Nel's New Day

September 15, 2015

Will Oklahoma Execute an Innocent Man?

Filed under: Capital punishment — trp2011 @ 8:03 PM
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Imagine committing no crime but ending up on death row—for 18 years. That may be what happened after Richard Glossip, now 52 years old, was accused in 1997 of hiring Justin Sneed to kill Glossip’s employer, Barry Van Treese, after Glossip embezzled money from his boss. Physical evidence put only Sneed at the murder, according to Glossip’s original defense. Van Treese’s brother also testified that the shortages used to prove the embezzlement were insignificant. No DNA or fingerprints linking Glossip to the murder, and prosecutors admitted in Glossip’s 2004 retrial that “the physical evidence doesn’t directly implicate Mr Glossip.” All the evidence pointed only to Sneed. Yet Glossip was judged guilty in both the original 1997 trial and the retrial.

Glossip’s first trial was overturned by the Oklahoma Court of Criminal Appeals in 2001 because of inadequate and since debarred counsel, Wayne Fournerat, and suffered from another inadequate public defender in the 2004 trial. Glossip’s attorneys never introduced the videotape of Sneed’s interrogation as leading questions cajole Sneed into blaming Glossip. At the trial, Sneed even added premeditation on the part of Glossip to his narrative. Even Sneed’s daughter, O’Ryan Justine Sneed, wrote that Glossip didn’t do what her father claimed and that he is still afraid of recanting his story because he might get the death penalty.

The actual murderer, 19-year-old Sneed, first said he didn’t know Van Treese, then he didn’t kill him, next he killed him accidentally during a robbery, and finally he admitted he killed him intentionally. Richard A Leo, a professor at the San Francisco University School of Law, said that the investigators’ behavior is “substantially likely to increase the risk of eliciting false statements, admissions, and confessions.”  Investigators who “presumed the guilt of Richard Glossip from almost the start and sought to pressure and persuade Justin Sneed to implicate Richard Glossip” initiated Glossip’s guilt, according to Leo.  Sneed testified against Glossip and saved himself from a death penalty in a plea deal.

Now a legal team is arguing that prosecution framed its case on the testimony of murderer Sneed, whose changing retelling was not adequately disputed in the trial. Attorney Donald Knight said that Glossip’s defense failed to prepare for trial; they didn’t even question key witnesses such as D-Anna Wood, Glossip’s girlfriend, who could have provided alibis for Glossip. Nor did the earlier defense lawyers challenge gruesome evidence about Van Treese taking eight hours to die when new evidence found that death came within 30 minutes. Jurors had considered the length of time as important in their decision.  Asking for 60 more days before execution to gather more evidence, Glossip’s new attorney, Donald Knight, said:

“Richard is sentenced to death because he’s poor. Not very many people can afford a death penalty defense. That should scare everyone.”

Other new evidence, according to Knight, is a witness report that Sneed was addicted to drugs and fed his habit by breaking into cars and hotel rooms. A man who served time with Sneed in prison also said that he overheard Sneed saying that he set up Glossip.

Glossip received a stay one day before his scheduled execution in January because his name was part of the Supreme Court appeal regarding the lethal injection drug midazolam that resulted in several botched executions. The high court ruled that the drug’s use was constitutional, and Glossip’s new execution day was scheduled in July for tomorrow, September 16, 2015, at 3:00 CT.

Even former Sen. Tom Coburn (R-OK) signed a letter with high-profile legal experts urging a stay of execution. They wrote:

“Unless you act, the State of Oklahoma will put Mr. Glossip to death for the murder of Barry Van Treese. Justin Sneed–who, by his own admission, beat Van Treese to death with a baseball bat–will not meet that fate.

“The writers of this letter have a wide range of professional backgrounds and political perspectives. But we share a deep concern about the integrity of the criminal justice system in Oklahoma and throughout the United States. We are particularly concerned about the danger of executing an innocent man.”

Oklahoma Gov. has thus far refused to stay Glossip’s execution despite the strong possibility that he is innocent. You can call her at (405)521-2342. Both options are #1. Of the 112 executions in Oklahoma since 1976 and 49 inmates currently on death row, the state has had 10 death row exonerations. That failure rate alone should give Richard Glossip another 60 days.

The National Registry of Exonerations lists 115 defendants sentenced to death but later exonerated and released after the discovery of new evidence of innocence was discovered. Of those 115 innocent inmates on death row, one-fourth of them, 29, were convicted after a suspect in the murder gave a confession that also implicated the innocent defendant. Last year a study published in the Proceedings of the National Academy of Sciences estimated that 4.1 percent of defendants who are sentenced to death in the United States are innocent. Most of them, like most of all defendants who are sentenced to death, have not been exonerated or executed. They remain in prison or have died of other causes.

Quality of representation may be the most important factor in the death penalty for a crime. Almost all defendants in capital cases need public defenders who are overworked, underpaid, and/or lack trial experience for these cases. Sometimes appointed attorneys drink alcohol before they come to court or fall asleep during the trial. In 2001, Supreme Court Justice Ruth Bader Ginsburg said:

“People who are well represented at trial do not get the death penalty . . . I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial.”

Alabama has the highest per capita rate of executions in the United States; the state has no public defender system, and 95 percent of its death row occupants are indigent.

Texas has the largest total number of executions; almost one-fourth of the 461 condemned inmates were represented by court-appointed attorneys who have been disciplined for professional misconduct. According to an investigation, death row inmates today face a one-in-three chance of being executed without having the case properly investigated by a competent attorney and without having any claims of innocence or unfairness presented or heard.”

Washington state has 84 people who faced execution between 1980 and 2000; one-fifth of them were represented by lawyers who had been, or were later, disbarred, suspended or arrested. (The state’s disbarment rate for attorneys is less than 1%.)

These statistics are not unique across the nation.

Support for the death penalty is at its lowest point in 30 years: 52 percent of people in the United States advocate life in prison instead of execution. The strongest support for killing inmates comes from evangelical white Protestants and Republicans as well as states that still have the death penalty. Recently, Nebraska joined Maryland, Connecticut, Illinois, New Mexico and New Jersey to repeal the death penalty since 2007.  The governors of Colorado, Oregon, Pennsylvania, and Washington have each indefinitely suspended future executions.

Death Penalty Map

The death penalty has become less common. Last year saw the lowest number of executions in 20 years, 35, and the fewest new death sentences in 40 years, 73. Just 62 counties of 3,000 nationwide are responsible for the majority of death sentences. Half of all new death sentences between 2004 and 2009 came from less than 1 percent of the country’s counties; all the new death sentences came from fewer than 2 percent of the counties.

executions by region

Proponents of the death penalty claim that its purpose is deterrence. There is no evidence supporting that premise, and the vast majority of top criminologists disagree with the theory. In addition, the death penalty costs state and local governments millions of dollars more than life in prison without parole.

Gov. Mary Fallin has no reason to let the state kill Richard Glossip.

July 19, 2014

Death Penalty Needs to Be Abolished

The execution of John Middleton in Missouri early Thursday morning at 12:01 am was the sixth execution in that state this year—one every month since November except for May when the U.S. Supreme Court halted Russell Bucklew’s execution. He suffers from a rare congenital condition causing weakened and malformed blood vessels. A hearing before the 8th Circuit Court of Appeals will hear Bucklew’s case on September 9.

A federal judge had granted Middleton a stay of execution on Tuesday, but a federal appeals court overturned it, and both the U.S. Supreme Court and the Missouri Supreme Court refused to halt the execution. Gov. Jay Nixon denied a request for clemency.

Middleton may have been innocent. When he was convicted of murdering three suspected police informants in 1995, the prosecutors used an insect larva from the body of one victim as a key piece of evidence. Later, it was discovered that the date for the larva was off by a day. On the actual day of the murder, according to this evidence, Middleton was in a Missouri jail on unrelated charges. The prosecution had only circumstantial evidence with no DNA or other physical links to the death. A witness submitted a new affidavit implicating two other drug dealers in all three killings.

Even getting a stay might not have saved Middleton’s life. Missouri tends to rush executing people. February’s executed prisoner was taken by prison guards while he was discussing his attorney’s appeal and injected with deadly drugs. The state pronounced him dead four minutes before the state Supreme Court gave the go-ahead for his execution.

That was the third straight execution in Missouri in which executed prisoners were injected with lethal drugs while their appeals were still pending. In January, 8th Circuit Court of Appeals Judge Kermit Bye declared that he was “alarmed” that Missouri proceeded with its execution “before this court had even finished voting on Nicklasson’s request for a stay. In my near fourteen years on the bench, this is the first time I can recall this happening.”

In addition to ethical problems, executions now openly exhibit incompetence. Drugs are questionable because those used in the past for lethal injections are no longer readily available either in the U.S. or in Europe. States are now using sometimes unsuccessful drugs from non-regulated compounding companies. The people doing the injections, usually not doctors, are also incompetent. In 2009, Romell Broom was poked with needles for over two and a half hours while people searched for a suitable vein in order to insert the IV for the drug. Even the prison doctor failed. The Ohio governor finally stopped the execution after being alerted by the prisoner’s lawyer.

That situation presents the question of whether a state can legally execute a person after he survives an execution attempt. Almost 70 years ago, SCOTUS ruled in a 5-4 vote that a second execution was just fine after a drunk prison guard set up the electric chair incorrectly. The Supreme Court may have a second chance to make a decision.

Broom wasn’t the first problem. Three years earlier, Joseph Clark shouted during his 90-minute execution, “It don’t work! It don’t work.” A year later, Christopher Newton’s execution took so long that officials had to give him a bathroom break.

Because doctors are prevented from killing because of their Hippocratic oath, those who do are not top-notch. The dyslexic Dr. Alan Doerhoff performed 54 executions in Missouri about he had been sued for malpractice at least 20 times and was banned from two different hospitals.

Clearly aware of their failures, states with the death penalty are attempting to shroud executions in secrecy. The Guardian, the Associated Press and three Missouri newspapers now have a landmark lawsuit to remove that secrecy from death penalty protocols. The lawsuit argues that under the First Amendment of the US constitution the public has a right of access to know “the type, quality and source of drugs used by a state to execute an individual in the name of the people.”

Instead of stopping executions, one state legislator has an alternative. After states have used hangings, gas chambers, electric chairs, and lethal injections, Utah Republican state legislator Paul Ray wants the firing squad returned and plans to bring it up in legislature this coming January. Utah outlawed opting for death by bullet only a decade ago. One person used this method for his execution in 2010. Ray isn’t alone; Missouri state Rep. Rick Brattin said earlier this year when he was proposing the method for his state. Meanwhile the shortage of drugs has driven Tennessee to legalize the electric chair.

Aside from the argument that executions cost more than life imprisonment, there are several reasons for stopping the death penalty as the United States did for several decades during the twentieth century:

  • Capital punishment doesn’t deter crime. In fact, states without the penalty have much lower murder rates. For example, the South has 80 percent of executions in the country while it holds the highest regional murder rate.
  • Innocent people are convicted and executed. In the last four decades since the U.S. reinstated the death penalty, 144 men and women have been released from Death Row, some of these only minutes before their scheduled executions. Four men may have recently been wrongfully executed for crimes they didn’t commit.
  • Race plays a role in who is executed. A 1990 report from the General Accounting Office concluded that the race of the victim influenced the likelihood of capital murder charges or the death penalty in 82 percent of studies that were reviewed. Those who murdered whites were far more likely to be sentenced to death than those who murdered blacks.
  • The death penalty is randomly applied. Politics, quality of legal counsel, and the location of the crime are more likely to be the determining facts for the death penalty than the facts surrounding the crime.
  • Bad legal counsel is a prime reason for executions. The vast majority of defendants in capital cases cannot afford their own attorneys. Many of them are highly inexperienced while others sleep through the trial or come to court drunk.
  • Civilized nations don’t execute people. Throughout the world, 140 nations—including most of those in Western Europe, North America, and South America—do not have capital punishment. The U.S. sides with Iraq, Iran, and China in executing people.
  • Capital punishment violates religious beliefs.
  • The death penalty doesn’t heal the pain that victims’ loved ones suffer. Money used for executions could be used for counseling, restitution, crime victim hotlines, and other services for survivors of victims.

The sensible alternative to the death penalty is life without parole. In California alone 3,300 people received this alternate sentence, and only seven of them have been released since this option became available in the state in 1977. All seven proved their innocence.

In a 5-4 vote last May, the Supreme Court determined Florida’s rigid cutoff number for mental disability to be unconstitutional.  This cutoff “creates an unacceptable risk that persons with intellectual disability will be executed,” Justice Anthony Kennedy wrote for the 5-4 ruling. “Intellectual disability is a condition, not a number.” SCOTUS had prohibited states from executing the mentally impaired in Atkins v. Virginia (2002).

Justice Antonin Scalia was in the minority in both votes. He defends his pro-death penalty stance by claiming that the Bible forgives those who wrongly apply the death penalty to innocent persons on the grounds that the wrongly convicted will have an opportunity to set the record straight in the courthouse of the afterlife.

In a first, U.S. District Judge Cormac J. Carney ruled this week that California’s death penalty violates the U.S. Constitution’s ban on cruel and unusual punishment. Carney said, that the “random few” who will be executed  “will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary.”  Carney said. His decision will most likely be appealed to the U.S. 9th Circuit Court of Appeals.

Following the uproar after Oklahoma badly botched an execution in May, causing the prisoner to die of a heart attack, the Department of Justice has initiated a national review of the death penalty. It has declared a moratorium for executions on a federal level pending an investigation. The agency will also “include a survey of state-level protocols and related policy issues,” according to DoJ spokesperson Ellen Canale.

Christopher Durocher, government affairs counsel for the Constitution Project, has submitted recommendations to the agency. The prominent think tank, whose members include former attorneys general, judges and prosecutors with differing views on the death penalty, proposes a DoJ office to review innocence claims of death row inmates, especially considering reports of racial disparity. The group also urges the development of “federal standards and procedures” for accrediting forensic laboratories after recent research has called into question the practices used in some of the 32 states that still use the death penalty. Durocher said that states not complying with benchmarks could be ineligible for some federal grants.

Although the approval rating of capital punishment is currently at 60 percent, that’s down from 80 percent 20 years ago when it peaked. We’re heading in the right direction.

May 14, 2014

Texas Execution Postponed

Last night, Texas failed to kill someone. After several appeals, a judge finally stopped the execution just two hours before the scheduled execution at 6:00 pm. Robert James Campbell was convicted of a 1991 rape and murder when he was 18 years old. He has been in prison for 23 years. His execution was scheduled for exactly two weeks after Oklahoma injected drugs into Clayton Lockett that left him writhing in pain before he died of a heart attack.

One appeal concerned the unconstitutional cruel and unusual punishment that Campbell might have suffered because Texas planned to use unknown drugs compounded at an unknown facility with no federal oversight. Judges didn’t find that a problem. Texas did lose on the next count, however, because Texas had hidden psychological evaluations showing that Campbell is intellectually disabled.

The 5th Circuit Court of Appeals decision will permit Campbell to appeal his execution because the state had failed to turn over his past intelligence tests. Texas has no law against executing mentally disabled people because Gov. Rick Perry vetoed the bill have it passed the legislature. Perry has executed people who committed crimes as juveniles (3), mentally disabled (10), and victims of inadequate counsel (5). Two of Perry’s executed men didn’t commit murders. He even executed a man who was most likely innocent.

A 2002 U.S. Supreme Court decision, however, ruled that executing the mentally disabled violates the Constitution. One school test put Campbell’s IQ at 68, well below the average of 100. Officials said he scored 84 after a robbery conviction two years earlier but there were no details about the exam. In April, a psychologist reported his IQ at 69.

While in school, Campbell couldn’t make change, read a gas gauge, or tell time. Prosecutors claimed that he showed higher intelligence because he played sports, sang in a church choir, and mowed yards. His execution would have been the eighth this year in Texas. The next one is scheduled for August.

The Fifth Circuit Court has a reputation of supporting executions. Judge Edith Jones reinstated a death penalty for a man whose lawyer slept through his trial. Last year, she claimed that blacks and Hispanics are predisposed to crime and “prone” to violence. The execution, according to Jones, is a “positive service” because the executed have an opportunity to get right with God just before the state kills them. Her position is that appeals on the basis of mental retardation “abuse the system” because anyone who can plan a crime can’t be mentally retarded. 

So many people have been executed in Texas that the residents of Huntsville, where the killings take place, pay very little attention to the hundreds of people legally killed in their community. Instead of the three-drug “cocktail” used in Oklahoma, Texas uses a single drug, pentobarbital. Prison administrators from other states visit Texas to gain guidance for killing its prisoners. Occasionally, Texas executioners are outsourced to other states to perform their executions. They have a great deal of practice: 515 men and women have been killed in Texas since 1982 with lethal injections. Forty percent of the nation’s legal killings of prisoners occur in Texas. Since 1976, Texas has carried out more executions than the six other busiest killing states combined: Alabama, Florida, Georgia, Missouri, Oklahoma, and Virginia.

Texas officials think they are efficient even though a prisoner who was being executed last month woke up and said, “It does kind of burn.” David R. Dow, a law professor at the University of Houston who has represented more than 100 death row inmates during their appeals, said, “I think Texas probably does [executions] as well as Iran.”

Last year Woodland Compounding Pharmacy demanded that Texas return drugs to them because the state had obtained them under false premises. The state had ordered the drugs in the name of “Huntsville Unit Hospital,” which hadn’t operated for over 30 years. According to a letter from Woodland’s owner Jason Lovo, however, it was obvious they knew the use for the drugs they were selling:

“I am the owner and pharmacist-in-charge of the Woodlands Compounding Pharmacy, the pharmacy that has provided TDCJ with vials of compounded pentobarbital.

“Based on the phone calls that I had with Erica Minor of TDCJ regarding its request for these drugs, including statements that she made to me, it was my belief that this information would be kept on the “down low” and that it was unlikely that it would be discovered that my pharmacy provided these drugs. Based on Ms Minor’s requests, I took steps to ensure it would be private. However, the State of Texas misrepresented this fact because my name and the name of my pharmacy are posted all over the internet. Now that the information has been made public, I find myself in the middle of a firestorm that I was not advised of and did not bargain for. Had I known that the information would be made public, which the State implied it would not, I never would have agreed to provide the drugs to the TDCJ.”

Huntsville is a lovely town of about 40,000 people with seven state prisons in the vicinity. The Walls prison fortress is about a half mile from City Hall in the heart of town. Jim Willett, Walls warden from 1998 to 2001, said that the “tie-down team” that straps the prisoners on the execution table “can take that man back there and put those straps on perfectly and easily in 30 seconds.” He added, “They take pride in what they do. They’ve done it so often that it’s almost second nature to them.”

Willett’s job now is director of the Texas Prison Museum that had 31,208 visitors last year. Built to resemble a state prison, it has a replica guard tower in one corner. The electric chair for executing people until 1964 is displayed behind a protective glass barrier. The sign states: “Attention: Please do not enter past the rope or attempt to touch ‘Ol’ Sparky.’ An alarm will sound if you do try to enter.”

Texas attorney general Greg Abbott, also a GOP gubernatorial candidate, thinks that Texas is much better at executing people than Oklahoma. The drug to be used came from a compounding pharmacy and is potent and “free of contaminants,” he wrote. There is no information about how the drug is tested.

Austin D. Sarat, an Amherst College professor who has studied the death penalty, rates Texas’s mishaps at 4 percent, higher than that of Oklahoma, when considering difficulty in finding a vein. In 1988, a tube attached to a needle inside Raymond Landry Sr.’s right arms shot drugs across the death chamber toward the witness room. The warden closed the curtain, and 14 minutes later when it was re-opened, Landry’s eyes were half-closed. Three minutes later he was pronounced dead.

In the late 1990s, when George W. Bush was governor of Texas, between 40 and 50 death sentences were handed down in Texas. The number has fallen to below 10 a year since 2010, perhaps because of the 140 high-profile exonerations in the state in recent years, including a dozen death row inmates. Questions also exist about the guilt of already executed prisoners.

People justify executions by saying that those people have killed—a type of vengeance. There’s the belief that if these evil people act outside the law that the government should do the same—kill people. Twenty-two countries executed people last year, including Yemen, Egypt, Iran, Iraq, North Korea, Libya, Syria, Tunisia, Saudi Arabia, China, Sudan—and the United States. As we criticize other countries in the world for being less “democratic” or “highly developed,” we need to consider the company we keep.

executions

Strapping down prisoners to kill them, injecting drugs, running a museum with an electric chair–it’s just business as usual to the people who have become desensitized to legally killing people.

 

February 29, 2012

DNA Testing Could Stop Executions

Human life is the focus of conservatives, if you listen to them describe a fertilized egg as a “person” and rail against birth control. But what about an adult’s life?

Last year Troy Davis was executed in Georgia, despite the total lack of evidence to show him guilty. Tyrone Noling is sitting on Death Row in Ohio, despite the possibility that a DNA test of a cigarette might exonerate him. One month from today, Thomas Arthur will be executed in Alabama for a 30-year-old murder, despite another person confessing under oath to the crime and shaky evidence.

Both Noling and Arthur have always maintained their innocence, and both cases have no physical evidence linking the men to the crimes. And both convictions could be overturned if state officials would permit DNA testing, in Arthur’s case a test so sophisticated that the Alabama Department of Forensic Sciences cannot perform it. The state wouldn’t even be charged for this testing because Arthur’s attorneys are willing to do this. The testing could be accomplished by the execution date.

Prosecutors and judges prioritize “finality” in capital punishment cases at the expense of “accuracy” because they want no more delays.

Andrew Cohen, one of the nation’s leading legal analysts and commentators, wrote: “The case [Thomas Arthur] also raises questions about where we go from here on DNA testing. Should a state ever be able to block a new DNA test if it doesn’t have to pay for it? The questions from the past tell us how arbitrary and capricious capital cases can be. The questions about the future tell us how much of a fight is left ahead over capital punishment in America.”

I ask when conservatives will care about the lives of adults.

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