History > 2007 > USA > Justice > Death penalty (III)

Judge Nixes

New Calif. Execution Method

October 31, 2007
Filed at 11:59 p.m. ET
By THE ASSOCIATED PRESS
The New York Times

SAN FRANCISCO (AP) -- California's stalled death penalty plunged deeper into disarray Wednesday when a judge tossed out the state's new lethal injection method.

The judge's ruling added to the growing uncertainty over the status of capital punishment in the state.

Marin County Judge Lynn O'Malley Taylor invalidated the state's new procedure because state prison officials failed to treat the new execution method as a new state regulation, which mandates public comment among other requirements.

Taylor's ruling came a day after the U.S. Supreme Court signaled it would continue to halt executions nationwide until it decides a challenge to Kentucky's lethal injection procedure.

California prison officials in May overhauled their process for injecting condemned inmates with a deadly three-drug combination. That was in response to a federal judge's ruling that California's execution procedure was so badly designed and carried out that it was likely to cause unconstitutional pain and suffering.

Taylor's ruling didn't touch on any of the constitutional issues before the U.S. Supreme Court and federal court system.

Instead she said prison officials violated an arcane administrative law that required them to treat the revised lethal injection procedure as a new regulation that required public comment and approval from the Office of Administrative Law.

''The means by which we execute people is a very substantial public issue,'' said Brad Phillips, an attorney representing the two condemned inmates who sued the state in Marin County to stop their executions. ''The lethal injection protocol in California is of great statewide prominence.''

Deputy Attorney General Michael Quinn argued unsuccessfully that the new execution method, which includes the remodeling of the death chamber to make it more spacious and better lit, is limited only to San Quentin Prison in Marin County and therefore not a statewide regulation.

''It applies to a small range of prisoners for a specified time at a single facility,'' Quinn argued Wednesday morning before the judge issued her final ruling. Quinn said he's unsure what the state would do next.

All state executions take place at San Quentin. There are 667 inmates currently on death row, including 15 women held at a prison in Madera County. No executions have been carried out since January 2006.

The next month, prison officials called off the execution of Michael Morales hours before he was to die for the rape and killing of 17-year-old Terri Winchell in a Lodi vineyard 26 years ago.

Prison officials said they could not comply with U.S. District Court Judge Jeremy Fogel's order that licensed medical professionals assist with the execution.

Fogel said in December he would declare the state's lethal injection process unconstitutional unless prison officials improved the procedure with better trained staff and improved conditions in the death chamber.

Fogel was scheduled to tour the prison's remodeled death chamber Nov. 19.

There's also a growing sense that the U.S. Supreme Court has instituted an unspoken moratorium on lethal injection executions since it agreed in September to consider a challenge to Kentucky's capital punishment procedure.

On Tuesday, the high court halted an execution in Mississippi, less than an hour before a convicted killer was scheduled to be put to death by lethal injection.

It's the third such high court reprieve since Sept. 25 when the court said it would hear a lethal injection challenge from two Kentucky death row inmates. State and lower federal courts have halted all other scheduled executions since then.

Judge Nixes New Calif. Execution Method, NYT, 31.10.2007
 http://www.nytimes.com/aponline/us/AP-California-Executions.html

Justices Stay Execution,

a Signal to Lower Courts

October 31, 2007
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Oct. 30 — Moments before a Mississippi prisoner was scheduled to die by lethal injection, the Supreme Court granted him a stay of execution on Tuesday evening and thus gave a nearly indisputable indication that a majority intends to block all executions until the court decides a lethal injection case from Kentucky next spring.

There were two dissenters, Justices Antonin Scalia and Samuel A. Alito Jr., but neither they nor the majority gave reasons for their positions. Because only five votes are required for a stay of execution, it is not clear whether all the remaining seven justices supported it.

The stay will remain in effect until the full court reviews an appeal filed Monday by lawyers for the inmate, Earl W. Berry, who is on death row for killing a woman 20 years ago.

While there is no schedule for that review, it will almost surely not take place until the court decides the Kentucky case, Baze v. Rees, which will be argued in January. The issue in that case is not the constitutionality of lethal injection as such, but rather a more procedural question: how judges should evaluate claims that the particular combination of drugs used to bring about death causes suffering that amounts to cruel and unusual punishment, in violation of the Eighth Amendment.

Even without a written opinion, the Supreme Court’s action on Tuesday night clarified a situation that had become increasingly confusing as state courts and the lower federal courts, without further guidance from the justices, wrestled with claims from a growing number of death-row inmates that their imminent executions should be delayed.

State and lower federal courts are likely to interpret the Supreme Court’s action as a signal that they should postpone executions in their jurisdictions. As a result, the justices will probably not have to consider any more last-minute applications from inmates while the de facto moratorium is in effect.

Of these inmates, Mr. Berry had perhaps the weakest case. He had run through many appeals in the 19 years since he was sentenced to death, but had not challenged the method of execution until recent days. His federal court lawsuit on which the justices acted was not filed until Oct. 18. The Federal District Court in Jackson, Miss., dismissed it as untimely on Oct. 24 in a ruling that the United States Court of Appeals for the Fifth Circuit affirmed last Friday.

The appeals court said that, under its own precedent, a late-filed challenge to a method of execution warranted automatic dismissal. The pending Supreme Court case was irrelevant to its determination, the appeals court said, adding that if the justices had a different view of the matter, they should say so.

In the application for a stay of execution, filed Monday afternoon, Mr. Berry’s lawyers acknowledged that the Supreme Court itself has been critical of last-minute requests from death-row inmates, “especially if the petitioner has been trying to manipulate the legal process.” But the lawyers urged the court to look beyond that issue and to consider “a balancing of the equities and hardships of the respective parties.”

In this instance, the lawyers said, Mississippi “will suffer no prejudice other than a delay if Mr. Berry’s execution is stayed,” while Mr. Berry “on the other hand, will suffer the risk of being put to death by an unconstitutional means.” They added, “It is clear that irreparable harm will result if no stay is granted.”

David P. Voisin, one of the defense lawyers, said the Supreme Court’s action was “a positive sign that as long as this issue is under consideration, the court is going to hold executions.”

Even before the court acted, executions had dropped to the lowest level in more than a decade. There have been 42 executions this year, including one last month in Texas, which the Supreme Court declined to block hours after granting review in the Kentucky case. That execution, of Michael Richard, now appears likely to be the last for months, perhaps until next summer or later if the court’s decision in Baze v. Rees results in new protocols for lethal injections.

While the de facto moratorium now in place is reminiscent of a similar period of no executions in the late 1960s and early 1970s, the resemblance is largely superficial. During the earlier period, legal challenges to the basic constitutionality of capital punishment were moving toward the Supreme Court, which in 1972 invalidated the death penalty laws that then existed. In 1976, the court allowed capital punishment to resume under reformulated statutes.

In the current cases, by contrast, the constitutionality of the death penalty is not at issue, and the inmates are not challenging the validity of their death sentences. Delays of some months in carrying out executions may seem relatively minor given the many years that most of the inmates have already spent on death row. Mr. Berry was sentenced in 1988 for the beating death of a 56-year-old woman, Mary Bounds, whom he had kidnapped as she was walking home from choir practice.

Mr. Berry, who is now 48, had two earlier appeals in which he challenged the validity of his death sentence turned down by the Supreme Court. The most recent was on Oct. 1.

In Mississippi, officials at the state prison at Parchman said they were notified of the stay 19 minutes before the scheduled execution, which was set for 6 p.m. Central time. Mr. Berry had eaten what he thought was a last meal of barbecued pork chops and had taken a shower before the call came. Chris Epps, commissioner of the state Department of Corrections, told reporters that Mr. Berry had “cried quite a bit” earlier in the day.

The department issued a statement, saying that “the agency will work within any newly established guidelines to ensure that executions are carried out in a constitutional manner.”
 

Brenda Goodman contributed reporting from Atlanta.

Justices Stay Execution, a Signal to Lower Courts, NYT, 31.10.2007, http://www.nytimes.com/2007/10/31/washington/31execute.html

Lethal Injections May Stop Until Ruling

October 31, 2007
Filed at 7:50 a.m. ET
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- The Supreme Court's decision to halt an execution in Mississippi is the latest indication that most, if not all, executions by lethal injection will be halted until justices rule on a challenge to the procedure.

The last-minute reprieve Tuesday for Earl Wesley Berry was the third granted by the justices since they agreed late last month to decide a challenge to Kentucky's lethal injection procedures.

The decision brought an emotional response from about two dozen members of the victim's family, who called a news conference to express their outrage.

''Now you want to tell me that we got a fair shake today?'' said Charles Bounds, whose 56-year-old wife, Mary, was kidnapped from a church and killed by Berry in 1987.

''Please don't ever let that man out of prison, 'cause you'll have me, then. ... I'll kill him,'' he said.

Justices Samuel Alito and Antonin Scalia would have allowed the execution to go forward.

Berry was convicted in 1988. His confession was used against him during the trial.

The Supreme Court has allowed only one execution to go forward since agreeing to hear the Kentucky case, which it is likely to hear before its July recess. Michael Richard was executed in Texas on Sept. 25, the same day the court said it would hear a lethal injection challenge from two death row inmates in Kentucky.

State and lower federal courts have halted all other scheduled executions since then, putting the nation on a path toward the lowest annual number of executions in a decade.

Berry asked for a delay at least until the court issues its decision in the Kentucky case. He claimed the mixture of deadly chemicals Mississippi uses would cause unnecessary pain, constituting cruel and unusual punishment.

Kentucky's method of lethal injection executions is similar to procedures in three dozen states. The court will consider whether the mix of three drugs used to sedate and kill prisoners has the potential to cause pain severe enough to violate the constitutional ban on cruel and unusual punishment.

------

Associated Press writer Holbrook Mohr in Parchman, Miss., contributed to this report.

Lethal Injections May Stop Until Ruling, NYT, 31.10.2007,
http://www.nytimes.com/aponline/us/AP-Scotus-Execution.html

Mississippi death row inmate

gets last-minute stay

Tue Oct 30, 2007
9:29pm EDT
Reuters
By James Vicini

WASHINGTON (Reuters) - A Mississippi death row inmate received a last-minute stay of execution from the U.S. Supreme Court on Tuesday, adding to a series of reprieves since the justices last month agreed to rule on the lethal injection method.

The Supreme Court granted a stay of execution for Earl Wesley Berry 19 minutes before he was set to die by lethal injection at 6 p.m. Central Time (7 p.m. EDT) at the Mississippi State Penitentiary, the prison said.

Berry had eaten his last meal and said goodbye to family members but at the time of the stay had not been moved to the execution chamber just a few feet (meters) from his cell, said Tara Booth, a spokeswoman for the Mississippi Department of Corrections.

Of the nine Supreme Court members, only Justices Antonin Scalia and Samuel Alito said they would deny Berry's request for a stay of execution.

Berry's lawyers had asked the Supreme Court to stop the execution until the high court rules on whether the commonly used lethal injection method constitutes cruel and unusual punishment.

On September 25, the high court agreed to decide a challenge to the three-chemical cocktail used under lethal injection procedures in Kentucky, procedures similar to those used in Mississippi and other states.

There was an execution in Texas on September 25 but there have been none since as executions have been put on hold in a number of states, including Texas, which performs the most by far.

LAST MEAL

Berry was sentenced to death for the 1987 murder of Mary Bounds. She was beaten to death after leaving choir practice at her church and her body was found in the woods just off a road near Houston, Mississippi.

A U.S. appeals court based in New Orleans had rejected Berry's appeal and cited its clear precedent that "death sentenced inmates may not wait until execution is imminent before filing an action to enjoin a state's method of carrying it out."

Berry's lawyers appealed and asked the U.S. Supreme Court for a stay of execution, which the justices granted. Over the past month, the Supreme Court also has granted stays of execution in cases from Virginia and Texas, and refused to allow an Arkansas execution to take place.

So far this year, 42 people have been executed in the United States, according to the Death Penalty Information Center. Last year, there were 53 executions.

All but one of the 37 U.S. states that now have the death penalty and the federal government use lethal injection for executions. The only exception is Nebraska, which requires electrocution.

The last-minute decision meant Berry went through rituals common to death row inmates prior to execution.

He received visits on his final day from his parents, two brothers and a sister and at 4:35 p.m. (5:35 p.m. EDT) was offered a final meal that included a turkey salad, cabbage, a biscuit, corn, peas and coffee, the prison Web site said.

At that time officers said Berry was "somber" but he had not requested a sedative, prison authorities said. They gave no details on his reaction to the stay.

(Additional reporting by Matt Bigg in Atlanta)

    Mississippi death row inmate gets last-minute stay, R, 30.10.2007, http://www.reuters.com/article/domesticNews/idUSN3023601320071031

Eyes on Supreme Court

in Execution Case Tuesday

October 30, 2007
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Oct. 29 — By 6 p.m. Tuesday, when a Mississippi inmate is scheduled to die by lethal injection, the Supreme Court may give the clearest indication so far of whether it intends to call a halt to all such executions while a case from Kentucky that the justices accepted last month remains undecided.

The Mississippi inmate, Earl W. Berry, convicted of kidnapping and murder in 1988, has been turned down by the Mississippi Supreme Court and by the United States Court of Appeals for the Fifth Circuit. Late on Monday, the justices denied his appeal of the state court ruling, as well as the application for a stay of execution that accompanied it.

Mr. Berry’s application for a stay of the Fifth Circuit ruling, which his lawyers filed on Monday afternoon, remained pending in the evening, having come in very late in the afternoon.

In turning down the state-court appeal without any apparent dissent, the Supreme Court’s three-sentence order provided a brief explanation. The Supreme Court had no jurisdiction, the unsigned order said, because “the judgment of the Mississippi Supreme Court relies upon an adequate and independent state ground.”

The Mississippi Supreme Court ruled on Oct. 11 that Mr. Berry’s challenge to the lethal injection procedure was barred as a matter of state law because he had not presented the claim in his earlier appeals. The United States Supreme Court’s own jurisdiction is limited to deciding independent questions of federal law.

The Fifth Circuit, which sits in New Orleans, similarly dismissed Mr. Berry’s challenge to lethal injection as untimely, in a decision issued on Friday. By contrast, that decision clearly presents an issue of federal procedural law for the Supreme Court to address, whether a challenge to an execution method on the eve of a scheduled execution must be dismissed as untimely. As to whether all pending executions should now be delayed, the appeals court all but challenged the justices to state plainly whether that was the case.

Noting that Mr. Berry’s new federal-court case challenging lethal injection was not filed until Oct. 18, the appeals court said: “Well-established Fifth Circuit precedent is clear: death-sentenced inmates may not wait until execution is imminent before filing an action to enjoin a state’s method of carrying it out.”

That precedent “remains binding until the Supreme Court provides contrary guidance,” the appeals court said.

In the five weeks since the Supreme Court agreed to examine how courts should evaluate the constitutionality of lethal injection, in a case from Kentucky, Baze v. Rees, No. 07-5439, the national picture has become increasingly confused. The justices allowed one execution to proceed and granted stays in two others.

Last week, a three-judge panel of the United States Court of Appeals for the 11th Circuit, in Atlanta, granted a stay for an Alabama inmate, Daniel L. Siebert, indicating that the stay would last until the Supreme Court ruled in the Baze case. But the full 11th Circuit then vacated that decision and ordered reconsideration, meanwhile keeping the stay in place only until its own further review.

While some death penalty opponents have asserted that a de facto moratorium is now in place, others are less certain. Capital Defense Weekly, a blog that tracks appellate death-penalty litigation, describing what it called “a very fluid situation,” said Monday that a Supreme Court stay in the Mississippi case would “lend credence” to the conclusion that a moratorium is in place, while the result of a denial would likely be “a new rush of execution dates.”

Separately, the American Bar Association on Monday issued the results of a three-year study of the death penalty in eight states. The group said widespread flaws, including racial disparities and incompetent legal defense, supported the argument for a nationwide moratorium on all executions.

    Eyes on Supreme Court in Execution Case Tuesday, NYT, 30.10.2007, http://www.nytimes.com/2007/10/30/washington/30scotus.html

Death Penalty Tests a Church

as It Mourns

October 28, 2007
The New York Times
By ALISON LEIGH COWAN

CHESHIRE, Conn., Oct. 25 — The United Methodist Church here is the kind of politically active place where parishioners take to the pulpit to discuss poverty in El Salvador and refugees living in Meriden. But few issues engage its passions as much as the death penalty.

The last three pastors were opponents of capital punishment. Church-sponsored adult education classes promote the idea of “restorative justice,” advocating rehabilitation over punishment. Two years ago, congregants attended midnight vigils outside the prison where Connecticut executed a prisoner for the first time in 45 years.

So it might have been expected that United Methodist congregants would speak out forcefully when a brutal triple murder here in July led to tough new policies against violent criminals across the state and a pledge from prosecutors to seek capital punishment against the defendants.

But the congregation has been largely quiet, not out of indifference, but anguish: the victims were popular and active members of the church — Jennifer Hawke-Petit, 48, and her two daughters, Hayley, 17, and Michaela, 11. On July 23, two men broke into the family’s home. Mrs. Hawke-Petit was strangled and her daughters died in a fire that the police say was set by the intruders.

The killings have not just stunned the congregation, they have spurred quiet debate about how it should respond to the crime and whether it should publicly oppose the punishment that may follow. It has also caused a few to reassess how they feel about the punishment.

At the heart of the debate are questions about how Mrs. Hawke-Petit’s husband, William, who survived the attack, feels about the death penalty. The indications are conflicting. Sensitive to his grief, many of the church’s most ardent capital punishment opponents have been hesitant to speak against the capital charges brought against two parolees charged with the killings, Joshua Komisarjevsky and Steven Hayes.

“I’m treading lightly out of respect for the Petit family,” said the church’s pastor, the Rev. Stephen E. Volpe, a death penalty opponent. “I do not feel we, in this church, ought to make this tragedy the rallying cry for anything at this point.”

At the same time, there is a widespread belief that Mrs. Hawke-Petit was opposed to capital punishment. Having her killers put to death would be the last thing she would want, many say.

“It’d be so dishonoring to her life to do anything violent in her name,” said Carolyn Hardin Engelhardt, a church member who is the director of the ministry resource center at Yale Divinity School Library. “That’s not the kind of person she was.”

At least two church members say they think that Mrs. Hawke-Petit endorsed an anti-death-penalty document known as a Declaration of Life. The declaration states a person’s opposition to capital punishment and asks that prosecutors, in the event of the person’s own death in a capital crime, do not seek the death penalty. The documents have been signed by thousands of people, including Mario M. Cuomo, the former governor of New York, and Martin Sheen, the actor.

“She was a nurse and she would not cause harm to anyone,” said Lucy Earley, a congregant who notarized at least a dozen declarations during an appeal at the church and said she thought Mrs. Hawke-Petit’s was among them.

Declarations of Life are often kept with a person’s will or other important papers; sometimes they are filed with registries. But it could not be independently determined whether Mrs. Hawke-Petit had signed one. Although the family’s home was heavily damaged in the fire and no independent copies have surfaced, death penalty opponents both inside and outside the church have kept trying to find one. A clear indication that Mrs. Hawke-Petit rejected capital punishment could help them mobilize, they say, not only in the Cheshire case but also on behalf of the nine people on Connecticut’s death row in Somers.

The opponents also say that a signed declaration by Mrs. Hawke-Petit opposing capital punishment could help counter the public outrage to the killings — outrage that has pressured state officials to suspend parole for violent criminals.

Still, if proof of Mrs. Hawke-Petit’s sentiments did surface, it would have little standing in court, lawyers and prosecutors say.

“Our job is to enforce the law no matter who the victim is or what the victim’s religious beliefs are,” said John A. Connelly, a veteran prosecutor in Waterbury who is not involved in the Cheshire case. “If you started imposing the death penalty based on what the victim’s family felt, it would truly become arbitrary and capricious.”

Michael Dearington, the state’s attorney who is prosecuting the suspects in the Petit killings, said he did not know whether Mrs. Hawke-Petit had signed a Declaration of Life. Asked if he knew Dr. Petit’s views on the death penalty, he replied, “I have a no comment on that.”

Not surprisingly, there has been much speculation within the church about whether William Petit, a physician, supports capital punishment. Though he has participated in tributes to his family and has attended church in recent weeks, Dr. Petit has not granted interviews since the killings. “He’s just not ready,” his mother, Barbara Petit, said recently.

A friend and member of United Methodist, Dr. Phil Brewer, said he came away from a recent meeting with Dr. Petit with the impression that his friend “was strongly in favor of executing these guys, once they were found guilty.”

Dr. Brewer said that Dr. Petit had no quarrel with individuals from United Methodist speaking out against the death penalty. But he would “not take it kindly if our congregation as a whole took a position against the death penalty,” Dr. Brewer said.

“It would be seen as an effort to force him into choosing between being part of the congregation or wanting to have the death penalty,” he added.

At a memorial service in September for his family, Dr. Petit read from the Prayer of St. Francis of Assisi, which included the passage, “Where there is injury, pardon.”

Some members took that as a sign that he was grappling with his feelings about capital punishment.

“What really took my breath away when he cited the Prayer of St. Francis and either lingered on the word ‘pardon’ or got stuck on the word ‘pardon,’ ” Dr. Brewer said. “There was a long pause after he spoke the word, and to me, that signaled that this was on his mind.”

Dr. Brewer’s wife, Dr. Karen Brown, said, “I think it’s what he wants to feel, but it’s hard to get there.”

The killings have prompted the church to slow down in other ways. Because of sensitivities about Dr. Petit’s feelings, church members called off plans to invite a prominent death penalty opponent to address the congregation. There was also talk of skipping the church’s annual collection of goods for holiday packages for local prison inmates, though congregants decided to undertake the drive after all. The killings have even caused some congregants to reconsider their personal views.

“I think we’ve all rethought it because it’s pretty easy to believe something when it’s far away and then when something happens and it’s a real situation you have to examine what you believe,” said Dr. Brown. She said she remained opposed to capital punishment.

The Rev. Diana Jani Druck, who led the Cheshire congregation from 2001 to 2005, said the Petit case would be an interesting test for the congregation and the state.

The case, she said, lacks some of the factors that make some people object to the death penalty as patently unfair, like race. (The suspects are white, as were the Petits.) Because both defendants were caught fleeing the crime scene, there may be fewer questions about mistaken identity. And the gruesome nature of the crime, combined with the kinship many congregants felt for the Petits, may stir feelings of vengeance even in death penalty opponents, she said.

She herself acknowledged feeling “real violent anger” when first shown photographs of the suspects. But on reflection, she said, “I just don’t see what purpose is served in putting them to death.”

United Methodists have a long tradition of embracing those on the fringes of society, and concern over the death penalty has long found a home on the denomination’s social agenda. Dissent is permitted, but those who agree with the policy are encouraged to work to end capital punishment.

Mrs. Hawke-Petit was raised in that tradition. Her father, the Rev. Richard Hawke, led six Methodist congregations in western Pennsylvania and was the district superintendent in Pittsburgh before retiring in 1994. He is an opponent of capital punishment.

Four years after Jennifer and William Petit married in 1985, they bought a house in Cheshire and began to attend the local Methodist church regularly. Though William remained a Roman Catholic, “he was a member in everything but name only,” said the Rev. George C. Engelhardt, who was the congregation’s pastor for 29 years before becoming superintendent for several churches in the region.

Mrs. Hawke-Petit taught Sunday school. Michaela played the flute and sang in the church’s musical programs. Hayley learned how to wield a drill while doing home improvements for the disabled with the church’s summer teen brigade.

All four Petits participated in the church’s annual Living Nativity pageant, posing as human statues in the parking lot for 20-minute shifts in support of local charities. Mrs. Hawke-Petit often played Mary or a shepherdess. The girls were angels and Dr. Petit often played a king.

These days, when Dr. Petit attends church, his daughters’ friends sit by him and take turns placing a hand on his shoulder.

Many congregants expect the congregation’s strong anti-death-penalty sentiments to become more public as the Petit case develops.

“Eventually, it’s something that has to be talked about,” said Carol Wilson, a death penalty opponent who leads several church community projects. “We’re just not there yet.”

    Death Penalty Tests a Church as It Mourns, NYT, 28.10.2007, http://www.nytimes.com/2007/10/28/nyregion/28cheshire.html?hp

'I spend my days preparing for life, not for death'

The former Black Panther Mumia Abu-Jamal has spent 25 years on death row in the United States - despite strong evidence that he is innocent. In his first British interview, he talks to Laura Smith about life in solitary, how he has remained politically active, and why the Panthers are still relevant today

Thursday October 25, 2007
Guardian
Laura Smith


SCI Greene County Prison on the outskirts of Waynesburg, Pennsylvania, sits low in the rural landscape so that it's easy from the restaurants and petrol stations on the main road to miss the barbed wire coiled in endless circles. Inside, the plush leather chairs that squat on shiny floors make it feel more like a private hospital than a maximum security institution. But the black men in prison jumpsuits cleaning the floor, eyes downcast, dispel any such illusions. Signs spell out the rules: no hoods, no unauthorised persons, only $20 in cash allowed.
Death row - or at least the visiting area - is a curiously ordinary place. A central waiting room where a guard watches the goings-on. Institutional doors opening on to small boxes, each furnished with a table and chair. But then, inside the visiting room, there is the shock of a grown man in an orange jumpsuit, his hands cuffed, the space small enough for him to reach out and touch both walls. And between us a layer of thick, reinforced glass.

Mumia Abu-Jamal has lived at SCI Greene since January 1995. Convicted and sentenced to death in 1982 for the murder of a police officer in his home town, Philadelphia, he spends his days in solitary confinement, in a room he has described as smaller than most people's bathroom. When I arrive, he puts his fist to the glass in greeting. He is a tall, broad man with dreadlocked hair, still dark, and a beard slightly greying at the edges. He has lively eyes.

It is hard to know how to begin a conversation with Abu-Jamal, revered for his activism around the world as much as he is reviled as a cop killer by some in his home country. He is careful about who he agrees to see and rarely talks to the mainstream media - this is the first time he has granted an interview to a British newspaper. We start with the basics - the everyday restrictions of prison life. Visits: one a week - though it is difficult for his family to make the 660-mile, 11-hour round-trip from Philadelphia. Money: a stipend of less than $20 (£10) per month. Phone calls: three a week lasting 15 minutes each - but a quarter of an hour to Philadelphia costs $5.69 (£2.77).

This being Abu-Jamal, a campaigning journalist who has written five books about injustice while in prison, it is not long before we are on to the bigger questions: why SCI Greene, which takes most of its 1,700 inmates from Philadelphia, was built "the farthest you can be from Philly and still be in the state of Pennsylvania". "I believe it is intentional," he says. "I could count the times on my hand when I have seen this whole visiting area full." And why Global Tel Net, the firm that provides the prison phone calls, is allowed to charge so much of people who have so little. His conclusion is characteristically pithy: "The poorest pay the most."

Abu-Jamal has eight children, the eldest of whom is 38, and several grandchildren. How does he keep in touch? "Some grandchildren I have not seen. That's difficult. You try to keep contact through the phone, you write. I send cards that I draw and paint. To let them know the old man still loves them." Abu-Jamal's father William died when he was nine; his mother Edith died in February 1990 - eight years after he was imprisoned. He goes very quiet telling me this, and there doesn't seem much point asking how it felt not to be able to sit with her at the end.

Abu-Jamal has been locked up since he was 27. He is now 53. The story of how he ended up here has been told often. As a teenager he had been active in the Black Panther party but by 1981, with most of the party's leaders either dead or in jail, he had become a well-respected radio reporter and president of the Philadelphia chapter of the Association of Black Journalists. Radio journalism was not well paid, however, and Abu-Jamal supplemented his income by driving a taxi at night.

In the early hours of December 9 1981, he was out in his cab when he saw his brother, Billy Cook, being stopped by a police officer, Daniel Faulkner. A struggle ensued, during which Cook says Faulkner assaulted him. Abu-Jamal got out of his cab. Minutes later, Faulkner had been shot dead and Abu-Jamal was slumped nearby with a bullet wound to the chest, his own gun not far away.

At his trial in 1982 it appeared an open and shut case. A former Black Panther with a history of antipathy towards the police (although no criminal record). A white police officer dead. A succession of eye-witnesses who testified that Abu-Jamal was the killer. And the icing on the cake: a confession made by Abu-Jamal himself at the hospital where he was taken for treatment.

But some inconvenient facts were obscured: Abu-Jamal's gun was never tested to see whether it had been fired; his hands were never swabbed to establish whether he had fired it; and his gun's bullets were never solidly linked to those that killed Faulkner. The crime scene was never secured.

Of the three witnesses, one has since admitted to lying under police pressure, another has disappeared amid evidence that she too was under duress, and the third initially told police that he had seen the killer run away, but changed his story. Evidence from others who said they saw a third man running away was played down.

Evidence of Abu-Jamal's confession was equally shaky. Although two witnesses testified to hearing him shout, "I shot the motherfucker and I hope the motherfucker dies", the doctors who treated him insist that his medical condition made such a thing impossible. Neither of the two police officers who claimed to have heard the confession reported it until more than two months after the shooting - after Abu-Jamal had made allegations of being abused by police during his arrest. On the contrary, one noted in his log at the time that "the negro male made no comment" in hospital.

The trial judge, Albert Sabo, was a former member of the powerful police union, the Fraternal Order of Police, known to favour prosecutors. He overturned permission Abu-Jamal had obtained to represent himself, excluded him from much of his own trial, and presided over jury selection in which the majority of black candidates were removed. A court stenographer overheard Sabo telling a colleague: "I'm going to help them fry the nigger."

There were other irregularities, so many that Amnesty International concluded in 2000 that the trial was "in violation of minimum international standards", adding, "the interests of justice would best be served by the granting of a new trial to Mumia Abu-Jamal".

In the 25 years since, Abu-Jamal has appealed against his conviction many times, and many times has had his pleas rejected. He has had two dates set for his execution, only for them to be overturned by legal pressure. He is now awaiting the outcome of his latest appeal; this time by the second highest court in the US. His lead lawyer, Robert R Bryan, describes it as "the first time in 25 years that Mumia has had a chance at a free and fair trial". Abu-Jamal is more circumspect. "I have learned not to do predictions," he says. "It's not helpful, psychologically. I don't sit and fret about things."

Instead, he spends his days writing about prison life and social struggles around the world. He takes reams of notes from books sent in by supporters, so that he can refer to them when they are taken away (he is allowed only seven in his cell). "I confess, I am a nerd," he says, laughing. He uses his weekly phone calls to record radio commentaries that are broadcast around the world.

Then there are the speeches he records - he spoke at the World Congress Against the Death Penalty this year and the Million Man March in 1995 - the cards he paints for his family, and his drawing. He is currently working on his sixth book, Jailhouse Lawyers, about those prisoners who, like himself, help prepare legal cases with other inmates. He uses a beaten-up typewriter; he has never seen a computer. Asked about the work of which he is proudest, he cites his 2004 book, We Want Freedom, a history of the Black Panther party.

Abu-Jamal spends 22 hours a day alone in his cell - except at weekends, when it's 24. For two hours between 7am and 9am every weekday he has the option of going out into the yard - or "cage", as he prefers to call it. It is 60ft square and fenced on all sides, including overhead. Because "air is precious", he rarely refuses, but not everyone takes up the offer. "People have different ways," he says. "I know some guys who play chess for hours and hours, shouting the moves between cells. Some guys argue with other guys. Some guys used to enjoy smut books, but they've stopped those now. A lot of guys don't come out. I think it's depression. You get tired of seeing the same old faces. The role of television is the illusion of company, noise. I call it the fifth wall and the second window: the window of illusion."

Many of the younger prisoners call him "papa" or "old head" and it is clear that he is touched. "When you are out in the yard, it's dudes joshing," he says. "Guys being guys, playing ball. You have this machismo." One of the things that seems to keep him going are these relationships with other guys in "the hole". Many of them have inspired me and taught me ... about how things are on the street now, how young people are talking and walking."

I ask how prison has changed him. "In ways I could not have imagined," he says. "It has made me immensely patient. I was not before. It has given me an introspection that I hadn't had before, and even a kind of compassion I hadn't had before."

In Abu-Jamal's company, it is easy to forget that you are inside prison walls. As he talks, one is pulled into a world of urgent work that needs doing, of debates to be thrashed out, of injustices to be tackled. With characteristic eloquence, he calls Hurricane Katrina "a rude awakening from an illusion", watching television "a profoundly ignorising experience" and observes that much commercial hip-hop contains "no distinction, except in beat and tone, to a Chrysler advert". "If the message is, I am cool because I am rich, and if you get rich, you can be cool like me, that's a pretty fucked-up message." On American politics, he is damning. "You would think that a country that goes to war allegedly to spread democracy would practice it in its own country."

Born Wesley Cook in the Philadelphia projects, he adopted the name Mumia as a 14-year-old (later adding Abu-Jamal - "father of Jamal" in Arabic - when his first son was born). The following year, aged just 15, he helped found the Philadelphia branch of the Black Panther party after being handed a copy of their newspaper in the street. "I was like, whoah," he says. "It just thrilled me. I was like, this is heaven. This is great. Everything. It was the truth. Uncut, unalloyed. It was everything. It fit me."

He spent long days helping with party activities, which included free children's breakfast programmes and the monitoring of police, whose corruption at that time has since become notorious (at least a third of the officers involved in Abu-Jamal's investigations have since been found to have engaged in corrupt activities, including the fabrication of evidence to frame suspects).

Mostly, as the party's lieutenant of information, he wrote, gathering stories for The Black Panther, the party's newsletter. "It was great fun," he remembers now. "You worked six and seven days a week and 18 hours a day for no pay ... When I tell young people that now they are like, what was that last part? Are you crazy, man? But because we were socialists we didn't want pay. We wanted to serve our people, free our people, stop the homicide and make revolution. We thought about the party morning, noon and night. It was a very busy but fulfilling life for thousands of people across the country. We were serving our people and what could be better than that?"

Subject to relentless disruption by the FBI's Counter Intelligence Programme, which targeted radical and progressive organisations, and riven by internal disagreements, the Black Panthers imploded in the early 1970s. For Abu-Jamal it was a personal tragedy. "Despair," he says when asked how it felt. "A profound despair."

He is adamant that the party's message is still relevant today. "Millions of black people are more isolated in economic, social and political terms than they were 30 years ago," he says. "I remember a photograph of an elderly black woman (after Katrina) who had wrapped herself in the American flag and I remember looking at it and being so struck by it. Maybe she wasn't thinking visually, she was probably very cold and hungry, but I couldn't help thinking, what does citizenship mean? Are you a citizen if in the wealthiest country on earth you are left to starve, to sink or swim, to drown at the time of the flood?"

If Abu-Jamal's latest appeal is successful he could be a granted a retrial or have the death penalty overturned. If it is not, his execution could quickly follow. He does not sound afraid. "I spend my days preparing for life, not preparing for death," he says. "They haven't stopped me from doing what I want every day. I believe in life, I believe in freedom, so my mind is not consumed with death. It's with love, life and those things. In many ways, on many days, only my body is here, because I am thinking about what's happening around the world."

As we leave, people emerge from other visiting rooms into the central area. There's a family with teenage children; a young mother whose little daughter has spent much of our interview peeking through the door - to Abu-Jamal's delight; a grandfather being pushed in a wheelchair. A mother says to her children with a forced cheeriness: "That was a nice visit, wasn't it? I'm sure glad we came."

We step outside into a perfect summer day. All I can think of is my last view after saying goodbye to Abu-Jamal: a row of men, all black, standing behind glass. Their hands cuffed, their faces smiling goodbye to their families, their voices shouting greetings to each other. In a couple of minutes, each man will trek back to a cell no bigger than your bathroom, with no company but their own. But for now, just for now, there is the sight of life. And they're drinking it in.

    'I spend my days preparing for life, not for death', G, 25.10.2007, http://www.guardian.co.uk/usa/story/0,,2198557,00.html

Court grants reprieve

to Alabama death-row inmate

Wed Oct 24, 2007
9:20pm EDT
Reuters
By Peggy Gargis

BIRMINGHAM, Alabama (Reuters) - A U.S. court granted a stay of execution to a convicted killer set to be put to death in Alabama on Thursday, the latest such move since the U.S. Supreme Court agreed to hear a challenge to lethal injection.

The U.S. 11th Circuit Court of Appeals on Wednesday overturned a decision by a lower court to proceed with the execution of Daniel Lee Siebert, 53.

"We stay his execution pending the Supreme Court's resolution of Baze vs Rees," the court said, referring to the high court's decision last month to review whether lethal injections cause unacceptable pain.

Siebert's lawyers had argued that the drug combination used for lethal injection might interact with his medication for pancreatic cancer and hepatitis C and cause undue pain.

Siebert was convicted of the 1986 strangling deaths of Sherri Weathers, her two young sons and Weathers' friend Linda Jarman. Also convicted of murdering another woman, Siebert claims to have murdered others in various U.S. states.

Bryan Stevenson, director of the Equal Justice Initiative, which helped bring the suit on Siebert's behalf, said: "It would grossly inappropriate to carry out executions that may soon be declared unconstitutional by the Supreme Court."

Louella Kelley, Jarman's sister, lamented the ruling. "He's beaten the system again," she said in an interview. "He got himself educated in law while he's been in prison and his lawyers are very, very good. But all along he's been smarter than our justice system."

Alabama Gov. Bob Riley had said on Monday the execution would go ahead. It would have been the first since the beginning of a "creeping moratorium" that has halted executions in at least six U.S. states.

The U.S. Supreme Court is expected to rule by the middle of next year on a challenge by two Kentucky death-row inmates to the three-drug cocktail used in lethal injections.

The only recent execution despite the Supreme Court case was in Texas on September 25 -- just hours after the court announced it would take up the matter.

So far this year, 42 people have been executed in the United States, according to the nongovernmental Death Penalty Information Center. Last year, there were 53 executions.

All but one of the 38 U.S. states that carry out the death penalty use lethal injection, as does the federal government.

Lethal injection came under legal scrutiny after botched injections in Florida and California in which it took inmates up to 30 minutes to die.

    Court grants reprieve to Alabama death-row inmate, R, 24.10.2007, http://www.reuters.com/article/domesticNews/idUSN2430471320071025

Death Penalty Blocked Again

in Wendy’s Killings

October 23, 2007, 10:36 am
By Danny Hakim
The New York Times > City Room

The State Court of Appeals ruled this morning that John B. Taylor, who was sentenced to death for his role in the murders of five people at a Wendy’s in Flushing, Queens, in May 2000, cannot be put to death.

The 4-3 ruling [pdf] by the state’s highest court reinforces its ruling in 2004 that a central provision of the state’s capital punishment law violates the state constitution. It would take action by the Legislature to bring back the death penalty, but Assembly Democrats have shown little inclination to do so.

In 2004, the high court ruled that an instruction judges were legally required to make to jurors in capital cases was unconstitutional. A judge was required to tell jurors that if they could not choose unanimously between a sentence of death and one of life without parole, he or she would impose a sentence that would make the defendant eligible for parole after 20 to 25 years.

The Court of Appeals ruled in June 2004 that those instructions ‘’gives rise to an unconstitutionally palpable risk that one or more jurors who cannot bear the thought that a defendant may walk the streets again after serving 20 to 25 years will join jurors favoring death in order to avoid the deadlock sentence.'’

Mr. Taylor, who was sentenced to death by a jury in 2002, was the last remaining inmate on the state’s death row. In his case, Queens prosecutors argued that the judge handling the case had effectively inoculated jurors from the concern by telling them he would “almost certainly” impose consecutive terms totaling more than a century behind bars.

Three of the judges, including Chief Judge Judith S. Kaye, essentially said in their opinion that the previous ruling was not open to wiggle room and that it was not the court’s role to rewrite the law in this area to make it constitutional.

Three of the judges dissented, saying, among other things, that no coercive instruction was made in the Taylor case.
The swing vote was made by Robert Smith, who was in the dissent in the 2004 ruling. While he wrote in his own opinion that he agreed with much of what the dissenters in this current case wrote, he said the 2004 case “rendered the death penalty statute wholly invalid. I wish it were otherwise.”

Mr. Taylor’s case will now be returned to the State Supreme Court for sentencing; because of sentencing guidelines, he will receive life without parole.

    Death Penalty Blocked Again in Wendy’s Killings, NYT, 23.10.2007, http://cityroom.blogs.nytimes.com/2007/10/23/death-penalty-blocked-again-in-wendys-killings/index.html?hp

New York Court Blocks Death Penalty Exception

October 23, 2007
Filed at 10:03 a.m. ET
By THE ASSOCIATED PRESS
The New York Times

ALBANY, N.Y. (AP) -- New York's highest court has refused to carve out an exception to its 2004 decision that found the state's death penalty law unconstitutional.

In a 4-3 decision, the Court of Appeals said the death penalty for a defendant in one of the state's most horrific murders was the result of a "coercive" instruction to the jury that faced choosing a sentence of death or life without parole.

The court was being asked to reconsider its landmark decision that invalidated a crucial part of New York death penalty statute. The court effectively halted death penalty prosecutions statewide when it found a constitutional shortcoming in the provision of the law spelling out how trial judges instruct juries during sentencing in capital cases.

But prosecutors who won a death sentence against John Taylor for the murders of five Wendy's workers in Queens claimed that ruling did not affect Taylor's sentence. Prosecutors said judge in that case was careful not to violate the constitution -- an argument that would have opened an exception to the court's 2004 finding.

Taylor, 43, has been the only person on New York's death row and will now be re-sentenced to life without parole.

The court said New York's current death penalty statute is fatally flawed, but the state Legislature could enact a law that is constitutional.

"We are ultimately left exactly where we were three years ago: The death penalty sentencing statute is unconstitutional on its face and it is not within our power to save the statute ... the Legislature, mindful of our state's due process protections, may re-enact a sentencing statute that is free of coercion and is cognizant of a jury's need to know the consequences of its choice," wrote Chief Judge Judith Kaye in the majority decision.

Taylor was sentenced to die by lethal injection after his conviction for the execution-style killings of five employees of the Wendy's restaurant in 2000. He and an accomplice forced seven workers into a walk-in refrigerator in the basement, bound their hands, blindfolded them, forced them to kneel and shot each in the head. Only two survived.

A co-defendant with mild retardation was sentenced to life in prison without parole.

The six other killers sentenced to die under New York's 1995 capital punishment law had their sentences reduced after the Court of Appeals overturned the death sentence against Long Island school teacher killer Stephen LaValle. The judges found that part of the law was unfair to defendants because it required judges to tell jurors that if they deadlocked, the court would sentence the defendant to a parole-eligible life term. Critics said the provision might make jurors more likely to apply the death penalty.

    New York Court Blocks Death Penalty Exception, NYT, 23.10.2007, http://www.nytimes.com/aponline/us/AP-NY-Death-Row.html

Capital Punishment at Crossroads in US

October 21, 2007
Filed at 7:22 a.m. ET
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- Stop executions for a while and perhaps they can be stopped forever. That calculation has been part of the strategy of capital punishment opponents for decades.

The Supreme Court-inspired slowdown in executions offers the first nationwide opportunity in 20-plus years to test whether the absence of regularly scheduled executions will lead some states to abandon the death penalty and change public attitudes about capital punishment.

Recent decisions by judges and elected officials have made clear that most executions will not proceed until the Supreme Court rules in a challenge by two death row inmates to the lethal injection procedures used by Kentucky. The inmates say Kentucky's method creates the risk of pain severe enough to be cruel and unusual punishment, banned by the Eighth Amendment.

Similar procedures are used by Texas, the far-and-away leader in lethal injections, and the 16 other states that have executed prisoners in the past two years.

It is clear the high court will not go so far as to outlaw the use of lethal injections. That issue is not even before the court in the Kentucky case.

Rather, the justices could decide whether Kentucky's procedures violate the Constitution and what standard the courts should use to evaluate the risk a prisoner will feel pain as he is put to death.

No matter how the court rules, it appears there will be few, if any, prisoners executed before the court rules, probably by late June.

''We're probably looking at delaying executions, not preventing them,'' said Ronald Tabak, a New York-based lawyer with the Skadden Arps firm who has represented death row inmates.

Tabak said states with the death penalty now have a chance to review capital punishment procedures. The American Bar Association has for the past 10 years called for such a freeze and review.

''The ABA's position is unless you have fair practices, executions should not resume,'' said Tabak, who has worked with the lawyers' organization on this issue.

But Douglas Berman, a sentencing expert at the Ohio State University law school, said the possibility exists for more dramatic action.

''The abolitionists will say if we have no executions for six months to a year, and the universe is not imploding and murder rates are not going through the roof ... it becomes easier to say, 'Why do we even need the death penalty, let's just get rid of it,''' Berman said.

''Texas and other high-execution states aren't going to get there anytime soon, but the argument against capital punishment gets even more force in those states squeamish about the death penalty in the first instance,'' Berman said.

Questions about the administration of lethal injections are only part of the equation.

Death-penalty opponents also have pointed to doubts about the competence of some court-appointed defense lawyers and the rise in the number of exonerations through DNA evidence of people already convicted of crimes.

Polling has shown that the public increasingly believes that life in prison without parole will keep the worst offenders off the streets. A recent Associated Presss-Ipsos poll that asked what method of punishment people prefer for murderers found only a slight preference for the death penalty over life in prison -- 52 percent to 46 percent.

''There is a deeper societal appreciation for life without the possibility of parole. Ten to 15 years ago, no one thought they meant it,'' Berman said.

At the same time, there have been several studies, challenged by the anti-death penalty camp, that have shown a deterrent effect in the use of capital punishment. Also, public support for executions remains high. More than two-thirds of those polled favor the death penalty for murderers when the question does not include other possible punishments.

Then there is the example of the last time the country went without executions for an extended period. There were no executions from June 1967 to January 1977.

The Supreme Court in 1972 struck down 40 state death penalty laws, but did not ban capital punishment as cruel and unusual.

Some justices at the time thought their decision in Furman v. Georgia would bring an end to the death penalty.

By 1976, though, in the midst of a ''law-and-order'' backlash to the court's decisions in favor of the rights of criminal defendants, elected officials in 35 states had adopted laws to comply with the death penalty ruling.

A more conservative court upheld some of those laws, and a half-year later executions resumed.

Nearly 1,100 people have been put to death since 1977 and more than 3,000 others are on death row.

------

On the Net:

Death Penalty Information Center: http://www.deathpenaltyinfo.org

Criminal Justice Legal Foundation: http://www.cjlf.org

    Capital Punishment at Crossroads in US, NYT, 21.10.2007, http://www.nytimes.com/aponline/us/AP-Executions-Delayed.html

Georgia death row inmate gets stay of execution

Thu Oct 18, 2007
7:44pm EDT
Reuters
By Matthew Bigg

ATLANTA (Reuters) - A Georgia man condemned to die received a stay of execution on Thursday in the latest reprieve since the U.S. Supreme Court last month agreed to rule on a challenge to the lethal injection method.

Convicted murderer Jack Alderman was due to die by lethal injection on Friday and had already selected his last meal when the state Supreme Court temporarily blocked the execution, said a spokeswoman for the Georgia Department of Corrections.

The court said it ordered the stay because of a Supreme Court decision to hear a Kentucky inmate's challenge to the three-drug lethal injection method on the grounds that it could cause excruciating pain.

The court said it also took into account the Supreme Court's decision on Wednesday to stop an execution that was scheduled in Virginia, according to the Atlanta Journal Constitution's Web site.

Alderman and an accomplice killed Alderman's wife in 1974 by suffocating, strangling and drowning her in a bath, in part to get access to her $10,000 life insurance policy, according to the state attorney general's office.

His last meal was to have included fried chicken, fried shrimp and a pint of cherry or strawberry ice cream.

There was an execution in Texas on September 25. But there has been none in the United States since then as courts and state officials have put them on hold in at least six states, including Texas, which performs the most in the nation by far.

Georgia is also set to execute a man next Tuesday and it is unclear whether that execution will take place on schedule.

Nevada's high court this week granted a reprieve to a death row inmate until the Supreme Court rules in the Kentucky case. A decision is expected by the middle of next year.

So far this year, 42 people have been executed in the United States, according to the Death Penalty Information Center. Last year, there were 53 executions.

All but one of the 38 U.S. states with the death penalty and the federal government use lethal injection for executions. The only exception is Nebraska, which requires electrocution.

    Georgia death row inmate gets stay of execution, R, 18.10.2007, http://www.reuters.com/article/domesticNews/idUSN1841509320071018

Virginia death row inmate gets stay of execution

Wed Oct 17, 2007
5:35pm EDT
Reuters
By James Vicini

WASHINGTON (Reuters) - A Virginia death row inmate received a stay of execution on Wednesday, the latest in a series of reprieves since the U.S. Supreme Court last month agreed to decide a challenge to the lethal injection method.

The Supreme Court granted a stay of execution for Christopher Scott Emmett, 36, who had been scheduled to be put to death by lethal injection at 9 p.m. at the Greensville Correctional Facility in Jarratt, Virginia.

Emmett was sentenced to die for beating a co-worker at a roofing company to death with a brass lamp in 2001 to get cash to buy crack cocaine.

Emmett's lawyers had asked the Supreme Court and Gov. Timothy Kaine to stop the execution until the high court rules on whether lethal injection constitutes cruel and unusual punishment.

On September 25, the high court agreed to decide a challenge to the three-chemical cocktail used under the lethal injection procedures in Kentucky, procedures similar to those used in Virginia and other states.

There was an execution in Texas on September 25. But there have been none in the United States since as courts and state officials have put them on hold in at least six states, including in Texas, which performs the most by far.

Nevada's high court this week granted a reprieve to a death row inmate until the Supreme Court rules in the Kentucky case. A decision is expected by the middle of next year.

The Virginia attorney general's office had urged the U.S. Supreme Court to reject Emmett's request for a stay. A U.S. appeals court based in Richmond, Virginia, refused to delay the execution.

The Supreme Court in its brief order said, "The execution of sentence of death is stayed pending final disposition of the appeal by the U.S. Court of Appeals for the Fourth Circuit or further order of this court." It gave no further explanation.

So far this year, 42 people have been executed in the United States, according to the Death Penalty Information Center. Last year, there were 53 executions.

All but one of the 38 U.S. states with the death penalty and the federal government use lethal injection for executions. The only exception is Nebraska, which requires electrocution.

    Virginia death row inmate gets stay of execution, R, 17.10.2007, http://www.reuters.com/article/domesticNews/idUSN1737670520071017

Condemned Nevada inmate reprieved by state court

Tue Oct 16, 2007
12:23am EDT
Reuters
By Willie Albright

CARSON CITY, Nevada (Reuters) - Nevada's highest court gave a reprieve to a former construction worker scheduled to die on Monday, ruling that his execution should await a U.S. Supreme Court decision on the issue of lethal injection and that the state's methods involved excessive sedation.

William Castillo, 34, was to be injected with a deadly combination of drugs administered by prison guards at Nevada State Prison -- one of the country's oldest -- in Carson City.

Late on Monday, the Nevada State Supreme Court agreed to a request by the American Civil Liberties Union of Nevada to stay the execution pending an upcoming ruling by the U.S. Supreme Court on the constitutionality of execution by lethal injection. The country's highest court agreed on September 25 to review the issue, the same day Castillo was scheduled to die.

The Nevada court also said the state's methods are cruel and unusual because the prisoner is so heavily sedated it is impossible for witnesses to determine the actual effects of the injection, effectively violating First Amendment rights.

The ruling is an effective reprieve because Castillo's execution order is only good for a week, and the U.S. Supreme Court is not expected to rule before then. A number of states, including California, have halted executions pending the legal review of whether the current method of lethal injection constitutes cruel and unusual punishment.

Castillo had given up his remaining appeals, saying he was ready to die for bludgeoning an 86-year-old Las Vegas teacher to death in 1995.

Castillo worked on Isabel Brendt's roof, then returned with a female companion after finding a house key. He burglarized the home and beat Brendt to death with a tire iron. They later burned down the home.

The execution was to have been conducted under new state rules administering a sedative four hours before the execution and another one hour before. During the execution, prisoners are supposed to be given two other drugs before the final lethal injection.

About 50 people were demonstrating against the death penalty in chilly conditions outside the prison. They expressed satisfaction with the ruling by singing hymns.

So far this year, 24 people have been executed in the United States, according to the Death Penalty Information Center. Texas is by far the most active state in meting out society's most severe sanction.

All but one of the 38 U.S. states with the death penalty and the federal government use lethal injection for executions.

    Condemned Nevada inmate reprieved by state court, R, 16.10.2007, http://www.reuters.com/article/domesticNews/idUSN1539523620071016

Nev. High Court Blocks Execution

October 16, 2007
By THE ASSOCIATED PRESS
Filed at 1:49 p.m. ET
The New York Times

CARSON CITY, Nev. (AP) -- A killer's execution was halted 90 minutes before he was set to die amid arguments from death penalty opponents that the state should wait until the U.S. Supreme Court reviews the constitutionality of lethal injections.

The Nevada Supreme Court issued the last-minute stay Monday for William Castillo, who beat an elderly woman to death with a tire iron.

Castillo, 34, had declined to file appeals of his own and prison officials have said he was ready to die. The American Civil Liberties Union of Nevada appealed to halt any executions in the state.

The U.S. Supreme Court agreed Sept. 25 to review the method of lethal injection used by most states. The high court will hear a challenge early next year from two inmates in Kentucky who claim that lethal injection as practiced by that state amounts to cruel and unusual punishment, in violation of the Eighth Amendment.

Executions in at least 10 states have been halted as a result of the litigation over lethal injections.

The injections, devised as a humane alternative to electrocution and the gas chamber, have come under attack in recent years amid reports that the three-drug cocktail doesn't always work as quickly as intended and that inmates are subjected to excruciating pain.

Nevada prison officials planned to execute Castillo with double doses of three drugs -- amounts so strong that the first injection likely would have caused him to immediately become unconscious.

The Nevada high court's ruling came more than two hours after Castillo was served his final meal. The inmate had been slightly sedated as prison staffers prepared to take him to the death chamber.

Nevada Corrections Director Howard Skolnik said Castillo was disappointed when he told him about the stay.

''He asked if it would be possible to get a little more medication to calm him down and take the edge off,'' the director said.

Two of Berndt's family members had planned to witness the execution, and Skolnik said, ''They were hoping for some kind of closure today which they did not get.''

Lee Rowland, one of the ACLU lawyers who argued the case Monday before the Supreme Court, welcomed the decision, which was signed by all seven justices.

''Clearly, this was the right thing to do, legally and morally,'' she said. ''We are heartened that this decision will bring Nevada in line with the rest of the country, which has decided to await guidance from the U.S. Supreme Court.''

The dispute has not halted executions in all states. Georgia's high court on Tuesday denied a stay of execution for a convicted killer there.

Jack Alderman is scheduled to die by lethal injection Friday. He was sentenced to death for the 1974 slaying of his wife.

The Georgia court noted the U.S. Supreme Court review in its decision.

''If that court stays the execution in this and similar cases in order to consider the issue raised herein, this court will of course comply with that determination and will closely follow every directive from that court,'' the Georgia order said.

Michael Siem, one of Alderman's lawyers, said Tuesday they would file a state habeas petition, an appeal that could go all the way to the U.S. Supreme Court.

''We're a little surprised based on what's going on in the rest of the country that the Georgia court didn't issue a stay,'' Siem told The Associated Press.

    Nev. High Court Blocks Execution, NYT, 16.10.2007, http://www.nytimes.com/aponline/us/AP-Nevada-Execution.html

Bush, Texas at Odds Over Death Case

October 7, 2007
Filed at 12:09 p.m. ET
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- To put it bluntly, Texas wants President Bush to get out of the way of the state's plan to execute a Mexican for the brutal killing of two teenage girls.

Bush, who presided over 152 executions as governor of Texas, wants to halt the execution of Jose Ernesto Medellin in what has become a confusing test of presidential power that the Supreme Court ultimately will sort out.

The president wants to enforce a decision by the International Court of Justice that found the convictions of Medellin and 50 other Mexican-born prisoners violated their rights to legal help as outlined in the 1963 Vienna Convention.

That is the same court Bush has since said he plans to ignore if it makes similar decisions affecting state criminal laws.

''The president does not agree with the ICJ's interpretation of the Vienna Convention,'' the administration said in arguments filed with the court. This time, though, the U.S. agreed to abide by the international court's decision because ignoring it would harm American interests abroad, the government said.

Texas argues strenuously that neither the international court nor Bush, his Texas ties notwithstanding, has any say in Medellin's case.

Ted Cruz, the Texas solicitor general, said the administration's position would ''allow the president to set aside any state law the president believes is inconvenient to international comity.''

The Supreme Court will hear arguments in the case Wednesday.

Medellin was born in Mexico but spent much of his childhood in the United States. He was 18 in June 1993, when he and other members of the Black and Whites gang in Houston encountered Jennifer Ertman and Elizabeth Pena on a railroad trestle as the girls were taking a shortcut home.

Ertman, 14, and Pena, 16, were gang-raped and strangled. Their bodies were found four days later.

Medellin was arrested a few days after the killings. He was told he had a right to remain silent and have a lawyer present, but the police did not tell him that he could request assistance from the Mexican consulate under the 1963 treaty.

Medellin gave a written confession. He was convicted of murder in the course of a sexual assault, a capital offense in Texas. A judge sentenced him to death in October 1994.

Medellin did not raise the lack of assistance from Mexican diplomats during his trial or sentencing. When he did claim his rights had been violated, Texas and federal courts turned him down because he had not objected at his trial.

Then, in 2003, Mexico sued the United States in the International Court of Justice in The Hague on behalf of Medellin and 50 other Mexicans on death row in the U.S. who also had been denied access to their country's diplomats following their arrests.

Mexico has no death penalty. Mexico and other opponents of capital punishment have sought to use the court, also known as the World Court, to fight for foreigners facing execution in the U.S.

The international court ruled for Mexico in 2004, saying the sentences and convictions should be reviewed by U.S. courts.

Medellin's case was rejected by the 5th U.S. Circuit Court of Appeals. The Supreme Court agreed to hear his appeal. While it was pending in Washington, Bush issued a memo to his attorney general declaring that state courts must enforce the international court's ruling.

Two weeks after the memo, Bush said the U.S. was withdrawing from an international accord that lets the world court have the final say when citizens claim they were illegally denied access to their diplomats when they are jailed abroad.

The treaty had been used by the United States in its lawsuit against Iran for taking Americans hostages in 1979.

The Supreme Court weighed in next, dismissing Medellin's case while state courts reviewed Bush's order. Texas courts again ruled against Medellin, saying Bush overstepped his authority by intruding into the affairs of the independent judiciary.

In April, the Surpeme Court stepped in for a second time, putting Bush and the state he governed on opposite sides and setting up an unusual alliance of interests.

Foreign inmates on death rows in California, Florida, Texas and up to a dozen other states could be affected by the outcome.

Four of Medellin's fellow gang members also received the death penalty and one, Sean O'Brien, was executed last year. Two others had their death sentences commuted to life in prison in 2005 when the Supreme Court barred executions for those who were age 17 at the time of their crimes. Another defendant does not have an execution date.

A sixth participant, Medellin's brother, Vernancio, was 14 at the time. He was tried as a juvenile and is serving 40 years in prison.

Ertman's parents said they want to see the older Medellin brother put to death, pointing out in court papers that his case has been going on longer than their daughter lived.

The case is Medellin v. Texas, 06-984.

------

On the Net:

International Court of Justice: http://tinyurl.com/yotzz7

    Bush, Texas at Odds Over Death Case, NYT, 7.10.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Mexican-National.html

Amnesty lists execution horrors

Thursday October 4, 2007
Guardian
Suzanne Goldenberg in Washington

The use of lethal injections in the US has led to at least nine bungled executions, including one in which the prisoner took 69 minutes to die and another in which the condemned man complained five times: "It don't work," a report by Amnesty International says today.

The report contains a catalogue of botched executions dating from 2000, when lethal injection was adopted by 37 of the 38 US states with the death penalty.

In an execution in Ohio in May last year it took technicians 22 minutes to find a suitable vein in which to inject the lethal combination of three drugs. When the condemned man, Joseph Clark, raised his head to complain that the process was not working, the technicians closed the curtains around his trolley and spent an additional 30 minutes looking for a suitable vein.

An autopsy discovered 19 puncture marks on Clark's corpse.

In a celebrated case in Florida in December last year the condemned man, Angel Nieves Dias, suffered chemical burns along his arms after technicians struggled to find a vein. Reports at the time described Diaz as grimacing in pain.

Such horrific instances have destroyed the main argument for lethal injection - that it offers a relatively painless and humane death, Amnesty says. "A number of executions in the USA have been botched and caused suffering, sometimes prolonged, to the victim."

Amnesty notes that Texas, which operates America's busiest execution chamber, has banned one of the chemicals involved for use in euthanising pets, because it does not effectively mask pain.

The report comes days after an unofficial halt to executions following a supreme court decision to review the lethal injection method. On Tuesday night the appeals court of Texas stayed the impending execution of a Honduran man pending the supreme court's decision.

    Amnesty lists execution horrors, G, 4.10.2007, http://www.guardian.co.uk/usa/story/0,,2182952,00.html

Oklahoma attorney general asks hold on executions

Wed Oct 3, 2007
7:04pm EDT
Reuters

OKLAHOMA CITY (Reuters) - Oklahoma's attorney general asked the state Court of Criminal Appeals on Wednesday not to set any more execution dates until the U.S. high court rules on a challenge to the lethal injection method.

The U.S. Supreme Court said last week that it will decide whether the commonly used lethal injection method violates the constitutional ban on cruel and unusual punishment.

That court's announcement follows an appeal by two death row inmates from Kentucky arguing the three-chemical cocktail used in lethal injections inflicted unnecessary pain and suffering.

Two stays of execution have been granted in Texas, the nation's busiest death penalty state, since the Supreme Court said it would hear the Kentucky case. One was granted by the high court, the other by a Texas court.

And in Alabama, Gov. Bob Riley issued a temporary stay last week postponing the execution of a convicted killer so the state could review its method of lethal injection.

Analysts have said the high court's review could lead to a slowdown and perhaps even a temporary halt to U.S. executions. The case is expected to be argued early next year with a decision seen likely by the end of June.

Oklahoma is one state closely watched by activists against capital punishment because it has had the third highest number of executions in the United States with 86 since the Supreme Court lifted a ban on the practice in 1976.

"The constitutionality of our lethal injection protocol has withstood prior challenges in federal and state courts, but the (Kentucky) case poses a unique question," Oklahoma Attorney General Drew Edmondson said in a statement.

"... we think it prudent and in the state's best interests to ask our court to delay the setting of an execution date until the Supreme Court issues its ruling," Edmondson said.

All but one of the 38 U.S. states with the death penalty and the federal government use lethal injection for executions. The only exception is Nebraska, which employs electrocution.

The standard method of lethal injection, used by every state but New Jersey, involves three chemicals: sodium pentothal, an anesthetic, which makes the inmate unconscious; pancuronium bromide, which paralyzes all muscles except the heart; and then potassium chloride, which stops the heart.

    Oklahoma attorney general asks hold on executions, R, 3.10.2007, http://www.reuters.com/article/topNews/idUSN0326969320071003

Texas Ruling Signals Halt to Executions Indefinitely

October 3, 2007
The New York Times
By RALPH BLUMENTHAL

HOUSTON, Oct. 2 — Signaling an indefinite halt to executions in Texas, the state’s highest criminal appeals court late Tuesday stayed the lethal injection of a 28-year-old Honduran man who was scheduled to be put to death Wednesday.

The reprieve by the Texas Court of Criminal Appeals was granted a week after the United States Supreme Court agreed to consider whether a form of lethal injection constituted cruel and unusual punishment barred under the Eighth Amendment. On Thursday, the Supreme Court stepped in to halt a planned execution in Texas at the last minute, and though many legal experts interpreted that as a signal for all states to wait for a final ruling on lethal injection before any further executions, Texas officials said they planned to move ahead with more.

As a result, Tuesday’s ruling by the Texas court was seen as a sign that judges in the nation’s leading death penalty state were taking guidance from the Supreme Court and putting off imminent executions.

The Texas court order gave state authorities up to 30 days to explain in legal papers why the execution of the inmate, Heliberto Chi, should proceed. With responses then certain from defense lawyers, the effect of the order was to put off the execution for months, lawyers said.

Mr. Chi was convicted of killing the manager of a men’s store in Arlington in 2001.

Other executions, including four more scheduled in the next five months, were also likely to be stayed, said David R. Dow of the Texas Defender Service, a nonprofit law clinic that worked on Mr. Chi’s appeal.

“Until the Court of Criminal Appeals addresses the questions raised in this case there will be no more executions in Texas,” predicted Mr. Dow, a law professor at the University of Houston.

Acting less than a week after it rejected another inmate’s appeal 5 to 4, the appeals court justices provided no breakdown of the vote and did not give any reasoning for their decision. But they directed the state’s director of criminal justice, Nathaniel Quarterman, not to execute Mr. Chi and gave Mr. Quarterman and Tim Curry, the district attorney of Tarrant County, where the crime had been committed, up to 30 days to respond to claims by Mr. Chi’s lawyers that the formulation and administration of chemicals used for lethal injections did not quickly and painlessly kill but paralyzed the condemned inmates while they painfully suffocated.

Earlier Tuesday, the Texas Board of Pardons and Paroles voted 4 to 3 against recommending a stay for Mr. Chi. A request for a 30-day reprieve was also pending with Gov. Rick Perry.

Had the appeals court not halted the execution, Mr. Chi’s lawyers would have taken the case to the United States Supreme Court, which last Thursday stayed the execution for another Texas inmate, Carlton Turner Jr.

Bryan Stevenson, director of the Equal Justice Initiative in Montgomery, Ala., and a law professor at New York University, said the Supreme Court’s ruling was a sign that while it was reviewing the legality of lethal injection in a Kentucky case, “it was at least unseemly for states to be carrying out executions.”

Deborah Denno, a professor at Fordham Law School, called the latest stay in Texas significant. “I do think Texas is reaching a turning point,” Ms. Denno said. “It’s not unusual throughout the country, but it is unusual in Texas. And not uncommonly when people are talking about the death penalty, there’s Texas and everywhere else, because Texas seems to be in its own death penalty world.”

But Diane Clements, president of Justice For All, a victims’ advocacy group in Texas, said the Supreme Court and the Texas appeals court gave no reasons for their rulings, “so we’re left here with no direction.”

The delays spelled more suffering for victims’ families, Ms. Clements said. “I’m sure family of that stayed-execution victim is on a roller coaster ride,” she said. “If there’s anything certain about the death penalty for families, it’s that it is very uncertain.”

    Texas Ruling Signals Halt to Executions Indefinitely, NYT, 3.10.2007, http://www.nytimes.com/2007/10/03/us/03texas.html?hp

Texas Planning New Execution Despite Ruling

September 29, 2007
The New York Times
By RALPH BLUMENTHAL and LINDA GREENHOUSE

HOUSTON, Sept. 28 — A day after the United States Supreme Court halted an execution in Texas at the last minute, Texas officials made clear on Friday that they would nonetheless proceed with more executions in coming months, including one next week.

Though several other states are halting lethal injections until it is clear whether they are constitutional, Texas is taking a different course, risking a confrontation with the court.

“The Supreme Court’s decision to stay convicted murderer Carlton Turner’s execution will not necessarily result in an abrupt halt to Texas executions,” said Jerry Strickland, a spokesman for Attorney General Greg Abbott of Texas. “State and federal courts will continue to address each scheduled execution on a case-by-case basis.”

Shortly before midnight on Thursday, the Supreme Court stayed the execution of Mr. Turner, who had been scheduled to become the 26th Texas inmate executed this year by lethal injection in Huntsville.

Although the court gave no reason for its order, Mr. Turner, convicted of murdering his adoptive parents in 1998, had appealed to the court after it agreed Tuesday to consider the constitutionality of lethal injection, the most commonly used method of execution in the United States.

Several legal experts said the Supreme Court reprieve would be seen by most states as a signal to halt all executions until the court determined, probably some time next year, whether the current chemical formulation used for lethal injections amounts to cruel and unusual punishment barred by the Eighth Amendment.

Eleven states had halted executions for that reason. On Thursday, Alabama stayed an execution for 45 days to come up with a new formula.

“There is a momentum quality to this,” said Douglas A. Berman, a law professor at Ohio State University who has a blog, Sentencing Law and Policy. “Not only the Supreme Court granting the stay, but also the Alabama governor doing a reprieve that is likely to lead to other states with executions on the horizon waiting to see what the Supreme Court does. I’ll be surprised if many, and arguably if any states other than Texas, go through with executions this year.”

On his blog on Friday, Professor Berman predicted that there would be few if any executions in the country for the next 9 to 18 months, while the court deliberates and, later, as lower courts parse the meaning of its eventual ruling.

Texas, which has a history of confrontations with the Supreme Court over its prerogatives in criminal justice, does not appear interested in waiting. That forces lawyers for condemned prisoners to appeal each case as high as the Supreme Court.

Four more executions are scheduled in Texas over the next five months. The next inmate, who is to be executed, on Oct. 3, is Heliberto Chi, 28, a Honduran convicted of murdering the manager of a men’s clothing store in a Dallas suburb, Arlington, in a robbery in 2001.

A lawyer here who represents Hondurans in the United States, Terence O’Rourke, has said Mr. Chi’s execution would violate international law.

Mr. Chi’s lawyers are almost certain to appeal to the Supreme Court on the same grounds as Mr. Turner, also 28, used in his successful appeal. The court said this week that it would consider the legality of the injection formula used in Kentucky. Texas uses a virtually identical formula.

Andrea Keilen, executive director of the Texas Defender Service, a law firm that represents prisoners, said the message of the reprieve on Thursday was clear. “In the coming months,” Ms. Keilen said, “lethal injection could be found to be cruel and unusual punishment, and Texas should wait for that decision instead of proceeding with potentially unconstitutional executions.”

David R. Dow, a law professor at the University of Houston who handled Mr. Turner’s appeal, said it was still too early to proclaim that a de facto national moratorium was in place. If Mr. Chi’s case goes to the high court and it issues a stay, Professor Dow said, that would clearly indicate that the justices will grant such appeals until a final decision is made.

He said he expected the Texas Court of Criminal Appeals to agree eventually and begin granting the stays itself, removing the need to go to the Supreme Court. The Texas court split, 5 to 4, on Thursday in denying Mr. Turner’s appeal.

A similar de facto moratorium on executions was in place for several years in the late 1960s and early ’70s, as it became apparent that the Supreme Court was preparing to rule on the constitutionality of the death penalty. There was nothing official, but lower courts routinely delayed their cases or granted stays of execution.

The court’s eventual ruling, in Furman v. Georgia in 1972, did end capital punishment in the United States for four years, until the court approved new state death penalty laws in a series of cases in 1976.

The current challenge to the death penalty is on a much less fundamental level. Even if the Supreme Court rules in favor of the two Kentucky inmates who brought the challenge to lethal injection, the result will not be to overturn any death sentences, but rather, at the most, to require a different method to carry them out.

The stay for the Texas execution was issued two days after the court did not stop Texas from executing another inmate, Michael Richard, leading to some confusion about its intentions.

Lawyers in the case on Tuesday said their appeal had been turned down because of an unusual series of procedural problems.

Professor Dow said the computers crashed at the Texas Defender Service in Houston while lawyers were rewriting his appeal to take advantage of the high court’s unexpected interest in lethal injection.

Because of the resulting delay, the lawyers missed by 20 minutes the 5 p.m. filing deadline at the Texas Court of Criminal Appeals in Austin, where the appeal had to go first before moving to the Supreme Court.

The Texas court refused their pleas to remain open for the extra minutes. Because the lawyers missed that crucial step, Professor Dow said, the Supreme Court had to turn down the appeal, and Mr. Richard was executed.

But on Thursday, with a more carefully crafted appeal for Mr. Turner, and the Texas court’s closely split rejection, the Supreme Court called a halt to another lethal injection.
 

Ralph Blumenthal reported from Houston, and Linda Greenhouse from Washington. Maureen Balleza contributed reporting from Houston.

    Texas Planning New Execution Despite Ruling, NYT, 29.9.2007, http://www.nytimes.com/2007/09/29/us/29lethal.html?hp

Colo. Town Remembers Standoff Victim

September 28, 2007
By THE ASSOCIATED PRESS
Filed at 1:27 a.m. ET
The New York Times

BAILEY, Colo. (AP) -- About 500 people gathered Thursday to mark the first anniversary of the death of 16-year-old girl who was shot at her high school by a gunman who held her hostage.

The event included a candlelight vigil, but people also ate hamburgers and hot dogs, listened to music and tossed footballs in keeping with a plea by Emily Keyes' family to celebrate her life and not turn the anniversary into a day of mourning.

On Sept. 27, 2006, Duane Morrison, a 53-year-old drifter, held seven girls hostage in a classroom at Platte Canyon High School for nearly four hours and sexually assaulted them. He shot Keyes as a SWAT team moved in, then killed himself. He had earlier sent a suicide note to his brother.

After the shootings, Keyes' parents founded the I Love U Guys Foundation -- named after the text message she sent them during the standoff -- and asked people to perform ''random acts of kindness.'' Signs and ribbons bearing the message later went up around the mountain town about 55 miles southwest of Denver.

On Thursday, flower pots along U.S. 285 each had a letter spelling out ''kindness'' and students put pink ribbons on the pots.

The gathering also included a blood drive, which drew Cpl. Amy Franck of the Park County sheriff's office, the lead investigator in the case.

''It's just the right thing to do, it's for Emily,'' Franck said.

    Colo. Town Remembers Standoff Victim, NYT, 28.9.2007, http://www.nytimes.com/aponline/us/AP-School-Standoff-Anniversary.html

In Alabama, Rare Delay of Inmate’s Execution

September 28, 2007
The New York Times
By ADAM NOSSITER

In a fresh sign that the use of lethal injection in capital punishment faces an uncertain future, the Supreme Court issued an unusual last-minute reprieve for a death-row inmate in Texas late last night.

Although the court gave no reason for its decision, the inmate, Carlton Turner Jr., had appealed to the court after it agreed on Tuesday to consider the constitutionality of lethal injection, the most commonly used method of execution in the United States. The decision suggests that until it issues a ruling on lethal injection, the court may be receptive to requests to delay such executions, at least for defendants whose cases raise no procedural issues.

“It’s an indication that the court believes there are real questions about what states are doing in this area,” said Bryan Stevenson, executive director of the Equal Justice Initiative of Alabama, which opposes executions. “What this signals is that the burden is now shifting to the states to do something about all these problems folks have been talking about.”

The vote on the stay of execution was not announced, but at least five justices needed to support it.

Earlier in the day, another rare stay of an execution came in Alabama, where Gov. Bob Riley said the state would not execute an inmate named Tommy Arthur while it came up with a new formula for lethal injection. State officials said they wanted to make sure prisoners were completely unconscious before they were killed.

The full effect of the Supreme Court’s decision is not yet known, but it may interrupt what appears to be emerging as a patchwork, state-by-state response to its decision Tuesday to look at whether lethal injection causes unnecessary suffering.

Some states, even ardent pro-death penalty ones like Alabama, are slowing down. Others, like Texas, had been cruising at full speed; the state executed a prisoner a few hours after the court’s decision on Tuesday and was planning to proceed with its 27th execution of the year last night when the Court intervened. Eleven states have stopped lethal injections altogether, as litigation proceeds.

“It’s going to be a hodgepodge,” said George Kendall, a veteran civil rights lawyer in New York. “Some states will shut down, and in some it will be business as usual.”

All week, Texas officials had maintained that nothing had changed and that executions could proceed. Mr. Turner, 28, of Dallas, was convicted of having fatally shot his adoptive parents in 1998. Another execution is scheduled in the state next week.

Steve Hall, executive director of the StandDown Texas Project, which advocates a moratorium on executions pending a state study, said Tuesday’s execution might have come too soon after the high court’s decision to review lethal injection for the justices to want to intervene in that case. Mr. Hall said he would welcome a stay of all other executions until the court rules on the constitutionality of lethal injection.

The Supreme Court’s decisions this week seemed certain to at least slow the pace, particularly in Southern states. Death penalty lawyers in North Carolina and Virginia, for instance, are already asking for delays both in executions and the development of new procedures for them.

“I think it will hold up quite a few executions,” said Richard C. Dieter of the Death Penalty Information Center, a nonprofit group opposed to capital punishment.

In Alabama, where politicians rarely challenge the death penalty, the state is developing a “consciousness awareness test” for inmates being executed, but state officials maintained that the action was unconnected to the Supreme Court decision.

“Somebody would come in and do something to assess consciousness, after the anesthesia is delivered,” Assistant Attorney General Clay Crenshaw said. For now, he said, "the consciousness-awareness is being done visually by the warden.”

In a separate case next week, a federal judge in Alabama will hear arguments from two death-row inmates that lethal injection is unconstitutional.

Jeff Emerson, a spokesman for Governor Riley, said the change in injection procedures was not related to that case but to a federal judge’s ruling in Tennessee last week that lethal injection in that state “presents a substantial risk of unnecessary pain,” and could “result in a terrifying, excruciating death.”

The judge halted a scheduled execution in Tennessee. Mr. Emerson said Alabama’s execution procedure was similar to Tennessee’s, and thus needed to be altered.

The cases set to be heard next week in Alabama, filed by two death row inmates, Willie McNair and James Callahan, are similar to the Kentucky case that led to the Supreme Court decision. They argue that the condemned prisoner could suffer during the execution because of improper administration of the chemicals.

Ralph Blumenthal contributed reporting from Houston and Linda Greenhouse from Washington.

    In Alabama, Rare Delay of Inmate’s Execution, NYT, 28.9.2007, http://www.nytimes.com/2007/09/28/us/28lethal.html

Supreme Court Spares Texas Killer

September 28, 2007
By THE ASSOCIATED PRESS
Filed at 2:42 a.m. ET
The New York Times

HUNTSVILLE, Texas (AP) -- A man condemned for killing his parents avoided the nation's busiest death chamber Thursday night when he won a reprieve from the U.S. Supreme Court, which had already agreed to review another state's lethal injection procedures.

Attorneys for Carlton Turner Jr., 28, had appealed to the high court hoping that its planned review of lethal injection procedures in Kentucky, the same process used in Texas, could keep him alive.

His case is being watched as an indicator of whether executions in Texas could be halted until the court rules on the Kentucky case next year.

In a brief order, the court said it had granted his stay of execution but made no mention of its reasons for stopping the punishment. The order came less than two hours before the death warrant would have expired at midnight CDT.

''All I can say is all glory to God,'' Turner told prison officials as he was being returned to death row, in another prison about 45 miles east of Huntsville.

The order followed a decision earlier in the day by Alabama Gov. Bob Riley to stay the execution of a contract killer hours before it was to have been carried out, so the inmate could be put to death using a new lethal injection formula the governor had ordered just a day before.

Turner would have been the 27th Texas inmate to be executed this year and the second this week.

After state courts earlier Thursday refused to halt the punishment, Turner's lawyers went to the Supreme Court, which on Tuesday agreed to review an appeal from two condemned inmates in Kentucky who argued that the three-drug process used in lethal injection is unconstitutionally cruel. The same procedure is used in Texas.

''The inmate will be forced into a chemical straitjacket, unable to express the fact of his suffocation,'' the appeal in Turner's case asserted.

Turner's lawyers went early Thursday to his trial court judge with a request to withdraw the execution order. When that failed, they went to the Texas Court of Criminal Appeals, which voted 5-4 to refuse to stop the punishment. The case then went to the Supreme Court.

Turner was 19 when authorities said he shot Carlton Turner Sr., 43, and Tonya Turner, 40, several times in the head. He then bought new clothes and jewelry and continued living in the family's Irving home.

From death row last week, Turner told The Associated Press he didn't find the prospect of death frightening but was concerned about possible pain from the lethal injection.

''The only thing I worry about is when the process is starting, the suffocation and pain if the anesthesia doesn't work,'' he said.

In Alabama, Riley said he issued the 45-day stay of Tommy Arthur's execution only to allow time for the new lethal-injection procedures to be put in place. The changes are designed to make sure the inmate is unconscious when given drugs to stop the heart and lungs.

Riley said evidence is ''overwhelming'' that Arthur is guilty ''and he will be executed for his crime.'' The governor encouraged the attorney general's office to ask the Alabama Supreme Court to set another execution date ''as soon as possible.''

Assistant Attorney General Clay Crenshaw said the request would be filed with the court Friday.

Before Riley issued his stay, state officials had said they intended to execute Arthur at 6 p.m. Thursday, even though the changes Riley ordered could not be implemented by then.

They said the procedures already in place were constitutional, though Arthur's attorney, Suhana Han, contended that Riley's order to change the protocol amounted to the state conceding that its execution procedure was deficient. Han did not immediately return a phone message seeking comment Thursday.

Arthur, 65, was sentenced to death for the Feb. 1, 1982, killing of Troy Wicker, 35, of Muscle Shoals. The victim's wife, Judy Wicker, testified she had sex with Arthur and paid him $10,000 to kill her husband, who was shot in the face as he lay in bed.

Arthur was visiting with his daughter when he learned of the stay in a call from his attorney, prison system spokesman Brian Corbett said.

Like Turner, Arthur had asked the U.S. Supreme Court for a stay pending its ruling on the Kentucky case. The Alabama Supreme Court had declined to grant a stay Wednesday.

The wife of Arthur's victim was given a life sentence for her part in the murder and paroled after 10 years behind bars.

In a statement, Peter Neufeld, co-director of the Innocence Project, urged Riley to use the next 45 days to allow DNA testing on evidence from Arthur's trial.

''Gov. Riley said last week that DNA testing was only a tactic to delay this execution. It's not. Now that the execution is delayed for other reasons, DNA testing should be started immediately,'' Neufeld said.

Another lethal-injection lawsuit, filed by a convicted ax murderer on death row on Delaware's death row, had been scheduled for trial Oct. 9. A federal judge postponed the trial Wednesday, citing the pending Supreme Court case.

------

Associated Press writer Garry Mitchell in Atmore, Ala., contributed to this report.

    Supreme Court Spares Texas Killer, NYT, 28.9.2007, http://www.nytimes.com/aponline/us/AP-Execution-Lethal-Injection.html

Court to Consider Lethal Injection

September 25, 2007
By THE ASSOCIATED PRESS
Filed at 12:17 p.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court on Tuesday agreed to consider the constitutionality of lethal injections in a case that could affect the way inmates are executed around the country.

The high court will hear a challenge from two inmates on death row in Kentucky -- Ralph Baze and Thomas Clyde Bowling Jr. -- who sued Kentucky in 2004, claiming lethal injection amounts to cruel and unusual punishment.

Baze has been scheduled for execution Tuesday night, but the Kentucky Supreme Court halted the proceedings earlier this month.

The U.S. Supreme Court has previously made it easier for death row inmates to contest the lethal injections used across the country for executions.

But until Tuesday, the justices had never agreed to consider the fundamental question of whether the mix of drugs used in Kentucky and elsewhere violates the Eighth Amendment's ban on cruel and unusual punishment.

All 37 states that perform lethal injections use the same three-drug cocktail, but at least 11 states suspended its use after opponents alleged it was ineffective and cruel. The three drugs consist of an anesthetic, a muscle paralyzer, and a substance to stop the heart. Death penalty foes have argued that if the condemned prisoner is not given enough anesthetic, he can suffer excruciating pain without being able to cry out.

U.S. District Judge Aleta Trauger ruled last week that Tennessee's method of lethal injection is unconstitutional and ordered the state not to execute a death row inmate. The state is still deciding whether to appeal the judge's ruling, but agreed to stop a pending execution.

A ruling from California in the case of convicted killer Michael Morales resulted in the statewide suspension of executions.

States began using lethal injection in 1978 as an alternative to the historic methods of execution: electrocution, gassing, hanging and shooting. Since the death penalty resumed in 1977, 790 of 958 executions have been by injection.

Baze and Bowling sued in 2004 and a trial was held the following spring. A state judge upheld the use of lethal injection and the Kentucky Supreme Court affirmed that decision. The appeal taken up Tuesday by the U.S. Supreme Court stems from that decision.

''This is probably one of the most important cases in decades as it relates to the death penalty,'' said David Barron, the public defender who represents Baze and Bowling.

Baze, 52, has been on death row for 14 years. He was sentenced for the 1992 shooting deaths of Powell County Sheriff Steve Bennett and Deputy Arthur Briscoe.

Bennett and Briscoe were serving warrants on Baze when he shot them. Baze has said the shootings were the result of a family dispute that got out of hand and resulted in the sheriff being called.

Bowling was sentenced to death for killing Edward and Tina Earley and shooting their 2-year-old son outside the couple's Lexington, Ky., dry-cleaning business in 1990. Bowling was scheduled to die in November 2004, but a judge stopped it after Bowling and Baze sued over the constitutionality of lethal injection.

------

Associated Press writer Brett Barrouquere reported from Louisville, Ky.

------

On the Net:

Supreme Court: http://www.supremecourtus.gov/

    Court to Consider Lethal Injection, NYT, 25.9.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Lethal-Injection.html

U.S. executions seen on hold

as method challenged

Fri Sep 28, 2007
3:30pm EDT
Reuters
By Ed Stoddard

DALLAS (Reuters) - Executions in the United States will most likely be put on hold as the U.S. Supreme Court reviews a challenge to lethal injections, but that will not bring a quick end to the death penalty, experts said on Friday.

The Supreme Court said on Tuesday it will decide whether the commonly used lethal injection method violates the constitutional ban on cruel and unusual punishment.

The court will decide an appeal by two death row inmates from Kentucky arguing that the three-chemical cocktail used in lethal injections inflicted unnecessary pain and suffering.

Two condemned inmates won last-minute reprieves on Thursday, one in Alabama and the other in Texas -- developments which analysts said were directly related to this case.

Alabama Gov. Bob Riley issued a temporary stay postponing the execution of a convicted killer so the state could review its method of lethal injection.

In Texas, the most active capital punishment state by far, Gov. Rick Perry has signaled that it will be business as usual in the state's busy death chamber. But the U.S. Supreme Court granted a convicted murderer there a stay late on Thursday.

"I think the signal from the Supreme Court last night is that we will have a moratorium until the Kentucky litigation is resolved. It is essentially a de facto moratorium," said Jordan Steiker of the University of Texas at Austin School of Law.

"I think most jurisdictions will put executions on hold in any case and in Texas I think the Supreme Court is withdrawing the option. I think the political actors in Texas regrettably lack the restraint to allow the federal litigation to run its course," he said.

TEXAS EXECUTION

Texas executed a convicted murderer on Tuesday by lethal injection hours after the Supreme Court announced it would review the method. But analysts said that went ahead only because his attorneys had no time to mount a Kentucky-style challenge.

According to the Texas Department of Criminal Justice, there are two more executions currently scheduled in the state in 2007. Texas has executed 26 inmates so far this year and 405 since it resumed the practice in 1982.

The Death Penalty Information Center says there are 11 more executions scheduled across the United States before the end of 2007.

Analysts also see execution dates being put on hold for now but stress that all this is only temporary as it is the current method and not lethal injection, much less the death penalty itself, which is being reviewed by the top court.

"If the death penalty is constitutional there has to be a method that is constitutional," said Richard Dieter, executive director of the Death Penalty Information Center.

All but one of the 38 U.S. states with the death penalty and the federal government use lethal injection, which has come under scrutiny after botched executions in California and Florida in which the condemned took over 30 minutes to die.

Politically, capital punishment has wide bipartisan support in the United States, from conservative evangelical Republicans who find Biblical sanction for it to some Democrats who say it is appropriate for especially heinous crimes.

Even in Texas it is usually reserved for the worst offenders and the vast majority of convicted killers in America are never sentenced to death. The United States is the only major western democracy which retains the death penalty.

    U.S. executions seen on hold as method challenged, R, 30.10.2007, http://www.reuters.com/article/domesticNews/idUSN3023601320071031

Texas executes inmate despite review of lethal injections

25 September 2007
USA Today

HUNTSVILLE, Texas (AP) — The nation's busiest death penalty state executed another inmate Tuesday night, hours after the Supreme Court said it would review whether the lethal injection method most states use is cruel and unusual.

Michael Richard, 49, was put to death for the 1986 shooting of Marguerite Lucille Dixon, a 53-year-old nurse and mother of seven. Richard had been released from his second prison term eight weeks before Dixon was raped and killed inside her home.

Asked if he'd like to make a final statement, Richard said, "I'd like my family to take care of each other. I love you, Angel. Let's ride." He was pronounced dead at 8:23 p.m.

Another execution, the 27th in Texas this year, remained scheduled for Thursday, and officials said Tuesday's announcement by the Supreme Court would not affect the state's execution docket.

"We will go forward with our interpretation of the law," Gov. Rick Perry said.

After the Supreme Court's announcement, Richard's attorneys asked the justices to halt his execution in the meantime, but the court rejected that appeal.

Ten of the 37 states that use the three-drug cocktail under review by the Supreme Court have suspended its use after opponents alleged it was ineffective and cruel, according to the Death Penalty Information Center. But Texas is unlikely to halt lethal injections unless the Supreme Court issues a blanket stay.

"We are monitoring this, but until the court rules or gives direction, nothing changes from our perspective," said Allison Castle, a Perry spokeswoman.

Texas Attorney General Greg Abbott declined to comment.

If the three-drug cocktail were outlawed, it wouldn't be the first time Texas adapted to changing rules on how to humanely execute inmates. Criminals who committed capital crimes died by hanging in Texas from 1819 to 1923, said Jason Clark, a spokesman for the Texas Department of Criminal Justice.

On Feb. 8, 1924, the state executed five people in the electric chair, the method it would use to kill 361 inmates through 1964.

Richard was convicted and sentenced to death in 1987. The Texas Court of Criminal Appeals threw out his conviction in 1992 because jurors were not allowed to consider evidence that Richard had been abused as a child. In 1995, a second jury convicted him and sentenced him to die.

At least one psychological assessment put his IQ at 64, with 70 considered the threshold of retardation.

The U.S. Supreme Court turned down requests to halt the execution because of claims Richard was mentally retarded. Attorneys then asked for a reprieve because the court had decided to consider the lethal injection matter, but almost two hours later, the justices rejected the appeal.

    Texas executes inmate despite review of lethal injections, UT, 25.9.2007, http://www.usatoday.com/news/nation/2007-09-25-texas-execution_n.htm

Prosecutor Who Opposed a Death Sentence Is Rebuked

September 15, 2007
The New York Times
By BRENDA GOODMAN

ATLANTA, Sept. 14 — A prosecutor in Alabama has been criticized by the state attorney general for arguing that a man who was on death row for a double murder should not be put to death because the gunman in the killings was spared from execution.

The attorney general, Troy King, included the criticism in a statement on Wednesday saying he had notified the prosecutor, Robert E. Owens, the Shelby County district attorney, that he would seek to reinstate the death penalty in the case of LaSamuel Gamble, 29. Mr. Gamble won an appeal last week that effectively commuted his death sentence to life in prison.

Mr. King said that his intent was to protect the interests of the victims in the case and that Mr. Owens had acted on the side of the criminal.

Critics of Mr. King said, however, that his actions were politically motivated; Mr. Owens supported Mr. King’s opponent in the 2004 election for attorney general.

“To suggest that because the district attorney testified truthfully about his charging process he took the side of the criminal is the worst kind of political grandstanding,” said Bryan Stevenson, executive director of the Equal Justice Initiative of Alabama, which represents defendants.

Mr. Owens was the prosecutor in the case that led to death sentences for Mr. Gamble and his co-defendant, Marcus Presley, who were convicted of the murders of two people during the robbery of a pawn shop in 1996.

A security camera captured Mr. Presley, who was 16 at the time, shooting the victims, Janice Littleton and John Burleson.

The videotape showed Mr. Gamble, who was 18, picking up the shell casings and checking the victims’ vital signs.

Both men were sentenced to die, but in 2005, the United States Supreme Court ruled that it was unconstitutional to impose capital punishment on defendants who were under 18 at the time of their crimes.

As a result, Mr. Presley’s sentence was commuted to life without parole.

Mr. Owens later testified at a hearing after the Supreme Court’s decision that because the law had changed it would be unjust to execute Mr. Gamble, particularly because he had not pulled the trigger.

“It’s difficult for me,” Mr. Owens said. “I’ve been a career prosecutor. I don’t like taking a position that’s not what my victim would like to take, but I couldn’t lay my head on my pillow at night if I stood by and let a person who didn’t kill somebody be executed when the person who did kill somebody was not.”

Judge J. Michael Joiner of Shelby County Circuit Court ruled on Sept. 5 that Mr. Gamble should be resentenced and that the death penalty was not an option.

Mr. King said he would appeal Judge Joiner’s order.

Critics noted that in 2004 Mr. King filed a supporting brief with the Supreme Court asserting that putting only one defendant, Mr. Gamble, to death for the pawn shop murders would be a “bizarre result” and that Mr. Presley should be executed, too.

    Prosecutor Who Opposed a Death Sentence Is Rebuked, NYT, 15.9.2007, http://www.nytimes.com/2007/09/15/us/15penalty.html

Court: Release or Retry Death Row Inmate

September 11, 2007
By THE ASSOCIATED PRESS
Filed at 1:41 p.m. ET
The New York Times

CINCINNATI (AP) -- A death row inmate convicted of setting a fire that killed five children must be released or retried because his constitutional rights were violated when his confession was used at trial, a federal appeals court panel ruled Tuesday.

The 6th U.S. Circuit Court of Appeals judges ruled 2-1 that William Garner didn't understand his right to silence when he told police he would waive his Miranda rights against self-incrimination. He gave a taped statement to police, saying he set fire to a Cincinnati apartment with six children inside to destroy evidence of his burglary, according to court records.

Garner told police he thought the children would be awakened by the smoke and escape, according to court records. Only one child survived, and Garner, now 34, was convicted of five counts of aggravated murder in the 1992 fire, along with arson and other charges.

Judge Karen Nelson Moore, joined by Judge Boyce L. Martin, wrote that evidence showed that Garner, 19 at the time of the statement, was poorly educated, and had low intelligence and other limitations directly related to understanding and comprehending his rights. Expert testimony also showed that Garner didn't understand the word ''right'' or his right to remain silent, their opinion stated.

''Thus, admission of his statement at trial was unconstitutional,'' the opinion stated.

The judges granted Garner's request for habeas corpus, which protects inmates from unlawful imprisonment, and ordered his release in 180 days unless the state sets a new trial. The state could appeal the ruling.

A message seeking comment was left at the Ohio attorney general's office.

Judge John M. Rogers dissented, saying police repeatedly asked and obtained assurance that Garner understood their meaning.

-----

On the Net:

6th U.S. Circuit Court of Appeals: http://www.ca6.uscourts.gov

    Court: Release or Retry Death Row Inmate, NYT, 11.9.2007, http://www.nytimes.com/aponline/us/AP-Condemned-Inmate-Confession.html

Jury Consulted the Bible, but Death Sentence Stands

September 11, 2007
The New York Times
By ADAM LIPTAK

The federal appeals court in San Francisco yesterday upheld a death sentence from a jury that had consulted the Bible’s teachings on capital punishment.

In a second decision on the role of religion in the criminal justice system, the same court ruled Friday that requiring a former prisoner on parole to attend meetings of Alcoholics Anonymous violated the First Amendment’s ban on government establishment of religion.

In the capital case, the United States Court of Appeals for the Ninth Circuit split 9 to 6 on the question of whether notes including Bible verses prepared by the jury’s foreman and used during sentencing deliberations required reversal of the death sentence imposed on Stevie L. Fields in 1979.

Mr. Fields, on parole after serving time for manslaughter, committed a series of rapes, kidnappings and robberies, and murdered Rosemary Cobbs, a student librarian at the University of Southern California.

After the jury convicted Mr. Fields and while it was deliberating his sentence, the foreman, Rodney White, conducted outside research, consulting several reference works and preparing a list of pros and cons on the death penalty that he shared with fellow jurors. On the pro side, he quoted passages from the Bible, including this one from Exodus: “He that smiteth a man, so that he dies, shall surely be put to death.”

Judge Pamela Ann Rymer, writing for the majority, said there was no need to decide whether there had been juror misconduct, “because even assuming there was, we are persuaded that White’s notes had no substantial and injurious effect or influence.”

In dissent, Judge Marsha S. Berzon said there was “no doubt that White engaged in unconstitutional misconduct by injecting his overnight biblical research into the deliberations.” Judge Ronald M. Gould, also dissenting, said the majority had endorsed “a theocratic jury room” in which jurors consider “the death penalty in light of Scripture.”

In Friday’s decision, a unanimous three-judge panel of the court ruled that a parole officer in Hawaii who ordered a methamphetamine addict on parole to attend meetings of Alcoholics Anonymous/Narcotics Anonymous could be sued by the addict’s estate for violating his constitutional rights.

The case was brought by Ricky K. Inouye, who was released on parole in 2000 after serving time for drug crimes. His parole officer, Mark Nanamori, ordered him to attend A.A. meetings. Mr. Inouye, a Buddhist, refused. Partly as a result, he was returned to prison.

That violated the First Amendment, the panel ruled. “While we in no way denigrate the fine work of A.A./N.A., attendance in their programs may not be coerced by the state,” wrote Judge Berzon, who was also one of the dissenting judges in yesterday’s decision.

Most other courts that have considered the question of whether prisoners and parolees may be compelled to attend A.A. meetings have come to the same conclusion, usually relying on the program’s invocation of a “higher power.”

A member of the staff of Alcoholics Anonymous’s general service office in New York said the organization took no position on the ruling. “We do say in our literature that we are not a religious program, that we’re not religious but spiritual,” the staff member said, declining to give his full name for publication.

Judge Berzon was joined in the decision by Judge David R. Thompson. Judge Richard C. Tallman issued a concurring opinion of his own.

    Jury Consulted the Bible, but Death Sentence Stands, NYT, 11.9.2007, http://www.nytimes.com/2007/09/11/us/11alcohol.html

Despite DNA Test, Prosecutor Is Retrying Case

September 6, 2007
The New York Times
By SHAILA DEWAN

MACON, Miss., Aug. 31 — The scene in the tiny Noxubee County jail on a rainy afternoon has become almost commonplace. Kennedy Brewer, sentenced to death and locked up for 15 years for the rape and murder of a 3-year-old, was released on the strength of a DNA test showing that the semen in the rape kit was not his.

The bail bondswoman snapped a Polaroid.

Mr. Brewer’s sister, Martha, smiled and said, “I ain’t got to mow the lawn no more.”

Back home on Highway 388, two of Mr. Brewer’s nieces sketched out a T-shirt design to read “Welcome Home Kenny.”

But Mr. Brewer is not free and clear. He is only out on bail.

In a move that appears to be novel, prosecutors intend to retry him for the crime.

Virtually no effort has been made to find the man who raped the girl, Christine Jackson, and dumped her body in a creek in Noxubee County, one of the most rural in the state.

This is the first time prosecutors have sought a new capital murder trial after a conviction was overturned by DNA evidence, said Peter Neufeld, director of the Innocence Project, a legal aid group based in New York that has used DNA testing to exonerate the wrongly convicted since 1992. Usually such cases are simply dropped.

But prosecutors are not convinced of the innocence of Mr. Brewer, a black laborer who is mildly retarded. Forrest Allgood, the district attorney who first tried the case, said his theory then was that Mr. Brewer, who was the boyfriend of the victim’s mother, acted alone.

At the trial, Mr. Allgood argued that the couple’s bedroom was “the killing field,” although traces of human blood found there were so small that they could not be tested.

His view has changed.

“I perceive that Kennedy Brewer assisted someone else in the killing of the child,” Mr. Allgood said. “Whether he actually penetrated that child or not functionally doesn’t make any difference if he was aiding, assisting and encouraging in her death.”

Mr. Allgood declined to offer a new theory of what occurred the night Christine disappeared, saying only that Mr. Brewer was the baby sitter that evening and that there was no sign of forced entry at the house.

The defense lawyers, including Mr. Neufeld, say the girl could have been abducted by way of a broken window in the bedroom.

Mr. Brewer is being retried as Mississippi has been trying to reverse a reputation for judicial chicanery that dates from the civil rights era. In that time, vigilante violence often went unpunished, and the state conspired to shield Ku Klux Klan members from the law.

In recent years, high-profile cases from that period have been retried, resulting in convictions.

“The Brewer case illustrates that there are two Mississippi criminal justice systems,” Mr. Neufeld said. “There’s the old system that hasn’t changed at all and the new system that is trying to take the Bill of Rights seriously.”

Modern forensic tools do not appear to carry much weight in Noxubee County. Mr. Allgood said DNA reversals — there have been more than 200 nationwide — did not prove innocence.

Prosecutors often drop such cases only because witnesses are no longer available or evidence has been lost, Mr. Allgood said, but “John Q. Public thinks another innocent man got convicted who would have been killed.”

After the DNA results from the rape here came back in 2002, Mr. Brewer was moved from death row to the county jail, where he stayed for five years. Because Mr. Allgood was still seeking the death penalty, Mr. Brewer was not eligible for bail.

Mr. Allgood tested the DNA found on the girl against that of two men who visited Mr. Brewer at the house the night of Christine’s disappearance. The men were not a match.

He also ran a second test that excluded Mr. Brewer’s male relatives. But he did not run the profile against the state’s DNA database, saying in an interview that no such database exists.

That was a surprise to John M. Allen, the assistant director of the state crime laboratory, who said, “We’ve been up and running on our DNA database for years.”

Mr. Allgood also said he had notified the sheriff’s office of the DNA results. But the sheriff, Albert Walker, said he had not received any official notification and had not reopened the case.

“The case is already solved, far as the murder,” Sheriff Walker said.

Earnest Eichelberger, chief investigator for the sheriff’s office when Christine disappeared, said of Mr. Brewer, “I didn’t use DNA to get him convicted.” Mr. Eichelberger said he never constructed a narrative that would explain where Christine had been raped and killed, when her body had been dumped and whether or not anyone else could have been involved.

Mr. Eichelberger said that if he had his way, both Mr. Brewer and Christine’s mother, Gloria Jackson, who had been arrested several times for child abuse and neglect, would have been tried.

“She was an accessory simply because of her history, to me,” he said.

In March 2006, after a former lawyer for Mr. Brewer joined District Attorney Allgood’s staff, the prosecutor agreed to recuse himself in the case.

The new prosecutor, Ben Creekmore, the district attorney in Oxford, 100 miles northwest, decided not to seek the death penalty and agreed not to oppose bail. The new trial is now scheduled for next year.

On that Saturday night in May 1992, Mr. Brewer had stayed in the house with Christine and two other children. Ms. Jackson returned home at 12:30 a.m. Early that morning, she later testified, Mr. Brewer arose twice, once for a diaper for the baby and a second time to prepare a bottle.

In the morning, the two discovered that Christine, who had been asleep on a makeshift pallet of sofa cushions at the foot of the bed, was gone. That afternoon, as dozens of family members and friends searched, Mr. Brewer and Ms. Jackson were arrested.

After Ms. Jackson had been in jail for seven months, the charges against her were dropped.

The state’s star witness was Dr. Michael West, a dentist from Hattiesburg who had become a controversial expert in the identification of bite marks. Dr. West’s findings have been contradicted by DNA evidence in at least two other cases.

At the time of the trial, Dr. West had been suspended from the American Board of Forensic Odontology and had resigned from the American Academy of Forensic Science and the International Association of Identification, pending expulsion.

He testified that he had found 19 human bite marks on Christine’s body, all made just by upper teeth, and that at least five of them were made by Mr. Brewer.

A defense expert, Richard Souviron, testified that the wounds were not human bite marks.

“Have you ever bitten off a piece of meat with just your top teeth and not used your bottom teeth?” Dr. Souviron asked. “It doesn’t make any sense at all.”

In 2005, Mr. Allgood informed the defense that a jailhouse informer had come forward, saying Mr. Brewer had told him that he was forced at gunpoint to bite Christine.

Twenty months before Christine’s death, another 3-year-old, Courtney Smith, disappeared from her bedroom in the county and was found raped and murdered in a nearby pond. In that case, the mother’s boyfriend was sentenced to life in prison after being identified in court by a 5-year-old girl and testimony from Dr. West, who said that just the boyfriend’s upper teeth had left a mark on the girl’s wrist.

Mr. Eichelberger and Mr. Allgood say the cases are unrelated. Mr. Brewer’s defense lawyers are requesting permission to test the evidence in the Smith case for DNA.

    Despite DNA Test, Prosecutor Is Retrying Case, NYT, 6.9.2007, http://www.nytimes.com/2007/09/06/us/06dna.html?hp

Perry commutes Texas death row inmate Foster's sentence

Sentence commuted to life for driver in '96 murder

Friday, August 31, 2007
12:20 AM CDT
By EMILY RAMSHAW / The Dallas Morning News

Kenneth Foster Sr. celebrates with daughter-in-law Tasha Foster after his son's clemency. AUSTIN – Gov. Rick Perry blocked the execution of death row inmate Kenneth Foster and reduced his sentence to life in prison Thursday after weeks of statewide protest and controversy over the law used to convict him.

The unusual intervention came just after the Texas Board of Pardons and Paroles voted, 6-1, to recommend that the sentence be commuted, which is also rare. It's the first time in nearly seven years in office that Mr. Perry has stopped an execution, other than in response to Supreme Court rulings that barred the execution of juveniles and the mentally retarded.

Mr. Foster, the getaway driver in a 1996 armed robbery spree that ended in the murder of a 25-year-old San Antonio man, was scheduled to die Thursday evening. He was not the trigger man in the killing and contends he didn't know it was going to happen. But he was convicted, in the same courtroom and at the same time as the shooter, under the state's "law of parties," which authorizes capital punishment for accomplices who either intended to kill or "should have anticipated" a murder.

That law has drawn international protests, but Mr. Perry indicated he was more concerned about the simultaneous trials.

"It is an issue I think the Legislature should examine," the governor said in a written statement.

Also Online
Tell Us: Should Kenneth Foster be executed?

90 feet away when crime happened, Texas robber still fighting execution

Editorial: Kenneth Foster does not deserve execution

More countries renounce death penalty, but number of executions up
Mr. Foster, 30, will be eligible for parole in 30 years.

Mr. Foster's family and supporters, gathered in Huntsville for the possible execution, were jubilant.

"We're all a little numb – it's almost disbelief," said Dana Cloud, a spokeswoman for the Save Kenneth Foster campaign. "It is a historic turning point for Kenneth. But it's also a historic turning point in Texas, and indeed, with regard to death penalty in general."

But the news was heartbreaking to Nico LaHood, who found his older brother, Michael LaHood, shot through the eye in their driveway on that summer night in 1996.

"It's not justice," he said. "I don't think an independent jury's verdict should be questioned."

Officials at the Bexar County district attorney's office, which prosecuted the case against Mr. Foster, did not comment on the commutation. But in an interview last week, First Assistant District Attorney Cliff Herberg said Mr. Foster is as guilty as if he fired the gun himself.

The Foster decision was the governor's highest-profile death sentence ruling since 2004, when he rejected a 5-1 recommendation of clemency for Kelsey Patterson, an inmate with a long history of mental illness. Mr. Perry has been a staunch advocate of Texas' death penalty, in the face of international mockery and pressure to curb executions at the country's busiest death row. Texas has executed more than 400 people since resuming capital punishment in 1982.

Joint-trial issue

House Corrections Committee Chairman Jerry Madden said he expects "a lot of hearings, a lot of information provided" for lawmakers on the joint-trial issue when they next meet in 2009. But the law of parties, he said, is probably here to stay.

"That's been in effect for a long time," said Mr. Madden, R-Richardson.

Sen. Rodney Ellis, a Houston Democrat who has actively pushed for death penalty reform, said he may try to pass legislation on both issues.

"Someone facing the possibility of the death penalty at the very least deserves their own fair and separate trial," Mr. Ellis said.

About 80 Texas death row inmates were convicted under the law of parties, and about 20 of those have been put to death. Most states have such laws for many types of crimes, but Texas is the only state to apply it broadly to capital cases. While death penalty opponents decry its use, prosecutors argue that all those responsible for heinous crimes must be held accountable.

Given the amount of attention paid to the law of parties throughout Mr. Foster's appeals, "it's hard to imagine this not sparking more conversation," said Rob Owen, a law professor and co-director of the Capital Punishment Clinic at the University of Texas. Mr. Owen said he believes the problem is not with the law itself, but with how Texas carries it over into sentencing.

Mr. Foster acknowledges he was up for getting high and robbing a few people on that night 11 years ago. But he was in a car with two other men nearly 90 feet away when one of his partners shot and killed Mr. LaHood in what jurors determined was a botched robbery.

The men in the car, including Mr. Foster, have testified that they thought they were finished robbing for the night and that there was no plan to stick up – and certainly not to murder – Mr. LaHood. The shooter, Mauriceo Brown, was executed last year.

Mr. Foster's attorney has said he believes his client's fate was sealed during his joint trial with Mr. Brown, when one of his robbing partners testified that "it was kind of ... understood what was probably fixing to go down" when Mr. Brown got out of the car.

It was enough for jurors – and later, the appeals court – to support a capital murder charge for Mr. Foster on the basis of conspiracy. They believed Mr. Foster, as the getaway driver in two previous robberies, either knew what was about to occur or should have anticipated it.

But Mr. Foster's attorney never got the chance to cross-examine the two other partners, who both received life sentences. One has since given a sworn statement to Mr. Foster's attorney saying he didn't understand that Mr. Brown's intent was to rob Mr. LaHood until Mr. Brown had already made his way up the driveway. The other has testified that Mr. Foster asked the men all night to quit and worried about returning the car to his grandfather.

The Texas Court of Criminal Appeals, the state's highest criminal court, upheld Mr. Foster's sentence for a final time this month. The governor, as the last line of defense in Texas death row cases, has the authority to reduce a death sentence to a life sentence with the written recommendation of a majority of members of the Board of Pardons and Paroles. The seven-member panel did not give a reason for its recommendation.

Resigned to his fate

In an interview on death row in Livingston last week, Mr. Foster appeared calm and resigned to his fate – but vowed he wouldn't be an "active participant" in his execution. He had stopped eating in protest, he said, and was distracting himself with books, letters and silent prayers that Mr. Perry would take his case seriously.

"I know a lot of eyes are on me right now," Mr. Foster said. "I just feel like I'm in a plane, and the engines went out, and all I've got is a parachute that won't open."

At a rally outside the Governor's Mansion on Thursday night, Keith Hampton, Mr. Foster's attorney, said his client has a long road ahead of him and that he's not confident he'll ever be paroled. But he said he expects Mr. Foster to be moved to more comfortable confines promptly – perhaps somewhere he can earn a college degree.

"People should not underestimate the hardship of a life in prison," said Mr. Hampton, who spent much of this week "a total basket case."

"He will find a way to contribute," he said, "to the prison world and the free world."

DEATH ROW DATA

A look at Texas' death row statistics:

1 The number of death sentences commuted by Gov. Rick Perry, other than 28 inmates he spared in response to U.S. Supreme Court rulings barring the execution of juveniles and the mentally retarded.

163 Executions since Mr. Perry was sworn in as Texas' 47th governor on Dec. 21, 2000.

402 Executions since Texas resumed administering the death penalty in 1982.

6 Executions scheduled, as of today, for the rest of this year (five in September and one in October).

80 Approximate number of death row inmates convicted under the law of parties. About 20 of those have been executed.

Perry commutes Texas death row inmate Foster's sentence, DMN, 31.8.2007, http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/083107dntexexecution.8544bf20.html

Governor Commutes Sentence in Texas

August 31, 2007
The New York Times
By RALPH BLUMENTHAL

HOUSTON, Aug. 30 — Hours before his scheduled execution as a disputed accomplice in a 1996 murder, Kenneth Foster won a rare commutation to life in prison on Thursday after Gov. Rick Perry followed the recommendation of the Texas Board of Pardons and Paroles and granted a death row reprieve.

The case had raised international protests because Mr. Foster, 30, was not the gunman but the driver of a getaway car in a San Antonio robbery spree that ended in murder. He was convicted under a Texas law that makes co-conspirators liable in certain cases of homicide.

“It makes me feel wonderful,” said Mr. Foster’s father, Kenneth Foster Sr., who had been visiting his son at the death house in Huntsville with other family members when word of the board’s clemency recommendation came.

“He was very excited; he jumped for joy,” the elder Mr. Foster said.

Since taking office in 2000, Mr. Perry has granted death row commutations recommended by the pardons board only twice before, and has once overruled the panel’s recommendation, the governor’s office said.

Mr. Foster’s lawyer, Keith S. Hampton, who had run out of options except for a final — and sixth — appeal to the United States Supreme Court, said, “I’m very relieved, for Kenneth and all his supporters.” Mr. Hampton said Mr. Foster could conceivably be released from prison some day, perhaps after serving 30 more years. He has served 10.

The pardons board, appointed by the governor, met Wednesday and announced Thursday morning that it had voted 6 to 1 to recommend commutation. Shortly afterward, Mr. Perry, a Republican, accepted the recommendation.

“I believe the right and just decision is to commute Foster’s sentence from the death penalty to life imprisonment,” the governor said in a statement.

Mr. Perry raised doubts about the law that allowed Mr. Foster and the triggerman to be tried together and urged the Legislature to re-examine the issue.

Three years ago the pardons board, with one vacancy, voted 5 to 1 to recommend commuting the death sentence of another convicted murderer, Kelsey Patterson, who had been given a diagnosis of schizophrenia. Mr. Perry turned down the recommendation, and Mr. Patterson was executed by lethal injection in May 2004.

The two earlier death row commutations by Mr. Perry at the pardons board’s request came this year and in 2004. In 2005, after the United States Supreme Court halted the execution of juveniles, he commuted the death sentences of 28 17-year-olds. But 163 other executions have gone forward under Mr. Perry.

Mr. Foster was arrested with three accomplices after a night’s armed robbery spree through San Antonio that ended with one of his companions gunning down a 25-year-old law student, Michael LaHood Jr. The jury convicted Mr. Foster and sentenced him to die, along with the gunman, Mauriceo Brown, finding that he should have anticipated that the group’s crimes could lead to murder.

Mr. Brown was executed last year. The two other accomplices are serving life terms.

Sue Gunawardena-Vaughn, director of the Program to Abolish the Death Penalty of Amnesty International USA, hailed the reprieve.

“Given the obvious — that it would have been virtually impossible to predict the murder of Michael LaHood — Foster was sentenced to death under the broadest and most appalling interpretation of the law of parties,” Ms. Gunawardena-Vaughn said.

Norma LaHood, the murder victim’s mother, said she took the commutation as divine will.

“I’m filled with peace,” Mrs. LaHood said by telephone from San Antonio. “I will mourn my son till I die, but I’m not forced anymore to relive his death.”

    Governor Commutes Sentence in Texas, NYT, 31.8.2007, http://www.nytimes.com/2007/08/31/us/31execute.html

7.15pm

Texas governor spares man from execution

Thursday August 30, 2007
Guardian Unlimited
Haroon Siddique and agencies


A man in the US was today saved from the death penalty just hours before his scheduled execution.

The Texas governor, Rick Perry, accepted a parole board recommendation and commuted the sentence of Kenneth Foster, who had been due to die via lethal injection this evening.

Foster, 30, was the getaway driver in a 1996 murder but his sentence had been criticised as he had nothing to do with the shots being fired.

He was convicted of murder and sentenced to death under the Texas law of parties, which makes non-shooters equally accountable for a crime.

Another condemned man was executed under the same statute earlier this year.

"I believe the right and just decision is to commute Foster's sentence from the death penalty to life imprisonment," Mr Perry said in a statement.

In a highly unusual move, the Texas parole board had voted six to one, earlier today, to recommend that Mr Perry commuted the sentence, although the governor was under no obligation to take their advice.

Foster said he was aware his friends were committing crimes, as he drove them around in a rental car while they robbed at least four people.

"It was wrong," he said. "I don't want to downplay that. I was wrong for that. I was too much of a follower. I'm straight up about that."

Their robbery spree, while they were all high on alcohol and marijuana, turned deadly when one of Foster's passengers, Mauriceo Brown, shot and killed a victim.

Brown and Foster were tried together and convicted of capital murder. Foster was set to be executed tonight, 13 months after 31-year-old Brown.

Mr Perry said: "I am concerned about Texas law that allowed capital murder defendants to be tried simultaneously and it is an issue I think the legislature should examine."

Foster's lawyers argued that statements from the other two friends, both now serving life sentences, provided new evidence that supported his claim that he did not know Brown was going to shoot.

Last week, Texas reached a milestone when a man who murdered a convenience store worker became the 400th person executed by the state since it resumed capital punishment in 1982.

Foster would have been the 24th prisoner put to death in Texas this year had he been executed.

    Texas governor spares man from execution, G, 30.8.2007, http://www.guardian.co.uk/usa/story/0,,2159468,00.html

Perry Commutes Death Sentence

Aug. 30, 2007
Office of the Governor Rick Perry

AUSTIN – Gov. Rick Perry today commuted the death sentence of Kenneth Eugene Foster of San Antonio to life imprisonment after the Texas Board of Pardons and Paroles (TBPP) recommended such action.

On May 6, 1997, Foster was sentenced to death for his role in the 1996 capital murder of Michael LaHood. Foster sought to have his death sentence commuted to a life sentence arguing that he did not shoot the victim, but merely drove the car in which that the actual killer was riding. In addition, Foster was tried along side the actual killer, Maurecio Brown, and the jury that convicted Foster also considered punishment for both him and his co-defendant in the same proceeding.

“After carefully considering the facts of this case, along with the recommendations from the Board of Pardons and Paroles, I believe the right and just decision is to commute Foster’s sentence from the death penalty to life imprisonment,” Gov. Perry said. “I am concerned about Texas law that allows capital murder defendants to be tried simultaneously, and it is an issue I think the legislature should examine.”

The TBPP voted 6-1 to recommend commutation, and the governor signed the commutation papers Thursday morning.

The governor’s action means Foster’s sentence will be commuted to life imprisonment as soon as the Texas Department of Criminal Justice can process this change.

    Perry Commutes Death Sentence, Office of the Governor Rick Perry, 30.8.2007, http://www.governor.state.tx.us/divisions/press/pressreleases/PressRelease.2007-08-30.0856

Not the Killer, but Still Facing a Date With the Executioner

August 30, 2007
The New York Times
By RALPH BLUMENTHAL

HOUSTON, Aug. 29 — Kenneth Foster has a date on Thursday with the executioner’s needle. Not for killing anyone himself, but for what he was doing — and might have been thinking — the night in 1996 when he was 19 and a sidekick gunned down a San Antonio law student.

Ensnared in a Texas law that makes accomplices subject to the death penalty, Mr. Foster, 30, is to become the third death row inmate this week, and the 403rd since capital punishment resumed in Texas in 1982, to give his life for a life taken.

But unlike most others condemned to death in this state, Mr. Foster, a former gang member and aspiring musician and now a prison poet from San Antonio, is not a murderer in the usual sense. He was convicted and sentenced to die for abetting a killing — 80 feet away — that he might, or might not, have had reason to anticipate.

The gunman is dead, executed last year. Two accomplices are serving life terms.

Now, failing a last-minute reprieve, Mr. Foster, the group’s driver in a robbery spree — who argues that he never was party to the murder — is facing lethal injection. His guilt, affirmed so far in every appeal, including five turned away by the United States Supreme Court, hinges in large part on difficult questions of awareness and intention.

Other states also hold co-conspirators responsible for one another’s criminal acts in a so-called law of parties. But few of those states have a death penalty. And no other state executes anybody on the scale of Texas.

With polls showing capital punishment still enjoying majority support in Texas and around the country, but by dwindling margins, the Foster case has spurred vigils and protests from abroad to the death house in Huntsville, as well as a backlash by victims’ rights advocates who still mourn the law student, Michael LaHood Jr., slain at 25.

It has also blurred concepts of guilt and innocence. If Mr. Foster is not legally guilty of murder, as his lawyer, Keith S. Hampton, and supporters contend, many find it hard to pronounce him blameless.

“I’d hate to use the word ‘innocent,’ ” said his father, Kenneth Foster Sr., a former heroin addict who told a church audience in Houston on Saturday that he used to take his baby son with him on drug runs and petty crimes. He said his son “should be punished to some degree, but not put to death.”

At the heart of the case is Texas’ law of parties, under which those conspiring to commit one felony, like a robbery, can all be held responsible for an ensuing crime, like murder, if it “should have been anticipated.”

In 1982, in Edmund v. Florida, the United States Supreme Court found that the Constitution barred the death penalty for co-conspirators who did not themselves kill.

But five years later in Tison v. Arizona, the justices carved out an exception, ruling that the Eighth Amendment did not forbid the execution of a defendant “whose participation in a felony that results in murder is major and whose mental state is one of reckless indifference.”

According to evidence in the case, on the afternoon of Aug. 14, 1996, Mr. Foster had borrowed his grandfather’s rented white Cavalier and was driving three companions — Julius Steen, Dewayne Dillard and Mauriceo Brown — on a robbery spree through San Antonio. Mr. Steen and Mr. Brown, with Mr. Dillard’s gun, held up four people.

After midnight, they trailed two cars to a street where Mr. LaHood had just driven home, followed by a companion, Mary Patrick. Ms. Patrick and Mr. Steen exchanged some remarks. Mr. Brown took the gun, chased Mr. LaHood and shot him dead. Ms. Patrick later characterized it as a robbery.

Mr. Foster and his companions fled but were soon stopped by the police. Mr. Foster denied participating in the earlier robberies or the shooting, claiming the group had been out looking for clients for his music business.

He was tried with Mr. Brown, who was also convicted and was executed in July 2006. Mr. Steen agreed to testify for the prosecution in exchange for a life sentence. Mr. Dillard is serving life for a separate murder committed with Mr. Steen.

Mr. Steen testified he did not believe that Mr. Foster had known that Mr. LaHood would be robbed, although Mr. Steen said, “I would say I kind of thought it.”

Later Mr. Dillard testified in Mr. Foster’s appeals, claiming that before they reached the LaHood house, Mr. Foster sought to end the night’s spree so he could return the car to his grandfather. Therefore, Mr. Foster’s lawyer, Mr. Hampton, argued, his client lacked the mindset to be legally culpable for the killing.

Mr. Hampton also contended that Mr. Steen and Mr. Dillard had been improperly withheld as crucial witnesses for the defense, and that mitigating testimony about Mr. Foster’s upbringing had not been presented.

“I was in jail at the time he got arrested,” said Kenneth Foster Sr., adding that a strategy of portraying his son as churchgoing and well-raised had backfired.

“One of the jurors said he should have known better,” the elder Mr. Foster said. “They never called me. If the mitigating evidence had been put on, he never would be on death row.”

    Not the Killer, but Still Facing a Date With the Executioner, NYT, 30.8.2007, http://www.nytimes.com/2007/08/30/us/30execute.html

Guilty by association,

young Texan faces execution

Tue Aug 28, 9:17 AM ET
AFP
by Fanny Carrier
Yahoo News

Kenneth Foster has never killed anyone. But the 30-year-old Texan still faces execution this week, despite protests at home and abroad, for his complicity in a drug-fueled murder.

Foster was arrested in August 1996 with three other young black men, all of whom were said to be high on marijuana, following the deadly shooting of Michael LaHood, 25, in the southern Texan city of San Antonio.

Foster was driving the car being used by his three passengers, including Mauriceo Brown, to rob passers-by. Brown got into an altercation with LaHood, who was white, when he started to follow LaHood's girlfriend.

Shooting LaHood at point-blank range in the face, Brown then returned to the car -- meriting Foster's execution under a Texan law that can impose the death penalty on anybody involved in a crime where a murder occurred.

Foster, who was 19 at the time of the San Antonio crime spree, is scheduled to die by lethal injection at 2300 GMT on Thursday, at the state's execution unit in Huntsville, 70 miles (112 kilometers) north of Houston.

Brown himself was executed last year. The two other black men involved in that night's crimes are serving life behind bars.

Foster's capital conviction, following his joint trial with Brown in 1997, was reached under the Law of Parties in Texas, which executes more prisoners than any other US state.

Prosecutors argued that under the 1974 law, Foster showed "reckless disregard for human life" that night. He "should have anticipated" that his friend had a gun, and would use it to commit murder.

Other US states have similar laws, but only Texas applies it to capital crimes.

"In essence, Kenneth Foster has been sentenced to death for leaving his crystal ball at home," argues Larry Cox, executive director of Amnesty International USA.

"There is no concrete evidence demonstrating that he could know a murder would be committed. Allowing his life to be taken is a shocking perversion of the law," he said.

Others arguing against Foster's execution include Sean-Paul Kelley, a close friend of the victim who says he "hated" Brown and his delinquent gang after LaHood's murder.

"But the execution of a young man who didn't even kill Mike? That's not justice. It's senseless vengeance, a barbarism cloaked in the black robes of justice," Kelley wrote in an online blog last month.

But Texas Governor Rick Perry has given no indication of heeding appeals from Foster's supporters and committees of support further afield, including in France, Germany and Italy, to stay the execution or commute his sentence.

Last Wednesday, Texas killed a convicted murderer by lethal injection in its 400th execution since the US Supreme Court reinstated capital punishment in 1976.

Since then, Texas has accounted for more than one-third of the total of nearly 1,100 executions carried out nationwide. This year, with other states growing reticent about the death penalty, it will stage nearly two-thirds.

Ahead of the 400th execution, the Republican governor bluntly rejected an appeal from the European Union to bring in a moratorium on capital punishment.

"While we respect our friends in Europe, welcome their investment in our state and appreciate their interest in our laws, Texans are doing just fine governing Texas," Perry's spokesman, Robert Black, said in a statement.

Foster himself, who has an 11-year-old daughter, wrote in a letter to Perry this month that he wanted to "pay for what I did," but that being the driver on the night of the murder was "not a capital crime."

Reflecting on his decade awaiting execution, Foster thanked God "for allowing me to journey through this keeping my sanity and being anointed with a gift to learn, grow, and pass on positivity."

Guilty by association, young Texan faces execution, AFP/Yahoo News, Tue Aug 28, 9:17 AM ET, http://news.yahoo.com/s/afp/20070828/ts_alt_afp/usjusticeexecution