Aug. 14 TEXAS: Innocent Man Sentenced to Death Under Cruel Texas Law Kenneth Foster faces death for a crime he didn't commit because of a twist of Texas law that enables a jury to sentence someone to death even if he or she had no proven role in a murder. Kenneth Foster's time is running out. On Tuesday, August 7, in a 6-to-3 decision, the Texas Court of Criminal Appeals denied his final writ of habeas corpus, giving the legal green light for his execution. Foster, who is scheduled to die by lethal injection on August 30, is now at the mercy of the merciless Board of Pardons and Paroles. The odds are bad. 5 out of 7 board members must recommend clemency before Governor Rick Perry will consider it -- and in a state that has executed nearly 400 people in 30 years, clemency has only been granted twice. But Foster's supporters, who are spearheading a letter-writing campaign to the board and governor, are relying on one particularly salient detail to move their minds, if not their hearts: Foster didn't kill anyone. [my note----Texas resumed executions 25 years ago, on December 7, 1982] Foster was convicted for the 1996 murder of Michael LaHood Jr., who was shot following a string of robberies, by a man named Mauriceo Brown. Brown admitted to the shooting and was executed by lethal injection last year. Now Foster faces the same fate. So, if Brown was the shooter, what did the 19-year-old Foster do to get a death sentence? He sat in his car, 80 feet away, unaware that a murder was taking place. Foster was convicted under Texas's "law of parties," a twist on a felony murder statute that enables a jury to convict a defendant who was not the primary actor in a crime. This can mean sentencing someone to death even if he or she had no proven role in a murder. Texas's law states that "if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it." Defendants, the Texas courts say, can be held responsible for "failing to anticipate" that the "conspiracy" -- in Foster's case, the robberies, for which he was the getaway driver -- would lead to a murder. Foster's sentence, death row prisoner Mumia Abu-Jamal recently commented, "criminalizes presence, not actions." In theory, the law of parties is "a well-recognized legal document," says Houston defense attorney Clifford Gunter, and most states with the death penalty on the books include a similar provision for "non-triggermen." Nevertheless, critics of the Texas law say it's an aberration -- a slippery legal statute that stands in direct violation of the 1982 Supreme Court decision in Enmund v. Florida. Still the "prevailing view," according to Gunter, Enmund held that the death penalty was unconstitutional for a defendant "who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed." In Texas today, the law or parties says exactly the opposite. Even more troubling is the law in practice. When Justice Byron White wrote the Enmund decision in 1982, he observed that the Court was not aware of a single execution of someone who did not kill or intend to kill. What a difference another quarter-century makes. Months after Enmund was decided, Texas executed its first prisoner since the reinstatement of the death penalty in 1976. In the tidal wave of capital cases that followed, numerous defendants would be sentenced to die under the law of parties. One was Norman Green. Green was charged for a murder during a botched robbery in an electronics store in 1985. He got death. His accomplice, the man who actually pulled the trigger, got life. The arbitrary result exemplifies what Green's appellate lawyer, Verna Langham -- who also handled Kenneth Foster's 1st appeal -- sees as the danger of the law of parties. "[It] is subject to such loose interpretation," she told the Austin Chronicle in 2005. "A kid in the wrong place at the wrong time with the wrong people can end up being sentenced to death." Green was executed in 1999. No formal study has been done on the number of defendants subjected to the law of parties in Texas. Anti-death penalty activists estimate that Texas death row has 80 to 100. This number seems high to David Dow, founder and director of the Texas Innocence Network and author of Executed on a Technicality (2005). But he says that it could be an accurate measure of the number of prisoners whose juries were given the choice of applying the law of parties, even if their conviction did not hinge on it. "In a lot of cases, you have a [law of parties] instruction, but jurors have to find one or the other: Either the person was responsible for killing the victim or they are responsible for participating in a crime where it should have been anticipated that a murder would take place." For a defendant facing lethal injection, it's a distinction without a difference. Regardless of the number of times the law of parties has been used, its clear effect has been to broaden the pool of defendants eligible for death. By inviting a jury to speculate whether a defendant "should have known" a murder could happen, it drastically lowers the burden of proof for a punishment supposedly reserved for "the worst of the worst." >From the zeal of prosecutors to the legal machinery that supports them, "the structure of the Texas's legal system makes it easier to sentence people to death," says Dow. Between the Polunsky Unit in Livingston and the women's death row in Gatesville, nearly 400 prisoners are awaiting execution. By the end of the summer, Texas will have killed its 400th prisoner since the death penalty was brought back. The state that famously carried out 152 executions under Governor George W. Bush has seen Gov. Rick Perry surpass his record. Since taking office in December 2000, Perry has signed off on over 158 executions -- a number that will be dated when this piece goes to press (and which would be higher still were it not for the Supreme Court's 2005 decision in Roper v. Simmons, which forced Perry to commute the death sentences of 28 prisoners who were younger than 18 at the time of their crime). In this context, it's hard not to see the law of parties as an irresistible tool in a legal system designed to summarily execute people. Especially if the defendant is black and the victim is white. Kenneth Foster's case is a good example. He's not just a black man accused of killing a white man; he was convicted for killing the son of an attorney highly esteemed by the legal community. As with so many other cases involving families of influence, the media was all over it, and the LaHood family's wish for an execution quickly became public knowledge. (LaHood's mother reaffirmed her support of Mauriceo Brown's execution last year.) In other particularly high-profile cases, the law of parties has come in similarly handy for the prosecution. In the trial of Patrick Murphy Jr. -- one of the notorious "Texas Seven," who in 2000 escaped from prison, killed a police officer on Christmas Eve, and were summarily sentenced to die -- prosecutors seeking death sentences across the board used the law of parties to circumvent the fact that Murphy was not at the scene of the crime. Prospective jurors were asked not just how they felt about capital punishment, but also about the law of parties specifically. (It worked. Murphy is now sitting on death row.) The many excesses of Texas capital law offer a portrait of a brutal and broken system -- one that has long been protested by anti-death penalty activists. More recently, prisoners themselves have begun to organize from the inside. Kenneth Foster is among them. In 2005 he helped found D.R.I.V.E, a group of death row prisoners who protest the death penalty as well the abusive conditions of their incarceration. D.R.I.V.E, which stands for "Death Row Inner-Communalist Vanguard Engagement," is multi-racial, highly political, and, perhaps most important, thriving -- on one of the most repressive death rows in the country. Members encourage fellow prisoners to protest on execution days, and to protest their own executions (refusing to walk to the van that takes them to the executions chamber; refusing last meals). They also protest inhumane prison conditions. Last fall, a dozen death row prisoners at Polunsky went on a hunger strike to protest the inedible food and constantly overflowing toilets in their cells, among other abuses. Comparing themselves to the hunger strikers at Guantanamo Bay, they eventually caught the attention of the New York Times. Some members of the group also invoke the legacy of Gary Graham -- a.k.a. Shaka Sankofa -- the Texas death row prisoner who was executed in 2000, despite overwhelming evidence that he could be innocent. Graham, who was put to death amidst widespread protests, maintained his innocence until the end, declaring in his last statement, "They are murdering me tonight." This era, which Dow considers the "heyday" of protest around executions, coincided with increased repression on Texas death row. Following an attempted prison break in the late 90s, the death row population was relocated. At their new home in the Polunsky Unit, prisoners are housed for 23 hours a day in cells that are 60 square feet (the American Correctional Association recommends a minimum of 80 feet). Work and recreation privileges are pretty much non-existent, and the few prisoners entitled to small luxuries can easily have them taken away. Such is the case of Stephen Moody, whose participation in last fall's hunger strike led to the confiscation of his radio. Texas death row prisoners are allowed no contact visits, and only a few phone calls a year. Despite this, Kenneth Foster and D.R.I.V.E. have allies on the outside. In addition to his supporters and family in Texas, a New York-based political hip-hop group called the Welfare Poets is speaking out on behalf of Foster and other prisoners on Texas death row; grassroots groups like the Campaign to End the Death Penalty are working to protest Foster's execution, from Harlem to Austin. With Foster's legal recourses almost dried up, a letter campaign to members of the appeal board is underway. But it's a long shot. "Perry has never granted clemency in a capital case before, even when the Board recommended it," says Bryan McCann, a CEDP activist in Austin. In a state that will have executed 400 people by September, clemency has only been granted two times. "If Kenneth Foster has a good innocence claim, that would be great for him," Dow says, noting that innocence is what gets attention these days. But while Foster's supporters argue that Foster is innocent -- that nobody should be executed "for driving a car," in the slaughterhouse state of Texas, innocence can be harder to prove than guilt. (source: The Brooklyn Rail) PENNSYLVANIA----female death sentence re-sentenced to life in prison Agreement sends Rompilla to prison for life Ronald Rompilla, whose 1988 death sentence for robbing, torturing and killing a bar owner was vacated by the U.S. Supreme Court, will spend life in prison under an agreement reached today. Rompilla will also serve consecutive 10-20 year sentences for robbery and burglary charges stemming from the same crime, Lehigh County assistant district attorney Stephen M. Vannatten said. Rompilla was convicted in 1988 of robbing and killing James Scanlon, 61, in the Cozy Corner Tavern in Allentown in January of that year. Scanlon was stabbed repeatedly and set on fire. Rompilla's conviction and death sentence led to several appeals to the state Supreme Court and federal courts. The U.S. Supreme Court agreed to hear the case after a federal judge set aside the death sentence and a federal appeals court reinstated it. In June 2005, the court ruled 5-4 to vacate the death sentence, finding that Rompilla's lawyers had not properly researched his history of childhood neglect, alcoholism and mental retardation. That information might have been enough to spare him the death penalty during the sentencing phase of his trial, the court said. The agreement was reached today as jury selection was set to begin in Lehigh County Court for the start of Rompilla's 2nd trial. Vannatten said his office agreed to the deal to avoid further appeals. (source: The Morning Call) NEBRASKA: Prosecutors file death penalty charges against alleged murderer Murder charges against accused teen murderer Michael Grandon carry the death penalty, according to information filed in Lincoln County District Court August 6. Lincoln County Attorney Jeff Meyer filed 1st-degree murder charges against Grandon, which include aggravating circumstances. That means Meyer will be able to seek the death penalty against Grandon. Meyer declined to say whether or not he would seek the death penalty, saying it was too early to determine. But he would not rule it out and said he filed the notice of aggravating circumstances so the death penalty would be a possibility, he said. Grandon, 18, was the boyfriend of Alisha Ochoa, 15, and is accused of participating in the double murder of Lori Solie and her 5-year-old daughter Tiara. Lori Solie was Alisha's mother and Tiara was her half-sister. Both teens were charged for their roles in the double homicide. Ochoa, because of her age, is not eligible for the death penalty. Nebraska law does not allow for the execution of anyone under 18 years old. Ochoa tried to have her case moved to juvenile court by Lincoln County Judge Kent Turnbull denied the request due to the violent nature of the crime and the fact that the juvenile court would lose jurisdiction over Ochoa in just a few years. Grandon is eligible for the death penalty in the state. The aggravating circumstances filed in both murder charges said the crimes were "especially heinous, atrocious, cruel or manifested exceptional depravity by ordinary standards of morality and intelligence." Other aggravating circumstances in the charges said that at the time the murder of Tiara was committed, the offender also committed another murder and the offender created a great risk of death to at least several persons. The charges reflect what the police believe, that Tiara was killed 1st then covered up when Ochoa's grandmother, Judy Cotton, dropped by the house and again when Lori Solie returned home. Grandon told the police that Ochoa held Tiara down while he stabbed her at least 16 times and the police believe that Lori was beaten with a baseball bat before being stabbed multiple times. Grandon was also charged with 2 counts of use of a deadly weapon to commit felonies. Grandon did not enter a plea this week but was ordered to undergo a psychiatric evaluation instead. His next hearing will be scheduled after the evaluation is completed. Meyer said he would determine whether or not to seek the death penalty against Grandon at the "appropriate time" but said he filed the aggravating circumstances now because Nebraska law does not allow prosecutors to amend charges adding aggravating circumstances once criminal charges have been filed. Court orders Grandon to provide DNA sample The investigation into the murder of Lori Solie and her 5-year-old daughter Tiara continues. Recently a Lincoln County District Court ordered accused murderer Michael A. Grandon to turn over a DNA sample from jail. Lori Solie, 38, and her daughter Tiara, 5, were found stabbed to death on the floor of their apartment at 3900 West Second on May 17. Both bodies suffered multiple stab wounds. Lori also appeared to have been struck on the head with a blunt object and Tiara appeared to have strangled before the stabbings. Grandon, 18, and his girlfriend Alisha Ochoa, 15, were arrested the next day in Wyoming after a high-speed chase. They were driving Loris stolen Mustang and had removed money from her bank account using her ATM card. Ochoa was Lori's daughter and Tiaras half-sister. Both teens were charged with 2 counts of murder. According to an affidavit, some of the clothes Ochoa and Grandon were wearing during their arrest appeared to have blood evidence on them. A baseball bat and kitchen knife were later located along side Interstate 80, where the police believe the teens threw them from the car only minutes after the murder. Both the baseball bat and knife appear to have trace evidence on them, according to the affidavit. Grandon refused to supply a DNA sample for testing on the advice of his attorneys Pay Hays and Richard Birch, the affidavit said. The police sought a court order requiring Grandon to supply a mouth swab for comparison to trace evidence recovered during the investigation said, according to the affidavit. The information will contribute to the individual or individuals who committed the homicides, the affidavit said. Lincoln County District Judge John Murphy ordered Grandon to provide a DNA swab and the police recovered the evidence and sent it to the crime lab in Lincoln for comparison. (source: The North Platte Bulletin) USA: Gonzales could get say in states' executions----Proposed rules would let the attorney general sign off on 'fast tracking' death penalty appeals. The Justice Department is putting the final touches on regulations that could give Atty. Gen. Alberto R. Gonzales important new sway over death penalty cases in California and other states, including the power to shorten the time that death row inmates have to appeal convictions to federal courts. The rules implement a little-noticed provision in last year's reauthorization of the Patriot Act that gives the attorney general the power to decide whether individual states are providing adequate counsel for defendants in death penalty cases. The authority has been held by federal judges. Under the rules now being prepared, if a state requested it and Gonzales agreed, prosecutors could use "fast track" procedures that could shave years off the time that a death row inmate has to appeal to the federal courts after conviction in a state court. The move to shorten the appeals process and effectively speed up executions comes at a time of growing national concern about the fairness of the death penalty, underscored by the use of DNA testing to establish the innocence of more than a dozen death row inmates in recent years. Amid the public debate, the number of people executed in the U.S. has declined steadily since the mid-1990s. California and several other states have moratoriums on lethal injections, stemming from legal challenges. Opponents say the way the states administer a 3-drug lethal cocktail unnecessarily risks excessive pain for the inmate and therefore violates the constitutional bar against cruel and unusual punishment. A federal judge in San Jose, citing a lack of training and supervision of the execution team, ruled California's application of lethal injections unconstitutional. State officials have proposed changing procedures to try to address the judge's concerns. A hearing is in October. Prosecutors say many death penalty cases take far too long to resolve even when the issue of guilt is clear. Especially in the West, where the U.S. 9th Circuit Court of Appeals in San Francisco has blocked many executions, cases can take decades to wind through the courts. In its most recent term, the U.S. Supreme Court restored the death penalty in three cases in which the 9th Circuit had reversed the sentence. One of the cases involved a 2-time Arizona murderer who told the sentencing judge: "If you want to give me the death penalty, just bring it right on." He was sentenced in 1990. Some Arizona officials say the new procedures are long overdue. "If you are going to have the death penalty at all, it shouldn't take 20 to 25 years," said Kent Cattani, the chief capital litigation counsel in the Arizona attorney general's office. "Either get rid of it altogether, or try to have a good system in state courts and then accelerate it through the federal courts." On the other side, advocates for death row inmates and some legal experts say the rules would make a bad system worse. "It is another means by which people are determined to shut the federal courts down to meaningful review of death penalty cases," said Elisabeth Semel, director of the Death Penalty Clinic at the UC Berkeley law school. "The inevitable result of speeding them up is to miss profound legal errors that are made. Lawyers will not see them. Courts will not address them." "This is the Bush administration throwing down the gauntlet and saying, 'We are going to speed up executions,' " said Kathryn Kase, a Houston lawyer and co-chair of the death-penalty committee for the National Assn. of Criminal Defense Lawyers. About 3,350 people are on death row in the U.S., including more than 600 in California. Most were sentenced in state courts, but death cases almost always end up being reviewed by federal judges too. It is impossible to estimate how many inmates might be affected. Some with appeals pending could see their cases shortened. "Cases in the system for 20 years in federal court, it will not affect those," said Cattani. But "it will prevent those from happening in the future." The procedures would cut to 6 months, instead of a year, the time that death row inmates have to file federal appeals once their cases have been resolved in the state courts. It would also impose strict guidelines on federal judges for deciding such inmates' petitions. Federal district judges would have 450 days, appeals courts 120 days. Proponents say that would prevent foot-dragging by liberal judges. The costs associated with the death penalty have also been a growing concern to some states. California, for example, spends $90,000 more a year on housing a death row inmate than an inmate in the general prison population adding up to $57.5 million annually according to a 2005 study by The Times. The idea behind the new rules has been years in the making. The federal Anti-Terrorism and Effective Death Penalty Act of 1996 set up a system in which states could take advantage of faster procedures so long as they could prove they had made sure defendants had had adequate counsel in state courts. California and several other states applied to the program starting in the late 1990s. But federal courts ruled that they were not doing enough to provide defendants with competent attorneys. Fast track Frustrated with the pace of changes and believing that judges were part of the problem death penalty advocates Rep. Dan Lungren (R-Gold River) and Sen. Jon Kyl (R-Ariz.) led a successful effort to include language in the Patriot Act last year that let the attorney general, rather than judges, decide whether states were ensuring death row inmates had adequate legal representation. Under the law, the attorney general's decision could be challenged before the federal appeals court in Washington. Justice Department officials are seeking public comment on the rules until Sept. 23, after which they will be finalized "as quickly as circumstances allow," said department spokesman Erik Ablin. Some critics question whether the rules would have the desired effect. The rules would require that states establish a "mechanism" for supplying lawyers to death row inmates in order to qualify for the expedited procedures but would not ensure that the lawyers were competent or adequately funded, these critics say. Arizona and California have state-supported programs that aid defense counsel in capital cases, but there are still not enough lawyers to go around. And funding for legal bills and other expenses is far from adequate, lawyers for death row inmates say. "If you are going to impose the kind of incredibly stringent deadlines that this statute imposes . . . you need to ensure people get adequate representation throughout the state process," said Robert Litt, a former Justice Department official representing the American Bar Assn. in the rule-making dispute. "This is the opportunity that the Department of Justice has missed." He said: "Without a set of standards to guide the attorney general, there is a tremendous potential for arbitrariness here, and to put a thumb on the scales on the side of the states." The Judicial Conference of the U.S., the policy-making arm of the federal courts, also sees problems. States might be able to qualify even if they had not provided lawyer services "sufficient to enable federal court litigation to proceed fairly within the expedited time period," the group said in a letter to the Justice Department this month. Critics also say there is a major conflict of interest for the nation's top law enforcement officer to judge the qualifications of lawyers defending people whom government officials are seeking to put to death. Others have doubts about giving Gonzales in particular more power. His judgment has been challenged over his handling of the firing of eight U.S. attorneys last year, among other matters. Death penalty foes also say his record on the issue inspires no confidence that the rules will be administered fairly. As legal advisor to then-Texas Gov. George Bush in the 1990s, he gave what many saw as cursory treatment of clemency petitions of capital defendants whom the state subsequently put to death. "It is almost a cruel joke for Congress to have said, 'What we would like to do is improve the way states handle these' . . . and then put it in the hands of, all people, the attorney general," said Lawrence Fox, a Philadelphia lawyer who teaches legal ethics at the University of Pennsylvania Law School. "It really is quite extraordinary. He is the chief prosecutor of the United States. He couldn't possibly be unbiased." Fox said he would have problems with any attorney general wielding that power. Under the proposed rules, each state, through its attorney general, would have to apply to the Justice Department to be included in the program. Besides Arizona, where 114 prisoners are on death row, Texas, Oklahoma, Pennsylvania and other states have shown interest in the new procedures. It's unclear whether California would apply. Atty. Gen. Jerry Brown is an avowed opponent of the death penalty, but many staff attorneys support the rule, and Brown has said he will not allow his personal feelings to affect his judgment about enforcing the law. (source: Los Angeles Times) ********************************* 100,000 Gone Since 2001 On Saturday in Newark, 3 young friends whose lives and dreams vanished in a nightmarish eruption of gunfire in a rundown schoolyard were buried. On Sunday in a small town in Missouri, a pastor and 2 worshipers were murdered by a gunman who opened fire in a church. Murder, that darkest of American pastimes, celebrated in film and song and fostered by the firearms industry and its apologists, continues unabated. It has been almost 6 years since the attacks of Sept. 11, 2001, when the nation's consciousness of terror was yanked to new heights. In those 6 years, nearly 100,000 people an incredible number have been murdered in the United States. No heightening of consciousness has accompanied this slaughter, which had nothing to do with terrorism. The news media and most politicians have hardly bothered to notice. At the same time that we're diligently confiscating water and toothpaste from air travelers, were handing over guns and bullets by the trainload to yahoos bent on blowing others into eternity in armed robberies, drug-dealing, gang violence, domestic assaults and other criminal acts. Among those who have noticed the carnage are the nations police chiefs, and they are alarmed. Surges of homicides and other violent crimes in many cities and towns over the past couple of years have prompted Bill Bratton, the police chief in Los Angeles, to warn of the possibility of a "gathering storm" of criminal violence in the U.S. "Philadelphia and Baltimore are having horrendous problems," he said in an interview. "You just had that awful shooting in Newark. What wed like to do is bring this issue of crime back into the national debate in this election year. What you dont want is to let it get out of control like it did in the late '80s and early '90s." Mr. Bratton is a past president of the Police Executive Research Forum, a group based in Washington that is composed of the heads of some of the largest state, county and local law enforcement agencies in the country. The group's report on crime trends in 2005 and 2006 tracked disturbing increases in robberies, aggravated assaults and murder. The report described violent crime as "making a comeback," not to the same degree as the crack-propelled violence of the late-'80s and early-'90s, but in frightening numbers, nevertheless. Chuck Wexler, the forum's executive director, offered a particularly chilling statistic. The number of cases of aggravated assault with a firearm is about 100,000 a year. In some cases, the gunman misses, but each year roughly 60,000 people are actually shot. "Over the past 5 years," said Mr. Wexler, "more than half a million people have been the victim of an aggravated assault with a firearm. We have become numbed in this society." Law enforcement officials believe there is something more vicious and cold-blooded, and thus more deadly, about the latest waves of crime moving across the country. Robberies involving juveniles with little regard for the lives of their victims are becoming more prevalent. Individuals with cellphones, iPods and other electronic devices are particular targets. In the forums report, Chief Heather Fong of the San Francisco police described a phenomenon called "rat-packing" in which robbers using cellphones call in fellow assailants to surround a victim. Former Police Chief Nanette Hegerty of Milwaukee noted that in a number of holdups a cooperative victim was shot anyway. Local authorities need help coping with violent crime. Huge numbers of criminals were locked up over the past 10 or 15 years, and they are leaving prison now by the hundreds of thousands each year. With few jobs or other resources available to them, a return to crime by a large portion of that population is inevitable. The federal government played a big role in the effort that reduced crime substantially in the 1990s. But much of that federal support has since vanished, in part because of the tremendous attention and resources directed toward anti-terror initiatives, and in part because the Bush administration and much of the Republican Party have held fast to the ideological notion that crime is a local problem. A similarly rigid ideological stance is undermining the effort to control the flow of guns and ammunition into the hands of criminals. We have not returned to the bad old days of the late-'80s and early-'90s, but the trends are ominous. "We have to get the feds back into this game," said Chief Bratton. "They have the resources. They can help us." (source: Op-Ed, Bob Herbert, New York Times) NORTH CAROLINA: Death rules A state judge's ruling highlights an ongoing conflict involving the death penalty, whose use properly is on hold Whether they want to do so or not, North Carolina leaders once again are having to debate the state's death penalty. A ruling by a state administrative law judge opens another chapter on the controversy involving lethal injection, its potential to become an unacceptably painful means of execution, and the permissible role of doctors in carrying out the death sentence. Judge Fred G. Morrison Jr. ruled last week that the Council of State, made up of North Carolina's top statewide elected officials, should have heard arguments from both sides before it approved a new protocol for capital punishment last February. Perhaps so, in the sense that it's usually good for decision-makers to factor in all the relevant information. Still, the council was not designed, nor is it expected to function, as a court. With the state's expected appeal, the same issues heard by Morrison will be considered again in Superior Court. The courts are likely in any event to be where the issue will finally be decided, because of conflicting laws and rulings that have caused the state's use of the death penalty to be unofficially suspended. The questions at hand are whether the cocktail of drugs used to killed inmates might, in some situations, lead to an unconstitutionally cruel, painful death, and whether doctors can take part in the procedure without trampling a foundational tenet of the profession -- to do no harm. The N.C. Medical Board, the state's disciplinary body for doctors, appropriately has established a policy banning doctors from taking part in executions, except to be present as required by law when executions are carried out. Morrison, in fact, took an unnecessary swipe at the board in his ruling, noting that the death penalty is established state policy. It's true that board members pledge to abide by the state constitution, but their conduct still must be in keeping with professional ethics. When the state's execution protocol was challenged by death row inmates, federal District Judge Malcolm Howard agreed that executions could proceed, provided that medical personnel were on hand to ensure that the condemned person had been rendered completely unconscious before the painful, death-dealing drugs were administered. The state ensured Howard that it would follow that procedure, and he allowed two men to be executed on that basis. But the prison doctor on duty testified that he had not participated in monitoring an inmate's vital signs, using a special brain monitor the state had obtained for that purpose. Morrison noted that the monitor was not intended to be used by people without medical training. Morrison's findings confirmed, essentially, the state's lack of compliance with the terms laid down by Howard. And they illustrated the conflict between the state's protocol, meant to guard against an unconstitutionally painful execution, and the medical board's rule against a doctor taking part in any way. It is a conflict for which there is no obvious resolution -- and with the conflict unresolved, the state has good reason to keep executions on hold. (source: Editorial, News & Observer)
[Deathpenalty] death penalty news------TEXAS, PENN., NEB., USA, N.C.
Rick Halperin Tue, 14 Aug 2007 13:46:27 -0500 (Central Daylight Time)
