by TChris

A review of data conducted by the Associated Press and an analysis appearing in a new law review article provide new evidence that the death penalty is unfairly applied. According to the data, whether a criminal defendant will be subject to the death penalty in California often depends upon where the crime is prosecuted. Some particularly zealous California prosecutors are more likely to seek death and some populations of jurors are more likely to impose death than are their counterparts in other counties.

While the facts of each case and the nature of each offender differ from case to case, those factors alone does not explain the disparity in the willingness of different counties to seek or impose the death penalty.

[P]rosecutorial zeal and the attitudes of jurors also are factors. The bottom line, according to the data, is that the death penalty sometimes depends on where the crime was committed.

Can the death penalty be administered fairly if arbitrary differences in the political or moral philosophies of prosecutors and jurors in different counties determine whether death is an option?

"Capital punishment should not depend on an accident of geography," said defense attorney Robert Sanger, who prepared a lengthy analysis of California's death penalty system in the current issue of Santa Clara Law Review.

The disparaties exist nationwide, not just at a local level, but the data in California is instructive.

by TChris

In a disappointing decision for opponents of the death penalty, as well as for those who oppose the execution of Kevin Cooper, federal District Court Judge Jeremy Fogel of San Jose, California has ruled that using the drug pancuronium bromide during an execution does not constitute cruel and unusual punishment.

Defense lawyers argue that the chemical may mask the inmate's suffering. It paralyzes the skeletal muscles but does not affect the brain or nerves. A person injected with it is conscious but cannot move or speak. It is possible, defense lawyers say, that an inmate could remain awake as he suffocates.

Judge Vogel accepted a government expert's opinion that an initial injection of sodium pentothal made it unlikely that an inmate would awaken before suffocating.

Deborah W. Denno, a law professor at Fordham University who published a study of the chemicals in lethal injections in 2002, said Judge Fogel's ruling was open to question. "The drug seems to have no other purpose than to keep a person still," Professor Denno said.

Cooper's lawyers point out that several states ban veterinary use of pancuronium bromide. Use of the drug to facilitate executions has been challenged in nine cases recently. Judge Fogel's decision is the first of those challenges to be resolved on its merits.

Cooper is scheduled to die Tuesday. TalkLeft's recent coverage of Cooper's case can be found here. What may be his last interview can be found here. Go here to read a report of new evidence of Cooper's innocence.

Update: Cooper filed an appeal Friday night in the U.S. Court of Appeals for the Ninth Circuit, asking the court to stay his execution and permit the filing of a second petition for a writ of habeas corpus. Cooper's request alleges "that state prosecutors and investigators used false evidence and suppressed other evidence that could be used to prove Cooper is innocent."

Bump and Update: U.S. District Court Judge Sam Sparks stopped the execution by granting a 60 day stay. [Ed. changed from our earlier erroneous report that the Governor had granted the stay. See comments for those who spotted our error.]

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Original Post

The next Texecution is set for Thursday. Louis Panetti, 45, has been in and out of mental hospitals 14 times. He represented himself at trial--in a cowboy outfit. He tried to subpoena Jesus Christ, John F. Kennedy and Anne Bancroft as witnesses. Governor Rick Perry can still stop the execution:

The Texas Court of Criminal Appeals upheld the verdict and sentence in 1997, ruling that whether Mr. Panetti was competent to represent himself was not the issue. "The appropriate question is whether he is competent to choose the endeavor," said the court, which ruled that he was.

It found that "a mere mental disease or defect, though it may constitute a form of insanity known to and recognized by medical science, does not excuse one for committing a crime." The court found evidence that Mr. Panetti knew that what he was doing was wrong.

At a news conference in Austin on Tuesday, representatives of the Texas Defender Service, a private nonprofit law firm representing indigent capital defendants, called on Mr. Perry for a 30-day reprieve to allow a review of the case.

"Allowing a schizophrenic in a cowboy costume to represent himself in a death penalty case gives new meaning to the term `frontier justice,' "said Jim Marcus, executive director of the defender service. "Given the Texas Court of Criminal Appeals' history of tolerance for defense lawyers who sleep or use drugs and alcohol throughout death penalty trials, however, its laissez-faire approach is hardly surprising," he said.

Panetti did have standby counsel during the trial. His view:

Scott Monroe, who was named standby counsel with no authority to aid the defense unless asked, said: "It was very obvious from his mannerisms and the way he conducted himself that he was mentally ill. There was never a question about that. That was very well documented, but still he was allowed to defend himself in that case, and basically I sat around and watched him do it."

Update: Take action here.

The New Jersey Supreme Court overturned a death sentence today, ruling that the decision to seek death belongs to grand juries, not prosecutors:

The New Jersey Supreme Court ruled Tuesday that it is up to grand juries - and not county prosecutors - to decide whether the death penalty will be sought in a murder case.

The decision could affect the death sentences of 13 other N.J. death row inmates.

Since the state reinstated the death penalty in 1982, grand juries have determined whether enough evidence exists to charge a suspect with murder.

But the decision of whether to add a capital murder charge was left to prosecutors, and depended on whether there were aggravating circumstances, such as murder for hire, killing a police officer and multiple homicides.

New Jersey's high court ordered the change in procedure because recent U.S. Supreme Court rulings said that the aggravating factors are integral to the murder charge itself, not simply additional factors that determine a potential sentence.

Update: While the article says that public defenders are studying the decision to see if it might apply to others on death row, a lawyer writes in to say it most likely won't affect others:

The Supreme Court explicitly rejected that possibility in its decision. Here's the quote from page *55 of the opinion: "Our holding today applies only to those cases that have yet to reach the penalty-phase." So, defendants in upcoming trials can only be subjected to a capital trial upon an indictment complying with Fortin. Anyone who has already had a trial, even if they are still on direct appeal, are likely out of luck.

by TChris

Despite recent pleas by Denzel Washington and others to spare the life of Kevin Cooper, California Governor Arnold Schwarzenegger rejected Cooper's request for clemency. Cooper is scheduled to be executed on February 10. According to Schwarzenegger:

"Evidence establishing his guilt is overwhelming, and his conversion to faith and his mentoring of others, while commendable, do not diminish the cruelty and destruction he has inflicted on so many. His is not a case for clemency."

Cooper's attorney disagrees:

"There are too many unanswered questions about the evidence in this case and until those questions are answered, there is no reason to rush to kill Kevin Cooper," attorney Lanny Davis said in a statement.

"There is compelling evidence that police planted DNA evidence to link Cooper to the crime and there has yet to be testing of the blond hairs found in the death grip of the victim's hands (Cooper is African-American)."

California has executed only ten persons since 1976. Avenues of relief are rapidly diminishing for Cooper in light of Schwarzenegger's rejection of his request for clemency.

Minnesota's new Republican governor is continuing his efforts to reinstate the death penalty in the state. Gov. Tim Pawlenty first floated the idea about a month ago and faced widespread criticism. At the time, the Legislature, comprised of a Republican House and Democratic Senate, made it clear that legislation renewing the death penalty did not have the votes to pass either chamber. It seemed that the issue would be dropped, but it now appears the Governor is looking for a way to bypass the Legislature.

Minnesota voters should decide via a constitutional amendment referendum whether to reinstate a state death penalty after nearly a century for the "worst of the worst" criminals, Gov. Tim Pawlenty said Tuesday.

As about 50 protesters outside his State Capitol office chanted "Execute justice, not people," the governor proposed the outlines of a Minnesota system of capital punishment that he said would be "the most modern and cautious" in the nation.

To drum up support for his plan, the Governor brought out the father of a murdered rape victim who said he believed in "an eye for an eye." There was no mention of Mahatma Ghandi, who sagely said, an eye for an eye leaves the whole world blind.

Sen. John Hottinger, DFL-St. Peter, denounced the plan as "a cowardly approach designed to allow elected officials to avoid responsibility for taking us down this dark alley of criminal justice." He also described Pawlenty's proposal as an attempt to divert voters' attention from the effects of the administration's budget cuts and its release of [Dru] Sjodin's accused kidnaper.

Added Rep. Keith Ellison, DFL-Minneapolis: "This is playing with fire. It's political cynicism at its worst. The death penalty serves no legitimate purpose. It's applied unfairly, falling disproportionately on the poor, people of color and, in too many cases, on the innocent. It's also a budget buster, sapping resources from education, health care and public safety."

Hopefully, the good people of Minnesota won't kowtow to their new governor's ill-advised agenda.

It's coming down to the wire. What will Gov. Arnold do with his first life or death decision? He's being asked to delay the execution of Kevin Cooper so that additional DNA tests may be performed:

On CNN tonight, Rubin Hurricane Carter and (curiously) former White House Counsel Lanny Davis were championing Cooper's cause. A roster of actors, including Denzel Washington, Sean Penn and Anjelica Houston, are petitioning Gov. Arnold to delay the execution.

Lanny Davis said one of the victims had blond hairs clutched in her hand and the jury didn't get to hear about it. Cooper is a black man. Another witness said her boyfriend or husband came home bloodied that night, missing the hatchet that was used in the crime. One of the victims who survived reportedly told the police at the time he was attacked by three hispanic men. Now and adult, the victim denies that he ever said that. Some of the jurors have changed their minds about Cooper's guilt.

Rubin Carter said there are tell-tale signs this case was wrongly decided:lack of hard evidence; witnesses who have changed their statements after conferring with police; jailhouse snitches; unreliable eyewitness testimony; lab fraud.

The crime was horrendous, no question. But was the wrong man convicted?

A new report by the Illinois Coalition Against the Death Penalty shows that 41% of people in Illinois now oppose the death penalty.

The report also says two-thirds of voters would be either more likely to support their legislator or have no objection if he or she voted to abolish the death penalty. According to the report, of the 39 capital cases resolved in Illinois in 2003, only two resulted in a death sentence. Neither of those sentences was issued in Cook County. Additionally, four of the five juries who considered the death penalty in 2003 rejected it.

...The report also pointed to the disproportionate number of minorities facing possible death sentences in Cook County. Of the 175 pending capital cases the coalition identified, 74 percent of the defendants are black and 15 percent are Latino. Meanwhile, both death sentences handed down in the state in 2003 involved crimes against white victims.

Illinois spent $32 million in 2003 trying capital cases.

[Executive director of the coalition, Jane] Bohman said the cost of trying capital cases, combined with the shrinking number of death sentences due to skepticism about wrongful convictions and the lack of a foolproof system for convicting criminals, means the use of the death penalty in Illinois cannot be justified. "Our state can no longer be haunted by the specter of execution of an innocent person," Bohman said.

You can access the report here.

We wrote yesterday about the Supreme Court's decision to reconsider the juvenile death penalty. The ruling could affect 26 on death row in Texas. Can you imagine? Texas has 26 persons on death row who were under 18 at the time of their crimes? Shameful.

More analysis of the implication of the Court's review of the issue is here and here.

A Georgia defendant, Willie James Hall, set to be executed tomorrow is asking the court to change his sentence from death to life.

Update: Willie James Hall got his commutation today. He will not be killed tomorrow.

One day before Willie James Hall was scheduled to die by lethal injection, the death sentence of the 47-year-old convicted murderer was commuted to life in prison without parole.

On Monday, six of the jurors offered sworn statements to the parole board that they would have given Hall life without parole if that sentence had been an option at his trial, said Heather Hedrick, a spokeswoman for the state Board of Pardons and Paroles. DeKalb County District Attorney J. Tom Morgan also told parole board members Monday during a two-hour clemency hearing that he was comfortable with a sentence of life without parole. The parole board also noted that Hall had excellent behavior in prison and no criminal record before the murder.

On a related note, an inmate in Chicago who was 14 at the time of his crime is seeking clemency:

The evidence that convicted Johnny Lee Savory of a Peoria double murder and sent him to prison in 1977, at the age of 14, has been debated ever since. Even the higher courts that have reviewed his case can't agree.

The Illinois Supreme Court, for instance, has said the physical evidence against Savory is weak and almost irrelevant compared with strong testimony from acquaintances who say Savory confided key details of the crime to them.

Savory is seeking DNA testing. His lawyers say it could prove his innocence. The state is objecting. Check out this comment by the prosecutor:

"Most prosecutors have been down this tired old road so many times that it has well-worn treads in it," he said. "The defense constantly takes their cup and scrapes it across the cage. They say: `Mr. Lyons, why won't you do this? Why won't you do this testing?' But even if we have testing in this, it wouldn't tell us anything. It would just be one more item. ... In this case it's not a pivotal issue." (emphasis our's).

What a great way to begin the week! The Supreme Court has agreed to revisit the constitutionality of the juvenile death penalty.

The justices agreed to return to the juvenile death penalty question after the Missouri Supreme Court declared it unconstitutional to execute those who were 16 or 17 at the time of their crime.

The state's top court based its reasoning partly on a U.S. Supreme Court ruling in 2002 that a national consensus had emerged to declare unconstitutional executions of criminals who are mentally retarded. In 1988, the Supreme Court struck down as unconstitutional the executions of offenders age 15 or younger at the time of their crimes.

But the next year the high court ruled that state executions of those who commit their crimes at age 16 or 17 do not violate the constitutional ban on cruel and unusual punishment.

It's time for this barbaric practice to go.

Update: The Virginia Assembly will also revisit the death penalty, including the issue of juvenile death penalties.

A state legislator in Indiana has introduced a bill that would allow defendants serving sentences of life without parole or sentences of more than 200 years to petition the court to be put to death.

The bill was introduced by Sen. John Waterman, R-Shelburn.