Corbett. John Tinker, professor and chairman of the department of anesthesiology at the University of Nebraska Medical Center, said Alabama's two-dose total of sodium pentothal is plenty to keep the inmate unconscious for well over a half-hour. He also said it's critical to confirm that the inmate is unconscious before the Pavulon is given; the test can be as simple as if he doesn't open his eyes when ordered. If the process moves too quickly and the inmate is somehow still awake when he gets the Pavulon, he can be aware and feel pain but unable to move even an eyelid. "That's a legitimate fear," Tinker said. Execution postponed: Eliminating Pavulon might not be an option, he said. It keeps the unconscious inmate's body from reacting on its own because the potassium chloride causes an intense burning in the veins. "His hand might move and the audience might think he's not asleep," Tinker said. Alabama's protocol, which includes the intermittent flushing of the IV line with saline, is designed to take between seven and 10 minutes to complete. The whole procedure could come under closer scrutiny after the U.S. Supreme Court decided last week to give Alabama prisoner David Larry Nelson another chance to fight it in court. Nelson, a three-time convicted murderer, claims the process for finding and accessing a vein could be unconstitutionally cruel for someone like him, an intravenous drug user with collapsed veins. His execution was postponed and none others have been scheduled since by the state. Alabama Attorney General Troy King's office is following the Pavulon issue but "at this time we see no reason to be concerned," a spokesman said. (source: Birmingham News) OHIO----new death sentence Jury chooses death penalty for Johnson Marvin Johnson told a jury last week he deserved the death penalty. Tuesday afternoon the jury honored his request. Johnson, 37, was convicted two weeks ago of the fatal beating and kidnapping a Cambridge youth Daniel Bailey, 13, the only son of Johnsons ex-girlfriend, Constantina Tina Bailey, in their home last August. He was also found guilty of rape and robbery, for forcing Tina Bailey to perform oral sex on him and give him $1,000 out of her bank account. A 12-person jury made up of Belmont County residents deliberated for 4 hours before unanimously agreeing to the death penalty for the murder charge. The case was moved to Belmont County because of pretrial publicity. "We're very satisfied with the jury's verdict," said Guernsey County Assistant Prosecutor Daniel Padden. "We feel it is very just and appropriate in this case." The verdict was not a surprise to defense attorney Andrew Warhola. "I presented all the evidence I could in the mitigation phase to try and persuade the jury to try and given Mr. Johnson a life sentence," he said. "Unfortunately, when you have a 13-year-old victim who died the way he did, the obstacles we faced were pretty insurmountable." Warhola said an appeal will be filed with the Ohio State Supreme Court. The trial was fraught with unexpected twists. During opening statements, one of Johnson's defense attorneys said his client was guilty of the murder charge, but should not be given the death penalty since the other crimes were not related to the murder. Later, Johnson sought to take the witness stand and fired his attorneys. He then called Tina Bailey to the witness stand, at which time he described how he felt when he killed her son. As the courtroom erupted, Johnson declared he wanted the death penalty. And last week during the mitigation phase of the trial, Johnson allowed his former attorneys to represent him. He also offered his own statement to the jury, again asking for the death penalty. Johnson faces 4 possible penalties for his crimes, which range from life in prison without parole to the death penalty. While the jury recommended a death sentence, the judge does not have to follow the recommendation, Padden said. Johnson also faces a 10-year maximum penalty on each of the other crimes, Padden said. The prosecution will recommend that penalty run consecutive or in addition to the murder sentence. Johnsons sentence will be handed down by Judge David Ellwood at 9 a.m. Friday in the Guernsey County Common Pleas courtroom. (source: Zanesville Times Recorder) USA: Judge sides with inmate on execution procedure---Hammer says method being challenged across country As the day of his scheduled execution draws closer, federal inmate David Paul Hammer has won another court battle concerning how he should be put to death. On Friday, Senior U.S. Judge Malcolm Muir ruled that the federal government cannot perform a venous cut-down procedure to deliver the lethal drugs to Hammer unless medically necessary, attorney David Rohnke said Sunday. Hammer, who is diabetic, has good surface veins so the procedure is not necessary, so the government must use an alternate way of injecting him, Rohnke said. A venous cut-down involves cutting through layers of fat and muscle to find a vein in which to insert a catheter. The inmate, however, still awaits a ruling from the Third Circuit Court on whether he will be allowed to reinstate his appeals. Attorneys expect the ruling sometime this week. Hammer is scheduled to die by lethal injection at 3 p.m. June 8 in the U.S. Penitentiary, Terre Haute. He was sentenced to death in 1998 after pleading guilty to the 1996 strangulation death of his cellmate, Andrew Marti, in the U.S. Penitentiary, Allenwood in Pennsylvania. Hammer was then serving more than 1,200 years on myriad Oklahoma charges, including kidnapping and attempted murder. He was transferred in 1993 to federal custody from the Oklahoma Department of Corrections because of his history of discipline problems and escaping. In the 3 previous federal executions, officials inserted a catheter in the leg, which then was covered up by a sheet. Officials have declined in the past to comment on whether the cut-down procedure was used in those executions. Dan Dunne, spokesman for the Bureau of Prisons, said in 2003 that the process is handled in "an appropriate, humane, professional and dignified manner" that conforms to established medical ethics. Prison officials told Hammer that local anesthetic is applied when making the incision, court records. When asked by Hammer and his attorneys if the procedure was medically necessary or if they had looked at others means of delivering the drugs, prison officials did not respond, according to court records. Prison officials could not be reached for comment Sunday. Hammer has claimed that the cut-down procedure violates the Eighth Amendment because it is "cruel and unusual punishment," noting that it is being challenged in several cases across the country. On May 24, the U.S. Supreme Court unanimously ruled that an Alabama death row inmate, David Nelson, could challenge the cut-down procedure for his execution even though his veins were damaged from drug abuse. Nelson argued, citing a physician's testimony in the case, that the cut-down procedure could be painful and lead to complications. Friday's ruling, with the exception of the pending appeals request, was Hammer's last motion on which a ruling awaits before his scheduled execution. In the past 2 weeks, after Hammer filed motions, Muir changed the time of the execution to 3 p.m. from 7 a.m. so it would be consistent with Pennsylvania execution protocol and ordered the federal government to prepay or reimburse travel expenses for Hammer's execution witnesses. But Muir denied Hammer access to his attorneys in the final 2 hours before the execution, which is federal protocol. Over the years, Hammer has been a litigious inmate who has filed numerous cases alleging that his civil rights, including access to media and to his attorneys, were being violated while imprisoned in the federal system. (source: Terre Haute Tribune-Star) ************************* Sampson Enters Plea In 3rd Killing---Condemned Killer Admits To Murder Of N.H. Man A man facing execution for killing 2 men in Massachusetts pleaded guilty Tuesday to killing a third man in New Hampshire. Gary Sampson is charged with 1st-degree murder in New Hampshire in the death of Robert Whitney in Meredith in July 2001. Prosecutors said they don't intend to reduce the charge. Sampson confessed to killing Massachusetts residents Phillip McCloskey, of Taunton, and Jonathon Rizzo, of Kingston, before driving to New Hampshire, where he encountered Whitney at a cottage in Meredith and killed him. His weeklong crime spree ended with his capture in Vermont. Sampson spoke forcefully in court, interrupting the judge's questions to complain about the prison chains on his waist. He also said he didn't want to cause "the families any grief." Sampson said he agreed to the plea because he's guilty and wants to get out of New England. He wants to be transferred to death row in a federal prison. A federal jury in Massachusetts sentenced Sampson to death last year. A judge ordered the execution to be carried out in New Hampshire. (source: turnto10.com) ******************************* Dead Wait These days it can almost take a lifetime to be executed. It wasn't always this way. In the old days - and whether they were good or not probably depends on your point of view - after a jury convicted the accused and a judge sentenced him to death, an appeals court made a quick review to be sure the trial was on the up and up, and the prisoner was whisked away to start contemplating his last meal. "I don't believe it was very unusual for a man to die within a year, or in some cases, within a month," said Elizabeth Rapaport, a law professor at the University of New Mexico. Unless fate stepped in. Often, for political or social reasons, public officials commuted the sentence of the condemned man. In those days, a prisoner's hopeful last words were likely to be, "Any word from the governor?" And sometimes there was. >From 1930 until 1967, each state had its own way of doing things. Most executions took place in the South, although the vast majority of states had capital punishment. In those 37 years, Georgia led the nation with 366 executions. But the '60s were a period of enormous social change, and in 1968 there was a nationwide moratorium on executions while America wrestled with the issue of capital punishment. Was it just or unjust, right or wrong, cruel and unusual or a mainstream approach? In 1972 the U.S. Supreme Court made the call, ruling that the death penalty as it was being applied was unconstitutional, noting in particular that it was disproportionately meted out to the poor and minorities. However, the court left open the possibility that states could enact death-penalty laws that met fairness guidelines. In 1976, the court decided that the "punishment of death does not invariably violate the Constitution." The following year the death penalty returned with a bang, when a Utah firing squad executed Gary Gilmore, but the executioner's song would never be the same. >From 1973-83, the average time from sentence to execution nationwide was 4 years, three months; in 2002 it was 10 years, 7 months. In 2002, 71 prisoners were executed in the United States and 21 more on Death Row died of natural causes. One reason implementing executions takes so long, Rapaport said, is that "Over the years, capital punishment has developed more and more law." What's more, she said, "These cases are extremely complex. A trial is going to have a few factors to decide, but a death penalty case is going to have dozens." Also jacking up the average stay on Death Row, she said, is the fact that many of the states that have the death penalty are loath to use it. California has the nation's most populated death row, with more than 600 inmates, but has executed only 10 people since 1973. By contrast, Virginia has sentenced 137 people to death in the same time span and executed 87 of them. Regardless of whether a state uses capital punishment, working out the legal issues in the court system can be a laborious journey, beginning with jury selection. Infographic by Ryan Stultz Step 1: The proof, the whole proof and nothing but the proof Laws differ from state to state, but every prosecutor has to take special care when handling a death penalty case. "They don't send a rookie from misdemeanor traffic court," Rapaport said of local prosecutors. "They send their experienced people." It can take months to prepare a capital case, those who have tried them say, and every detail of the crime must be meticulously pored over. Scheduling can also be an issue, especially because finding an open four-week spot on a court calendar can de difficult. The trial of Juan Pelegrin, who is accused of murdering a University of Louisville student, which might be a capital case, probably won't begin until next spring. "When I clerked in a court that handled death penalty cases, we used to ration the number of death penalty cases we could do," Rapaport said. Nearly every step of the process is lengthened. Picking a jury takes additional steps. Investigations are double- and triple-checked for accuracy. Still, some say, capital cases are not essentially different from other murder trials in the level of legal issues they address. "As more and more cases - again, not just capital cases - are appealed and heard, all levels of the judicial system are affected and thus take longer to complete," said J. Robert Deans, a spokesman for the Death Penalty Information Center. The complication not only affects the court, but also the attorneys, Rapaport said. In many states, defendants in death penalty cases must have experienced counsel. In small and medium-sized cities, only a handful of lawyers can take the case. Step 2: Repeat Step 1 Once someone is tried the first time and sentenced to die, the entire case goes back to square one. "One of the changes since the death penalty was brought back was in the appeals process," Rapaport said. Experts agree that while costly and time-consuming, automatic reviews are necessary. Austin Sarat, a jurisprudence expert at Amherst College, argues that defendants deserve nothing less than every opportunity to plead their case. "You have to give them super due process," Sarat said. Rapaport said that in most states, the review can be as laborious an ordeal as the original case. "Sometimes the delay is caused by trying to find enough attorneys to do the appeals," she said. Once again, procedure on automatic review differs from state to state, but 37 of the 38 states that execute convicts require some form of review, either of the sentence or of the conviction, or both. Only South Carolina gives defendants the right to waive reviews, if they are found to be competent by the court. As laws have more closely defined the parameters of capital punishment, the requirement for review has been increased, and for good reason. "We are past the point in this country where you will not receive state court review," Rapaport said. "To have the punishment, you have to make sure all steps of what the Supreme Court allowed will happen." Plus, unlike in the early 20th century, when executions were quick and locally guided, states across the country have initiated steps for post-conviction relief, where someone found guilty of capital murder can argue factors that won't spare him the conviction, but can save his life. "It is usually a claim of ineffective counsel," sighed Steve Stewart, the prosecutor in Clark County, Ind. Step 3: Square 1 with the Feds Once a defendant has exhausted all his numerous options at the state court level, federal courts can also get involved, especially when questions of fairness and civil rights come into question. For Stewart, it is the end of a very, very long line, but the beginning of a new ordeal for prosecutors. Asked why executions now take a decade or more, Stewart replied: "Weak-willed judges." "They can file a writ of habeas corpus, when about every issue litigated in the state court is litigated again in the federal courts," he said. The problem, Stewart argues, is that federal judges are not interested in efficiency. "Federal court judges are lifetime appointments, and they don't give a sh**," he said. "They work at a snail's pace." If a well-connected defense attorney can use that to his advantage, Stewart said, executions can easily be delayed for years. "Each one of the hearings I'm talking about can take as long as a judge allows." Finding a sympathetic federal judge, who holds almost all the power, can ruin years of work. "All they have to do is find one federal judge to say, 'Yeah, you're right,' and let them off Death Row," Stewart said. If a case actually gets past the federal bench without the defendant being removed from Death Row, then clemency from the governor, or the president in federal cases, can still apply. Last-minute challenges have changed the landscape of execution recently. Earlier this week, an Alabama inmate who had been scheduled to die last October gave himself more time by arguing that the lethal injection method the state uses would be cruel and unusual because - don't laugh - his intravenous drug use damaged his veins. In his request, David L. Nelson argued that Alabama's switch to lethal injection meant he would have to undergo a painful procedure to open veins in his arms and legs. Alabama switched from the electric chair to lethal injection on July 1, 2002. Nelson, who has spent more than 20 years on Death Row, waited until weeks before his scheduled Oct. 9, 2003, execution date to challenge the procedure. State attorneys called the maneuver nothing more than a last-ditch effort. The 11th U.S. Circuit Court of Appeals agreed, but the U.S. Supreme Court ordered the execution postponed until it could rule. Monday, in an unanimous opinion written by Justice Sandra Day O'Connor, the court agreed that Nelson can appeal his sentence because, for him, lethal injection would be cruel and unusual. Despite claims by Alabama prosecutors that granting Nelson an appeal would overwhelm the court system with challenges, the high court disagreed. "Respondents are incorrect that a reversal here would open the floodgates to all manner of method-of-execution challenges and last-minute stay requests," O'Connor wrote. Still, the justices warned that not all late requests from Death Row inmates will be welcomed. "A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief," the opinion said. Nelson, who never argued against his execution, just the method of it, will await an appeal of his death sentence at the state level. Time is on their side It might frustrate prosecutors like Stewart, but Rapaport said these hurdles are needed to balance the state's desire to impose death with its responsibility to use it judiciously. Many states, she added, put lots of people on death row but do not use their execution chamber often. "That is going to affect the average time on death row," she said. Stewart argues some of the policies amount to, well, overkill. "There's never been such due process, if that's what you want to call it, in the history of the world," he said. If society chooses to have the death penalty, Stewart said the judicial system should be willing to implement it. Many lawyers and politicians, in Stewart's opinion, have used capital punishment as a pedestal, thereby making it a longer process. "The death penalty has almost come to the point where everyone is locked into their opinions," he said. Rapaport sees the dividing line between pro and con as part of the balancing act. "It tends to attract capable and dedicated people," she said. "And most lawyers who have that responsibility feel keenly about it." Their convictions often result in vigorous attempts to spare their client from execution. "Lawyers will go for broke," she said. "If steps in the process are taken out, the lawyers in the system will find some other way." For Stewart, that creates a problem when making the death penalty a realistic option for prosecutors. "It's like a Catch-22, because they get more safeguards and due processes and they are given so many attorneys. But then they say the death penalty is too expensive," he said. Committed defense lawyers add costs for the courts and prosecutors. "Some (prosecutors) duck the death penalty because of the cost," Rapaport said. Stewart emphatically denies he is one of them. "There is no doubt that it is in the back of everyone's mind," he said of funding. "But it is a small part of the decision." Deans, of the Death Penalty Information Center, said he believes the costs are not a solid argument for either side. "The actual difference in cost between room and board for 'lifers' and death cases is not as great as the costs for appeals, investigators, etc., at the initial trial level," Deans said. "However, since death cases have the same numbers of basic appeals as any other kind of case, I would assume one would be hard-pressed to argue that the length - overall - of the capital appeals process is costing taxpayers a significant amount more." Though it is not taxing their pocketbooks, Stewart argues the process taxes the patience of victims and the public. He said there might be some indication that people want it both ways: having the death penalty but never using it. Nevertheless, he said, in the end, people favor capital punishment. He thinks the most vocal opponents strayed from society's concerns with examinations of the number of people who have escaped execution because to court decisions. Recent studies, and the clearing of Illinois' death row, do not reflect people's thoughts, Stewart said. Experts have said the studies and former Illinois Gov. George Ryan's decision prove the death penalty is too flawed to go on. "I'm not sure society as a whole feels that way," Stewart said. "I don't think the general public at large gives a sh**." Sarat disagrees. No level of oversight, Sarat said, can totally remove human error. "There might be an experience where no amout of checks and balances will be enough." But few see the pendulum swinging back to quicker executions. Including Stewart.. "I'm pretty pessimistic about that," he said. He also has little faith in the public expressing its ire over the long wait. "If it was ever going to hit that point, it would have already hit it." (source: The Snitch)
