Update and Bump:A panel appointed by the Pennsylvania Supreme Court has issued a report recommending a death penalty moratorium in order to study the issue of racial disparity in the application of the punishment.

You can read the report here.

Update: The New York Times reports further, here.

A judge presiding over a volatile death penalty case in Colorado sharply questioned Monday whether a triple murderer can receive a fair sentence if a new jury is convened to decide whether he gets life or death.

When Paul Wolff, a first assistant attorney general for Colorado, told Arapahoe District Judge Robert Russell that such a jury would benefit Randy Canister, Russell challenged Wolff.

"That's a benefit?" Russell asked. "I don't think this judge is satisfied that your definition of benefit is within the commonly understood definition of benefit."

At issue is a new Colorado death penalty law the legislature passed after the U.S. Supreme Court ruled in June that juries, not judges, are the only ones who can impose the death penalty.

What is it with Texas? While the rest of the country is rethinking the death penalty and Illinois has emptied Death Row, Texas is proceeding at a record pace.

Eight of the nation's first 10 executions in 2003--including six in January--were carried out in the Huntsville prison unit commonly called The Walls. Nearly half of the next two dozen scheduled executions also will be in Texas. By the end of March, Texas should record its 300th execution--more than one-third of all those in the country since the mid-1970s, when the death penalty was reinstated in the United States after a brief Supreme Court-imposed hiatus.

Aside from the excessive number of executions in Texas, the state's death penalty system is rife with other miscarriages of justice. Here's a few:

A Tribune investigation of the death penalty in Texas in June 2000 found that the system repeatedly was compromised by the use of unreliable evidence, incompetent defense attorneys and an appeals system that often fails to remedy injustices.

This year--as Texas moves toward possibly breaking its record of 40 executions in a year, set in 2000--the cases involving those put to death by the state have raised troubling issues.

One man's state appeal was presided over by a judge who had been a prosecutor and done research for prosecutors at the man's original trial, according to defense attorneys.

Another prisoner had no federal review of his case because his lawyer filed his appeal five days after a key deadline. Consequently, the prisoner forfeited that critical stage of review, although the mistake was his attorney's, not his.

Another inmate was executed even though the jurors who convicted him later signed a statement in which they requested that he be allowed DNA testing before his execution.

Other inmates claimed that their attorneys were incompetent or inexperienced or that the inmates suffered from brain damage--issues that might have been grounds for relief from an appeals court.

Among those calling for a moratorium on the Texas death penalty this week was the League of Women Voters of Texas.

The pressure will mount in Texas, the same way it did in Illinois. We need a nationwide moratorium now. This will be an issue in the 2004 elections, we promise.

We've never been to St. Petersberg, Florida, but they sure do seem to have some enlightened citizens there. Check out these Friday letters to the editor on capital punishment.

Letters to the Editors
Bush should fix errors revealed in Holton case

Re: Private attorneys will speed justice in capital cases, letter, Feb. 18.

In his letter in the St. Petersburg Times, Gov. Jeb Bush "rebuts" assertions that Rudolph Holton was exonerated. The governor's implication, of course, is the tired refrain we hear every time someone is freed after being unconstitutionally convicted: Another inmate has just gotten off on a technicality.

Apparently the governor wishes us to retreat from the primary principle upon which our justice system was founded: innocent until proven guilty. If the governor believed in this principle -- and was committed to it and to actual justice rather than paying it lip service -- he would display the integrity demanded by the high position he holds and admit that unconscionable errors were made in Holton's case, and have been in others. He would then act vigorously to prevent such occurrences in the future.

The bottom line is that if the state has insufficient evidence to convict Rudolph Holton, then he is presumptively no more guilty of murder than is Gov. Bush. As someone who knows Mr. Holton, and (though not assigned to his case) is acquainted with the facts of the case, I can tell you that in addition to being innocent in accordance with the principles and ethics this country was founded upon, Rudy is actually, totally, factually innocent.

The governor's response has been to "consider" proposing an investigation into why it took 16 years for crucial evidence to be located and for recanted testimony to be produced. The real question is: Why did the state withhold crucial evidence from the defense and present perjured testimony in the first place? If the answer is that the state thought that it had the right man, our justice system is in serious trouble. If it is something else, we should all be very worried.

The fact that the governor is either unfamiliar with the details of Rudy's case (and chooses to speak authoritatively anyway), or intentionally misrepresents them by implying Rudy "got off," shows that his real priorities lie elsewhere. In his letter, the governor states, "Justice is denied to everyone when cases are mired in our courts for decades." True. But why does that invariably lead to executing people faster, rather than fixing problems that allow people like Rudy to end up on death row in the first place? And why do we never hear the governor remarking on the horrible injustice of an innocent man spending 16 years on death row? Is the injustice greater when an innocent man is freed after 16 years of being "mired in our courts," or if the wrong man is executed in five years -- as Rudy surely would have been under the governor's "streamlined" justice system?

Can private attorneys adequately defend the more than 375 people on Florida's death row? This is a question for honest, open debate, something impossible when the highest officer in our state cannot acknowledge crucial realities to the people of Florida, who rely on him for integrity, concern and forthrightness.
-- Marc Levi, investigator, Capital Collateral Counsel, Northern Region, Tallahassee (I write this as a citizen of Florida and not a spokesperson for CCC-NR.)

The National Association of Criminal Defense Lawyers will present its Champion of Justice award to Mexican President Vicente Fox at a ceremony tomorrow during its annual Spring Meeting, being held this year in Cancun, Mexico. Subsecretary for Human Rights and Democracy Mariclaire Acosta will travel to Cancun to accept the award on Fox's behalf.

Sandra Babcock, an NACDL member who serves as chief counsel for the Mexican government in cases seeking to convince the United States to honor international due process rights in death penalty cases, said Fox deserves the award. "President Fox has done more than any other world leader to promote respect for international law in the imposition of the death penalty. His most impressive achievement of all was undoubtedly his decision to take the cases of all 51 Mexican nationals on death row to the International Court of Justice."

Lawrence Goldman, president of NACDL, will present the award. The ceremony will take place at 11:30 a.m. local time at the Melia Cancun Beach & Spa Resort, the site of the NACDL conference and seminar. Speakers at the seminar, which continues through Saturday morning, include Todd Foster, who represented Steven and Marlene Aisenberg in criminal and civil cases related to the disappearance of their daughter, and Louis Sirkin, lead counsel in Ashcroft v. Free Speech Coalition, decided last term by the U.S. Supreme Court.

Previous recipients of the Champion of Justice award include death penalty activists Bianca Jagger and Sister Helen Prejean, U.S. Representatives Barney Frank and John D. Conyers, Jr., and journalists Molly Ivins, Bob Herbert, and Maurice Possley.

Thanks to NACDL Media Director Dan Dodson for the news.

A bill has been introduced in Texas that would allow the governor to grant multiple 30-day stays for death row inmates . Under current law, the governor has the power to grant one 30-day reprieve.

"The legislation filed by Sen. Rodney Ellis, D-Houston, is designed to give an inmate more time to complete DNA testing or finish pursuing other legal avenues, said Mike Lavigne, a spokesman for Ellis. "This just makes sense," Ellis said in a statement. "We must make sure that when Texas executes someone it is because that person is guilty and eligible to be executed."

Apropos of our post this morning about the danger the Middle East poses for American troops, comes this: A decorated Gulf War veteran on federal death row has filed a clemency petition with President Bush, heavily relying on the brain damage he suffered as a result of his exposure to nerve gas during the war.

Louis Jones Jr. is scheduled to die by lethal injection March 18 at the federal prison in Terre Haute, Ind. He has exhausted his appeals....

After the trial, a Dallas researcher who has studied veterans of the 1991 war against Iraq concluded that Jones suffered from a severe form of Gulf War Syndrome from exposure to sarin nerve gas and other toxins....

Jones' attorney filed a clemency request with Bush in December, seeking a life sentence without. Jones has also written personally to the president, admitting his crime and expressing remorse....

Jones grew up in Chicago and spent 22 years in the military before retiring in 1993 as a master sergeant in the Airborne Rangers. His honors included a meritorious service medal, a Southwest Asia service medal with three bronze service stars, a Kuwait liberation medal, badges for marksmanship and parachuting, and a good-conduct medal, according to his plea for clemency.

But, the petition says, Jones was a changed man after returning from the Gulf in May 1991. "It solves the mystery that was at the heart of the trial: how and why someone with the background and character of Louis Jones could have committed such a horrible crime," the petition says....

A recent study of Gulf War Syndrome indicates that some people's genetic makeup leaves them more vulnerable to even low levels of nerve gas, according to the clemency petition. The research was done by Dr. Rogene Henderson at the University of New Mexico, on a grant from the Pentagon. A blood test done on Jones in January shows he lacks a common enzyme that would have helped his body metabolize nerve gas, said Jones' lawyer, Timothy W. Floyd.

The ABA has passed new guidelines for lawyers defending capital cases.

They cover the appointment and performance of lawyers. Defendants in capital cases should be represented by two or more qualified lawyers, augmented by an investigator, a mitigation specialist and, in some instances, an expert to help with jury selection, the guidelines state. At least one member of the team should be qualified to screen defendants for mental or psychological disorders or impairments.

Further, an ABA report issued along with the guidelines recommended that an independent agency -- not courts or elected officials -- appoint counsel in capital cases to ensure the integrity of the process. In the past, critics say, judges have appointed lawyers whose primary skill seemed to be processing cases rapidly rather than providing vigorous representation....

"Under these guidelines, a court would not be involved in selecting counsel for any phase of the proceedings. Moreover, courts -- when seeing inadequate performance -- are urged by the guidelines to take remedial action rather than sitting and defaulting the ignorant defendant's claims" because an inept lawyer has not raised issues in a timely fashion, he added.

The report accompanying the guidelines places emphasis on the importance of a mitigation specialist, who researches the client's background so the defense team is prepared to effectively argue for a life sentence in the event of conviction. Too often, defense lawyers "think they'll win and don't prepare mitigation testimony," said Eric M. Freedman, a Hofstra University law professor who edited the final draft of the guidelines.

The report notes that "mitigation specialists possess clinical and information-gathering skills that most lawyers simply do not have." Consequently, they can recognize how mental or neurological problems may have affected the defendant's actions.

The Guidelines also call for adequate pay for lawyers defending capital cases. The federal system pays $125.00 per hour in death cases, but most states lag woefully behind that amount.

Executioner Ashcroft. We're not making that name up. It's the title of an editorial today in the Boston Globe. The editorial is sharply critical of Ashcroft for overruling his prosecutors and insisting on death penalty prosecutions in cases in which they recommended against it. We've written about this several times, most recently here.

Here's some of what the Globe has to say:

ATTORNEY GENERAL John Ashcroft has given a chilling and misguided command to federal prosecutors in New York and Connecticut: Pursue the death penalty in more cases. Ashcroft selected cases in which prosecutors either did not ask for the death penalty or recommended against it. In one situation, Ashcroft undermined a plea bargain in which a defendant agreed to testify against others if prosecutors did not seek the death penalty. A Justice Department spokesperson said the goal was to have national consistency.

The editorial explains the reasons Ashcroft is wrong to take this route, and concludes,

Ashcroft is headed down another road, apparently having concluded that imposing the death penalty more often will increase its popularity. This is a waste. The country doesn't need a keener taste for capital punishment. It does need better upfront crime prevention. Ultimately, Americans should give up the death penalty. It is not a strong preventive tool. And it offers vengeance when people would be better off with safety and fairness.

If the shoe fits....

Charles B. Blackmar, a retired judge on the Missouri Supreme Court who handled numerous death penalty appeals, says the system is full of fatal flaws. He says the risk of executing an innocent person is too great, and should that happen, it would be "repulsive." In response to a series in the St. Petersburg Times, The Innocence Defense (Feb. 9 and 10), the Judge writes this letter to the paper's editor, calling for the abolition of the death penalty.

Attorney General John Ashcroft has overriden his local prosecutors and insisted on seeking the death penalty in 28 cases so far. In 26 of the cases, the defendant was black or hispanic.

It appears Ashcroft is moving towards a nationalized death penalty.

If Ashcroft has his way, more federal juries in more states will be asked to sentence defendants to death, said Kevin McNally, an attorney with the Federal Death Penalty Resource Counsel Project. He calls it the "nationalization" of the death penalty. "What I mean by that is the federal government is bringing the death penalty to states where it is not an ordinary part of the fabric of the criminal justice system," said McNally, a Frankfort, Ky., attorney who has assisted in the Denis case. "They're bringing it to states where it's abolished, and states that haven't abolished it -- like New York and Connecticut -- but where it's used infrequently."

One good statistic: The Government has lost in 2 out of every 3 cases in which it has sought the death penalty since its reinstatement in 1976.

Two federal prisoners have been executed since the return of capital punishment in federal cases -- Oklahoma City bomber Timothy McVeigh and drug kingpin Juan Garza, both in June 2001.

Still, Ashcroft's policy represents a disturbing trend, to say the least. Of Ashcroft's 28 overrides, 8 have occurred in the past two weeks. The fact that he is bringing death penalty prosecutions to federal courts in states in which voters have decreed there shall not be a death penalty is particularly odius.

New Yorkers Against the Death Penalty has issued a press release condemning the 8th Circuit's ruling that the state can medicate an insane prisoner so he becomes sane enough to be executed.

The 8th Circuit opinion, which you can read here, held that

"Arkansas may forcibly administer antipsychotic drugs to a prisoner whose date of execution has been set and the State does not violate the Eighth Amendment as it has been interpreted in Ford v. Wainwright when it executes a prisoner who has become incompetent during his long stay on death row but who subsequently regained competency through appropriate medical care."

Here is the text of the NYADP press release: