Bronshtein v. Hornleads off this edition.The District Court in Bronstein had granted relief as to both conviction (jury charge on first degree murder) and sentence (failing to define life as life without parole).Although the panel reinstated Bronstein's conviction, the vacatuer of the death sentence must remain as the prosecution put future dangerousness in play through its questioning of witnesses and closing but the trial court refused to give a "Simmons" charge that life in this case meant life without parole.

Three other favorable dispositions are also noted. InEx Parte Dale Scheanettethe Texas Court of Criminal Appeals has remanded, without substantive explanation, for an evaluation of claims relating to ineffective assistance of counsel. The Utah Supreme court inState v. Lovell, permits withdrawal of a guilty plea that subsequently resulted in a death sentence as the thirty day right to withdrawal a plea under state precedent begins to run after entry of the judgment of conviction and not 30 days after the plea was taken, even where death is imposed. Finally, inState v. Fudgea seriously fractured Arkansas Supreme Court appears to uphold relief on claims of ineffective assistance of counsel, however see the disclaimer below.

Milton Mathis received a stay of his April 20th execution death on an order from the Texas Court of Criminal Appeals on claims relating to mental retardation. In Arizona, Mohave County Superior Court Judge Richard Weiss overturned the 1989 murder conviction ofClarence David Hill, when DNA evidence surfaced that indicated Hill had not killed his landlord, Dale Edmundson, who was burned alive in Mohave County. In Kentucky, the civil trial on whether lethal injection inflicts undue pain and suffering heard testimony that the last person executed in that state was likelyconscious during the entire of the execution, but paralyzed.

This week's focus is a story of leaving death row,Deadman Walking into Life, a letter by Gary Hart II.Hart 's death sentence was invalidated in light of Roper v. Simmons.

Project Hopeis covering the inspiring story of Lisa Thomas who is walking from Alabama to Washington D.C.Ms. Thomas is walking to end the death penalty and hunger. She's being followed by a friend in a van, covered with signs referring to both.

On the web athttp://capitaldefenseweekly.com/archives/050418.htm

The Executed

April

15 Richard Longworth (South Carolina)

20 Douglas Roberts (Texas)

21 Bill Benefiel (Indiana)

Serious Execution Dates

April

27 Donald Jones (Missouri)

28 Mario Centobie (Alabama / volunteer)

May

3 Lonnie Pursley (Texas)

6 Earl Richmond Jr. (North Carolina)

11 Michael Ross (Connecticut----volunteer)

12 George Miller (Oklahoma)

18 Bryan Wolfe (Texas)

19 Richard Cartwright (Texas)

19 Garry Allen (Oklahoma)

25 Gary Sterling (Texas)

Leading Cases

Bronshtein v. Horn, 2005 WL 852187 (3rd Cir. 4/14/2005) Order granting new sentencing on the trial court's failing to inform the jury that a Pennsylvania prisoner sentenced to life imprisonment may not be paroled. Underlying conviction reinstated.

Decisions Reversing, Remanding or Otherwise Holding Death in Check

Ex Parte Dale Scheanette(Tex. Crim App. 04/13/05 ) (unpublished) Remand had for evaluation of ineffectiveness claims.

State v. Lovell, 2005 WL 831749 (Utah 4/12/2005) Supreme Court's Ostler decision, that 30-day period for filing motion to withdraw plea "after the entry of the plea" starts to run upon entry of judgment of conviction on the plea rather than when plea is accepted by the court and entered on the record, applied retroactively to defendant's motion to withdraw guilty plea, which had been pending in the trial court when Ostler was announced.

State v. Fudge, 2005 WL 852643 (Ark. 4/14/2005) Relief upheld on claims of ineffective assistance of counsel. Note: this opinion is so fractured and as someone who does not practice in Arkansas it is quite possible that relief was actually denied, although press accounts appear to back my interpretation of the case.

Decisions Favoring Death

State v. Brinkley,2005 WL 735876 (Ohio 4/13/2005) (dissent) Relief denied, most notably, on failure to severe charges of robbery occurring on different days; other acts evidence (Rule 404(b)); and sufficiency of the purpose to escape punishment aggravator.

Lyons v. Luebbers,2005 WL 820279 (8th Cir 4/11/2005) Relief denied.The Court report notes"Lyons has procedurally defaulted on his claim that he was not competent to stand trial for murder, but even if the claim was not defaulted, the trial court's competency findings were supported by the record; claim of ineffective assistance of counsel at trial concerning counsel's failure to call state hospital doctors who had treated Lyons before trial was properly rejected, as counsel's decision not to pursue a diminished capacity defense was reasonable, based on the evidence; Missouri courts did not unreasonably, nor incorrectly, apply United States Supreme Court precedent in determining the trial court did not err in denying suppression of Lyon's statements based on an alleged inability to waive his right to counsel due to his incompetence; even if the admission of Lyons' confession was error because of incompetence, the error was harmless as the other admissible evidence overwhelming demonstrated Lyons' guilt."

Dufour v. State,2005 WL 851026, (Fla. 4/14/2005) Relief denied on post-conviction appeal on claims relating to: "(1) counsel rendered unconstitutionally ineffective assistance of counsel in failing to investigate and present a voluntary intoxication defense and in failing to strike jurors during the guilt phase; (2) penalty phase counsel rendered unconstitutionally ineffective assistance of counsel; (3) Dufour received an inadequate mental health evaluation; (4) Dufour was prejudiced by the cumulative impact of improper evidence; (5) trial counsel was ineffective in failing to object when Dufour's sentencing jury was misled by comments, questions and instructions that inaccurately diluted the jury's sense of responsibility for their role in the sentencing process; (6) the State committed fundamental error by destroying exculpatory physical evidence; (7) Florida’s death penalty statute is unconstitutional; (8) section 921.141(5) of the Florida Statutes is facially vague and overbroad; (9) Rule 4-3.5(d)(4) of the Rules Regulating the Florida Bar prohibiting Dufour's lawyers from interviewing jurors is unconstitutional; and (10) the combination of procedural and substantive errors cumulatively deprived Dufour of a fair trial." Relief also denied on habeas claims "(1) appellate counsel rendered ineffective assistance on direct appeal; (2) the cold, calculated, and premeditated jury instruction is unconstitutionally vague and overbroad; (3) Dufour's death sentence is unconstitutional because he did not have a jury verdict on each element of the capital offense; and (4) the combination of procedural and substantive errors cumulatively deprived Dufour of a fair trial."

State v. Brown,2005 WL 832569 (La. 4/12/2005)Relief denied on: "1) whether the trial court's dismissal of defendant's retained counsel undermined defendant's right to counsel, 2) whether the trial court erred in failing to suppress defendant's custodial statements, 3) whether the trial court erred in failing to suppress witness' identification of defendant, 4) whether lack of funding during pre-trial hearings compromised defendant's rights of due process and equal protection, 5) whether evidence presented at trial was sufficient to establish defendant's identity and thereby support his conviction for first degree murder, 6) whether the trial court's aquiesence to "hybrid representation" undermined defendant's right to self-representation, 7) whether defendant proved brain damage or mental defect sufficient to render his execution violative of the Eight Amendment."

Ex parte Charles Dean Hood - (04/13/05) Post-card denial.

Amador v. Dretke,2005 WL 827092(W.D.Tex. 4/11/2005) Relief denied but COA granted. COA granted on whether the show-up lineup used here impermissibly tainted subsequent identifications and "appellate counsel's failure to present a point of error on direct appeal arguing that the trial court erroneously admitted testimony regarding Petitioner's oral statement on April 14, 1994 identifying the caliber of the guns used during the shootings."

Nealy v. Dretke, 2005 WL 887795 (N.D.Tex. 4/13/2005) Report and recommendation suggesting denial of relief on claims including:"(1) that there is insufficient evidence to support Petitioner's conviction for capital murder, (2) that the trial court failed to inform the jury of parole eligibility, and (3) that there is insufficient evidence to support the special issue verdict on future dangerousness. Petitioner also contends that he is entitled to an evidentiary hearing."

Notable Noncapital Cases

State v. Castagna,2005 WL 831431 (N.J.Super.A.D 4/12/2005) Upholding admissibility of polygraphs for limited purposes on cross-examination by the defense.

Excerpts from Leading Cases

Bronshtein v. Horn, 2005 WL 852187 (3rd Cir. 4/14/2005) Order granting new sentencing on the trial court's failing to inform the jury that a Pennsylvania prisoner sentenced to life imprisonment may not be paroled but reinstates the underlying conviction upheld.

The Commonwealth's remaining contention is that the prosecution's arguments and the testimony that it elicited at the penalty phase did not put the issue of Bronshtein's future dangerousness at issue in the way needed to trigger Simmons and the subsequent related cases of Shafer v. South Carolina, 532 U.S. 36, 121 S.Ct. 1263, 149 L.Ed.2d 178 (2001), and Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002). Because the Pennsylvania Supreme Court did not adjudicate this claim on the merits, the standards of review set out in 28 U.S.C. § 2254(d) are inapplicable. Furthermore, because the Commonwealth does not argue that either Shafer or Kelly announced "new rules" within the meaning of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), we need not and do not decide whether such an argument would have merit, see Horn v. Banks, 536 U.S. 266, 271, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002), and we consider Shafer and Kelly to be applicable in this appeal.

In Simmons, the prosecutor explicitly argued that the jury should impose a death sentence in order to protect society from the defendant. The prosecutor stated that a death sentence would be "a response of society to someone who is a threat" and would be "an act of self-defense." 512 U.S. at 157. The Supreme Court held that under these circumstances the trial judge was required to instruct the jury that the defendant, if not sentenced to death, would have received a sentence of life imprisonment without the possibility of parole. The plurality opinion stated that "where the defendant's future dangerousness is at issue, and state law prohibits the defendant's release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible." Id. at 156 (emphasis added). However, as we noted in Rompilla v. Horn, 355 F.3d 233, 265 (3d Cir.), cert. granted, --- U.S. ----, 125 S.Ct. 27, 159 L.Ed.2d 857 (2004), Justice O'Connor's controlling concurrence may be read as adopting a narrower holding, namely, that the dispositive question is not whether a defendant's future dangerous is "at issue" but whether "the prosecution argues that the defendant will pose a threat to society in the future." 512 U.S. at 177 (O'Connor, J., concurring in the judgment). See also Shafer, 532 U.S. at 49.

14 As we also observed in Rompilla, 355 F.3d at 266, the holding in Simmons was arguably broadened in Kelly. There the prosecutor stated in his penalty phase opening: "I hope you never in your lives again have to experience what you are experiencing right now. Being some thirty feet away from such a person. Murderer." 534 U.S. at 248. The prosecution then presented evidence that while in prison, Kelly had made a knife, had attempted to escape from prison, and had planned to hold a female guard as a hostage. See id. The state also brought out evidence of "Kelly's sadism at an early age, and his inclination to kill anyone who rubbed him the wrong way." Id. at 248-49 (citation omitted). During its closing argument, the state referred to Kelly as "the butcher of Batesburg," "Bloody Billy," and "Billy the Kid." Id. at 249- 50. In addition, the prosecutor told the jury that "Kelly doesn't have any mental illness. He's intelligent .... He's quick-witted. Doesn't that make somebody a little more dangerous .... [D]oesn't that make him more unpredictable for [the victim] .... murderers will be murderers. And he is the cold-blooded one right over there." Id. at 250.

The Kelly Court concluded that the trial judge had an obligation to give a parole ineligibility instruction. The Court stated that "[t]he prosecutor accentuated the clear implication of future dangerousness raised by the evidence and placed the case within the four corners of Simmons." Id. at 255. The Court observed that "[e]vidence of future dangerousness under Simmons is evidence with a tendency to prove dangerousness in the future; its relevance to that point does not disappear merely because it might support other inferences or be described in other terms." Id. at 254. The Court also acknowledged that "it may well be that the evidence in a substantial proportion, if not all, capital cases will show a defendant likely to be dangerous in the future." Id. at 254 n. 4. But the Court declined to decide whether a defendant is entitled to a parole ineligibility instruction "when the State's evidence shows future dangerousness but the prosecutor does not argue it." Id.

[6] In the present case, the prosecution not only put Bronshtein's future dangerousness "at issue" but "argue[d] that the defendant [would] pose a threat to society in the future." Simmons, 512 U .S. at 177 (O'Connor, J., concurring in the judgment). During its closing argument at the penalty stage, the prosecutor made the following statements:

Ladies and gentlemen, the medical testimony in this case was significant because it tells you something about the psyche or persona of this man. He can't conform to what is required in society. The doctors have told you that he's anti-social. He's prone to lying. He's prone to stealing. He's prone to living a life of crime.

Whatever the seeds were that got him there, they're planted, and that tree has grown. He's grown into a twenty-two-year-old person now regardless of how the seeds were planted.

15 You have to take a look at what effect that has had and what effect it had at the time he committed these crimes. The doctors have told you he's a man that can't conform to the needs of society.

App. VI at 1909-10 (emphasis added).

Even without considering "the medical testimony" to which the prosecutor referred, it is evident that these comments, although more clinical than those in Simmons, conveyed the message that Bronshtein presented a threat of future lawlessness. We agree with the District Court's evaluation of these comments:

[T]he references to Bronshtein's inability to 'conform to what is required in society' and the fact that he was 'anti-social,' in the context of the present and the future by reference to what Bronshtein is "going to" and "prone to" do, make clear that the Commonwealth was suggesting to the jury that it should impose the death penalty because of Bronshtein's inability to function in society in the future. The prosecutor's assertion that [Bronshtein] was "prone to living a life of crime," when placed in the context of the stark choice of life in prison or death, would suggest to any juror that petitioner would pose a danger to society if he was released from prison. The none-too-subtle implication of these arguments is that Bronshtien should be put to death because if he were ever released, he could not "conform to the needs of society,' and was "going to" continue "living a life of crime" and engaging in dangerous, violent conduct.

Dist. Ct. Op. at 36-37. Thus, the import of the penalty phase closing in itself is clear enough.

When the "the medical testimony" to which the prosecutor referred in the closing is also taken into account, the significance of the prosecutor's statements becomes even clearer. At the penalty phase, Bronshtein called a psychologist, Gerald Cooke, to testify to "psychological mitigating factors." App. VI at 1835. Dr. Cooke testified that Bronshtein suffered from paranoid personality disorder, anti-social personality disorder, and depression. See id . at 1838, 1840. On cross-examination, the Commonwealth elicited from Dr. Cooke a litany of dangerous tendencies that persons with these disorders often exhibit. The questioning went as follows:

Q: One of the features of [a person with an anti-social personality disorder] is he tends to be irresponsible; correct?

A: Well, one of the features of anti-social personality can be irresponsibility. I don't know if that's necessarily a criteria that fits him. He fits a number of the other criteria.

Q: It can be anti-social behavior; correct?

A: Absolutely.

Q: Including criminal activity; correct?

A: Correct.

Q: Lying?

A: Yes.

Q: Stealing?

A: Yes.

Q: Fighting?

A: Yes.

Q: Being very aggressive; correct?

A: Yes.

Q: They can be prone to being irritable; correct?

A: Yes.

Q: Prone to getting repeatedly into physical fights; correct?

*16 A: Can be.

Q: Failed to conform to social norms; correct?

A: That is true.

Q: Repeatedly can perform anti-social acts; correct?

A: Yes....

Q: They also tend to express no remorse, don't they?

A: That's true.

Q: No remorse about the effects of their behavior on other people?

A: They often don't have insight to the effects of their behavior on themselves or on other people.

Q: In other words, a lot of people who have anti-social personality disorders can't play by the rules in a civilized society; correct?

A: True.

Id. at 1855-1858.

The prosecutor then questioned Dr. Cooke regarding Bronshtein's paranoid personality disorder:

Q: Dr. Cooke, with regard to the paranoid personality disorder, they're also people that can react quickly with anger; correct?

A: Yes. Q: And are likely to counterattack if they feel threatened; correct?

A: They are likely to see themselves as being threatened, and many of them sort of follow the kind of attitude that the best defense is offense.

Q: In other words, they're more likely to feel threatened than the normal person; correct?

A: True, and that's what being paranoid means.

Q: Because they're more likely to feel threatened, they're more likely to counterattack because of the threat they feel; correct?

A: That is true.

Q: They can bear grudges for a long time; correct?

A: True.

Q: And they can even get to the point where they never forgive different insults people have done to them; correct?

A: True.

Q: They're viewed as secretive?

A: Yes.

Q: Devious?

A. Sometimes.

Q: Scheming?

A: Sometimes.

Q: Have great difficulties accepting self-criticism? A: That's true.

Q: Dr. Cooke, Mr. Bronshtein has a combination of the two--paranoid personality disorder and anti-social personality disorder--doesn't he?

A: And depression.

Q: Doctor, it's certainly a potentially lethal combination of personality disorders, isn't it?

A: Could be.

Id. at 1858-1860.

The Commonwealth also presented rebuttal evidence through its own mental health expert, Dr. Timothy J. Michaels. The Commonwealth elicited the following testimony from Dr. Michaels:

Q: [W]hat is your agreement or disagreement with the diagnoses which [Dr. Cooke] has made?

A: ... I certainly agree with the anti-social personality disorder. What that means is, this young man has gotten in trouble throughout his life. He doesn't learn by experience. He's impulsive. He continues to get in trouble within the prison system. He acts out, justifies his behavior. So even after he has been incarcerated, there's ongoing difficulties.

... When you're anti-social, you don't follow the rules. You don't learn by experience. You think you're right and other people are wrong....

I also agree with the paranoid personality disorder....

He's paranoid. Basically, he's looking over his shoulder. He doesn't trust people, doesn't trust most people....

*17 This combination of not trusting people and then acting out, not following the rules is an explosive combination in my opinion.... So I see that as a serious, very serious behavioral problem that this young man has.

Q: Dr. Michaels, what findings did you make with regard to this personality disorder or these personality disorders with having remorse?

A: ... Individuals who are anti-social don't have remorse. They don't learn. They're not sorry for their behavior. They don't learn from experience. So they do this over again.

And instead of being remorseful, unfortunately there is acceleration of behavior. I think I can get away with it--even though you get caught. I can outsmart the people[.]

App. VI at 1869-71, 1874.

Taken together, the testimony of Drs. Cooke and Michaels suggested the following: that Bronshtein's "combination of personality disorders" could be "lethal" or "explosive"; that he was prone to lie, scheme, steal, fight, and act very aggressively; that he was much more likely than a normal person to distrust others, bear grudges, feel threatened, and respond with a counterattack; that he was unable to "play by the rules in a civilized society"; that he was probably remorseless, and unlikely to learn from experience, and thus prone to commit the same crimes "over again"; and that there would probably be an "acceleration" of his anti-social behavior.

The prosecution's penalty phase closing must be viewed as incorporating these points. As noted, the prosecutor asked the jury to recall "the medical testimony," referred twice to what "the doctors" had told the jury, and summarized that testimony as saying that Bronshtein is "anti-social," "prone to living a life of crime," and "can't conform to the needs of society." In any realistic sense of the concept, the prosecutor "argue[d] that the defendant [would] pose a threat to society in the future." Simmons, 512 U.S. at 177 (O'Connor, J., concurring in the judgment). And it goes without saying that the Bronshtein's future dangerousness was put at issue within the meaning of Kelly. In the words of that decision, "[t]he prosecutor accentuated the clear implication of future dangerousness raised by the evidence." 534 U.S. at 255. We thus reject the Commonwealth's argument that the prosecution's presentation at the penalty phase was insufficient to trigger the obligation imposed by Simmons, Shafer, and Kelly.

Having considered and rejected the Commonwealth's arguments regarding Simmons and its progeny, we have before us no ground for reversing the order of the District Court insofar as it held that Bronshtein's death sentence is unconstitutional under those precedents. In light of our decision on this issue, we have no occasion to decide whether, as the District Court held, that sentence is unconstitutional for the additional reason that the jury was improperly instructed regarding the aggravating factor set out in 42 Pa. Cons.Stat. Ann. § 9711(d)(6) (commission of homicide while perpetrating felony) and that there was insufficient evidence to prove that factor.

Focus

This week's focus is a story of leaving death row,Deadman Walking into Life., a letter by Gary Hart II.

DEADMAN WALKING INTO LIFE

Every day brings the possibility of change, it doesn’t matter who we are or where we are, life- changing moments happen daily. One night I’m trying to go to sleep while thinking of the death sentence that’s chasing my last breath and the next morning I’m spared.

March 1st, 2005, shortly after 9:00 a.m., I was returning from the death row exercise yard when an officer told me to call my lawyer. Immediately the fear gripped me, had something happened to my family? What was wrong? A neighbor said, I hope it’s good news,and I quickly replied, I just hope that it’s not bad news.He said, what’s the difference?To that I stated, bad news involves my family.He got the point and I dialed the number with speed and nervousness.

My lawyer answered excitedly and told me that the U.S. Supreme Court had affirmed the Simmons v. Roper case, which meant it’s unconstitutional to execute juvenile offenders, those under 18 years old at the time of their crimes. My heart rate slowed and the fear was leaving my body, nothing was wrong with my family and I was getting off death row. Three of my lawyers were on the phone, all excited as children on Christmas morning, and they shared how my mother screamed and praised God upon hearing the news. While on the phone, I had to pause to answer another of Alabama’s juvenile offenders, a total of 13. He yelled through the tunnels behind our cells and told me he’d heard the news on the radio. So I was not dreaming, this was really happening. The joy spread throughout death row and everyone was talking at once.

For the last 15 ½ years I have thought my name would be amongst the dead. To not be facing death by the hands of the State is a very strange feeling. The only way to describe it is relief. Since the reinstatement of the death penalty in 1976 the U.S. has killed 900+ men and women, including 22 juveniles and several of my friends. I have read about or known men that had less evidence against them than myself, surely I’d follow in their footsteps? Walking the walk of hope was difficult but I tried to follow the examples set around me, all the time thinking I was doomed—that my death was only a matter of time.

Now I awake knowing my thoughts of the future aren’t just wishful thinking. Unless my health fails me or something else cuts my life short I can live to be an old man. Such possibilities never existed on death row. I no longer have to imagine saying good-bye to my mother on the day of the execution, which was my greatest fear. I can stop worrying about my death killing my mother, who developed hypertension and depression over the years. Maybe her next trip to the doctor will show signs of improvement.

My new sentence is life without any chance of parole, this sentence was never my goal but I can’t help smiling over the lifepart. The Simmons ruling saved 72 men nationwide, but in reality the decision saved many more. There are teenagers in jail who won’t face capital punishment, former death row inmates not counted in the 72 because their sentence or conviction had been recently overturned and countless numbers of reckless teenage boys who haven’t committed their crimes yet. Five judges saved all of us. What a difference a day makes!

What kept me alive up to this point was the dedication of my attorneys, fighting the State of Alabama for everything. Every page in my briefs! Every issue! Every day! Thank you! The only thing that kept me sane was the love shown to me by my mother and friends, those inside and outside this prison. Thank you!

I’d also like to thank the international and national abolitionist movements for everything they have done for all of us. Without everyone involved none of this would have been possible. There is so much left to be done and working together we will accomplish all of our goals. I say webecause I will never forget where I came from and will continue to do my part in this struggle. Death row is where I’ve spent almost half of my life and the people here have helped me become a man. Everyday of my life will be a testament to the world about the value of rehabilitation and the human spirit.

March 11th, 2005

Around the Web

DPICnotes:

Nebraska Supreme Court to Hear Electric Chair Challenge

The Nebraska Supreme Court has agreed to consider whether the state's use of the electric chair is cruel and unusual punishment. The case, brought by death row inmate Carey Dean Moore, will be heard on May 5. Every other death penalty state has adopted lethal injection as an alternative method of execution. A bill to offer lethal injection in Nebraska remains stalled in the state's Senate Judiciary Committee.

Three people have been put to death in Nebraska since executions resumed in 1994. Coroner reports document that one of the men, John Joubert, suffered a 4-inch brain blister on the top of his head and blistering on both sides of his head above his ears. The reports note that another man, Robert Williams, had a "bubble blister" the size of a baseball on his left calf and had pronounced "charring" on both sides of a knee and the top of his head. A witness to Williams' execution reported seeing smoke coming from his head.

Moore's attorney, Alan Peterson, notes, "Now, no other state mandates that humans face the horror of death by internal burning and shock, with the well-known history of bungled, smoking failures of the century-old technique. [Electrocution] involves more than mere extinguishment of life and will subject defendant to needless agony, physical suffering, torture, mutilation, disfigurement, and degradation.... No longer can this state tolerate the form of punishment now almost universally recognized to be beyond the bounds of minimum human dignity, civility, and decency." (Associated Press, April 19, 2005).

Georgia's Supreme Court ruled that the electric chair violated the state's constitutional prohibition of cruel and unusual punishment in 2001. A few states allow inmates to choose the electric chair rather than lethal injection as their method of execution. See Methods of Execution.

Attorneys Seek DNA Testing In Case of Executed Texas Man

Attorney Barry Scheck plans to ask Texas Governor Rick Perry to order DNA testing in the case of Claude Jones, who maintained his innocence until his execution in December 2000. Scheck, co-founder of the Innocence Project, says Jones' conviction was largely based on dubious evidence. The state's case against him included testimony from an accomplice linking Jones to the crime and the report of a state forensic scientist who examined a one-inch length of hair found at the crime scene. The scientist said that it was similar to Jones' hair using microscopic hair comparison, a faulty test that has been replaced by the more precise science of DNA testing. Accomplice testimony has been proven to be often unreliable.

Scheck said that he may not necessarily be able to prove Jones' innocence, but this case raises the question of whether then-Governor George W. Bush knew of Jones' request for DNA testing when he refused to grant a stay of execution. Files uncovered by the Chicago Tribune note that Bush's staff inquired about the hair comparison as they prepared to present their recommendation to the Governor, but the final summary of the case that was sent to Bush did not mention Jones' request for DNA testing of the hair. DNA testing after an execution is rare. (Chicago Tribune, April 18, 2005).

Lethal Injection To Be Examined In Kentucky

A Franklin County, Kentucky, court will hear arguments beginning April 18 to determine whether the state's lethal injection procedures rise to the level of cruelty that is forbidden by the U.S. and state constitutions. In November 2004, the same court cited questions about the lethal injection process when it issued a stay of execution for Thomas Clyde Bowling, Jr. just days before his scheduled execution. Attorneys for Bowling and death row inmate Ralph Baze, who is also a plaintiff in the lawsuit, now plan to present an anesthesiologist, a pharmacologist, and 18 other witnesses whose testimony will challenge the state's lethal injection procedures, the drugs used in these executions, and the training of the personnel who carry them out. Currently, Kentucky uses a series of three drugs during lethal injections that are designed to relax and put inmates to sleep before killing them. Bowling's attorney plans to present evidence that the first drugs do not get into the blood stream before the killing drugs are administered, leading to a "death that is pure torture." Among the evidence presented will be an autopsy report for Eddie Lee Harper, the state's first and only inmate to be executed by lethal injection. (Associated Press, April 14, 2005). Similar concerns about lethal injection were recently raised in a study that was published in the British medical journal The Lancet. See more about this study. See Methods of Execution.

Eric Rudolph Pleads Guilty to Terrorist Bombings in Exchange for Life Without Parole Sentences

In separate plea agreements with the federal government and Georgia prosecutors, Eric Rudolph admitted killing two people and injuring 150 others by carrying out a series bombings at a gay nightclub, abortion clinics, and the 1996 Olympics, and will serve four consecutive life sentences without the possibility of parole. Prosecutors spared Rudolph from execution in exchange for his guilty pleas and his revealing the location of about 250 pounds of dynamite he had hidden in the North Carolina mountains. Prior to his capture in 2003, Rudolph spent over five years hiding from authorities in the Appalachian mountains of North Carolina.

"The many victims of Eric Rudolph's terrorist attacks in Atlanta and Birmingham can rest assured that Rudolph will spend the rest of his life behind bars. The best interests of justice are served by resolution of this case and by the skillful operation that secured the dangerous explosives buried in North Carolina," said U.S. Attorney General Alberto R. Gonzales. U.S. Attorney David E. Nahmias later added, "There will be no further delays in obtaining justice for the public and the many victims of his terrorist activity." (Washington Post, April 6, 2005 and New York Times, April 12, 2005). See Life Without Parole; also Federal Death Penalty.

SCOTUSBlognotes:

The first case to be argued today is No. 04-637, Bradshawv. Stumpf. Bradshaw-- which is the first of two capital cases out of the Sixth Circuit to be argued this sitting (the other one being Bellv. Thompson, to be argued next week) -- presents questions regarding the voluntariness of the respondent's plea and whether the Due Process Clause requires respondent's guilty plea to be vacated when the state later prosecutes a co-defendant using evidence that is inconsistent with respondent's guilt. Douglas Cole, the State Solicitor of Ohio, will argue on behalf of the petitioner, while Alan Freedman of the Midwest Center for Justice will argue on behalf of the respondent.

You can read Danielle Goldstein's excellent summary of the case, which was posted last week on SCOTUSBlog, here.

The second case to be argued today is No. 04-563, Maylev. Felix, in which the Court will consider the application to federal habeas corpus cases of Federal Rule of Civil Procedure 15(c), which provides that an amendment to a pleading "relates back" to the original pleading when "the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.

Felix was convicted of first-degree murder in a California state court. After his direct appeals were unsuccessful, he filed a timely pro se habeas petition in federal district court in which he alleged that the admission at his trial of videotaped statements by a key prosecution witness violated the Confrontation Clause. Approximately eight months later, and after the AEDPA's statute of limitations had expired, Felix -- now represented by counsel -- filed an amended habeas petition that included both the original Confrontation Clause claim and the further claim that his Fifth Amendment right was violated by the admission at trial of an allegedly coerced confession made by Felix himself during an interview with the police.

The district court held that Felix's coerced confession claim did not arise out of the "same core of facts" as his Confrontation Clause claim and was thus time-barred under the AEDPA. The Ninth Circuit reversed. It construed Rule 15(c)'s reference to the same "conduct, transaction, or occurrence" more broadly, holding that in habeas cases the relevant "transaction" is the "trial and conviction under attack."

California Deputy Attorney General Mathew Chan will argue on behalf of the petitioner, and Assistant to the Solicitor General Lisa Blatt will argue on behalf of the United States as amicus curiae in support of the petitioner. Assistant Federal Public Defender David Porter will argue on behalf of the respondent.

Around the blogs

Project Hope to Abolish the Death Penalty:

Press Release from People of Faith Against the Death Penalty 0

on April 21st, 2005

Alabama Woman Walking

to Washington for End to

Death Penalty, Hunger

APRIL 21, 2005 — An Alabama woman is entering North Carolina today on a 925-mile walk to Washington, D.C., to call for an end to the death penalty and hunger in the United States.

Lisa Thomas, 52, the manager of a food bank in Brewton, Ala., has found both hospitality and hostility on her trip, and says she was almost run down by a pick-up truck in South Carolina, but she says she is continuing on her journey to try to make a difference.

“Thousands are seeing my signs,” she said from her cell phone on Route 29 near the North Carolina-South Carolina border today. “If it makes no more difference than that, it makes a difference.”

PFADP members and supporters can offer their welcome and hospitality by calling Thomas on her cell phone, (251) 752-8433.

A friend is following her in a small van plastered with signs calling attention to hunger and the death penalty.

Thomas said the signs apparently provoked two young men to “deliberately” turn the wheel of their pick-up and drive directly at her, cursing. She screamed and quickly moved out of the way, and the truck continued down the road.

Others have glared at her, she said. “If looks could kill, we’d be dead.”

But she has also spoken with many supporters. In Athens, Ga., she said, she had a long talk with a young woman who was working in a gas station.

She also says she knows she has support of another kind. “I have faith that God will see me through.”

Some Catholic nuns in Alabama, friends of hers, told her to remember Pope John Paul II, who had recently died, in her prayers. “I have Jesus walking on my right, and the pope on my left,” said Thomas, a Baptist.

She expects the walk through North Carolina will take her about 10 days, through Gastonia, Charlotte, Concord, Salisbury, Thomasville, Greensboro, and Reidsville. Route 29 parallels Interstate 85 until Greensboro, and when the roads merge and become dangerous, she will ride in the van. She and her friend sleep overnight in rest areas or parking lots in the van. She will enter Virginia in Danville.

If you live along or near Route 29 in North Carolina, PFADP encourages you to give Lisa a call and consider offering hospitality at your church or home.

Her work with the poor and elderly at the food bank inspired her to walk to Washington to bring attention to hunger in America, but it was a recent meeting in Birmingham that encouraged her to add the death penalty to her cause.

Someone mentioned at the meeting that Alabama was about to execute a man on death row. There was little reaction in the group, she said.

“No one was concerned we were going to kill this man. I thought ‘Wow, we are nonchalant about the death penalty.’”

She hopes her walk will “stir people up.”

To follow Thomas on her journey, visit a weblog by Project Hope to Abolish the Death Penalty at http://www.phadp.org/blog/.

People of Faith Against the Death Penalty

110 W. Main St., Suite 2-G • Carrboro, NC 27510

Tel 919.933.7567 • Fax 919.933.5611

info@pfadp.org • www.pfadp.org

People of Faith Against the Death Penalty is an interfaith membership organization whose mission is to educate and mobilize faith communities to act to abolish the death penalty in the United States. PFADP relies on its members for support. Annual membership rates are: $25/individual, $40/household, and $100/congregation, or whatever amount is affordable. Checks should be made to “PFADP” and sent to the above address.

Welcome to North Carolina

on April 21st, 2005

Email to NCADP Affiliates:

Thank you, People of Faith Against the Death Penalty for your warm welcome of Lisa Thomas to North Carolina. She told me that soon after I had called her to tell her that I had sent out an email to the group, her phone rang. Lisa is fairly new to abolition, we met last November, so I told her what wonderful work you do in North Carolina. We thank you for being an inspiration to us here in Alabama and for welcoming Lisa.

Gratefully,

Esther and the Board of Project Hope to Abolish the Death Penalty

Lisa received a warm welcome to North Carolina by People of Faith Against the Death Penalty almost the minute after a request had gone out to NCADP affiliates. We are so grateful! Help has been promised with publicity and housing along the way. Lisa is encouraged and upbeat, even the cost per minutes on her cell phone went down in North Carolina! Thank you from Lisa, thank you from all of us! It feels good to know that there are likeminded friends out there!

Goodbye to South Carolina!

on April 20th, 2005

Lisa will be out of South Carolina tomorrow and is glad to leave that state behind her. Besides Sunday’s incident when a couple of guys tried to run her down with their pick up truck, there have been repeated moments of rudeness and hostility on the part of young white males.

But she is half way and that is encouraging. And today we contacted the National Coalition Against the Death Penalty where David Elliot was kind enough to link our blog to theirs. I am hoping that some kind abolitionists in North Carolina and beyond will welcome Lisa as she comes through their state and into the home stretch.

NCADP Blog Supports Lisa

on April 20th, 2005

Abolish the Death Penalty

Abolish the Death Penalty is a blog dedicated to…well, you know. The purpose of Abolish is to tell the personal stories of crime victims and their loved ones, people on death row and their loved ones and those activists who are working toward abolition. You may, from time to time, see news articles or press releases here, but that is not the primary mission of Abolish the Death Penalty. Our mission is to put a human face on the debate over capital punishment.

Wednesday, April 20, 2005

A woman walks

Today, at this moment, a woman is walking. She is walking against hunger. She is walking against the death penalty. She started in Brewton, Alabama. That was about 400 miles ago. A few days ago, she was in Atlanta. By tomorrow evening, she should be in North Carolina.

Walking. Walking against hunger. Walking against the death penalty.

Her name is Lisa Thomas. She is one brave woman.

Esther Brown of Project Hope to Abolish the Death Penalty out of Alabama is following Lisa with her blog. Go here to check out this remarkable journey. Also, be sure and click back to the March archives of Esther’s blog to see pictures of Lisa on her amazing adventure.

# posted by David Elliot @ 3:20 PM 0 comments

Monday, April 18, 2005

A Friend Asks for Help

on April 18th, 2005

Angie L. Reese-Hawkins

President & CEO

Dear President Reese-Hawkins,

I am writing to see if it’s possible for the national office of the YMCA to provide shelter for anti-hunger activist Lisa Thomas during her protest walk from her hometown of Brewton, Alabama to Washington, D.C. Ms. Thomas wants to bring attention to issues that critically affect the poor in Alabama: lack of funding for the hungry, the highest rate of taxation of those impoverished, and a death penalty that is meted out in a manner that is highly discriminatory against African Americans and without regard to the mental state of the inmate or even new DNA evidence offered by the convicted. Attached below some media coverage and a blog history from the Alabama based non-profit organization, Project Hope To Abolish the Death Penalty.

Ms. Thomas is currently 20 miles south of Greenville, South Carolina. The cell phone that was donated to her and she carries as she walks is (251) 752-8433.

The website for my organization is www.alarise.org . My phone number is 800 832- 9060.

Thank you,

Zack Carter, Organizer,

Alabama Arise

Brewton woman goes the distance again

Lisa Thomas will head to Montgomery, then Washington, D.C., to make a statement about poverty, tax reform and capital punishment

Sunday, March 27, 2005

By RENEE BUSBY

Staff Reporter

Lisa Thomas is on the road again.

The Brewton woman who walked from her hometown to Montgomery last year to hand-deliver a letter to Gov. Bob Riley about the need to help the working poor and elderly is pounding the pavement again to get her message heard.

But this time her trip won’t end at the capital in Montgomery.

After a Monday morning meeting with Riley, Thomas plans to leave Montgomery on foot headed to the nation’s Capitol to deliver a letter to President George Bush.

“I’ve got some issues to try to get resolved,” Thomas, 52, said last week, talking on her cell phone as she walked along Highway 31 to Montgomery. “Sometimes that takes doing something totally crazy.”

She’s hoping to make the 814-mile trek to Washington by walking 20 miles a day — making it there in about 40-50 days. Thomas said she is walking instead of driving to emphasize that hunger is a problem in this country.

Thomas is director of Carlisa Inc., a non-profit organization she established in April 2002 to help feed the elderly and needy.

Though Thomas has no appointment with the president, she said she wants to deliver a letter to Bush and talk to him about hunger in the United States.

“I know firsthand what the elderly and the poor are going through,” she said. “There have been times when I didn’t know where my next meal was coming from or where I was going to sleep at night.”

Thomas has expanded the scope of her mission, adding tax reform and a moratorium on capital punishment to her list of causes.

“It takes extraordinary people to do extraordinary things,” said Esther Brown, executive secretary/treasurer of Alabama’s Project Hope to Abolish the Death Penalty, an organization founded by death-row inmates that includes concerned citizens and death-penalty opponents. “Lisa has faith, hope and I think we need a whole lot more people like that.”

Brown has encouraged people to meet Thomas on Monday on the capital steps as she embarks on the second leg of her journey.

“Lisa has a very large heart and she saw the need of the hungry,” said Brown, a 71-year-old Lanett resident. “Before she got on the road we visit ed three of her friends she feeds and dropped off some food to keep them going while she was away.”

A former restaurant owner, Thomas delivers about 160 meals a week to residents in Escambia County, gives out 50 food boxes a month and stocks her van with groceries that she gives away to those who can’t afford them.

She is relying on public and private donations to help fund her walk.

Carlisa Inc. is also asking 924 people to donate $25 each for the walk. Thomas said all of the funds raised will be used to help senior citizens and the working poor.

Friends will follow her in a van. She plans to sleep in the van, unless someone donates money for a hotel room or offers her accommodations.

“Maybe some police chief will offer to let me stay in his jail overnight,” said Thomas. “If I don’t make it I’m going to die trying.”

Donations can be made to Carlisa Inc., 1198 Old Castleberry Road, Brewton, AL 36426.

Freedom of Speech?

on April 17th, 2005

A woman decides to speak out against hunger and the death penalty and does so by walking from Brewton Al to Washington DC. A pretty amazing undertaking, but do we as Americans think that she has a right to do that? Apparently not on this Sunday morning in South Carolina. Lisa just called, pretty upset after a serious incident, but determined to carry on. I asked her to cover up the part about the death penalty on her truck because of course that is what draws the heat, but she said, “absolutely not! If they are for the death penalty, let them walk to Washington!”

This was South Carolina but it could have been in Alabama, Georgia, any of the Southern States that are so in love with killing and where lynching happened only yesterday.

And if you notice that I am upset, believe me I am, upset and concerned!

Abolish the Death Penalty

Last week we blogged about a new study that has just been published in The Lancet, Great Britain's leading medical journal. Studying the post-mortem toxicology reports of 49 executed people in the states of Arizona, Georgia, North Carolina and South Carolina, researchers were able to determine that the blood level concentration of sodium thiopental -- the drug that is supposed to render you unconscious while the other, poisonous drugs are administered -- were too low.

In other words: There is the distinct possibility that in some cases, people being executed may be awake and conscious while a paralyzing agent is administered. This would leave them unable to cry out or react in any way when the third drug is given -- a drug that would cause an agonizing burning sensation.

Supporters of the death penalty might say, "So what? After what they did, what's a little suffering?"

But in what amounts to a journalistic breakthrough, the Houston Chronicle today explained the "so what" in an editorial. Here is an excerpt:

Not surprisingly, death penalty supporters were unimpressed with the findings. Andy Kahan, the crime victims advocate under Mayor Bill White and the two previous Houston mayors, asserted that, "Lethal injection represents the most humane possible means of punishing a brutal, heinous murderer."

But, as the study's authors pointed out, there is too little data to conclude that the procedure is painless. The Texas Department of Criminal Justice told the researchers they don't have autopsy or toxicology reports for executed inmates or information about how it created the protocol it uses for injections. They said medical technicians who administered the drugs in their sample population had no training in anesthesia, and no post-execution reviews were conducted.

It's one thing to believe that lethal injection is painless, but it's quite another to accept a degree of pain, a sentiment Kahan made clear in his next breath: "Whether or not it is painful, one thing is for sure, it is certainly less painful than the excruciating and horrific death that the victim suffered at the hand of the defendant."

Kahan's defense of the state on grounds that it acts less viciously than the murderer should not keep Texans from ensuring a humane procedure. Texas executions are supposed to be about justice and deterrence, not revenge. Also, in order to keep to the lawful side of the U.S. Constitution, executions may not violate the Eighth Amendment's prohibition against cruel and unusual punishment.

To read the entire editorial, go here.

A woman walks

Today, at this moment, a woman is walking. She is walking against hunger. She is walking against the death penalty. She started in Newton, Alabama. That was about 400 miles ago. A few days ago, she was in Atlanta. By tomorrow evening, she should be in North Carolina.

Walking. Walking against hunger. Walking against the death penalty.

Her name is Lisa Thomas. She is one brave woman.

Esther Brown of Project Hope to Abolish the Death Penalty out of Alabama is following Lisa with her blog. Go hereto check out this remarkable journey. Also, be sure and click back to the March archives of Esther's blog to see pictures of Lisa on her amazing adventure.

All out for the 12th Annual Fast and Vigil!

It's still approximately 72 days until Starvin' for Justice 2005: The 12th Annual Fast and Vigil to Abolish the Death Penalty.

But it's never too soon for people to think about whether they might want to directly participate in this year's event or figure out a way to otherwise support it.

The annual Fast and Vigil to Abolish the Death Penalty is held on the sidewalk in front of the U.S. Supreme Court each year from midnight June 29 to midnight June 2. June 29 is the anniversary of the seminal 1972 ruling Furman v. Georgia, which temporarily struck down death penalty statutes in the United States. July 2 is the anniversary of the sadder 1976 ruling Gregg v. Georgia, which allowed executions to resume.

I recently asked Abe Bonowitz, who helps organize the event, to share with me his thoughts on why the fast and vigil is important. He ignited my imagination by invoking the phrase "Abolition University" to describe the educational value of the event. This year, there will be additional teach-ins, more speaking opportunities, maybe some other manifestations of our abolition work such as music, spoken word performances, etc.

Abe wrote the following to me in an email:

The Fast & Vigil furthers the cause of abolition by enhancing the skills and education of grassroots activists who are doing the work every day in whatever way they can, wherever they happen to be, and by educating the public via the mass media, and to a lesser but equally important degree, those who encounter us in person.

Some of what the event provides:

1. Inspiration, training and education to activists working on the issue.
2. Public education to those who encounter it directly and via the media.
3. Symbolic presence at the heart of the issue, coupled with an opportunity for personal sacrifice and re-dedication by individual participants.
4. An annual opportunity for camaraderie among participants.

I personally see all four goals as important and useful, and I have ranked them in order of their strategic value. This is why I have been instituting the evening "teach-ins," which this year will be more rounded to provide information, inspiration and training, over and above that which one gets just by being a full-time participant. The whole thing functions as a sort of "Abolition University." This year the speakers will be recorded, audio, if not video, and the talks will be made available on the web, for whatever that is worth, and also deposited in the archives for future reference.

Last year, this blog had just launched when the 11th Annual Fast and Vigil occurred. We "covered" the event live, to the degree that resources would allow. Although our plans have not solidified yet and much depends on resources (i.e., interns!), in some shape or form we will be covering the event live again. In the meantime, the vigil has its own website. Go herefor more information!

In memory: Marla Ruzicka

Courtesy of my friend Jason and his colleagues at Democracy In Action, we learned this morning of the passing of Marla Ruzicka.

Marla died over the weekend in Iraq. She was on her way to visit a child who had been injured during the war when she became the victim of a bombing.

To read about her work, please go here.

An absolute must-read

There are a lot of really smart lawyers out there doing anti-death penalty work. There are the big names, like Steven Bright or Bryan Stevenson or the legendary Tony Amsterdam. There are names that one day will be big, like Jim Marcus. There are names that aren't big but they should be, like my friend and sometimes blog advisor, Karl Keys.

But I have to say that my favorite lawyer out there has got to be David Dow. Dow wears three hats. He represents a number of people on Texas death row. He is a law professor at the University of Houston Law Center. And he heads up the Texas Innocence Network.

Now Dow wears a fourth hat. He has published a brilliant and amazing book, maybe the most important book published in recent years. It's called Executed on a Technicality: Lethal Injustice on America's Death Row.

Here's a brief description:

When David Dow took his first capital case, he supported the death penalty. He changed his position as the men on death row became real people to him, as he came to witness the profound injustices they endured: from coerced confessions to disconcertingly incompetent lawyers; from racist juries and backward judges to a highly arbitrary death penalty system.

Dow’s eye-opening book is captivating because he allows the men, and their cases, to speak for themselves. For instance, one inmate’s lawyer literally slept through his trial; another inmate was executed because the jury never heard from two eyewitnesses who swore he was no the murderer; and yet another inmate was allowed to represent himself at trial despite the fact that his mental imbalance, which included attempts to issue a subpoena to Jesus Christ, was evident.

To read more about the book, to purchase it or even to read the entire first chapter, go here. Folks, I somehow lucked into an advance copy and I can tell you that this book is simply amazing.

Lonely Abolitionistnotes:

Richard Longworth - South Carolina

Thirty-six year old Richard Longworth died of a lethal injection at 6:14 p.m. on Friday April 15. The State of South Carolina killed him for his role in the shooting deaths of two men in 1991. Longworth apologized to the victims' families and his own family for his role in the shootings. Though he claimed that he did not pull the trigger (a concept echoed by prosecutors), he noted his shame and stated that he had tried to live the best life he could for the fourteen years he has served on death row. Longworth was only 22 years old at the time of the killings. He was the second man killed for these crimes. The first, David Rocheville, was executed in 1999. The families of the victims noted that, though the execution does not remove their pain, it helps to know that the process is finally over.

Spartanburg man executed for movie theater killings in 1991

Lethal Injection: Humane?

A recent study about the effects of lethal injection on the recipient showed that it is highly likely that individuals being executed by lethal injection are aware and feel themselves dying, despite the appearance of paralysis which prevents them from both moving and speaking up. NCADPissued a press release on this study, and David has blogged the press release on the NCADP blog. I will not duplicate the information therein. However, suffice it to say that this is a big deal. If, in fact, individuals feel themselves dying during the lethal injection process (which essentially pumps them full of poison until their hearts stop and they suffocate), lethal injection is officially as inhumane as hanging, the gas chamber, firing squads and even electrocution. For all but one of the 38 states which allow execution, lethal injection is the default method of execution (in some states the condemned can choose electrocution, hanging or a firing squad). Oh...and that's because, other than electrocution, the remaining options are all considered violative of the 8th Amendment provision against cruel and unusual punishment.

Here's a choice quote from the article below:

"An examination of 49 autopsies found that in 43 cases, the concentration of anesthetic in the bloodstream was less than what is required to numb a surgical patient before making an incision. In 21 cases, the concentration wasn't sufficient to prevent a patient from responding to a verbal command."

Lethal Injection