Sept. 2
TEXAS:
Oklahoma Chases the Texas Political Homicide Record
The question is not whether you will execute an innocent person in a state that
executes criminals. Oklahoma and Texas are engaged in a competition right now,
a sort of Red River Shootout off the football field, to address the real
question.
For context, remember that Texas has the 4th largest Indian population among
the states in the 2010 Census. Oklahoma is number 2. Since the death penalty
was reinstated in 1976, 16 Indians have been executed, a percentage of
executions over twice the percentage of Indians in the general population. Of
those, Oklahoma killed one and Texas killed 2, which would put Texas ahead if
the competition were simply how many Indians do you kill.
There are currently 31 Indians on death row. 12 are from California and the
rest are distributed among Arizona, Florida, Oklahoma, Oregon, Tennessee, Utah,
and there is 1 federal prisoner under sentence of death. There are no
identified Indians currently on the Texas death row.
Can an innocent man be convicted of capital murder in these United States?
Since 1973, 155 people have been exonerated off of death row after an average
stay of 11.3 years. Only 20 were exonerated by DNA, but to make the list, the
defendant must have been (1) acquitted after a new trial or (2) had all charges
dropped or (3) gotten an absolute pardon based on new evidence of innocence. No
American Indians appear among the 155 exonerations, but since only 60 of the
innocent death row residents were white, the dearth of Indians is a combination
of luck and the fact that only 1 tribe has opted in to the federal death
penalty.
Texas
Texas is gearing up for Mark Norwood's capital murder trial. If that name is
too obscure, try Michael Morton, the man who got life in prison for the murder
of his wife and served 25 years before DNA evidence that exonerated him pointed
to Norwood, who has been convicted and is serving the sentence he put off on
Michael Morton. 6 of those years were served during the legal battle to get the
DNA testing.
Besides the tragedy of an innocent man serving 25 years, another woman, Debra
Baker, was killed with the same modus operandi, leading to speculation that
Baker died because of a now-deceased sheriff and a district attorney named Ken
Anderson too lazy to follow the evidence beyond the obvious suspect in a
criminal homicide, the spouse.
DA Anderson was later appointed a district judge by Governor (and presidential
candidate) Rick Perry, but after the Morton exoneration Anderson lost his
judgeship, his law license, and did 10 days in jail, reduced to 5 for good
behavior. While this pales before the 25 years his victim served, the fact that
Anderson's misconduct caught up with him and destroyed his career is an
exceedingly rare and therefore welcome result.
Anderson's protege John Bradley, the district attorney appointed by Perry to
replace Anderson and who opposed the DNA testing that freed an innocent man for
6 years, was defeated in the next election.
Besides keeping Michael Morton behind bars for an extra 6 years, John Bradley
made history when Gov. Perry replaced the head of the Texas Forensic Science
Commission with Bradley just 2 days before it was scheduled to review an expert
report on Cameron Todd Willingham's case. Willingham was executed for homicide
by arson after Perry refused to stay the execution on the ground that the 1st
real expert investigation showed there was no arson. The expert Perry ignored
would not be the last to opine on the Willingham evidence.
Huffpost published the narrative that is the Willingham story:
Willingham was executed by lethal injection on Feb. 17, 2004. Yet the efforts
to exonerate Willingham only intensified, and in 2005, the Texas Forensic
Science Commission decided to re-examine the case. The commission hired a
nationally known fire scientist, Craig Beyler, to evaluate the evidence, and in
his report, he came down on the same side as the scientists who had evaluated
the case prior to Willingham's execution: there was no credible scientific
basis for the conclusion that arson had been committed.
Beyler was eventually scheduled to testify before the commission on Oct. 2,
2009. 2 days before Beyler's appearance, however, Rick Perry put a stop to it.
There was speculation at the time that Perry did not wish to grant a stay of
Willingham???s execution because he was locked in a serious battle for
reelection against former Senator Kay Baily Hutchinson. Perry???s appointee
Bradley called off the review, but in spite of their best efforts, the
Willingham case has come to represent a political execution of an innocent man,
since the science did not go away when Bradley stopped the hearing.
Governor Perry, to be fair, was elected in a state that has been rabid about
killing killers. Former Gov. Ann Richards took a political bath when she gave a
man on death row a thirty-day stay to being forward evidence of innocence. Even
former Gov. George W. Bush was criticized when he commuted the death sentence
of a known serial killer who was shown to have been on a job site in Florida
when the crime he was about to be killed for was perpetrated in Texas. In the
Texas political context, the fact that the man was innocent of the crime for
which Texas was about to take his life was "a technicality."
After Bradley's 2 run-ins with innocence in homicide cases - Morton and
Willingham - he found himself unable to find a job. At last notice, he was an
assistant attorney general in the Republic of Palau, an island in Micronesia of
about 20,000 souls that is a former U.S. territory independent since 1994.
Then-Gov. Rick Perry, who had previously appointed Bradley first district
attorney and then chair of the Texas Forensic Science Commission, visited Palau
shortly before Bradley landed the job. Perry was on a political photo op
mission to search for the remains of missing WWII airmen. The government of
Palau declared Perry an "Honorary Consul" during his visit. The Houston
Chronicle questioned whether Perry had interceded on Bradley's behalf, but
Perry had no comment.
Since Cameron Todd Willingham, the innocent man, was killed by Texas in 2004
and the innocent Michael Morton was released back in 2011, it's important to
demonstrate Texas is still in the game of convicting innocent people of serious
crimes if it's to be compared to Oklahoma.
This year, Charles Sebesta, a Texas district attorney for 25 years, followed
ex-Judge Ken Anderson in losing his law license for using testimony he had
reason to know was false to put a man on death row for 12 years.
I can't report this without noting that I had cases against Sebesta when
practicing law, and while he was pretty tightly wrapped, he did not strike me
as the kind of man to kill for political reasons. He continues to deny it, but
his denials do not cover everything in the judgment taking his law license.
Sebesta did not handle the case that got him disbarred in a manner fitting for
taking a man's life, but I believe to a moral certainty that Sebesta believed
then and believes now that he was doing his best to kill a killer, a fool's
errand demanded by the voters. As long as the voters make that irrational
demand, it's hard to blame elected officials for catering to it.
Texas has so far 13 exonerations from death row. But remember, the question is
not if a death penalty state will kill an innocent person.
Oklahoma
Oklahoma racked up some extra points for brutality when it botched the
execution of Clayton Lockett on April 29, 2014. Oklahoma Gov. Mary Fallin had
ignored an Oklahoma Supreme Court order to stay the execution, but that bit of
lawlessness slipped from notice when Lockett was injected with the 1st drug in
a 3 drug "cocktail" that was supposed to render him unconscious for the drugs
that would first paralyze him and then stop his heart. If he were conscious,
the 2nd drug would cause major panic and the third would cause excruciating
pain.
Lockett was not rendered unconscious by the 1st drug, midazolam. He gasped and
struggled for over 40 minutes as the executioners first closed the curtain to
take the debacle out of view of the legal observers and then, finally, decided
to stop the attempt to kill Lockett - who then, they claimed, died of a
coincidental heart failure.
If the public was fascinated by this debacle, another audience was positively
riveted: the other residents on Oklahoma's death row, and other death rows in
states cued up to try midazolam for the ultimate off-label use.
The objection was to becoming human subjects in a painful science experiment
and the case was styled Warner v. Gross, but Charles Warner was executed and it
got to the Supreme Court as Glossip v. Gross, where the Court made Richard
Glossip an involuntary lab rat by a 5-4 vote.
Ironically, the case that will have Richard Glossip's name on it is about
whether the method used to kill him is "cruel and unusual punishment" and so
unlawful under the Eighth Amendment. Glossip would rather dispute his guilt and
ask about the propriety of executing an innocent man, apparently not having
gotten my memo that the question is not whether a death penalty state will kill
an innocent man.
Is it possible that Glossip is in fact innocent? It's not only possible, it's
likely. There is no question that another individual killed the victim or that
the guilty person is mentally challenged, although it's unclear if his
challenges are severe enough that he cannot be executed.
The killer is not on death row because he was offered his life in exchange for
saying that Richard Glossip hired him to kill the victim. In return for his
testimony to that effect, Oklahoma did not seek the death penalty. He is now
serving life without possibility of parole.
The legal and moral problem is that the self-serving testimony of the admitted
killer did not lead to any corroborating physical evidence and there is no
credible motive for Glossip to kill the victim, who employed both Glossip and
the killer.
To call the case against Glossip "weak" is almost being charitable. His
impending execution is set for what is a major holiday in much of the
Southwestern Borderlands, Diez y Seis de Septiembre - September 16 - which
commemorates the Grito de Dolores that kicked off the war for Mexican
independence.
Sullying a holiday with the execution of an innocent man is one of the ways you
know you are in Oklahoma. Glossip's impending death by homicide for a homicide
he probably did not commit has motivated lots of supporters, including Sister
Helen Prejean of Dead Man Walking fame and the actor who played Prejean when
the book was filmed, Susan Sarandon.
Among the people who have spoken up for Glossip's innocence is the admitted
killer's daughter, who has written her opinion that Glossip is innocent and her
father wants to recant but fears that would lead to joining Glossip on death
row.
Oklahoma Governor Mary Fallin has a record of doing politics with convicted
killers without regard for the quality of the conviction that rivals Rick
Perry's. As Mexican politicians perform the Grito de Dolores in public places
and Texas indulges a more low key celebration with barbacoa, Indian Territory
(now Oklahoma) marks September 16 by executing a man who is probably innocent,
or at least by conducting a deadly science experiment even if he's guilty.
All of which leads to the question that goes begging in the death penalty
debate, where so many people want to pretend the issue is whether a death
penalty state will kill an innocent person.
Of course it will. Rick Perry and Mary Fallin are not outliers. The real
question, and the subject of this ersatz Red River Shootout, is how many
innocent people in each death penalty state will be a sacrifice to political
ambition.
(source: indiancountrytodaymedianetwork.com)
PENNSYLVANIA:
Judge dismisses 'ridiculous' appeal by Easton triple murderer
Facing the death penalty in 2011 on charges he gunned down 3 people in an
Easton home, a New Jersey man agreed to put his fate in the hands of a judge,
and not a jury..
Olayiwola Hollist's decision had its logic: By opting for a bench trial, the
Newark man secured an agreement from Northampton County prosecutors that they
would not seek his execution if he was convicted.
But Hollist, who was found guilty of 1st-degree murder and sentenced to life in
prison, now says he had an entirely different reason for taking the deal.
Before he did so, he maintains, he was assured by an investigator for the
defense that the judge in the case, Stephen Baratta, was predisposed toward an
acquittal.
That claim was called "absurd" by Baratta on Tuesday, though he granted that it
was "novel." Baratta did so as he dismissed an appeal by Hollist, who is
seeking a new trial by claiming that his court-appointed lawyers failed him.
"Do we need to address this ridiculous theory for relief - that Hollist was
cheated out of his constitutional right to a jury trial because he relied on
his mitigation expert who told him to waive his right to a jury trial because
the fix was in? ... We think not," wrote Baratta, who is now the county's
president judge.
Hollist and a co-defendant, Demar Edwards, were convicted 4 years ago by
Baratta of what is still Easton's bloodiest slaying ever, a gangland killing at
an apartment on North 13th Street in the West Ward.
On Nov. 29, 2007, Hollist was 1 of 4 men who drove from New Jersey for a hit in
which 3 people who were dressed for bed were shot execution-style, according to
testimony. The victims were Alphe Rene, 20; Aleah Hamlin, 19; and Chanel
Armour, 23. Authorities said they were murdered as retaliation between Bloods
gang factions for killings in the Garden State in the days before.
In 2013, the Superior Court affirmed Hollist's conviction at appeal. That led
to a legal challenge last year under the state's post-conviction relief act,
which allows defendants to argue their lawyers were ineffective.
Baratta's 24-page opinion rejected all of Hollist's claims, finding that lead
defense attorney Charles Banta gave his client sound advice and pursued a
reasonable strategy at trial. But it was Hollist's assertion of a promised fix
that the judge's decision spent the most time on.
In May, Hollist testified that his mitigation specialist, Harvey Ellis, made
the claim during a private conversation advocating for him to waive his right
to a jury.
"He said he knows that Stephen Baratta has reasonable doubt to find me not
guilty, and if I went with Stephen Baratta, it would be in my best interest,"
Hollist said in court, according to Baratta's ruling.
"That's what he made it seem like, that the judge was going to make sure that
everything was done right and the right thing would be to find me not guilty,"
Hollist also said.
Baratta said Hollist knew what he was doing when he opted for a bench trial,
and he pointed to lengthy questioning that the defendant underwent before his
decision was accepted.
"That claim that he was tricked by his expert into believing that a nonjury
trial would be a corrupt proceeding where he would be found not guilty, and as
a result, he foolishly waived his jury trial, is not supported by the record
and [is] unworthy of further discussion," Baratta said.
Hollist's appellate attorney, Phillip Orlando Robertson of Altoona, Blair
County, did not return a phone call Tuesday seeking comment.
Reached at his home in Warminster Township, Bucks County, Ellis laughed when
told by a reporter of the allegation.
"I don't think so," said Ellis, 74, who is retired. "I don't think that ever
would have happened."
Hollist, 31, is jailed at Houtzdale State Prison in Clearfield County. Edwards,
36, is also under a life sentence, as is 27-year-old Ali E. Davis, who was
convicted at trial in 2010.
A fourth defendant, Lewis A. Gray, 38, is serving 13 to 26 years in prison. He
cooperated with prosecutors after taking a plea deal to conspiracy charges.
(source: Morning Call)
FLORIDA:
Florida Man Found Guilty of Killing Boss and Her Husband
A Tampa Bay area man faces a possible death sentence for fatally shooting his
boss and her husband.
A Hillsborough County jury found 35-year-old Julian Ospina-Florez guilty
Tuesday of 1st-degree murder. The same panel will reconvene later this week to
recommend life in prison or the death penalty. A judge will make the final
decision.
Hector and Debra Rivera were found dead at their Tampa mansion in January 2012.
Ospina-Florez had worked for Debra Rivera as her driver and helper in her
jewelry business. He called 911 after the shootings, claiming he had been tied
up by an unknown assailant.
But authorities say the murder weapon -- a gun found in a locked drawer --
belonged to Ospina-Florez, and a box of ammunition with 10 rounds missing was
found inside his car.
(source: WCTV news)
ALABAMA:
Drug company named in lethal injection case----Firm says use of drug in death
penalty against its policies
Add another drug company to the list of potential sources of Alabama's death
penalty drugs - a list state officials have long tried to keep secret.
Court documents filed last month in the case of death row inmate Tommy Arthur
suggest New Jersey pharmaceutical manufacturer Becton Dickinson could be a
maker of the midazolam Alabama uses as the 1st element of its 3-drug execution
protocol.
The company, in a written statement, said its drugs are not intended for sale
to U.S. prisons, and that its distributors have been warned of that fact. The
company will take an "appropriate course of action" against any distributor
found selling midazolam to prisons, according to the statement.
The new documents are not the 1st time lawyers have dropped the name of a
drugmaker in court, though state officials have long declined to publicly name
the sources of their lethal injection drugs.
"A company that's not involved in lethal injection would be very concerned
about the potential unfair damage done to them by their association with
executions," said Robert Dunham, executive director of the Death Penalty
Information Center, a nonprofit which studies the death penalty. "A company
that is involved would be rightly concerned about the consequences of being
known to be involved."
Alabama hasn't executed an inmate in more than two years. Drugs once used for
lethal injection have become scarce as major drug companies - particularly
those headquartered in Europe, where there's strong opposition to capital
punishment - have backed away from providing those drugs to prison systems.
Several inmates have challenged the constitutionality of the state's current
execution drug protocol, which consists of midazolam to kill pain, rocuronium
to relax the muscles, and finally, potassium chloride to stop the heart.
Inmates claim midazolam doesn't kill the pain of execution and thus violates
the ban on cruel and unusual punishment.
For the past 2 years, lawmakers have proposed bills to make the names of
Alabama's lethal injection drug suppliers secret. Those bills didn't pass, but
state officials still decline to name the sources of their drugs, citing a gag
order in Arthur's case. Many of the documents in that case are sealed, and many
non-sealed documents contain redacted passages.
Earlier this year, however, state officials included a "package insert" -
essentially manufacturer's instructions - for midazolam produced by
Illinois-based Akorn Pharmaceuticals as an exhibit in the case. The company
denied selling any midazolam directly to the state.
More recent court documents refer to a similar package insert from Becton
Dickinson. In a court order issued Friday, U.S. District Judge W. Keith Watkins
ruled that Arthur's lawyers could conduct depositions to find out which
company's insert best applies to the drugs used in Alabama's executions.
Consequences
When Akorn's package insert surfaced in court documents earlier this year, the
company said it "strongly objects" to use of its drugs in executions. Akorn
later announced it would restrict sale of midazolam to wholesalers who "use
their best efforts" to prevent sale of the drug to prisons.
Becton Dickinson took a similar position in its Tuesday statement, sent by
public relations director Troy Kirkpatrick.
"All of our distributor partners have previously received formal notification
... that our products are not intended for use in U.S. prisons including state
and federal penitentiaries," the statement read.
Becton Dickinson did $163,905 in direct business with the state so far this
year, and $156,162 in fiscal 2014, but all those sales appear to have been to
the Department of Public Health, not the Department of Corrections.
Dunham said it's possible for a drugmaker's products to be used in an execution
without the company knowing it. But association with lethal injection is
increasingly problematic for companies both ethically and from a marketing
standpoint, he said.
"A company's good name is worth a fortune," Dunham said.
He cited the example of Mylan, a producer of rocuronium bromide, one of the
drugs Alabama uses for lethal injection. According to Reuters, a Dutch public
employees' pension fund last week divested itself of stock in Mylan. Mylan has
said its drugs are not intended for use in capital punishment, but according to
Reuters, pension fund managers thought the company wasn't doing enough to
control use of its drugs.
Changing tactics
The judge's order comes as Arthur and other death row inmates search for a new
defense in the wake of a U.S. Supreme Court decision upholding the use of
midazolam in executions.
An Oklahoma inmate, citing a botched 2014 execution which took more than half
an hour, argued that midazolam shouldn't be used to kill inmates. The high
court disagreed.
"The prisoners failed to identify a known and available alternative method of
execution that entails a lesser risk of pain," Justice Samuel Alito wrote in
the opening lines of the majority opinion. The death penalty itself hasn't been
ruled unconstitutional, Alito wrote, and there must therefore be a
constitutional way to carry it out.
Lawyers for Arthur, who was convicted in the 1980s murder-for-hire of a Muscle
Shoals man, have since argued that Alabama does have alternatives, including
the firing squad.
"Execution by firing squad, if implemented properly, would result in a
substantially lesser risk of harm than the state's continued use of the d-drug
protocol involving midazolam," wrote Suhana Han, attorney for condemned inmate
Tommy Arthur, in a court motion.
Arthur has also argued that the state could buy sodium thiopental - once the
1st drug in Alabama???s execution protocol - from a drugmaker in India, or
could hire a compounding pharmacist to mix the drug pentobarbital in small
batches.
Pentobarbital, too, was once used by the state to kill inmates. Arthur
challenged the constitutionality of that drug in his original 2011 suit against
the state.
"Arthur cannot pretend that he has never adopted the position ... that
pentobarbital violates the Eighth Amendment because it will cause him to have a
heart attack and suffer a painful death before its anesthetic effects are
achieved," lawyers for the attorney general's office wrote in a motion for
summary judgment. Attempts to reach a spokesman for Arthur's legal team were
unsuccessful Tuesday. Joy Patterson, a spokeswoman for the attorney general's
office, said the office would not comment further on the case.
The judge's Friday order blocks Arthur from directly seeking information about
the sources of the state's drugs, their expiration dates and any effort by the
state to adopt an alternate form of execution.
Discovery in the case must be completed by Nov. 15, Watkins ordered.
(source: Anniston Star)
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