August 1
TEXAS:
INTELLECTUAL DISABILITIES: Texas Stands Alone in Its Unusual Test of Mental
Retardation and Exemption from Execution
Despite the U.S. Supreme Court's ban on the death penalty for defendants with
mental retardation, Texas is planning to execute Marvin Wilson on August 7.
Wilson has an IQ of 61 and adaptive functioning levels even lower; the only
board-certified expert to evaluate Mr. Wilson concluded he has mental
retardation (now known as intellectual disability). Wilson struggled in school,
and dropped out after the 10th grade. According to experts who assessed his
mental health, Wilson continues to be unable to perform even the simplest tasks
without assistance. This intellectual disability typically manifests itself
before the age of 18 and is objectively determined by mental health
professionals, independent of the crime that put the defendant on death row.
Texas, however, insists that it can layer additional factors onto the test for
retardation, factors not used by any other states, not based on scientific
criteria, and which do relate to the original crime. This test is based on the
“Briseño factors” (named after the Texas court decision that announced them),
and allows an execution if (among other factors) the court determines the
criminal offense required forethought, planning and complex execution. The
American Association on Intellectual and Developmental Disabilities wrote in
their recent brief in Chester v. Thaler, another case involving the Briseño
factors that is pending before the Supreme Court: “[The Texas] impressionistic
‘test’ directs fact-finders to use ‘factors’ that are based on false
stereotypes about mental retardation that effectively exclude all but the most
severely incapacitated.” Attorneys for Wilson have filed a petition with the
U.S. Supreme Court, asking it to consider whether the Briseño factors represent
an unreasonable application of the Supreme Court’s ruling on mental retardation
.
(source: DPIC)
**********************
see:
http://www.change.org/petitions/the-governor-of-tx-stop-the-execution-of-low-iq-marvin-lee-wilson-08-07-2012
(source: change.org)
COLORADO:
Opposing the death penalty----Would execution do any good, even in this case?
We lend our voices to the national minority -- an outnumbered group that
nonetheless is growing -- that is opposed to the death penalty, even in the
worst capital cases.
There are so many opportunities to do so. There is the alarming racial
disparity in death rows nationwide. There is mounting evidence, aided by recent
DNA innovations, that many of those who are sentenced to death were not guilty
of the capital crimes for which they were convicted.
And then there's the idea of what a justice system in a civilized country is
supposed to do: Punish the guilty, provide some sort of restitution to victims,
serve as a deterrent to criminals.
Certainly death is a final solution: But save for a voice beyond the grave,
there's really no reason to believe a swift painless death is "better" or
"worse" than languishing for years before dying in prison. Victims and victims'
families who are in favor of the death penalty may feel a grim satisfaction
that their eye-for-an-eye wishes were met -- but state-led, highly organized
executions are hardly the stuff of a capital crime, a terroristic mass killing
or a torturous assault and murder. Those are particular horrors that cannot be
revisited. And there is zero evidence that the death penalty is a deterrent at
all.
What we have in James Eagan Holmes, 24, is an imperfect suspect to reinforce
our opposition to the death penalty. Unlike the majority of death row cases --
where a large majority of the victims were white, and a disparate number of
suspects are black or Latino -- he is a white man, highly educated, with more
than 100 potential victims in the Aurora theater he is accused of attacking.
The idea that DNA evidence will be introduced by his defense is improbable.
What he is accused of is the worst of the worst: A mass slaughter of victims in
what many have called an act of terrorism.
Which is why it's important for opponents of the death penalty to speak out
against it even in this case. While prosecutors have not announced that they
will seek the death penalty, Holmes could face it if convicted of any of the 24
murder charges levied against him, two for each of the victims who died.
With growing numbers of convicts to use as examples for anti-death penalty
arguments -- questionable cases, a clear racial disparity and 130 people
wrongfully convicted and actually taken off of death row -- more states are
getting rid of death as a state option. Connecticut recently became the 17th
state to eliminate the death penalty, the 5th state to do so in just 5 years.
The number of Americans who support the death penalty has shrunk to 61 % --
still a majority -- from a high of 80 % in the 1990s.
People complain about the costs of keeping a convicted mass murderer in the
penal system, but it's costlier to try and execute someone. (And forget the
issue of overcrowded prisons here; thankfully, accused mass murderers are not
filling up our prisons to the brink. Drug laws and mandatory sentencing laws
are.)
The moral issue -- the probability that some states are most certainly
executing people who may be innocent -- is reason enough to oppose the death
penalty. The crimes that Holmes is accused of make it an unpopular position to
have: But in the absence of a perfect justice system, a life sentence without
parole should replace the death penalty in Colorado.
(source: Erika Stutzman, for the Daily Camera editorial board)
*******************
Shooting Victim's Brother -- James Holmes Deserves Death Penalty
James Holmes should be sentenced to death ... after suffering in prison for
many, many years ... so says the brother of one of the victims in the Colorado
massacre.
TMZ spoke with Steven Hernandez ... whose sister Rebecca Wingo was shot and
killed, along with 11 other people, during the midnight screening of "The Dark
Knight Rises" earlier this month.
32-year-old Wingo leaves behind 2 young daughters.
Prosecutors say they will consider pursuing the death penalty for Holmes --
but will not make a decision until they speak with the families of the victims.
Hernandez has already made up his mind -- explaining, "My sister Rebecca was
killed in the theater. My mother is bereft, my wife is distraught and I am
heartsick and angry."
"Allow the justice system to punish this murderer. I want to see him sentenced
to death and I hope he sits in jail many years waiting to die."
Holmes has been charged with 142 counts for the shooting -- including 24 counts
of 1st degree murder.
(source: TMZ)
MONTANA:
Ronald Smith lawsuit challenging Montana’s lethal injection to go before judge
A legal challenge of how Montana carries out its death penalty is to go before
a judge Wednesday for a death-row Canadian waiting to hear whether he will be
granted clemency.
The American Civil Liberties Union filed a civil lawsuit on Ronald Smith’s
behalf in 2008 that argues the lethal injections the state uses to execute
people are cruel and unusual punishment and violate the right to human dignity.
A trial is scheduled for Sept. 4, but both sides are asking Judge Jeffrey
Sherlock in Helena, Mont., to simply look at the evidence and make a decision
immediately.
“We’re going to ask the judge to say yes or no as a matter of law and therefore
there’s no need to put evidence on,” Ron Waterman, a lawyer for the civil
liberties union, said Tuesday in an interview with The Canadian Press.
“What we’ve got from the discoveries that we’ve engaged in so far demonstrates
that the protocol is just so deficient that it’s unconstitutional and the court
can declare it unconstitutional as a matter of law,” he added.
“I think the case is capable of being decided Wednesday in our favour and quite
frankly that’s what I expect.”
Waterman said the judge could rule that lethal injections are unconstitutional
or that they are fine the way they are. He could also decide to go ahead and
sit through a full trial with evidence.
Whatever his ruling, Sherlock is likely to take his time to write a “fairly
succinct” decision which Waterman doesn’t expect until later this summer.
Smith, originally from Red Deer, Alta., pleaded guilty in 1983 to shooting
cousins Thomas Running Rabbit and Harvey Mad Man Jr. in the head with a
sawed-off, 22-calibre rifle while he was high on drugs and alcohol. Their
bodies were dumped in the woods near East Glacier, Mont.
He refused a plea deal and asked for a death sentence but later changed his
mind. Three decades later, and after several execution dates were set and
countless legal arguments made, his request for clemency was rejected this
spring by the Montana Board of Pardons and Parole.
His chance to live out his days in a tiny cell at Montana State Prison is now
in the hands of Gov. Brian Schweitzer.
“It might provide the governor an additional reason to say at least there’s
been litigation raised that questions the protocol and this litigation is going
to extend out for years and years and it’s time to put this to bed,” said
Waterman.
The lawsuit initially stalled while Montana attempted to upgrade the trailer
where state executions take place.
The Montana Department of Corrections revised its lethal injection protocol
last August. But the civil liberties union says it remains insufficient in
terms of training, qualifications and procedures, and fails to ensure prisoner
executions are free from cruel and unusual punishment.
“The state’s new protocol touches on many things, including how the prisoner is
to be transported, where the witnesses will sit and how the prisoner will get
his or her last meal, but it never once even mentions that the inmate has a
right to not suffer cruelly during the execution,” said Waterman.
Procedures and training are covered in vague terms that leave too much up to
chance, he said. Executioners are not required to be trained physicians or
nurses, but only require a “familiarity” with intravenous drug administration.
There are no details about how an officer administering the complicated
three-drug lethal injection is to react if the fast-acting barbiturate is
improperly prepared or administered, so a prisoner could be fully conscious and
in excruciating pain when the paralytic agent is injected.
“Those 2nd and 3rd drugs can be very extremely painful to a person unless that
person has achieved close to ... unconsciousness ....”
The lawsuit resulted in the most recent stay of execution for Smith which was
scheduled for January 31, 2011. The Montana Supreme Court upheld the stay after
a legal battle between 2 Montana judges.
(source: The Star)
**********************
The ACLU’s bid to save the Canadian on Death Row
Aug. 4 will be the 30th anniversary of the double murder that put Albertan
Ronald Smith on death row at Montana’s state prison near the city of Deer
Lodge. “Death Row” is just a metaphor in this instance: Montana still has only
2 inmates awaiting execution, and they live among other maximum-security
inmates at the prison. Smith has been, at times, mere weeks from his execution
date. In my Alberta Report days, I remember discussing plans with other editors
to have someone report on, and if possible, stand witness to, Smith’s demise.
Smith has long outlived that magazine now, and a few of the people who worked
for it, too. But I am beginning to sense for the 1st time that Smith has a
pretty good chance of dying in his prison bunk, rather than on a gurney. I know
I’ll be pretty p.o.’ed if he outlasts me.
Smith has managed to attract increasing international interest in his
professions of contrition==during the past few years, perhaps in part because
of the controversy over the Canadian government’s refusal to help him with his
clemency application. It would be amusing if the Conservative government had
actually helped Smith’s cause, even slightly, by turning a deaf ear to his
pleas. But what’s probably more important is the aid Smith is now getting from
the American Civil Liberties Union’s Montana office. As Smith’s family goes to
work on a popular Democratic state governor, the ACLU is presenting a strong
challenge to the constitutionality of capital punishment in Montana.
If you have a morbid bent like mine, you may wish to peruse that challenge
[PDF], which takes the bold form of a motion for summary judgment against the
state’s execution protocol. The ACLU’s lawyers note that the state updated the
protocol last year, but the technical manual continues to call for murderers to
be put to death using the bizarre “triple cocktail”—a formula whose origins and
rationale nobody really understands, and which is gradually being abandoned by
other states in favour of the simpler one-drug method used by veterinarians to
euthanize animals.
The actual statutes of Montana mention only two drugs, but that seems like a
picky legal technicality. More important to Smith’s fate is the absence of
humanitarian safeguards in the execution guidelines, an absence that persists
in the new manual. The training and credentialing requirements for the people
who would be killing Smith are specified very feebly. As the ACLU observes, the
Supreme Court has set a fairly high procedural bar in death penalty cases. If
Montana cannot afford to have a well-drilled and medically knowledgeable staff
on call for executions, the motion suggests, then maybe it shouldn’t be doing
them at all.
The real threat, of course, is not that Montana will have to recruit and
develop an entire Death Squad for its two capital offenders. What’s more
likely, even if the motion for summary judgment fails, is that the ACLU will
win the right to a full and expensive hearing of its constitutional arguments,
complete with expert testimony and lots of courtroom time. There’s a further
risk, nay, a strong likelihood, that this hearing would probably end with a
demand for an even more expensive rewrite of the state’s execution procedures
book. (As a bonus, not one but 2 constitutions are involved here, and the state
constitution of Montana has a different standard for “cruel and unusual
punishment” than the federal law does.) The ACLU’s Ron Waterman more or less
openly admits to CP’s Bill Graveland that he hopes Gov. Brian Schweitzer will
take Smith’s age, maturation, and good behaviour into account and walk away
from this potentially very obnoxious game.
It might provide the governor an additional reason to say at least there’s been
litigation raised that questions the protocol, and this litigation is going to
extend out for years and years, and it’s time to put this to bed.
On the other hand, Montana won’t be able to execute anybody at all until its
execution manual is put to the judicial test. And there are still people around
who very, very much want to see Ronald Smith die on that gurney.
(source: macleans.ca)
CALIFORNIA:
Oakland Tribune endorsement: Proposition 34 -- California's death penalty has
got to go
California's death penalty is archaic, unfairly applied and fiscally insane.
More than 135 nations have abolished capital punishment, and the list of those
that still use it is a who's who of human rights abusers: Iraq, Iran, Libya,
China, North Korea and Sudan, for starters. Oh, and us.
This fall voters should make California the 18th state to repeal the death
penalty in favor of life in prison with no chance of parole. Vote yes on
Proposition 34.
Never mind moral arguments; the death penalty simply doesn't work. Since it was
reinstated in 1978, California has spent $4 billion on just 13 executions. We
are no safer.
Passing Proposition 34 will leave $180 million more per year in the general
fund, where it can be spent on preventing crime rather than retribution:
improving schools, for example; it's not straight-A students who pack jails. Of
that amount, $30 million would go to law enforcement to help solve more
homicide and rape cases. That's surefire crime prevention, locking up the bad
guys.
The proposition also requires inmates to work in prison and turn over earnings
to crime victims.
Death penalty supporters argue that the lengthy appeals that run up public
costs should be cut short or ended. That works in barbaric nations that
immediately execute prisoners. But it doesn't deal with a major reason other
states have abolished the death penalty: increasing evidence that innocent
people have been executed. More than 100 inmates have been freed from death row
nationwide in the past 35 years. California has had none so far, but with more
than 700prisoners on death row and improving forensic techniques, the
likelihood of finding errors is ever more likely. Why not just lock people away
for life?
Guilt or innocence aside, it's clear that the death penalty is unfairly applied
in California. A county-by-county study of death sentences from 2000-07 found
residents of Alameda County nearly eight times more likely to be sentenced to
death than residents of Santa Clara County. Blacks in California are sentenced
to death at a rate 5 times higher than their proportion of the population.
The tide is turning on support for the death penalty. California Supreme Court
Chief Justice Tani Cantil-Sakauye, nominated by Republican Gov. Arnold
Schwarzenegger, said in 2011 that the death penalty is "no longer effective"
here. Donald Heller, the man who wrote the 1978 proposition that brought back
capital punishment, now favors abolishing it. So does Jeanne Woodford, a former
warden of San Quentin prison.
Executions are barbaric, yet do not prevent crime any more effectively than
life in prison. Because the high costs of death row pull money away from
education and from police departments struggling to take active criminals off
the street, it is making Californians less safe, not more.
Voters need to end it Nov. 6.
(source: Oakland Tribune Editorial)
*************
Against the death penalty, won’t say why
Advocates for Proposition 34, the ballot measure to end California’s death
penalty, came to the Chronicle editorial board Tuesday. Their argument is
pretty simple. They say the death penalty is dysfunctional and a poor use of
taxpayer dollars. They tried very hard to stay on message, so I asked them,
“Are you morally opposed to the death penalty?”
2 of the advocates wouldn’t answer the question.
Proposition 34 campaign manager Natasha Minsker would not answer the question.
When I asked her for a yes or now answer, she responded, “It’s not really my
view of the issue.”
Former L.A. County D.A. Gil Garcetti said no.
Former San Quentin warden Jeanne Woodford said, “Yes, I’ve always morally been
opposed to the death penalty ” — even though she oversaw executions in her
previous life.
Franky Carillo – was convicted of 1st-degree murder, then exonerated two
decades later — said yes. (By the way, Carillo refers to himself as “Innocent
and Executed: It Could Have Been Me.” But he never was sentenced to death, so
that claim is inaccurate.)
Murder victim family member Deldelp Medina said yes.
Proposition 34 Communications Director Miriam Gerace talked about other
people’s views and answered, “There is a mix here of views and common purpose.”
When I asked, yes or no, she said, “Last I checked, I wasn’t on trial.”
Finally she said, ”I personally am not in favor of the death penalty.” I don’t
se why Gerace simply wouldn’t answer that she had a moral objection.
I may disagree with people who have moral objections to the death penalty, but
I can respect that position. Instead, I am left wondering why the folks behind
the Prop. 34 campaign don’t want to say if they are morally opposed the capital
punishment. Not very transparent.
(source: Debra Saunders, San Francisco Chronicle)
SOUTH CAROLINA:
SC man walks free after serving 11 years on death row
A man who served 11 years on death row after being convicted of killing his
girlfriend and their unborn child in 1993 has walked free after a jury decided
last week that he did not intentionally kill them.
Joseph "Jody" Ard was released from the Lexington County Detention Center
shortly before 6 p.m. Tuesday.
He had spent the last 7 years awaiting a retrial in the death of 17-year-old
Madalyn Coffey and the 35-week-old fetus she was carrying.
Prosecutors convinced the jury that Ard shot Coffey intentionally. The fetus,
according to the prosecution, died from lack of oxygen. Ard, on the other,
hand, said that the .44-caliber gun went off accidentally during a struggle.
There were no witnesses to the shooting.
Ard became the 1st South Carolinian to be sentenced to death for killing a
fetus. Later that year, the state Supreme Court upheld that decision.
A new defense team continued working for Ard after the conviction. They found
what they believed was a key piece of evidence that was not included in the 1st
trial.
"They did it," Ard said in praise of his attorneys. "They fought for me hard
and they cleared my name."
They brought the new evidence forward during a re-trial this month. The
defense's core argument was that Coffey had gun residue on her hand, which
pointed to the defense's theory that Coffey and Ard were fighting for the gun
when it accidentally fired.
The prosecution chose not to seek the death penalty in this trial.
In the end, the jury convicted Ard of involuntary manslaughter and the judge
sentenced him to 5 years in prison for each count.
Because Ard had already spent nearly 19 years in the corrections system, he
received credit for time served.
According to defense attorney Aimee Zmroczek, Ard accepts responsibility for
the deaths, but maintains he did not shoot Coffey on purpose.
"Nobody's happy about the loss of Madalyn or Jeremy, and nobody is more
affected I think than Jody." Zmroczek said.
But in the end, Ard said he wanted to do just one thing after his release.
"I just want to go home and surprise my momma," he said.
(source: WYFF News)
USA:
Mental Incompetency May Require a Stay of Capital Post-Conviction Proceedings,
ABA Urges Supreme Court
The American Bar Association is urging the U.S. Supreme Court to affirm Sixth
and Ninth Circuit rulings and hold that the federal statutory right to a lawyer
in capital habeas proceedings may require a judge to postpone the proceedings
if the prisoner is not mentally competent to communicate meaningfully with his
or her lawyer.
In an amicus brief filed July 27 in the Arizona case of Ryan v. Gonzales and
the Ohio case of Tibbals v. Carter, the ABA cites its Model Rules of
Professional Conduct and its other sources on legal ethics, criminal justice,
mental health and the death penalty.
“Throughout the ABA’s century-long commitment to the development of model
codes, standards, and guidelines, the ABA’s focus has been ensuring that all
clients, including capital habeas petitioners, receive quality legal
representation,” the brief states. “Having concluded that meaningful
communication between a client and his lawyer is essential to an effective
attorney-client relationship, the ABA respectfully urges this Court to hold
that the statutory right to an attorney under 18 U.S.C. § 3599 must include
knowing, rational communication and decision-making by the prisoner and an
appropriate stay when the prisoner is not competent to participate.”
The brief calls on the court to require judges to use a flexible standard,
based on the petitioner’s particular incompetency and the case’s circumstances,
in determining whether a stay in proceedings is appropriate.
Oral arguments for the cases are scheduled for Oct. 9.
(source: ABA Now)
UTAH:
Man deemed mentally retarded is spared from death penalty
A man accused of murdering Millard County sheriff's deputy no longer faces a
possible death sentence.
Roberto Miramontes Roman, 40, is charged with capital murder, accused of
shooting and killing deputy Josie Greathouse Fox during a traffic stop near
Delta in 2010. Fox, 37, was shot twice in the chest. But a judge has determined
that Roman is "mentally retarded" and ineligible to receive the death penalty.
Final arrangements were made Tuesday for Roman's two-week trial, which is set
to begin Aug. 13. If convicted, Roman could have received the death penalty.
But after multiple examinations and a two-day hearing on the matter, 4th
District Judge Donald Eyre determined the man was "mentally retarded."
In his decision, (Judge) Eyre cited a 2002 U.S. Supreme Court ruling that
determined that defendants who have mental retardation cannot be executed under
the eighth amendment.
In his decision, Eyre cited a 2002 U.S. Supreme Court ruling that determined
that defendants who have mental retardation cannot be executed under the eighth
amendment. The judge referred to the testimony of one psychologist who
determined Roman was "an outlier in his family" who required additional help
and support "because he was seen as impaired," the ruling states.
Another doctor said 2 informants reported that Roman may have been born with
perinatal anoxia, in which oxygen is cut off to the infant during the birthing
process.
Eyre quoted another psychologist who noted that someone who is "mentally
retarded" may not have an obvious impairment and may still drive, work and gain
an education, but found that Roman's frontal lobes were "deficient, which in
turn explains his lack of reasoning and impulse control."
A number of tests indicated Roman has a low IQ and low academic functioning
levels. The judge said that while Roman's IQ score was a 71, one point above
the sometimes-used cutoff point of 70, he had other concerns.
"The court finds that the defendant has still demonstrated that his deficits in
general intellectual functioning are significant," the ruling states.
Noting various doctors' reports, adaptive functioning problems, reasoning and
impulse control deficits and after sorting through other factors, Eyre
determined Roman is, in fact, "mentally retarded" and removed the death penalty
as a possible sentence. Prosecutors later withdrew their notice of intent to
seek the death penalty.
On Jan. 5, 2010, Roman was taking a drive and smoking methamphetamine with
Fox's brother, Ryan Greathouse, when he saw a car in the distance and said he
planned to open fire if it was a police vehicle, according to court testimony.
Greathouse exited the vehicle and, soon after, Fox initiated a traffic stop.
Roman allegedly told police that he was angry he was pulled over when he took
care to stay in his lane and follow the speed limit. Believing he was being
stopped "because he was Mexican," Roman reportedly told police he caught a
glimpse of the police officer and immediately started shooting, according to
court testimony.
Ryan Greathouse was found dead in a Las Vegas bedroom a few months after the
shooting.
In addition to aggravated murder, Roman also faces charges of tampering with
evidence and possession of a dangerous weapon by a restricted person in
connection with Fox's death.
(source: KSL News)
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