Dec. 10
VERMONT:
Juror whose conduct upset death penalty case loses state job
The Vermont Supreme Court has upheld the firing of a state Transportation
Agency official whom the state Supreme Court accused of "serious misconduct" as
a juror in a death-penalty trial.
The high court on Friday ruled John Lepore's dismissal as an environmental
biologist with the state agency was proper.
Court documents say Lepore, of Northfield, secretly traveled to a crime scene
in Rutland during the 2005 federal death penalty trial of Donald Fell in the
abduction and killing of Terri King, 53, of North Clarendon, in November of
2000. The documents say he later lied under oath about his actions and was
dishonest with officials at the Transportation Agency.
The Burlington Free Press reports (http://bfpne.ws/2gm2euv ) the court said his
actions brought discredit to the state.
Lepore could not be reached
(source: Associated Press)
DELAWARE:
Delaware quietly disbands death row
As Delaware's Supreme Court weighs whether 12 men sentenced to death should be
spared from execution, prison officials have quietly disbanded the state's
death row and moved its former occupants to other housing.
Prison officials say the move, which occurred in August, resulted in former
death row inmates having 5 times more recreational time than they had before,
and in some cases, sharing cells with other inmates who are not facing the
death penalty.
"It's gone well," Department of Corrections Commissioner Robert Coupe told The
Associated Press this week. "Some of the inmates initially preferred not to
interact ... but we continued to work with them through our behavioral health
folks and eventually all of them were moved out of what was formerly known as
death row."
The former death row space is now being used as general maximum security
housing.
Officials said the move comes amid evolving standards for treatment of inmates
in restrictive housing settings and will help the DOC keep its American
Correctional Association accreditation.
In an August revision of its standards, the ACA said inmates in extended
restrictive housing should have access to educational services, commissary
services, library services, social services, behavioral health and treatment
services, religious guidance and recreational programs.
"Although services and programs cannot be identical to those provided to the
general population, there should be no major differences for reasons other than
danger to life, health, or safety," the ACA said.
Delaware officials said they were already working on a revision to restrictive
housing standards when the ACA issued its guidance.
"It was already in the works," said DOC spokeswoman Jayme Gravell.
But Coupe said the change was not related to a recent settlement in a federal
lawsuit by the Community Legal Aid Society alleging that mentally ill inmates
in Delaware have been subjected to solitary confinement without proper
evaluation, monitoring and treatment. Under the settlement, the Department of
Correction agreed to limit the length of time inmates spend in disciplinary
housing and increase the amount of unstructured recreation time available to
inmates in certain maximum security settings.
Inmates in restrictive housing, formerly known as solitary confinement,
traditionally have been kept in their cells for up to 72 hours at a time, with
only three hours outside their cells each week for exercise and showers.
Officials said inmates sentenced to death will now be offered 17.5 hours of
unstructured recreational time per week.
"They definitely have more freedom than they would in the SHU," Coupe said,
referring to the secure housing unit at the maximum security prison in Smyrna.
Coupe said DOC officials believe the change is "humane" and beneficial to both
the inmates and the institution.
Officials said 12 of the former death row inmates are now in "medium housing,"
where nine of them are sharing cells with other inmates who have not been
sentenced to death.
One former death row inmate, whom prison officials would not identify, remains
in a single cell in the secure housing unit.
Among the former death row inmates sharing a cell is Otis Phillips, a gang
member who was sentenced to death after a 2012 soccer tournament shooting that
left three people dead, including the tournament organizer and a 16-year-old
player.
The state Supreme Court heard arguments earlier this week in an appeal by
Phillips challenging his conviction. In response to Phillips' appeal,
prosecutors acknowledged that because his conviction is on direct appeal and
not considered final, he is covered under a Delaware Supreme Court ruling
declaring Delaware's death penalty unconstitutional.
In August, a majority of Delaware justices concluded that Delaware's law was
unconstitutional because it allowed a judge to sentence a person to death
independently of a jury's recommendation and did not require that a jury find
unanimously and beyond a reasonable doubt that a defendant deserves execution.
The Supreme Court is now considering whether that ruling applies retroactively
to the 12 men already facing execution.
(source: Associated Press)
GEORGIA:
State rejected guilty plea from man facing death in 'ambush' killing of
midstate cop
Legal arguments in the run-up to next summer's scheduled death penalty trial
for a Monroe County man accused of murdering a sheriff's deputy 2 years ago
continued Friday.
In a region that in recent days and months has seen more than half a dozen law
enforcement officers shot dead, proceedings in the shooting death of Monroe
sheriff's deputy Michael Norris were another reminder of the perils for those
who wear the badge.
The proceedings in Monroe Superior Court also raised a question: Should
Christopher Keith Calmer face a death penalty prosecution, at least in part,
because his alleged victim is a cop?
Lawyers for Calmer, who is accused in Norris' 2014 slaying, contend that
prosecutors in the Towaliga Circuit, which Monroe County has been a part of for
about a decade and a half, have, at least in recent history, never taken a
death penalty prosecution to trial.
Murderers in Monroe County have certainly on occasion been executed, but a
trial with capital punishment as a possible sentence hasn't been held since the
county became part of the Towaliga Circuit, which includes neighboring Butts
and Lamar counties.
1 of Calmer's attorneys, Gabrielle Amber Pittman, asked the court during
Friday's pretrial motions hearing, "What is the difference in this case and
every other murder case that has come through the Towaliga Circuit since it's
been in existence?"
Though Georgia's capital punishment law specifically mentions the murder of
peace officers in the line of duty as one factor that can prompt a death
penalty prosecution, Pittman said "the law should be applied equally ... not
just (for) some victims in the circuit."
The "status of the victim in the community" should not set the case apart, she
said.
"Frankly, the state's duty is to more than represent the people. It is to seek
justice. And sometimes justice is hard, and sometimes justice makes people
mad," Pittman said, her voice rising to a shrill. "And sometimes justice upsets
people."
She later mentioned "the arbitrariness in which the death penalty is being
sought," and said "this particular case is not clearly ... something that is
much more severe than every other murder in the circuit."
That contention appeared to draw a scoff from someone in the courtroom gallery,
where a few members of Norris' family were seated.
Calmer, a 49-year-old former computer-tech worker who suffered from chronic
back and neck pain, was living with his parents near Bolingbroke in September
2014 when he allegedly gunned down Norris and seriously wounded deputy Jeff
Wilson when the officers answered a call at the Calmer house.
Pittman revealed in court Friday that before prosecutors decided to seek the
death penalty for Calmer he had offered to plead guilty.
"And accept death in prison - life without parole," she said, "and the state
has refused to engage ... in plea negotiations."
Prosecutor Scott Johnston stood to respond.
"Good-faith plea negotiation does not mean that the defense gets what it
wants," Johnston said.
Johnston said Calmer's lawyers have previously contended that the fatal
shooting happened while he was "coming down or suffering withdrawals from" the
pain medication tramodol.
"The state," Johnston said, "tends to see this case an as ambush of this man
against two police officers. One was killed almost immediately, before he could
say a word. The other was shot while trying to get back to his vehicle. ... We
have negotiated. ... And we believe the proper sentence is death."
Judge Tommy Wilson did not rule on the arguments Friday.
Calmer's trial is set for June.
(source: macon.com)
FLORIDA:
Florida's death penalty, a never-ending fight between state, opponents
Convicted murderer Ronald B. Smith reportedly coughed and heaved for 13 minutes
Thursday night as the state of Alabama carried out its execution of the
condemned murderer.
What does this have to do with Florida?
Maybe plenty.
Florida has applied the death penalty with enthusiasm since it was reinstated
here in 1976. The state has executed 92 individuals, trailing only Texas,
Oklahoma and Virginia. There are 384 people currently are on death row and
awaiting their turn on the lethal injection gurney.
However, thanks to various legal challenges for how the state imposes the death
penalty and its method of completing the task, the pace of executions has
stalled here. The state has executed only 3 people in the last 2 years, its
slowest pace since 1996-97 and far below the 15 men Florida sent to the great
beyond in 2014-15.
No one can say with any reasonable certainty who will be next. The case in
Alabama almost certainly will have an impact here, though, as opponents will
use it as an example of what can go wrong.
Ken Faulk, who witnessed the procedure for Al.com, reported that Smith???s
execution took 34 minutes to complete. Faulk wrote:
"During 13 minutes of the execution, from about 10:34 to 10:47, Smith appeared
to be struggling for breath and heaved and coughed and clenched his left fist
after apparently being administered the 1st drug in the 3-drug combination. At
times his left eye also appeared to be slightly open.
"A Department of Corrections captain performed 2 consciousness checks before
they proceeded with administering the next 2 drugs to stop his breathing and
heart."
Smith's attorneys had challenged the Alabama execution law, claiming the drugs
used might not fully sedate a condemned inmate. The drugs used in Florida
executions also have been challenged in court.
The News Service of Florida reported this week that the state has been
stockpiling the drug etomidate, a sedative that has never has been used in
executions. Attorney General Pam Bondi also is challenging a state Supreme
Court decision that a portion of the reworked sentencing law is
unconstitutional.
Alabama plans to perform an autopsy on Smith's body to determine what happened
during his execution. Its findings could spur more legal challenges that would
keep Florida's death row population stable for the foreseeable future.
All of this comes at a time when public support for the death penalty is
declining. Pew Research reported in September that 49 % of Americans favor
capital punishment, its lowest level in about 4 decades and far below the
high-water mark of 80 % in 1994.
Lethal injection, once seen as a humane way to kill inmates compared to the
electric chair and other forms of execution, now is under siege. In his book
"Gruesome Spectacles: Botched Executions and America's Death Penalty," Amherst
College professor Austin Sarat identified 75 flawed executions by lethal
injection - 7.12 % of all those carried out.
He specified the 2006 Florida execution of Angel Diaz, which took 34 minutes to
complete after the needle inserted into his vein came out the other side. That
prompted then-Gov. Jeb Bush to suspend executions.
Whatever the outcome of this latest misadventure with the death penalty, don't
expect things to change in Florida. The state will keep fighting to execute
people, and opponents will keep fighting to stop it. That's the only certainty
here for capital punishment.
(source: The Ledger)
ALABAMA:
Alabama May Have Tortured an Inmate to Death
On Thursday night, Alabama executed Ronald Bert Smith Jr., who was convicted of
murdering a convenience store clerk in 1994. Shortly after the executioner
administered midazolam - the 1st chemical in a 3-drug cocktail - Smith
struggled for breath, heaved, coughed, clenched his fist, raised his head, and
opened his left eye. His lips also moved, but he could not speak, and he
appeared to react to both "consciousness tests" that a prison guard performed.
However, prison officials went ahead with the execution anyway, administering
chemicals to paralyze Smith and stop his heart.
The Supreme Court permitted the use of midazolam in a 5-4 decision in 2015,
though the drug appears to have caused multiple botched executions by failing
to render an inmate truly unconscious. In dissent, Justice Sonia Sotomayor
noted that the 3-drug cocktail administered to Smith may be "the chemical
equivalent of being burned alive." Hours before his execution, Smith had asked
the Supreme Court to halt his execution given the known problems with
midazolam. The court refused. It seems quite likely that Smith was at least
partly conscious when he was given the 2nd and 3rd chemicals of the cocktail.
If so, he experienced a slow and brutally agonizing death but could not express
his pain because the 2nd chemical had paralyzed him.
Smith had also asked the Supreme Court to stay his execution given lingering
uncertainties surrounding the constitutionality of his capital sentence. The
jury had sentenced Smith to life in prison by a 7-5 vote; the judge, however,
overrode this determination and sentenced Smith to death. Alabama is the only
state in America that currently permits judges to override life sentences and
impose the death penalty instead. Judges are more likely to override a jury and
sentence a defendant to death when they are facing re-election. The practice is
likely unconstitutional. However, by a vote of 4-4, the Supreme Court justices
refused to delay his execution while the court contemplated hearing his appeal.
If Smith's family decides to seek restitution, it is likely out of luck. After
Oklahoma tortured Clayton Lockett to death for more than 40 horrific minutes,
his family sued, alleging a violation of the Eighth Amendment's ban on "cruel
and unusual punishments." In November, a federal appeals court threw out the
family's lawsuit, calling the slow torture of Lockett an "innocent
misadventure."
(source: Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ
issues----slate.com)
*******************
Birmingham defense attorney believes death penalty's days are numbered in AL
Coughing repeatedly and heaving heavily for 13 minutes.
That's how reporters who viewed the execution of Alabama death row inmate
Ronald Bert Smith, Jr. describe his reaction to the state's new execution
injection cocktail.
Alabama Department of corrections officials say there was no evidence Smith
suffered. Even so, the details concern those who oppose the death penalty, like
Birmingham defense attorney, Richard Jaffe who points out that the U.S. is the
only western country to still use it.
"And if we're going to be the only state practically no standards in doing it
then we ought to do it humanely and do it right," Jaffe said.
Jaffe wrote the book Quest for Justice--Defending the Defamed after handling
more than 60 death row cases. He calls the death penalty barbaric, archaic and
beyond repair.
"We've tried to refine it since it came back in 1978 and we have failed to make
it work. It doesn't work. And we know it will eventually be gone," Jaffe
claimed.
He believes it will happen in the next 6 to 7 years.
Until then, he says Alabama death row inmates will be able to point to Smith's
case to show Alabama's cocktail is torturous and unconstitutional.
Meanwhile, ADOC states the way the state executes inmates has already been
upheld.
(source: WBRC news)
***********
Supreme Court deliberations on execution kept quiet
Late Thursday night as briefs and orders ricocheted through the clerk's office,
the Supreme Court struggled again, at the last minute, with the death penalty.
2 times an execution was temporarily delayed by Justice Clarence Thomas in
order to give the justices more time to consider the case. Ultimately, the
execution of Alabama inmate Ronald Smith, was allowed to go forward - by a
deadlocked court.
Chief Justice John Roberts, who in November sided with liberal justices as a
courtesy to stay the execution in a similar Alabama death row case, gave no
such temporary reprieve to Smith, who was convicted of killing convenience
store worker Casey Wilson in 1994. While it takes only 4 justices to agree to
hear a case, it takes 5 to block an execution.
The last-minute legal drama that unfolded will remain shrouded from public
view; a justice's vote in a motion for stay of execution is rarely explained.
Unlike most Supreme Court cases, which are the subject of public arguments and
lengthy opinions, last-minute deliberations on death row cases are usually
opaque. One law professor calls it the court's "shadow docket."
When Chief Justice John Roberts provided the so called "courtesy vote" last
month he did something rare: he explained why.
"I do not believe that this application meets our ordinary criteria for a
stay," Roberts wrote, before saying he would vote to delay as a courtesy and to
give his four liberal colleagues more time to review the case.
The same 4 colleagues wanted to delay Smith's execution, but Roberts issued no
explanation on why he didn't think the case warranted his courtesy vote.
Smith's case highlights at least two brewing divisions on the court that won't
be publicly aired in the coming days, especially since Smith was put to death
at around 11 pm.
First there is the issue of why Roberts didn't supply a courtesy vote this time
around. That lack of transparency raised more questions than it answered late
Thursday night.
"In these shadow docket cases, the Justices don't write opinions," said William
Baude of the University of Chicago Law School. "They usually don't write
anything - they just vote and move on." Baude has written extensively on the
issue in the NYU Journal of Law & Liberty noting that some of the court's
orders "lack the transparency that we have come to appreciate in its merits
cases." In the merits cases, which have justices have agreed to hear publicly,
the court shows its work, dedicating pages to majority opinions and dissents.
That doesn't often happen when the court is faced with an emergency
application, such as a stay of execution.
"While the Court follows regular processes to produce public and reasoned
opinions, its internal deliberations are afforded far more secrecy than the
other two branches" Baude wrote.
Roberts most likely has very good reasons for choosing not to grant the
courtesy vote, but they won't be revealed publicly.
The 2nd is whether a judge can overrule a jury's recommendation of life without
parole, as happened with Smith.
The Supreme Court struck down a similar sentencing procedure in a case out of
Florida called Hurst v. Florida.
Alabama's Attorney General, Luther Strange argued that Smith's petition
presented "an unusually large number of procedural problems" and he noted that
Hurst has "no retroactive application to Smith."
1 more issue involved in the case became relevant during the execution when
witnesses say that Smith appeared to be struggling. According to local reports
Smith - who had also challenged Alabama's lethal injection protocol-- coughed
and heaved for about 13 minutes.
Alabama's protocol includes a drug called midazolam that has been linked -- in
different doses -- to botched executions in other cases.
Controversy over the drugs used to kill death row inmates is not new. "Once
again a state conducted an execution that was a failed experiment," said Dale
Baich an Assistant Federal Public Defender in Arizona, who represents prisoners
in lethal injection challenges. "As long as states continue to use midazolam as
part of the lethal injection process, there will be more botched executions,"
he said noting that the issue is being litigated in Ohio.
Steve Vladeck, CNN contributor and professor at the University of Texas School
of Law, says the unanswered questions provide less clarity to the litigants,
the lower courts and the public. "It complicates any effort to divine some
deeper lesson from the Court's decision - including whether it agrees with one
side on the merits; whether some procedural obstacle prevented it from even
reaching the merits; and so on."
"The problem is only exacerbated when the Court splits 4-4 , because although
we at least know the vote, we have even less insight into the underlying
reasoning," he said.
(source: CNN)
********************
2 Death Row Inmates, 2 Late Nights, 2 Different Outcomes At Supreme Court
The state of Alabama executed Ronald Bert Smith on Thursday night, after the
Supreme Court - split 4-4 along ideological lines - declined to intervene and
issue a stay.
Just 1 month earlier, on Nov. 3, the Court postponed the execution of Thomas D.
Arthur just hours before Alabama was scheduled to carry out his death sentence.
In this instance, Chief Justice John Roberts furnished the requisite 5th vote
required to grant a stay. In that case, Roberts indicated that he did not
believe the case merited review, but was casting his vote as a "courtesy" to
the 4 colleagues who supported a stay.
Courtesy votes are informal Supreme Court norms, so it is difficult to talk
about them in general terms.
When the Court is reviewing petitions of this nature, 5 votes are need to grant
a stay. If 4 judges support granting a stay and believe the case should be
reviewed by the Court, typically 1 justice in the 5-member majority will cast a
5th vote to grant.
Justice Antonin Scalia's death provoked a revival of the practice. Justice
Stephen Breyer cast a courtesy 5th vote in August staying a lower court
decision allowing a 17-year-old trans student to use the bathroom corresponding
to his gender identity at his high school. Breyer, the Court's clarion death
penalty opponent, could have done so in hopes of soliciting a courtesy vote on
future capital punishment issues.
Still, none came from Smith in the waning hours of Dec. 8 as the justices
wrestled with the decision late into the evening.
His lawyers filed a last-minute appeal at the high court, alleging Alabama's
death penalty scheme is unconstitutional. Alabama is a so-called judicial
override state, which allows judges to override jury recommendations and
sentence convicts to death. The Court has previously ruled that the Sixth
Amendment requires juries, and juries only, to find each fact necessary for a
death sentence. Justice Clarence Thomas issued a temporary stay of execution
around 8:30, pending a decision by the full Court. The Court denied the stay,
splitting 4-4 along ideological lines.
Smith's lawyers filed another emergency appeal, protesting the Court's
"inconsistent practices" regarding such petitions. They noted that in cases
where 4 justices support hearing the convict's underlying appeal, a courtesy
5th vote is usually furnished. The justices again denied the petition for a
stay, and Smith was executed.
As University of Chicago law school professor William Baude explains at the
Volokh Conspiracy, it's not clear why the justices elected to treat these 2
similar cases differently, or that we will ever know their reasoning. One
possibility is that there are 4 votes to grant review in Arthur's case, but
that there were not in Smith's case. Another possibility is that death-penalty
courtesy votes were adopted as a one-time experiment which have failed for
reasons unknown to us. Still, some of the possibilities are deeply troubling.
(source: dailycaller.com)
**********************
Botched Alabama execution reignites concerns over execution drugs----During his
execution, Alabama death row inmate Ronald Bert Smith Jr. appeared to move when
he should have been sedated. It may raise questions - again - about the
effectiveness of lethal injection drugs.
An execution in Alabama has reignited debate over the lethal injection
procedure - even as some ask whether the inmate should have received the death
penalty at all.
Ronald Bert Smith Jr., convicted of the 1994 murder of Huntsville, Ala., store
clerk Casey Wilson, was executed on Thursday evening. It took 30 minutes for
him to be pronounced dead, and 13 minutes in - when he should have been sedated
- Mr. Smith heaved, coughed, and appeared to move during tests designed to
confirm that he was unconscious.
For some, Smith???s movements have raised further questions about whether the
sedative midazolam is effective enough to be used as part of executions by
lethal injection. What's more, the very process that led Smith to the execution
chamber has come under recent scrutiny.
The efficacy of the drug midazolam has been the subject of numerous appeals
from death row inmates. Midazolam became the preferred sedative in multi-drug
cocktails in many states since 2011, when a European Union ban prevented
companies from selling sodium thiopental and pentobarbital to US states for use
in capital punishment.
In appeals, Smith and others have argued that the drug is unreliable, pointing
to 3 botched executions in 2014 - in Oklahoma, Ohio, and Arizona - as proof. In
one, the Oklahoma case of Clayton Lockett, the inmate actually spoke, saying,
"something's wrong," before dying of a heart attack 43 minutes into the
procedure, rattling even staunch death penalty supporters.
Just as with Mr. Lockett's case, Smith's struggles may fuel debate about
whether the current lethal injection protocol violates the Eighth Amendment
prohibition on cruel and unusual punishment.
The US Supreme Court upheld the use of midazolam in a 5-4 decision in July
2015, saying that increased dosage and monitoring procedures like consciousness
checks have addressed the problem, The Christian Science Monitor's Warren
Richey reported. But the consciousness checks may not have prevented Smith from
suffering.
"He's reacting," 1 of his lawyers whispered during the procedure, according to
the Associated Press, perhaps indicating that Smith was not as deeply
unconscious as he should have been.
Alabama Corrections Commissioner Jeff Dunn said he did not see any reaction to
the consciousness tests, AP reported. But he said that an autopsy will be done,
adding that he hopes this will reveal any irregularities.
Smith's case has also shined a spotlight on Alabama's unusual death penalty
law.
When he was convicted in 1995, the jury voted 7-5 for life imprisonment. But in
Alabama, judges can override a jury's recommendation, and the judge sentenced
him to death instead.
Alabama's death penalty law is an outlier among states that allow for capital
punishment, The Marshall Project reports:
"31 states have the death penalty, and 30 of them require unanimity from a jury
in crucial phases of sentencing. Not in Alabama, where a jury can impose a
death sentence with a vote of at least 10 to 2. The jury may also recommend
life imprisonment, as it did in Smith's case, but the judge can overrule
jurors' findings no matter what they decide."
During appeals, Smith's lawyers argued that a judge alone should not be able to
impose the death penalty, an argument supported by legal advocates Patrick
Mulvaney and Katherine Chamblee of the Southern Center for Human Rights.
Mr. Mulvaney and Ms. Chamblee argued in an August Yale Law Journal article that
politics can influence judges' decisions: in tough-on-crime states which elect
their judges, like Alabama, there may be pressure to sentence an individual to
death.
And though there's little debate over whether Smith committed the crime (which
was captured on video), at least 3 Alabama inmates sentenced to death by judges
after juries had recommended life imprisonment were later exonerated.
Similar issues have led to court cases like Hurst v. Florida, which led
Delaware and Florida to end judicial override and require juries to be
unanimous if they choose to sentence a defendant to death. Alabama maintains
that its law is constitutional, though the US Supreme Court twice paused
Smith???s execution to consider whether the penalty had been applied
constitutionally in his case.
(source: Christian Science Monitor)
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