[Deathpenalty] death penalty news----USA

[Rick Halperin]

Oct. 8

USA:

Going to Court, but Not in Time to Live


Let us consider the arithmetic of death.

There are 9 justices on the Supreme Court. It takes 4 votes for the court
to agree to hear a case. But it takes 5 votes to stay an execution.

It is possible, then, for a death row inmate to persuade the court that
his case is so important that it deserves a place on the court's tiny
docket of roughly 80 cases a year - but not so important that he should be
allowed to stay alive in the meantime.

Consider the case of Luther J. Williams, who was put to death on Aug. 23
in Alabama. 4 justices had voted to stay the execution.

Mr. Williams's appeal included a challenge to the constitutionality of the
chemicals used in lethal injections, which have the potential to cause
excruciating torture if administered improperly. A month after his
execution, the court agreed to hear that question in another case.

"They knew they were going to consider the issue and let a man die," Joel
L. Sogol, who represented Mr. Williams, said of the justices. "May he
haunt their nights for the rest of their lives."

Mr. Sogol acknowledged that smart lawyers could distinguish between the 2
cases, but he said the central issue was the same. In any event, he said,
he got 4 votes for a stay, which suggested he would have had 4 votes to
hear the case had his client lived.

Since the Supreme Court accepted the new lethal-injection case last month,
even the most pro-execution states seem to have begun an informal
death-penalty moratorium. But Mr. Sogol said he was so angry he could not
bear to read about those developments.

"It doesn't make any sense to me that an issue is important enough that
there are 4 votes to take it up," he said, "but let's execute him anyway."

Last Monday, in terse legalese, the court denied Mr. Williams's now
posthumous request that it consider his case. "The petition," the docket
entry said, "is dismissed as moot." Moot, in other words, because the
petitioner is dead.

Supreme Court math used to yield different results. As Justice Lewis F.
Powell Jr. wrote in a 1986 decision, "the court has ordinarily stayed
executions when four members have voted" to hear an appeal.

But Justice Powell, who was in those days often the swing vote, grew testy
about the practice. It "illustrates how easily the system is manipulated
in capital cases," he wrote to the other justices after providing the 5th
vote for a stay as a courtesy in a 1985 case.

By 1990, things had changed. "For the first time in recent memory,"
Justice William J. Brennan Jr. wrote, "a man will be executed after the
court has decided to hear his claim." The man was James E. Smith, and he
was put to death in Texas the day the stay was denied.

At his Supreme Court confirmation hearing two years ago, Judge John G.
Roberts Jr. was asked what he would do "if you had 4 other justices now
voting for a stay of execution?"

"Do you feel, as chief, you should do the courtesy," Senator Patrick J.
Leahy, Democrat of Vermont, asked, "and kick in the 5th one?"

"I don't want to commit to pursue a particular practice," Judge Roberts
said. "But it obviously makes great sense."

"You don't want to moot the case by not staying the sentence," he added.

The available information is sketchy, and the court seldom issues
explanations for why it declines to hear cases or issue stays. But it does
not seem that Chief Justice Roberts has consistently adopted the practice
he had tentatively endorsed.

Last Monday, Justice John Paul Stevens issued an unusual statement in the
case of Christopher S. Emmett. The court had been set to consider Mr.
Emmett's appeal on Sept. 24 after returning from its summer break.

"Nevertheless," Justice Stevens wrote, "Virginia set an execution date of
June 13."

4 justices voted in favor of a last-minute stay of execution, but that was
not enough. Two hours before Mr. Emmett was to die, Virginia's governor,
Tim Kaine, a Democrat, stepped in to do what the court would not.

"Basic fairness demands that condemned inmates be allowed the opportunity
to complete legal appeals prior to execution," Mr. Kaine said in a
statement.

"The irreversibility of an execution and the fact that 4 justices of the
court believe a stay is needed to consider the appeal warrant my
intervention in this case."

In the end, the court turned down Mr. Emmett's appeal, which had been
based on a claim of ineffective counsel. He is now scheduled to be
executed in October, and his lawyers are working on a stay or reprieve
based on the lethal-injection case.

Justice Stevens drew a lesson from the experience. Both justice and
efficiency would be served, he wrote, by routinely staying all executions
until the court can hear a condemned inmate's first petition for a writ of
habeas corpus. That would "accord death row inmates the same, rather than
lesser, procedural safeguards as ordinary litigants."

Justice Stevens said he hoped a majority of the court would "eventually
endorse" his thinking. But only Justice Ruth Bader Ginsburg joined his
statement.

(source: New York Times)

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

Must stop death penalty


The death penalty must be stopped in this country, and until we do, the
USA has no right to criticize other countries on what they do to their
citizens.

Over 100 people have been removed from death row in this country since
1976, when the United States Supreme Court put the death penalty back in
the USA, when these people were proven innocent of the crimes that put
them there.

The most famous person to be put to death by the death penalty and who was
innocent was, of course, Jesus Christ. When the United States stops
killing people by the death penalty, this country will be a much greater
country.

WILLIAM F. SMALL----Williston

(source: Burlington Free Press)

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

Always cruel and unusual


WHEN TEXAS, the killingest state in the union, issues a stay of execution
for a death row inmate, you know something important is happening. On
Tuesday - one day before 28 year-old Heliberto Chi was to be put to death
- the Texas Court of Criminal Appeals issued a stop order, pending a
review by the US Supreme Court on the constitutionality of lethal
injection.

The high court agreed Sept. 25 to consider whether lethal injection
violates the Eighth Amendment prohibition against cruel and unusual
punishment. Of the 38 states that still impose the death penalty, all but
Nebraska use the injection method (Nebraska still employs the
old-fashioned electric chair). The court will hear arguments in February
probably by next summer.

When it first came into vogue in the 1980s, lethal injection was seen as a
more clinical, somehow less brutal form of state-sponsored execution. But
increasingly the administration of the 3-drug cocktail used to paralyze
and then stop the heart of an inmate has been found to go awry, with the
condemned left to suffer. The American Medical Association prohibits its
doctors from any involvement, including injecting the drugs, monitoring
vital signs or declaring death.

At least 10 states in addition to Texas have halted executions amid
litigation over lethal injection, waiting for the Supreme Court to clarify
the conflicting patchwork of state court rulings. The case the court will
hear is brought by 2 Kentucky death row inmates, who argue that lethal
injection presents an "unnecessary risk" of pain and suffering, as opposed
to a wanton infliction of pain, already found to be unconstitutional. Upon
this legal fine point rests the fate of 3,291 men and 59 women.

Of course the death penalty is cruel. It is also arbitrary, since whether
one receives the sentence depends on the accident of where a crime was
committed - in a death penalty state or not. It is discriminatory, because
it is applied more often when defendants cannot afford private counsel. It
has never been found to deter crime, and it isolates the United States in
a small club of the world's most brutal violators of human rights.

2 other Texas convicts sought stays of their execution orders while the
Supreme Court was mulling its 2008 docket. On Sept. 27, the Supreme Court
gave a reprieve to Carlton Turner, even though the Texas Appeals Court had
earlier denied his request. But it was too late for Michael Richard, who
was executed Sept. 25 - the very day the Supreme Court decided to hear the
lethal injection arguments - because the Texas court had closed for
business.

The haphazard, capricious way the legal system decides who lives or dies
violates fundamental American principles of fair and equal justice. The
Supreme Court already has said that "evolving standards of decency" will
guide its thinking in capital punishment cases. Lethal injection, and the
death penalty itself, both fail the test of decency.

(source: Editorial, Boston Globe)

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

CC embroiled in pan-America death row saga


Late last month at its West 52nd Street offices, Clifford Chance took an
unusual but significant step towards sealing its credentials as a major
firm in the US.

It hosted a pro bono-related event featuring art inspired by the country's
longest-serving death row inmate Jack Alderman. What stands out is the
timing.

Unexpectedly for Clifford Chance, the event (on Thursday 27 September, but
planned 3 weeks earlier) came just 2 days after the Supreme Court agreed
to consider the constitutionality of lethal injection as a method of
execution.

So the UK-headquartered firm finds itself at the centre of a legal and
political storm across the US.

Immediately after the court's surprise decision, 11 states suspended
executions by lethal injection. Georgia, the state that found Alderman
guilty of murdering his wife more than three decades ago and where he has
been on death row since 1974, was not among them.

Clifford Chance is now petitioning Georgia to suspend Alderman's
execution. For the firm, the Alderman case is a vindication of its
longstanding commitment to pro bono in the US. In American legal circles,
a thriving pro bono practice is an essential part of a mature and
sophisticated law firm, a fact long recognised by Clifford Chance.

But that is not to detract from the real passion shown by the lawyers
involved. They include a team of QCs headed by Richard Lissack QC of Outer
Temple Chambers, who produced an international law opinion supporting the
abolition of the death penalty. They also include Jeremy Sandelson, the
London managing partner who was instrumental in Clifford Chance's
involvement and whose cousin, Simone Sandelson, produced the art inspired
by Alderman.

As Jeremy Sandelson puts it: "Jack is a phenomenal man, hugely impressive
and, crucially, has always maintained his innocence. We hope Georgia will
follow the other states and suspend all executions, but of course we don't
know."

Last Tuesday (2 October) Sandelson's hopes took a knock when the Supreme
Court rejected Clifford Chance's argument that Alderman was the victim of
ineffective counselling in his original trial (www. thelawyer.com, 3
September).

But a team in New York, led by senior associate Michael Siem, continues to
work on a challenge to Alderman's death by lethal injection on the grounds
that it is an unconstitutional method of execution.

And a 3rd Clifford Chance team in London and New York is seeking an
extraordinary motion for a new trial on the basis of new evidence
uncovered by the firm.

Clifford Chance has been involved in several death row cases in the past,
but this is the first time a multi-jurisdictional team has worked together
on separate but related aspects of such a high-profile matter.

The case is likely to reach a pivotal moment soon. Last month's Supreme
Court decision on the legality of lethal injections makes it more likely
that Alderman's execution will at least be delayed, giving time for
Clifford Chance to pursue its other route, the new trial.

But this is by no means certain. If the firm fails, then Jack Alderman, on
death row for 33 years, will be executed.

(source: The Lawyer)