by TChris

When the Supreme Court banned executions of the mentally retarded in 2002, that should have been good news for Daryl Atkins. It was his case, after all, in which the Court ruled. But unsettled questions in the case have made it possible for the State of Virginia to continue its effort to impose the death penalty on Atkins.

The core issue in Atkins' case is whether Atkins is retarded. That should seem self-evident in light of Atkins' IQ of 59. But the prosecutor in Atkins' case has a novel theory: Atkins cannot be mentally retarded because the "truly mentally retarded" do not "commit these kinds of crimes."

Although some states have enacted statutes creating an objective standard -- prohibiting the execution of a defendant who has an IQ below 70 or 75 -- Virginia has enacted no standards. In Atkins' case, a jury will decide whether Atkins is retarded. The prosecution wants the jury to base its decision on the nature of Atkins' crime as well as his ability to recognize polysyllabic words and perform some basic tasks. The attempt to play to the jury's sympathy is transparent: by focusing on the facts of the murder rather than Atkins' IQ, the prosecutor hopes to distract the jury from the central question of Atkins' retardation.

The judge in Atkins' case has not yet decided what evidence the jury will be allowed to hear.

Lethal injection is widely believed to be the most humane way to kill. We've written several times about how the comination of drugs is proving to be anything but humane. Now, courts are joining the fray and beginning to give lethal injection a new look, including restrictions that prevent the execution witnesses from viewing the entire process:

The three-judge appeals court ruled that no lethal injection can go forward until the department revises its procedures for the news media and officials witnesses, or explains why its planned restrictions are needed. "Contemporary and evolving standards of decency and morality are not reliably developed in a vacuum and under sanitized conditions, but rather should be based on an appreciation by the community of just what is involved, in human terms and in terms of decency, in the state's putting a person to death," Appellate Division Judge Sylvia Pressler wrote.

....critics say the seemingly serene death that lethal injection induces can be an illusion. They contend the procedures are designed to keep witnesses from ever seeing the steps that are most likely to be botched -- notably the search for a suitable vein -- and that the drugs used make it impossible to tell whether the inmate is peacefully drifting into death or chemically paralyzed and unable to convey his agony.

Other problems include the "cut down procedure"--where, particularly in the case of former I-V addicts, there is a problem with finding a vein:

The cut-down procedure is archaic, cruel and inhumane," said Katherine Louise Lippert, a Birmingham lawyer who represents five Alabama physicians who filed a friend-of-the-court brief. "They're just carving up someone's arm until they find a vein."

There's lots more, go read the whole thing. [link via How Appealing]

Sister Helen Prejean (Dead Man Walking) spoke at Salem College in North Carolina this week. Here's a recap of her remarks:

The death penalty is really about 98 percent political," Prejean said during a visit to Salem College. "A moratorium is a graceful way for politicians to get out of the death penalty."....The United States is unique among death-penalty countries in that it justifies the practice by saying it is carried out to honor the victims, Prejean said. If that were true, then most families of victims are being ignored because only a small percentage of murderers end up on death row, she said. "It's a political ploy," said Prejean....

The vast majority of executions in the United States are carried out in states that had long ties to slavery, and often involve poor black defendants and white victims, she told an audience of more than 500 people at Salem College last night.

She said the school's religion department should have a course titled "God Is Sneaky," because so much of what she has learned over the years about social justice, civil rights and death row came to her in experiences she was not looking for and was unprepared to handle....I feel really bad for the victims' families," she said. "But what we have is a culture that tells them the way to honor their family member is by sitting on the front row and watching the execution. It's a culture of vengeance."

Sister Prejean is writing another book, The Death of Innocents, detailing her experiences with two death row inmates.

by TChris

FBI agents wanted to question Timothy McVeigh about the details of his crime before his execution, but "internal disagreements" kept them from doing so.

Some called it a missed opportunity, especially because much of the speculation about additional accomplices in the Oklahoma City case focused on periods in which there are uncertainties about McVeigh's whereabouts.

McVeigh could have answered some important questions.

An Oklahoma newspaper, the Idabel McCurtain Daily Gazette, and a college criminology professor, Mark Hamm, have studied McVeigh's whereabouts extensively and developed timelines showing [a] white supremacist bank robbery gang was in the same vicinity as McVeigh several times during gaps in the government's official version of events.

Hamm thinks it unlikely that the intersections between McVeigh and the white supermacist bank robbers were coincidental. As TalkLeft recently reported, the government's failure to disclose information about the gang could threaten the current prosecution of Terry Nichols.

Another disadvantage of the death penalty: the dead keep their knowledge to themselves.

Jury selection is set to begin in two state trials this week--Scott Peterson, accused of killing his pregnant wife Laci and their unborn son, and Terry Nichols, accused of conspiring to kill approximately 160 people in the 1995 Oklahoma City Bombing. Nichols was previously convicted in federal court of conspiring to kill federal officers. The state trial is focusing on the other victims.

Jurors in death cases must be death-qualified. How does that work? Here's an inside look.

We think jurors should be life-qualified, rather than death-qualified. The test should be whether they could impose a life sentence even if they find the defendant guilty. But, that's not the law. Nonetheless, skilled capital defense lawyers push the envelope during jury selection to try to do just that -- find the jurors who could give life, no matter how heinous the crime. They want jurors who will listen to their mitigation evidence and reach within themselves to a find a reason to save their client's life.

Death penalty training for defense lawyers is intense. They call it "death camp" -- for good reason. We non-capital defense lawyers call it "G-d's work." We will focus more on this as these and other death life trials progress.

In the meantime, a cool and insightful blog to read to get into the mindset of the defense lawyer is Public Defender Dude.

Amnesty International representatives paid a visit to Kenny Richey, the Scottish citizen who has been on Ohio's death row for the past 17 years. They say he is "treated like a rabid animal."

Richey is living in “inhuman, barbaric, macabre and degrading” conditions in Mansfield Correctional Institute, according to Scottish LibDem MP Alistair Carmichael and the head of Amnesty International UK, Kate Allen, both of whom visited him on Thursday.

Richey, 39, was cuffed, with the manacles locked to a waist-chain, during the visit. His ankles were shackled and he was tethered to the floor. Allen said Richey was “treated like a rabid animal”. He receives little or no medical or dental care and, according to Carmichael, had been forced to improvise a false tooth using part of a plastic fork.

“Death row is horrific,” said Carmichael. “The brutality is inescapable. As a student I worked on a pig farm. Kenny was tethered like the sows we kept locked in sheds. We abolished that as it was inhuman. I saw him and thought that they do to him what we don’t let farmers do to animals.

Then they met "Death Row Barb."

“The most surreal moment was when we walked on to death row and a warden introduced us to the death row secretary – a woman in her 60s. He said ‘this is death row Barb’. The staff are totally desensitised.’’

Amnesty describes Richey’s case as “one of the most compelling cases of apparent innocence that human rights campaigners have ever seen”.

[comments now closed]

In the debate Thursday night, presidential candidates John Kerry and John Edwards expressed differing views on the death penalty:

Confronted with a question about a child killer, Kerry said his instinct ``is to want to strangle that person with my own hands.'' But the Massachusetts senator, a former prosecutor, quickly added that he favors the death penalty only for cases of terrorism.

Edwards, a Southern-bred politician, differed, saying there are other crimes that ``deserve the ultimate punishment.'' He cited as an example the killers of James Byrd, a black man who was dragged to death from a pickup truck in 1998 in Texas.

There's more, as we reported here:

John Kerry supports a moratorium on the death penalty at the federal level due to the number of persons on death row who have been found to be factually innocent of their crimes. John Edwards does not.

On a related note, the candidates also differ on medical marijuana. The Marijuana Policy Project gives an "F" grade to John Edwards in its Voter's Guide:

Edwards has publicly stated that he thinks it would be "irresponsible" to end the Justice Department's policy of arresting patients and caregivers who defy federal law. Edwards gets an "F" grade for refusing to pledge an end to these cruel and heartless raids on medical marijuana patients who are complying with state law.... Edwards has not taken any action to protect medical marijuana patients. He has neither cosponsored nor voted on legislation specifically addressing medical marijuana.

John Kerry gets an A-:

The Governor of Oklahoma issued a last-minute stay today in the planned execution of Hung Thanh Le. The stay was granted after the Governor received an official request from the Vietnamese government.

Amnesty International issued a press release about the execution earlier today:

Twenty-four hours after Secretary of State Colin Powell proclaimed that "President Bush regards the defence and advancement of human rights as America's special calling," the USA is due to carry out its 900th execution since resuming judicial killing in 1977. The events set to unfold in the Oklahoma death chamber tonight will once again give the lie to US claims to be global human rights champion.

....Hung Le's trial was marked by prosecutorial misconduct and inadequate legal representation. He has been diagnosed with post-traumatic stress disorder as a result of his experiences as a teenager in refugee camps. The state clemency board unanimously voted that his death sentence should be commuted to life imprisonment, but Oklahoma Governor Brad Henry rejected their recommendation.

Mr. Le would have been the 900th person executed in the U.S. since the death penalty was reinstated in 1977.

A Miami jury returned a life sentence against a drug dealer convicted in the murder of a federal informant.

Luis Gonzalez Lauzan, 33, was eligible for the death penalty based on findings that he killed a federal informant and used a gun in a premeditated murder. He was convicted last month in the death of Alexander Texidor, who was shot to death by a hit man in 2002, less than a month after Texidor told authorities about the gunrunning activities of Luis Gonzalez Sr.

The jurors deadlocked, and were told to continue deliberating. They came back with the life verdict 20 minutes later.

The defense said Gonzalez deserved the lesser sentence because the hit man received a life sentence and could have that sentence reduced after testifying against Gonzalez.

The Supreme Court today overturned the Texas death sentence of Delma Banks:

The Supreme Court, acting on a case that has become a cause celebre among capital punishment opponents, overturned the death sentence of a long-serving Texas inmate who claimed prosecutors played dirty and withheld evidence at his trial. The court's action, announced Tuesday, came in the case of a man who came within minutes of execution before the body stepped in last year to stop it.

The high court's 7-2 ruling means Banks can continue to press his appeals in lower courts. Banks maintains he is innocent, and that he was framed by lying witnesses who were bought off by the state.

Banks was able to document how prosecutors kept quiet as key witnesses against Banks lied on the stand, and how the state hid those witnesses' links to police through round after round of appeals, Justice Ruth Bader Ginsburg wrote for the high court majority. "When police or prosecutors conceal significant exculpatory or impeaching material, it is ordinarily incumbent on the state to set the record straight," Ginsburg wrote for the high court majority.

Ginsburg was joined in her opinion by Chief Justice William H. Rehnquist and Justices John Paul Stevens, Sandra Day O'Connor, Anthony M. Kennedy, David H. Souter and Stephen Breyer. Scalia and Thomas would have sent the case back to the lower courts for further findings.

Mr. Banks' efforts to overturn his death sentence were backed by former F.B.I. Director William Sessions and a group of judges, who wrote an amicus brief on his behalf. The case is Banks v. Dretke, 02-8286. All of our coverage is here.

You can read about the malfeasance in the Banks case here. Bob Herbert comments here. The Supreme Court granted cert last April on these three issues.

Meet Windman, a new comic strip hero, who has superpowers and uses them to fight the death penalty. We can't wait to get our hands on a copy of the comic book:

The comic book world has a new superhero whose focus isn't fighting crime, but fighting the death penalty. Like some other comic book heroes, Windman has superpowers. He can fly, pass through solid objects and move heavy objects without lifting a finger. Rather than helping damsels in distress or saving Earth from an extraterrestrial threat, Windman uses his powers to aid inmates on death row.

Windman, which was produced by the Western Missouri Coalition to Abolish the Death Penalty, is the brainchild of Independence resident Bob Myers. Jose Tello drew the book and Joshua Bourland did layout. Myers said he wanted the book to be a detective story, but one that communicates the idea that the death penalty is misguided.

The cover of the comic book's first issue shows a woman crying out, "Windman! Come back! We've found the missing witness!" Below her, two death row inmates say, "Can anyone hear me? I'm innocent!" and "I'm giving up my life so a prosecutor can brag he's tough on crime." Windman flies overhead, his speech bubble reading, "I've barely got time to stop the execution!"

by TChris

Four Utah death row inmates who want to face a firing squad may have their wishes fulfilled, despite a new law that, if signed by the Governor, will ban that form of execution. While firing squads have not been widely used in this country since the Civil War, Utah has imposed the death penalty on thirty-nine prisoners (including Gary Gilmore) by shooting them to death. Sadly, debate in the Utah legislature focused not on the barbarity of a practice that is authorized only in two other states, but upon the value of the publicity surrounding the executions.

During the Senate debate on Thursday, Sen. Ron Allen, a Democrat, said allowing murderers to choose firing squads so they can "go out in a blaze of glory" makes heroes of criminals and causes victims' families more pain.

But Sen. Dave Thomas, a Republican, argued that media circuses are "exactly what we want" in executions.

"We don't want these sentences to be carried out in the dead of night so no one knows," said Thomas, adding that lethal injection is painless and "the easy way out."

Sigh. Governor Olene Walker is expected to sign the law changing Utah's method of execution to lethal injection.