Dec. 11
MISSOURI----impending execution
Execution delayed, could still happen today
A convicted murderer is still alive at this hour as the state awaits action by
the U.S. Supreme Court.
A federal appeals court is standing by a stay it placed on the execution of
41-year-old Allen Nicklasson. That caused Attorney General Chris Koster to
appeal to the U.S. Supreme Court to have the stay vacated, and the Court said
late last night it would not issue a ruling before 8 this morning.
Department of Public Safety spokesman Mike O'Connell says that has put the
execution on hold until at least 10 this morning, and security at the Eastern
Reception, Diagnostic and Correctional Center has been stepped down for the
night.
"We're still at a heightened state of security but we know that an execution is
not going to take place until at the earliest some time in the morning, so
we???ll just report back at about 8 o???clock in the morning and we'll await
word from the Attorney General and the U.S. Supreme Court."
O'Connell says an execution could still happen today.
"An execution warrant is good for a 24-hour period so it's good for all of
December 11."
Nicklasson was sentenced to death in 1996 for the 1994 murder of Richard
Drummond, a businessman who had stopped to help Nicklasson and 2 other men
whose vehicle broke down on Interstate 70. One of those men, Dennis Skillicorn,
was executed in 2009 for Drummond???s murder. The 3rd, Tim DeGraffenreid, is
still in prison.
Nicklasson and Skillicorn also killed a couple in Arizona who offered them help
when their car became stuck in the desert there. They were sentenced to life in
prison in Arizona.
Nicklasson had been scheduled to be executed on the morning of October 23 in
what was to have been the state's 1st use of the anesthetic propofol as an
execution drug. His execution was delayed amid controversy about the use of
that drug.
The state has since announced a protocol utilizing pentobarbital provided by an
unnamed compounding pharmacy, and the 1st execution using that method was
conducted November 20 on convicted murderer Joseph Paul Franklin.
Stays granted in capital punishment cases are not unusual and do not mean the
execution won't happen.
Last month 2 stays were issued before the execution of white supremacist Joseph
Paul Franklin. Like Nicklasson, his lethal injection was scheduled for 12:01 in
the morning but Franklin was not executed until after 6 that morning.
The Missouri Supreme Court denied a stay for Nicklasson on Monday.
(source: missourinet)
ARIZONA:
Arrest Made in Death of 14-Year-Old Arizona Girl
A suspect has been arrested in the death of a 14-year-old Mesa girl who was
assaulted, strangled and dumped in a trash container, police said Tuesday.
Alex Anthony Madrid, 31, was being held without bond on suspicion of 1st-degree
murder, according to Mesa police.
Authorities said Madrid doesn't have a lawyer yet and has refused to talk to
detectives about the death of Claudia Ann Lucero, whose body was found last
week.
Mesa Police Chief Ralph Milstead said Madrid was identified days ago as a
"person of interest" in the case and was linked by DNA and other forensic
evidence.
Milstead said he wants Maricopa County prosecutors to seek the death penalty.
Madrid was a friend of the girl's mother and had lived at the family's home at
one time, according to police.
"Over the past some weeks, he had been estranged from the family," Milstead
said. "It was known to detectives that Claudia was afraid of Alex. He had
inappropriately touched her, on occasion."
The body was found early Friday by 2 women digging through the trash container
for aluminum cans at the Sun Garden Apartments. Police said the girl was
identified Monday.
Madrid, a construction worker, originally was arrested on a probation violation
and other charges last Friday. Milstead said police wanted to keep Madrid off
the streets until investigators could determine if he was linked to the teen's
killing.
The girl was last seen at her home at 6:30 a.m. Thursday and didn't make it to
Westwood High School that day, police said. Her mother filed a missing-persons
report that night.
(source: Associated Press)
CALIFORNIA----new death sentence
South Lake Tahoe jury imposes death sentence for 1980s killings
A man convicted of killing 3 California teenagers in the 1980s has been
sentenced to death.
Lake Tahoe News reports a jury in South Lake Tahoe imposed the death penalty
against 62-year-old Joseph Michael Nissensohn after deliberating for about 90
minutes Tuesday.
Nissensohn was convicted of three counts of first-degree murder for the 1989
killing of 15-year-old Kathy Graves of South Lake Tahoe, as well as the 1981
slayings of 13-year-old Tammy Jarschke and 14-year-old Tanya Jones of Monterey
County.
He had served 15 years in prison for a murder in Washington state and was
nearing release in 2008 when prosecutors in Monterey and El Dorado counties
combined their cases and filed charges in the deaths of the teenagers.
Nissensohn is scheduled to be formally sentenced March 18.
(source: Associated Press)
USA:
Why a Fair Death Penalty May Never Be Fair
In the book of the year about the death penalty, author Evan Mandery chronicles
the ugly political process at the Supreme Court that spawned the nation's
roiling capital punishment laws.
The biggest news of 2013 about the death penalty in America did not come from a
court of law or from one of the nation's death rows. It did not come from the
public pronouncements of earnest conservatives who one after the other came out
in favor of abolition. It came instead from a Gallup poll released in October
that revealed that public support for capital punishment is at its lowest ebb
since November 1972???at 60 %.
That date is significant. Ten months earlier, in January 1972, the United
States Supreme Court had invalidated the nation's capital punishment statutes
(but not the death penalty itself) in Furman v. Georgia. The resulting public
backlash, Evan Mandery writes in his excellent new book about the topic, helped
push the Court to reverse course. By 1976, under the thin guise of "reformed"
capital laws, and under political pressure after an increase in crime rates,
the justices brought back the death penalty in Gregg v. Georgia.
That November 1972 polling figure from Gallup - 57 % approved the death penalty
that month-- was but a brief marker on an upward trail that saw support for
capital punishment reach 80 % in 1994. But it has descended ever since. There
are many reasons for the drop.
Conservatives point to the economic costs of capital punishment. Liberals point
to the racial disparities in capital sentencing. And people across the
political spectrum cite yawning death row exoneration figures - 143 at last
count - never mind the innocent who have been wrongfully executed.
Although the individual protections contained in the Bill of Rights never
should be dependent upon the whims and caprices of majority rule, public
opinion and the death penalty have always been inseparable. Mandery's work,
titled A Wild Justice: The Death and Resurrection of Capital Punishment in
America, is an important reminder of that link. There is no other way to say it
but this: The Supreme Court 40 years ago blinked on capital punishment -
blinked because of the public outcry at the very notion of eliminating the
death penalty by court order rather than by the political process.
And in blinking, in their zeal to cobble together a majority that would permit
executions, the justices who gave us our modern capital jurisprudence failed to
adequately articulate a legal theory that supports the death penalty in the
context of the Eighth Amendment's protections against "cruel and unusual"
punishment. Supporting a practice that embodies the most irreversible act our
government can do in our name, this is a baffling vacuum in constitutional law.
And yet it persists, 40 years after the Court was supposed to have "fixed" the
nation's capital laws.
Apart from reminding us of the Court's political sensitivities, and of the
justices' willingness to avoid tough constitutional questions when they can,
Mandery's book tells us that those states that pledged to do better after
Furman never fulfilled their end of the deal. But we shouldn't merely blame
Georgia, Texas or Alabama for wrongful capital convictions. In the name of
federalism, the Court never really demanded that states fix the constitutional
failures of their capital laws. And so states didn't - and 40 years later still
haven't.
To read Mandery's book is to be reminded both of the Court's limitations and of
the limitations of the bright men who inhabited it 40 years ago. What Mandery
does not address, what will be left to future historians to address, are the
reasons why the current justices of that court are so unwilling to confront the
obvious deficiencies in the nation's death penalty laws. Mandery explains well
why the justices fouled up Furman and Gregg. But what explains or excuses the
Roberts Court continuously ignoring the constitutional rights of condemned
prisoners and routinely justifying state practices that are both cruel and
unusual?
To cap off this year of death penalty coverage, here is my interview with
Mandery, conducted last week via email, and edited (a bit) for space.
--------------------------------------------------------------------------------
COHEN: One of the many remarkable things about reading your book is realizing
how similar (and still unanswered) are many of the big questions about capital
punishment. There is still an enormous racial divide in capital cases. There is
still a great deal of arbitrariness in the application of it. And yet the
Supreme Court has shown virtually no interest lately in addressing these
structural problems that were so fundamental to the Eighth Amendment debate in
1972 and 1976. What do you think accounts for that?
MANDERY: 2 mutually reinforcing dynamics are at work, I think: First, the
justices interpreted, and interpret, the surge in support for the death penalty
following Furman as a repudiation of the Court's involvement in a complicated
ethical question that historically had been the province of local control. This
interpretation is correct in my view. So, to the extent the Justices are
considered with the public???s esteem for the Supreme Court it may be logical
for them to tread lightly in this area.
2nd, perhaps in part because the Court has shown no interest in addressing
structural problems with the death penalty since McCleskey v. Kemp [a 1987 case
in which the Court rejected by a vote of 5-4 a challenge to capital punishment
based on evidence of racism], defense lawyers have reasonably shifted their
focus to case-specific claims that are more likely to prevail. Thus there's
less pressure on the Court to consider these claims.
COHEN: The "deal" that satisfied the justices in Gregg was that there would be
standards and certain procedural protections for capital defendants. There
would be the earnest consideration of mitigating and aggravating factors and
bifurcated trials. Those exist today - but they often are manipulated by judges
and jurors and prosecutors (and defense attorneys). Did the justices of whom
you wrote - specifically Powell, Stewart and Stevens - comprehend that such
standards might just be applied in the breach? Did they ever express (back
then) skepticism about the good faith of the actors in the criminal justice
system? And did they even serious discuss the import of indigent defense work
on the constitutionality of capital convictions?
MANDERY: One of the things that most surprised me about the history of these
cases is how little attention Powell, Stewart, and Stevens paid to the
specifics of the new statutes in 1976. Fervent abolitionists may crucify me for
this (the irony!), but I see a huge difference between a statute that reserves
the death penalty for a handful of the most egregious crimes - say killing a
police officer in the line of duty - and a statute that makes innumerable
murders death eligible, leaving it to prosecutors and juries to separate out
the worst of the worst.
None of the statutes in existence today and none of them in 1976 come close to
a "rational" death-sentencing scheme. But some statures are more irrational
than others, and at least one of the 1976 statutes was ludicrous. Texas's law
made almost every murder death eligible. Justice Stevens has said that he
regrets his vote in the decision upholding that law, Jurek v. Texas.
With respect to the other issues you raised, the justices did consider them,
but drew the opposite of the natural inference. Powell, a former president of
the American Bar Association, believed that effective lawyering could remedy
many of the arbitrariness problems of capital punishment.
COHEN: Your book understandably didn't spend much time evaluating the current
Supreme Court and its Eighth Amendment jurisprudence. Justice Anthony Kennedy,
the lone conservative willing to narrow the scope of the death penalty, has
helped outlaw it for juveniles and for the intellectually disabled. Is this
where this fight is headed - limitations, but not direct challenges to capital
punishment? Or do you think the increased use of DNA testing, which has
increased the number of capital exonerations, might generate traction toward
abolition?
MANDERY: We need to separate traction toward abolition in the public and the
Supreme Court. In the public, DNA evidence of wrongful convictions has been
extremely significant in undermining public support for capital punishment.
And, despite what Justices may say to the contrary, public opinion has some
indirect impact on the Justices' views and the outcomes of cases. But, DNA
evidence is unlikely to serve as the basis for the Court to overturn capital
punishment.
"DNA evidence is unlikely to serve as the basis for the Court to overturn
capital punishment."
Whatever its merits, for a variety of reasons the Court isn't likely to
reconsider it. If the Court is going to end the death penalty, it will either
be because of the trend against the death penalty or because of the
impossibility of implementing it non-arbitrarily.
COHEN: Today, almost double the number of states have abolished capital
punishment (18) than before Furman (10) was decided. Six of those 18 states
have abolished capital punishment since 2007 alone. Are we finally seeing the
political momentum that opponents of capital punishment were hoping for 40
years ago? And do you find it ironic that much of the momentum seems to have
come from the economic argument against the death penalty - that it is too
costly to undertake in a constitutional manner? MANDERY: I try to call the
individual arguments for and against the death penalty as I see them. For
example, most abolitionists would say that there is no evidence that the death
penalty deters. I think this is unfair. There is some evidence that the death
penalty deters. It doesn't deter very much, and only deters when it's used more
than our collectively conscience should tolerate, and I don't think deterrence
is the basis to resolve the debate one way or the other, but that's different
than saying no evidence exists.
The cost argument, however, is clear cut: The death penalty is incredibly
inefficient. A shocking statistic: Only about 1 in 10 people who are sentenced
to die are ever executed. This means that states are paying the up-front costs
associated with capital punishment - longer, more expensive trials, more
expensive confinement, more appeals - and only occasionally receiving the cost
savings of not having to imprison a criminal for his natural life.
COHEN: Blackmun. Stevens. Powell. The road to capital punishment is paved with
jurists and lawyers who endorsed it and later came to change their mind. In
your research, have you ever come across someone who has gone the other way?
Who had been opposed to capital punishment but had come, upon reflection and a
close look at America's capital regime, to embrace the punishment? And, if not,
why do think that is?
MANDERY: I met no one who went the other way, and I talked to a lot of people.
I don't think that's a reflection on the morality of capital punishment,
though. At least for me, the death penalty is a complicated moral question in a
way that, for example, gay marriage is not. I can't imagine a legitimate
argument restricting people from marrying based on their sexual orientation. I
can, however, imagine a reasonable debate about whether the death penalty is
ever justified.
The unidirectionality in the change of views stems from the fact that most of
the people I spoke with are lawyers (as I am). Lawyers believe their enterprise
is creating rational, predictable systems. If the past 40 years have proved
nothing else, it is that creating a rational, predictable system for separating
those who deserve to live from those who deserve to die may be beyond human
capacity.
(source: Andrew Cohen, The Atlantic)
****************
Supreme Court To Consider What Defines Intellectual Disability
How should states decide if someone convicted of a crime has an intellectual
disability, when the answer means life or death? This spring the Supreme Court
will wade back into these murky waters, 12 years after it took the death
penalty off the table for criminals with mental disabilities but left the
details to the states.
In its 6-3 decision in Atkins v. Virginia, authored by Justice John Paul
Stevens, the court prohibited states from executing anyone with "mental
retardation." Mental health professionals define it as substantial limitations
in intellectual functions such as reasoning or problem-solving, limitations in
adaptive behavior or "street smarts," and evidence of the condition before age
18. (Mental retardation is the term used in law, but most clinicians and The
Associated Press refer to the condition as intellectual disability.)
After the decision, most states stuck with the 3-pronged clinical definition,
but Florida, Georgia, Mississippi and Texas set their own standards. Under
Florida's law, if you have an IQ over 70, you???re eligible for execution
regardless of intellectual function or adaptive behavior.
Freddie Lee Hall, who has been on Florida's death row for more than 30 years
and scored in the mid-70s on IQ tests, is arguing the state's standard amounts
to unconstitutional punishment.
Most likely, the case won't result in a dramatic shift in national criminal
justice policy, but will further clarify who should and should not be eligible
for execution, said Ronald Tabak, an attorney who has represented multiple
clients with intellectual disabilities and chairs the American Bar
Association's death penalty committee.
"There is no reason to think that the court is taking this case because the
court loves that Florida is going against the norms of the mental health
field," Tabak said. "The more likely reason they granted (judicial review) is
... to say there are certain basic things about intellectual disability that
you can't exclude from consideration."
That's not the way Florida Attorney General Pam Bondi sees it. The Atkins
decision, she wrote in her brief to the Supreme Court, "expressly left the task
of defining retardation to the states," and Florida is free to adopt its own
standard for determining who has an intellectual disability.
"Freddie Lee Hall faces a death sentence for the 1978 murder of Karol Hurst,
and Florida courts have found that he is not intellectually disabled," said
Bondi. "We will urge the U.S. Supreme Court to uphold Hall's sentence."
The court's makeup has shifted since the 2002 Atkins decision. But if the
justices split along ideological lines, the vote could favor Hall, assuming
that swing vote Justice Anthony Kennedy sides with Hall, as he did with Atkins
in 2002. Arguments are set for March 3.
Similar cases are percolating beyond Florida. In Georgia, death row inmate
Warren Hill is fighting execution based on substantial evidence that he has an
intellectual disability. In Texas, where the courts use an anecdotal 7-part
test largely based on the characteristics of the fictional character Lennie
from John Steinbeck's novel "Of Mice and Men" to determine intellectual
disability, multiple prisoners have been executed in recent years even when
they've scored well below 70 on IQ tests.
Last year, Texas executed Marvin Wilson, who was convicted of murder in 1994;
his IQ ranged from 61 to 79 on tests. In 2010, Virginia executed Teresa Lewis
for her role in a murder-for-hire scheme, even though she had an IQ of 72 and
her co-conspirators admitted Lewis did not plan the murder.
These are the types of cases advocates want the Supreme Court to revisit. "It's
our hope that the court will clarify that states must use the clinical
definition for intellectual disability...not only for current cases but for
future cases, too," said Margaret Nygren, executive director and CEO of the
American Association of Intellectual and Developmental Disabilities.
Borderline Cases
Freddie Lee Hall was convicted of co-planning and carrying out the murder of
21-year-old Karol Hurst in Leesburg, Fla., in 1978. After spending the day
scouting the parking lot of a local grocery store with his partner, Mack
Ruffin, Hall forced Hurst, who was seven months pregnant, into her car and
drove her into the woods. There, Ruffin sexually assaulted and shot Hurst. A
jury convicted Hall of first-degree murder for his role in the murder scheme.
Since Hall was sentenced to death in 1981, he has made multiple appeals based
on his low IQ, which varied from 71 to 80 depending on the tests and their
margins of error.
"He has been the same ever since I've known him, and he has the mind of a
child," said his attorney, Eric Pinkard, who has been working with Hall since
1999.
In multiple hearings to prove his intellectual disability, Hall's family and
longtime friends testified about Hall's struggles with reading, writing and
caring for himself and recounted how Hall experienced abuse, starvation and
torture as a child. The Florida courts decided that even though Hall had limits
in functioning and adaptive behavior, because his IQ scores were not below 70,
Hall did not have an intellectual disability and could be executed.
It's these borderline cases where the individual state implementations matter,
said Nygren. "Intellectual disability, like genius, is on a continuum," Nygren
said. "It's challenging for states to legislate that this person is 'in' or
'out.'"
Still, the court shouldn't wade too much into the specifics of setting
protocols to define intellectual disability, said Kent Scheidegger, legal
director of the Criminal Justice Legal Foundation, which advocates for victims
of crime.
"If the Supreme Court gets into issues like these and declares them to be
federal constitutional mandates," Scheidegger said, "we will have a long
stretch of litigation as the high court resolves one issue after another, never
reaching the end."
Making that determination is generally subject to clinical judgment, said
Nygren. "Clinicians must pick scientifically valid tests that are culturally
relevant and standardized, but also individualized," Nygren said. "For
instance, if someone's been in jail for last 5 years, it's hard to evaluate if
they're good at managing money since they don't have money to manage. That's
where clinical judgment comes in."
Beyond IQ tests, the disability manifests in limitations in learning and
reasoning, and difficulty with social skills, personal care and language. These
factors are just as relevant as an IQ test score, which, said Nygren, "is never
going to give you 100 % (certainty), even though that's the expectation placed
on the test."
Advocates like Nygren want the court to require states to pay more attention to
margins of error when determining intellectual disability. Leaving the
determination of mental disability to the states, "has given states a lot of
leeway to do mischief with the definition of intellectual disability," said
Brian Kammer, executive director of the Georgia Resource Center, which provides
free legal services for death row inmates.
For instance, Georgia requires defendants to prove their intellectual
disability "beyond a reasonable doubt," the highest standard of proof in the
criminal justice system. Georgia is the only state that requires such a high
burden of proof and the legislature is considering lowering the standard in the
next legislative session.
Death Sentences Down
Still, the Atkins decision has had an impact on executions. At least 98 people
have had their death sentence changed since 2002 by proving that they had an
intellectual disability, according to data from the Death Penalty Information
Center. By their count, in the 18 years before the Atkins decision, at least 44
people who likely suffered from intellectual disabilities were executed.
Nationally, states are carrying out fewer death sentences than they have since
the penalty was reinstated in 1976. So far in 2013, 36 people have been
executed in 9 states. In 2012, 43 people were executed in 9 states.
(source: Disability Scoop)
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