It is a dramatic legal story….but with a twist. And it’s a hell of a twist having to do with a well-known prosecutor and a stripper.

First, here are the basics:

On Monday, the California Supreme Court decided unanimously that San Quentin inmate Adam Miranda should not have been sentenced to death twenty years ago because senior District Attorney Curt Hazell—and three sitting judges (formerly prosecutors), Judge Lance Ito, San Diego Judge Roger W. Krauel, and Orange County Superior Court Judge Frederick Horn —-either knowingly or accidentally failed to hand over an essential piece of exculpatory evidence—-namely the confession to a related killing by the prosecution’s star witness.

This is complicated case, and Miranda is not a good guy. Here’s how the LA Times explains it in yesterday’s editorial:

[Adam] Miranda is not a sympathetic symbol for abolishing the death penalty. Jurors were presented with a videotape at trial that showed him killing an Eagle Rock convenience store clerk; having committed such a brutal crime, he should never again walk free. But his sentence — death, and not life without parole — was based in part on another killing. The letter found in the prosecutor’s file, but never shared with the defense as required by law and thus never considered by the sentencing jury, contained evidence of another man’s admission to that crime.

In other words, Miranda is a stone killer who deserves life without possibility of parole. But, given the laws of the state, the central issue around which his death sentence was built, was entirely false.

Scarily, it was only the nearly two decades of pro bono digging on the part of entertainment lawyer George Hedges, that got Miranda off death row. Here’s what Hedges told Business Wire:

“We have been through a 20-year struggle to locate evidence the DA’s office intentionally withheld that showed our client did not commit the murder that placed him on death row 26 years ago,” said Mr. Hedges. “The case reveals an outrageous miscarriage of justice.”

“It took us years to force the DA’s office to turn over the Miranda files, and there in the back of one of the files was an envelope containing a confession to the murder by the star witness the prosecutors used to condemn our client to death,” added Mr. Bensinger. “It shows just how corrupt the system is. Without an all-out legal assault our client would have been put to death years ago for a crime he didn’t commit.”

And if that wasn’t bad enough, here’s the twist to the story:

The main witness in Miranda’s murder trial (the murder for which he was righteously convicted), was a woman named Donna Navarro who was working as a stripper at the time of the trial, but who happened in on the scene of the crime, and had the courage to come forward in order to testify to what she saw.
Read the rest of this entry »

Bookmark to:

Today, the US Supreme Court voted in the much-watched case of Baze v. Reese that lethal injection doesn’t violate the eighth amendment’s prohibition of cruel and unusual punishment.

This means that California’s executions will likely start up again. (The LA Times covers the CA angle here. . I blogged in detail about the issue here and here.)

BUT….and this is a BIG but……instead of the usual majority/minority written opinions explaining the SCOTUS POV on the Kentucky-originated case, the justices wrote an astonishing seven separate opinions, so complex were their reactions to a moral/legal issue that is anything but cut and dried.

Legal experts are already madly opining that this unusual splintering of opinion, rather than settling the matter, will blow the issue open to further court challenges.

Here’s what the McClatchy folks had to say:

“Capital punishment is constitutional,” Chief Justice John Roberts Jr. said Thursday morning in announcing the opinion, “so there must be a means of implementing it.”

But with justices filing an extraordinary seven separate opinions, and with no one conclusion gaining a majority, the complicated case, Baze v. Rees, tinkers with rather than concludes the larger death-penalty controversy.

“I assumed that our decision would bring the debate about lethal injection as a method of execution to a close,” Justice John Paul Stevens wrote. “It now seems clear that it will not.”

The New York Times has one of the best follow-up pieces featuring quotes from other Supremes.

“The question of whether a similar three-drug protocol may be used in other states remains open and may well be answered differently in a future case on the basis of a more complete record,” Justice John Paul Stevens wrote.

Justice Clarence Thomas said “today’s decision is sure to engender more litigation” because “we have left the states without a bright-line rule.”

[SNIP]

Justice Stevens urged states to consider abandoning one of the three chemicals, the paralyzing drug that would leave an unsedated inmate conscious but unable to move, breathe or cry out. The justices in the plurality said the drug, pancuronium bromide, made executions more dignified and faster, interests Justice Stevens dismissed as inadequate.

“States wishing to decrease the risk that future litigation will delay executions or invalidate their protocols would do well to reconsider their continued use of pancuronium bromide,” Justice Stevens wrote.

“Opponents of the death penalty said the decision was little more than a road map for more litigation,” writes Adam Liptak for the NY Times. “’I think it opens the door,’ said Elizabeth Semel, the director of the death penalty clinic at the University of California Berkeley.”

Expect some of those challenges to come from California.

Bookmark to:

Much to the dismay of death penalty court watchers, myself included, today the Georgia Supreme Court denied Troy Anthony Davis a new trial in a 4-3 decision. Davis was to be executed this past July for the murder of a Savannah off-duty police officer, Mark Allen MacPhail, in a Burger King parking lot in August of 1989. Seven of the nine witness who originally identified Davis have since recanted or changed their testimony saying they were pressured by police to positively ID Troy Davis. Of the remaining two witnesses, one—Sylvester “Redd” Coles— is now accused by several new witnesses of being the actual shooter.

One new witness says that self-styled tough guy, “Redd” Coles, threatened her to keep her quiet, but with Davis’ impending execution she felt she had to come forward.

Interestingly, it was Coles who initially drew police attention to Davis. Hours after the shooting, he and his lawyer went to the police and said he saw Davis pull the trigger. Police never looked at Coles for the crime, according to a two part series in the Atlanta Journal Constitution.

Three other new witnesses stepped forward after the trial to say that Coles confessed to the murder and bragged that he’d pinned it on another guy, reports the AJC.

There was no physical evidence linking Davis, a former coach in the Savannah Police Athletic League who had signed up for the Marines, to the crime, and the murder weapon was never found. A lawyer for Davis has admitted that, because of severe budget cuts, he did not have resources needed to properly defend his client.

Two of the original jurors who convicted Davis have signed sworn affidavits saying that based on the recanted testimony, he should not be executed. “In light of this new evidence,” wrote one juror, “I have genuine concerns about the fairness of Mr. Davis’ death sentence.”

Part of the reason Davis has not received a new trial has to do with a set of legal technicalities, explained Time Magazine in this July 2007 article.

William S. Sessions, former federal judge and Director of the FBI, was one of those who expressed deep dismay over today’s decision. “There are few more serious violent crimes than the murder of a police officer who selflessly risks everything to protect his community,” said Sessions. “However, justice can only be done if we are absolutely certain that the right person has been convicted of the crime, and a number of important questions about whether Troy Anthony Davis is actually guilty have been asked - and deserved answers. Today’s decision by the Georgia Supreme Court is a missed opportunity to reaffirm the state’s commitment to honest justice.”

Sessions is a member of a bipartisan Death Penalty Committee,sponsored by the Constitution Project (which includes supporters as well as opponents of capital punishment). The committee unanimously concluded in its report that “[s]tate and federal courts should ensure that every capital defendant is provided an adequate mechanism for introducing newly discovered evidence that would otherwise be procedurally barred, where it would more likely than not produce a different outcome at trial, or where it would undermine confidence in the reliability of the sentence.”

Reasonable people would think so. Or are we really quite so comfortable executing someone who may be innocent?

Bookmark to:

Last Tuesday the Supreme Court agreed to hear Baze v. Reese a case that challenges the constitutionality of lethal injection. Since that news was announced, the court has, one by one, put a temporary freeze on every subsequent execution by lethal injection, including two death cases in Texas.

Every execution but one, that is. On the day the news about the Baze case came out, a man named Michael Richard was scheduled to die in Texas and many wondered if the Supremes would step in to delay the execution. But, they didn’t, and by the end of the day, Richards was dead.

When later in the week, the Supremes froze two subsequent Texas executions, the inconsistency caused SCOTUS watchers across the country to begin muttering to themselves. Why, they wanted to know, did the court stop two Texas executions but let the earlier one, that of Michael Richard, go forward?

Over the last couple of days the answer to that question has gradually come to light and, trust me, it’s a doozie.

At 10am on September 25, the US Supreme Court announced it would review in early 2008 an appeal by two Kentucky death row inmates challenging the legality of the lethal injection.

The same day, Michael Richard, 48, was due to receive the deadly cocktail at 6pm in southern Texas for the rape and murder of a woman in 1986.

His attorneys said they rushed to draft an appeal to the Texas Court of Criminal Appeals, the state’s highest court for criminal cases.

At 4.50pm, the lawyers called the court to ask it to remain open 20 more minutes after they were stalled by a computer malfunction.

“We close at five,” was the response from the court clerk, a quote widely reported by local media.

In a last-ditch effort, Richard’s attorneys took their case to the Supreme Court, which remains open for executions.

The legal move delayed the execution by a few hours, but since the convict did not file his appeal with a local court first, his arguments were not accepted in Washington.

The execution went ahead that evening and Richard was declared dead at 8.23pm.

In other words, the Supreme Court did not stop Richards’ execution because it couldn’t—all due to the fact that the Richards case was not properly filed in the lower court.

In the last few days, additional details about the incident have become public. According to the Houston Chronicle, the person who refused to stretch her closing time was not a clerk but a judge by the name of Sharon Keller.

The Austin American-Statesman reported Tuesday that Keller made the decision to close without consulting any of the Texas Court of Criminal Appeals’ eight other judges or later informing them about the decision — including Johnson, who was assigned to handle any late motions in Richard’s case.

“And I was angry,” she said. “If I’m in charge of the execution, I ought to have known about those things, and I ought to have been asked whether I was willing to stay late and accept those filings.”

Johnson said her first reaction was “utter dismay.”

Johnson said she would have accepted the brief for consideration by the court. “Sure,” she said. “I mean, this is a death case.”

That is, of course, exactly the point. The relentlessly punctual Judge Keller was not preventing someone from picking up their dry cleaning after hours. She held a human life in her hands when she decided it was time to close up shop.

Think about it. Twenty minutes.

Wherever you stand on the death penalty, Dallas Morning News has it right.

You might not lose sleep over the fact that the court wouldn’t stay open for 20 minutes to help a convicted rapist-murderer’s attempt to evade the needle a bit longer. You should think again.

When the state takes the life of a condemned criminal, it must do so with a sense of sobriety commensurate with its grave responsibility. Hastening the death of a man, even a bad one, because office personnel couldn’t be bothered to bend bureaucratic procedure was a breathtakingly petty act and evinced a relish for death that makes the blood of decent people run cold.

(Chapeau tip to commenter Woody for drawing this news to my attention.)

Bookmark to:

Here’s a passel of updates while I work on work on another deadline. Included is the latest on the Dream Act, creepy quotes from the Jena District Attorney, and more.
*******************************************************************************

THE DREAM ACT DIES (TEMPORARILY AT LEAST)

On Wednesday, Dick Durbin faced the fact that he was not able to get enough Republican support to keep the Dream Act alive as an amendment to the Defense authorization bill, and so Harry Reid told him to spike it. Then, on the Senate floor, Reid professed undying love for the Dream Act and said he’d “move the measure forward by Nov. 16.”

Mary Ann Zehr of Education Week, has good info on a few of the nuances of the bill including this:

While for years the DREAM Act contained a provision clarifying that states could provide in-state college tuition rates for undocumented students who were eligible to benefit from the act, that provision was dropped in the version of the act filed in the U.S. Senate last week

*******************************************************************************

JENA: THE GOOD NEWS AND THE REALLY CREEPY QUOTE

The good news out of Jena yesterday was that Mychal Bell’s, the main kid of the so-called Jena six, was released on $45,000 bail, after the DA on the case announced that he won’t fight the recent appellate court ruling demanding that Bell’s case be transferred to juvenile court.

The fact that District Attorney Reed Walters won’t push for adult charges means that Bell, who had faced a maximum of 15 years in prison on his aggravated second-degree battery conviction last month, instead can only be held in juvenile lock-up until he turns 21 if he is convicted in juvenile court.

The creepy quote came earlier in the week when the ever-chatty DA Walters had a lot more to say about various Jena-related issues, according to the Chicago Tribune:

Meanwhile, the Louisiana district attorney whose prosecution of the Jena 6 defendants sparked the civil rights protest declared that only through the intervention of Jesus Christ was Jena spared from a “disaster” last week when more than 20,000 African American demonstrators marched peacefully through the town.

“I firmly believe that had it not been for the direct intervention of the Lord Jesus Christ last Thursday, a disaster would have happened,” LaSalle Parish District Atty. Reed Walters told a nationally televised press conference.

Okie dokie, Reed, honey. We surely are grateful that Jesus saw fit to keep those rowdy dark-skinned people in line.

Good gravy.

For the rest click here
Read the rest of this entry »

Bookmark to:

On Sunday, the Dallas Morning News opened its editorial with this sentence:

“Texas’ relentless pace of state-sponsored killing is the greatest moral challenge facing lawmakers today.”

Uh, well, I can list one or two other moral challenges that we might want to think about too, like, say, equity in education, reducing poverty, health care, and maybe quitting our ineffectual and costly attempts to incarcerate our way out of every social problem.

Yet, since Texas is the state that insists on offing people at the most alarming clip, it’s heartening to read Dallas paper’s very worthy suggestions for areas of inquiry. Here’re the first two:

•Proposals to form a state innocence commission to study the causes of proven or suspected breakdowns in justice.

Wrongful convictions have been uncovered across the state through DNA tests and other advances in forensic science.

We feel a great sense of urgency from our vantage point of seeing a series of ghastly revelations in Dallas County. Thirteen men have been freed from prison because of local breakdowns of justice, including faulty police work and erroneous witness identification. Although these cases did not involve capital punishment, it is harder to conclude today that the possibility of fatal error is a remote one.

Consider the 1989 execution of Carlos De Luna of Corpus Christi in the bloody stabbing death of gas station clerk Wanda Lopez. Officials produced no physical evidence and no eyewitness to the killing, according to a Chicago Tribune series, and Mr. De Luna went to his death even though another potential suspect had been bragging about the killing…..

•The execution of defendants who were involved in crimes but who did not personally take a life.

Texas is the only state that executes people through the “law of parties.” That is morally objectionable because jurors can guess wrong on a defendant’s level of intent.

Chapeau tip to Doug Berman at Sentencing Law and Policy for pointing out the editorial.

Bookmark to:

This story seemed like a good one to post along with the information below on Schwarzenegger’s attempt to end California’s 15 month death penalty moratorium.

It takes place in Oklahoma, not California and has to do with a prosecutor bent on conviction, damn the facts, together with a police lab analyst who would lie, destroy evidence and falsify test results to give the prosecutor whatever he needed to win at trial.

This win-at-all-costs prosecutor kept Curtis Edward McCarty locked up for 21 years, 16 of them on death row. McCarty is the 201 person to be cleared in the US through DNA evidence. He was finally released just after noon this past Friday.

Robert H. Macy, was the Oklahoma County District Attorney who prosecuted McCarty in both of his trials. Over his career, Macy has sent 73 people to death row – more than any other prosecutor in the nation – and 20 of them have been executed. Macy has said publicly that he believes executing an innocent person is a sacrifice worth making in order to keep the death penalty in the United States.

****************************************************************

UPDATE: Yesterday, one more man, Byron Halsey, was released after nearly two decades in prison for the rape and murder of two New Jersey children (The jury declined to give him the death penalty, although prosecutors pushed for it.). Now DNA shows it was likely the neighbor, a sex offender, who committed the crimes. Mr. Halsey, a man with a 6th grade education and severe learning disabilities, signed a confession after 30 hours of interrogation. (Here’s the NY Times article.)

What is it exactly that we gain from the death penalty? Somebody tell me please again because I keep forgetting.

***************************************************************

Here are some snips from the Innocence Project’s press release on the McCarty case:

Read the rest of this entry »

Bookmark to:

The state of California wants to start putting people to death again. With this in mind, Schwarzenegger and company have filed papers with U.S. District Court Judge Jeremy Fogel outlining a new execution protocol hoping that Fogel will let the state resume…you know….killing people.

(I’m sorry, but as a lifelong opponent of capital punishment, I find I trip over the words whenever I write about this. Okay, back to the subject.)

In February of 2006, Judge Fogel halted all California executions when the lawyers of a condemned rapist and killer named Henry Morales argued that California’s lethal injection procedures constituted cruel and unusual punishment because there was the suspicion that, in many cases condemned prisoners died awake and in agony as a result of the three drug cocktail used, and the way it was administered.

[I’ve blogged in some detail on the drug issue here.]

The following were some of the other things that concerned Judge Fogel:

That the CDCR (California Department of Corrections and Rehabilitation) wasn’t using reliable staff members for executions.

Those staff weren’t properly trained and supervised.

The CDCR was bad at maintaining records.

And then there were the drugs, which Judge Fogel suggested were not consistently or properly mixed.

Now Schwarzenneger and CDCR head, James Tilton, insist all is fixed. At least they hope so.

Unfortunately they still want to use the same three drugs, including the paralytic agent that has been so controversial. (The LA Times has a fairly good write up on this part of the issue.)

Here and here are links to the text of the papers filed—which are rather interesting. (I particularly liked page 16 of the first filing)

And here’s where you can take a virtual tour of the state’s planned new death chamber, which is part of the 120 plus page proposal submitted to Judge Jeremy.

(Is it just me, or does anybody else wish the governor and company were this energetic in coming up with 120 pages of, say, sentencing reform to address California’s prison overcrowding disaster…? Or parole policy reform to help cut the state’s 70% recidivism rate? Or—let’s get really wild and crazy—how about education reform?)

In any case, we have to see if Judge Jeremy goes for the state’s new plan.

You will forgive me if I hope he doesn’t.

Bookmark to:

As commenter, Richard Locicero brought up in the last thread, the notion of execution—lethal injection or no lethal injection—becomes even dicier when viewed in the light of the growing number of exonerations.

Because of my gang reporting, I know of a smattering of cases in which people are serving time for crimes they didn’t commit. (And, of course, I also know of a number of other situations where people didn’t get caught for crimes they did commit.)

There is, however, one instance in particular that continues to haunt me.

I’ll get to that in a minute, but first some more recent news:

On Monday of this week, the 200th person exonerated through the use of DNA evidence was officially cleared . His name is Jerry Miller and he spent 25 years in prison for a Chicago rape, which he didn’t commit.

Here’s what the AP said about the case:

The details of the latest exoneration are typically nightmarish: Jerry Miller served 25 years for a rape conviction and had already been paroled when DNA tests showed he could not have been the man who attacked a woman in a Chicago parking garage.

Yet more alarming even than the individual stories, is the fact that the number of newly discovered wrongful convictions in the United States is growing at an increasingly rapid clip.

What’s also troubling is how common these exonerations have become since the first reversal in 1989. It took 13 years to reach the first 100 DNA exonerations, but just five to double that number. For prosecutors and judges, as well as defense attorneys, the exonerations raise a larger question: How many others, innocent of their crimes, are behind bars?

Advocates for extensive changes in the way cases are investigated and prosecuted see the 200 as the tip of a huge iceberg and use the word “epidemic.”

Prosecutors bristle at the characterization. They agree that a single person wrongly convicted is an injustice that can’t be tolerated, but see the problems as few, far between and fixable.

Well, maybe. While “epidemic” is a bit extreme, there is a growing uneasiness among many working in and around the criminal justice world who suspect that, as forensic technology becomes more sophisticated, and more and more states begin forming “innocence commissions” to examine claims of wrongful convictions, it’s likely that exoneration numbers are going to increase substantially

In California alone, more than 200 people have been cleared of major crimes—rape, murder and the like—using DNA but also other methods—as it many cases there is no DNA evidence.

The truth is, it doesn’t take a major crime for a false conviction to have a near-ruinous effect on someone’s life.

Read the rest of this entry »

Bookmark to:

A new study has just been released by researchers at the University of Miami that provides yet more evidence that executions by lethal injection may, in many instances, be excruciatingly painful. (I posted at length a few weeks ago about good, bad and the really ugly of the issue.)

In order to examine the question of what was really going on with the cocktail of three drugs that was, at one time, thought to be a relatively painless, “humane” form of execution, the researchers looked at past executions in South Carolina and in California. They choose those two states, it seems, since some of the really high-volume execution states like Texas, refused to give them any information.

Although it wasn’t their main point, the researchers’ accounts of the high levels of secrecy surrounding the particulars of various states’ execution policies was one of the things I found troubling about the study. One would think that, with 11 states calling temporary halts to executions because of the controversy, now is the time to throw the doors open and let in some light. Unless, of course, those states have many more botched executions, than we suspected, and state politicians fear it won’t do much for their poll numbers, if the rest of us read about such things in our morning papers..

Yet, it stands to reason that, if we’re to make any kind of sense of the lethal injection problem—both legal and moral—the various state execution protocols and the results they’ve engendered, have to be laid out on the table.

The Washington Post and AP have written about the study and its findings.

Here’s some of what the AP had to say:

Even when administered properly, the three-drug lethal injection method appears to have caused some inmates to suffocate while they were conscious and unable to move, instead of having their hearts stopped while they were sedated, scientists said in a report published Monday by the online journal PLoS Medicine.

No scientific groups have ever validated that lethal injection is humane, the authors write. Medical ethics bar doctors and other health professionals from taking part in executions.

The study concluded that the typical “one-size-fits-all” doses of anesthetic do not take into account an inmate’s weight and other key factors. Some inmates got too little, and in some cases, the anesthetic wore off before the execution was complete, the authors found.

“You wouldn’t be able to use this protocol to kill a pig at the University of Miami” without more proof that it worked as intended, said Teresa Zimmers, a biologist there who led the study.

Bookmark to: