USA > History > 2010 > Death penalty (I)

Death Penalty Down in U.S.,

Figures Show

December 21, 2010
The New York Times
By JOHN SCHWARTZ

States are continuing a trend of executing fewer prisoners and juries are wary of sentencing criminal defendants to die, according to year-end figures compiled by a group that opposes the death penalty.

The 46 executions in 2010 constituted a nearly 12 percent drop from the previous year’s total of 52, according to the group, Death Penalty Information Center, which produces an annual report on execution trends. The overall trend shows a marked drop when compared with the 85 executions in 2000.

Jurors, too, show a continuing preference for the alternative of punishing criminal defendants with sentences of life without parole. Juries handed out 114 death sentences in 2010, slightly higher than the 112 death sentences last year, and 50 percent fewer for the current decade than in the 1990s — before the widespread availability of life without parole sentences for juries in capital cases.

“There’s just a whole lot more concern about the accuracy of the death penalty, the fairness and even the costs — all are contributing,” said Richard C. Dieter, the author of the report and the executive director of the center, which is in Washington. The availability of the alternative to the death penalty, Mr. Dieter said, also means that “prosecutors know it’s going to be a harder sell and are seeking it less.”

The states continue to condemn far more prisoners to death than they actually execute.

There are 3,261 people on death row in the United States; California has the largest population, with 697, while New Hampshire and Wyoming have one apiece. A majority of Americans support the death penalty, with 64 percent of those surveyed by Gallup in October 2010 favoring it and 29 percent opposed.

One contributing factor in the low number of executions nationwide is the shortage of a drug used for executions — they were postponed or canceled in Arkansas, California, Kentucky, Oklahoma and Tennessee.

Hospira, the company that makes sodium thiopental, the drug, has said that it expects to resume production in the first quarter of 2011.

The legal director of a group that supports the death penalty, Kent S. Scheidegger, said Mr. Dieter’s group had interpreted facts selectively. Mr. Scheidegger, of the Criminal Justice Legal Foundation, said that at least half the drop in death sentences could be attributed in part to a smaller number of murders in recent years, a fact that he and his group argue is a result of the nation’s high rates of incarceration.

    Death Penalty Down in U.S., Figures Show, NYT, 21.12.2010, http://www.nytimes.com/2010/12/21/us/21penalty.html

Animal Sedative Is Used in Execution

December 16, 2010
The New York Times
By THE ASSOCIATED PRESS

McALESTER, Okla. (AP) — Oklahoma executed a convicted killer on Thursday using a drug combination that included a sedative common in euthanizing animals after a nationwide shortage of a main ingredient forced the state to tinker with its usual formula.

The inmate, John David Duty, died at 6:18 p.m. at the Oklahoma State Penitentiary.

Mr. Duty, 58, executed for strangling his cellmate nearly a decade ago, was believed to be the first person in the United States whose execution included the use of the drug, pentobarbital. He and two others lost a federal challenge arguing that using pentobarbital could paralyze a person but still leave him aware when a painful third drug was administered to stop the heart.

    Animal Sedative Is Used in Execution, NYT, 16.12.2010, http://www.nytimes.com/2010/12/17/us/17oklahoma.html

Ex-Justice Criticizes Death Penalty

November 27, 2010
The New York Times
By ADAM LIPTAK

WASHINGTON — In 1976, just six months after he joined the Supreme Court, Justice John Paul Stevens voted to reinstate capital punishment after a four-year moratorium. With the right procedures, he wrote, it is possible to ensure “evenhanded, rational and consistent imposition of death sentences under law.”

In 2008, two years before he announced his retirement, Justice Stevens reversed course and in a concurrence said that he now believed the death penalty to be unconstitutional.

But the reason for that change of heart, after more than three decades on the court and some 1,100 executions, has in many ways remained a mystery, and now Justice Stevens has provided an explanation.

In a detailed, candid and critical essay to be published this week in The New York Review of Books, he wrote that personnel changes on the court, coupled with “regrettable judicial activism,” had created a system of capital punishment that is shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.

The essay is remarkable in itself. But it is also a sign that at 90, Justice Stevens is intent on speaking his mind on issues that may have been off limits while he was on the court.

In the process, he is forging a new model of what to expect from Supreme Court justices after they leave the bench, one that includes high-profile interviews and provocative speeches.

He will be on “60 Minutes” on Sunday night.

Earlier this month, he weighed in on the controversy over the proposed Islamic center near ground zero in a speech to the National Japanese American Memorial Foundation.

During World War II, Justice Stevens served as a Navy cryptographer at Pearl Harbor for more than two years. On returning to Hawaii in 1994, he said he had an emotional reaction to seeing Japanese tourists at a memorial there. “We shouldn’t allow them to celebrate their attack on Pearl Harbor,” he remembered thinking.

He added that he understood why some New Yorkers would have a similar reaction to the proposed Islamic center near ground zero.

“But then, after a period of reflection, some of those New Yorkers may have second thoughts, just as I did,” he went on. “The Japanese tourists were not responsible for what some of their countrymen did decades ago; the Muslims planning to build the mosque are not responsible for what an entirely different group of Muslims did on 9/11.”

The two other retired justices have been active, too, but they have largely limited their public comments to more traditional matters like judicial independence and constitutional interpretation. Justice Sandra Day O’Connor, who is 80, speaks frequently on what she says are the problems inherent in electing state court judges.

Justice David H. Souter, 71, in a commencement address in May at Harvard, gave a detailed critique of the mode of constitutional interpretation associated with Justices Antonin Scalia and Clarence Thomas, who rely on the text and original meaning of the Constitution.

Justice Souter said those tools are inadequate given the “open-ended language” in the Constitution, which, moreover, “contains values that may well exist in tension with each other.”

But that sort of abstract discussion is nothing like the blow-by-blow critique in Justice Stevens’s death penalty essay, which will be published in The New York Review’s Dec. 23 issue and will be available on its Web site on Sunday evening.

The essay is actually a review of the book “Peculiar Institution: America’s Death Penalty in an Age of Abolition,” by David Garland, a professor of law and sociology at New York University. The book compares American and European approaches to the death penalty, and Justice Stevens appears to accept its major conclusions.

Professor Garland attributes American enthusiasm for capital punishment to politics and a cultural fascination with violence and death.

In discussing the book, Justice Stevens defended the promise of the Supreme Court’s 1976 decisions reinstating the death penalty even as he detailed the ways in which he said that promise had been betrayed.

With the right procedural safeguards, Justice Stevens wrote, it would be possible to isolate the extremely serious crimes for which death is warranted. But he said the Supreme Court had instead systematically dismantled those safeguards.

Justice Stevens said the court took wrong turns in deciding how juries in death penalty cases are chosen and what evidence they may hear, in not looking closely enough at racial disparities in the capital justice system, and in failing to police the role politics can play in decisions to seek and impose the death penalty.

In Payne v. Tennessee in 1991, for instance, the court overruled a 1987 decision, Booth v. Maryland, that had banned statements from victims at sentencing because of their tendency to inflame juries.

“I have no doubt that Justice Lewis Powell, who wrote the Booth opinion, and Justice William Brennan, who joined it, would have adhered to its reasoning in 1991 had they remained on the court,” Justice Stevens wrote. “That the justices who replaced them did not do so was regrettable judicial activism and a disappointing departure from the ideal that the court, notwithstanding changes in membership, upholds its prior decisions.”

Justice Stevens did not name those new justices. One was Justice Anthony M. Kennedy, lately the court’s swing justice, who replaced Justice Powell.

The other was Justice Souter, who replaced Justice Brennan and in other cases generally voted with Justice Stevens and the rest of the court’s more liberal wing.

Justice Stevens also had harsh words for the 5-to-4 decision in 1987 in McCleskey v. Kemp, which ruled that even solid statistical evidence of racial disparities in the administration of the death penalty did not violate the Constitution. He said the decision effectively allowed “race-based prosecutorial decisions.”

“That the murder of black victims is treated as less culpable than the murder of white victims provides a haunting reminder of once-prevalent Southern lynchings,” Justice Stevens wrote.

Here, too, Justice Stevens wrote, the decision turned on changes in the court’s membership. Justice Potter Stewart “surely would have voted with the four dissenters,” Justice Stevens said. Justice Stewart was replaced by Justice O’Connor, who voted with the majority.

The problems with the administration of capital punishment extend beyond the courthouse and into the voting booth, Justice Stevens said.

“Local elections affect decisions of state prosecutors to seek the death penalty and of state judges to impose it,” he wrote.

He was also critical of decisions allowing prosecutors to exclude jurors with qualms about the death penalty, tilting the legal playing field toward conviction. The better approach, he said, is one in which “a jury composed of 12 local citizens selected with less regard to their death penalty views than occurs today — in that respect, a truer cross-section of the community — would determine individual defendants’ fates.”

Robert B. Silvers, the editor of The New York Review of Books, said the idea of asking Justice Stevens to contribute occurred to him after he read passages from the justice’s dissent in Citizens United, the January decision that lifted restrictions on campaign spending.

“It was clear that he was a very strong writer,” Mr. Silvers said. “We simply sent him the book, and we got back a letter saying he’d be delighted to review it.”

    Ex-Justice Criticizes Death Penalty, NYT, 27.11.2010, http://www.nytimes.com/2010/11/28/us/28memo.html

With Appeals, an Execution,

if It Happens, May Be Many Years Away

November 8, 2010
The New York Times
By WILLIAM GLABERSON

NEW HAVEN — The death sentence voted by jurors on Monday for Steven J. Hayes, the man convicted of the Cheshire, Conn., killings, does not mean he is likely to be executed any time soon. In fact, it has merely started a new chapter that may last far longer than the response, investigation, hearing and trial touched off by the events of July 2007.

Mr. Hayes will be the 10th inmate on death row in Connecticut — including one who was convicted just over two decades ago.

“Only the trial is over; the legal process is just beginning,” said Eric M. Freedman, a law professor at Hofstra University who was a defense lawyer in another Connecticut death penalty case.

Mr. Hayes’s trial, like virtually all capital cases in other states that have the death penalty, included any number of legal issues that judges and lawyers are likely to dissect in appeals in state and federal courts. The trial judge, Jon C. Blue of State Superior Court in New Haven, repeatedly made it plain that appeals were inevitable.

“Let’s face it,” Judge Blue said in court last month, legal issues in Mr. Hayes’s case “are likely to be litigated for years on end.”

The issues raised by defense lawyers beginning soon after the killings of Jennifer Hawke-Petit, 48, and her daughters, Hayley, 17, and Michaela, 11, included broad challenges to the death penalty itself and claims that extensive news media coverage of the crime would prejudice the jurors.

Apart from the specifics of Mr. Hayes’s case, Connecticut and other Northeastern states have been notably measured about carrying out those death sentences that have been voted by jurors. Since 1960, Connecticut has executed only one inmate, a serial killer, Michael B. Ross, in 2005, and that was after he very publicly pressed for his own execution after years of appeals. New York no longer has a death penalty law.

Connecticut has detailed procedures for carrying out executions that include provisions for an execution team, telephone lines to the execution chamber in the event of a last-minute stay and the final meal of death-row lore (“reasonable efforts may be made to provide a last meal of the inmate’s choosing”).

According to the Connecticut regulations, death sentences are to be carried out by lethal injection.

Connecticut’s death row, at the Northern Correctional Institution in Somers, currently houses nine inmates, including men convicted of ordering the killing of an 8-year-old witness, killing a police officer and bludgeoning a 13-year-old. One of the nine was sentenced to die 21 years ago, in 1989, for killing his wife and son.

Mr. Hayes was held on death row for a time while he was awaiting his trial. According to testimony during the proceedings, it was a bleak existence, under intense security, with few amenities and little human contact. It was there that Mr. Hayes, according to the testimony, had an altercation with a guard and threatened to kill him. “I have nothing to lose; I’m already on death row,” a disciplinary report quoted him as saying.

The likelihood that Mr. Hayes will ever walk to the execution chamber could also be affected by a long-running political debate about the future of capital punishment in the state. The state legislature voted to repeal capital punishment last year.

The departing governor, M. Jodi Rell, vetoed the measure, citing the Cheshire killings, and the death penalty was a volatile issue in the election last week. Some proponents of abolishing capital punishment in Connecticut have urged a repeal for future murderers, so that capital punishment would still apply to Mr. Hayes; his co-defendant, Joshua Komisarjevsky, who is to be tried next year; and the prisoners already on death row. But capital punishment lawyers say that if such a measure ever became law, it would be challenged in the courts, adding yet another legal issue that could take years to resolve.

    With Appeals, an Execution, if It Happens, May Be Many Years Away, NYT, 8.11.2010, http://www.nytimes.com/2010/11/09/nyregion/09execute.html

Jurors Vote for Death in Conn. Triple-Murder Case

November 8, 2010
The New York Times
By WILLIAM GLABERSON

NEW HAVEN — A jury in Connecticut voted on Monday to impose the death penalty for a long-time criminal convicted for his role in a home invasion in Cheshire, Conn., that left a mother and her two daughters dead. The panel had deliberated just more than three full days.

The jurors stood in the jury box, some looking drawn, as the clerk of the court read through the long verdict form they had filled out. Some members of the victims’ family rested their heads on the benches in front of them. The defendant, Steven J. Hayes, sat motionless at the defense table.

The 2007 crime horrified, fascinated and repelled from the start. It was called one of the worst in Connecticut history and was compared with the grisly family murder that was the centerpiece of Truman Capote’s account of a 1959 family killing in Kansas, “In Cold Blood.”

The details were stark: two habitual criminals invaded the quiet suburban home of a doctor and his family after spotting them in a shopping center parking lot the day before. In a night and morning of unimaginable terrors, they beat and tied up the doctor, forced the mother to withdraw $15,000 from a bank, before sexually abusing her and her youngest daughter, then strangling the mother and setting a blaze that killed her two daughters and blackened the home.

The killings brought a searching review of criminal justice and corrections practices in the state and, particularly during the recent election, came to be the prism through which the state viewed a debate about the future of the death penalty.

Mr. Hayes, a parolee at the time of the 2007 crime, has spent much of his adult life as a prisoner.

Connecticut provides for execution by lethal injection. But because of appeals, death penalty lawyers said it would probably be many years before Mr. Hayes faced execution, if he ever does. A serial killer, Michael Ross, was executed in Connecticut in 2005 after he decided to forgo further appeals, but he was the first inmate executed in New England since 1960.

Mr. Hayes and Joshua Komisarjevsky, who has yet to be tried, entered the home of the Petit family in a bucolic Cheshire neighborhood on July 23, 2007.

By the time they left with a squeal of rubber from the family’s stolen minivan, the family’s two daughters, Hayley, 17, and Michaela, 11, as well as the mother of the family, Jennifer Hawke-Petit, 48, were dead in a house that had been set ablaze with gasoline the intruders had spread.

More than three years later, the trial — which began on Sept. 13 — featured graphic details of the beating of the father, Dr. William A. Petit Jr., who survived, as well as descriptions of arson, children tied to their beds, the forced trip to a bank where the mother vainly tried to placate the intruders by withdrawing $15,000, and sexual assaults of Ms. Hawke-Petit and the younger of the Petit girls.

But it also featured a catalog of arguments by the defense to try to defeat a potential death sentence. The claims included assertions that Mr. Hayes “can’t live with himself,” and was suicidal and remorseful. The defense lawyers also brought out testimony portraying Mr. Hayes as a klutz of a criminal, while a witness called by the defense described Mr. Komisarjevsky as “the devil,” a comparison the defense lawyers fostered through weeks of testimony.

Mr. Komisarkevsky’s prison journals, read into evidence at the request of Mr. Hayes’s lawyers, made him a central character of Mr. Hayes’s trial, though he was never present. The journals presented a chilling view of Mr. Komisarjevsky as a man who thrived on the excitement of the crime and had hoped to kill himself and Mr. Hayes by crashing into a police roadblock not far from the Petit’s blazing home.

In excruciating detail, Mr. Komisarjevsky described beating Dr. Petit and sexually assaulting 11-year old Michaela. He is expected to be tried next year.

The trial was an emotional journey for the jurors, who were sometimes tearful as they reviewed photographs of the burned bodies and heard testimony about matter-of-fact confessions made both by Mr. Hayes and Mr. Komisarjevsky. Each man said the other had taken the night and morning on an unexpected path toward violence that had not been planned.

Mr. Hayes claimed Mr. Komisarjevsky busied himself trying to send cell-phone photographs displaying the child he had abused to his friends during the crime. Mr. Komisarjevsky said Mr. Hayes’s rape and strangulation of Ms. Hawke-Petit “brought both of us to a whole different level.”

The story of the crime “will break your hearts,” the chief defense lawyer, Thomas Ullmann, told the jurors in his opening statement at the start of the trial.

    Jurors Vote for Death in Conn. Triple-Murder Case, NYT, 8.11.2010, http://www.nytimes.com/2010/11/09/nyregion/09cheshire.html

Jurors Deliberate Death Penalty in Connecticut

November 5, 2010
The New York Times
By WILLIAM GLABERSON

NEW HAVEN — The jury began deliberations on Friday morning to decide whether to impose the death penalty at the trial of the man convicted of killing three members of a family in a 2007 home invasion in Cheshire, Conn.

“Obviously we’re ready for a long day," Judge Jon C. Blue told the jurors as they briefly took their seats in the jury box at 10:15 a.m.

The defendant, Steven J. Hayes, was convicted of 16 charges, including six capital counts, by the same jury on Oct. 5. The 12-person jury must navigate through a complex set of questions before making a choice between the two possible sentences: life in prison without the possibility of release, or death by lethal injection.

But, despite the series of specific questions that must be answered on six separate verdict sheets, one for each of capital felonies, Judge Blue of State Superior Court, told the jurors in his final instructions on Thursday that the verdict must be a unanimous “reasoned moral judgment.”

If there is no verdict Friday, Judge Blue has said deliberations will go through the weekend. Only one person has been executed in Connecticut in the last 50 years.

    Jurors Deliberate Death Penalty in Connecticut, NYT, 5.11.2010, http://www.nytimes.com/2010/11/06/nyregion/06cheshire.html

No Justification

October 28, 2010
The New York Times

Two years ago, when a splintered Supreme Court approved lethal injection as a means of execution in Baze v. Rees, Justice John Paul Stevens made a prophecy. Instead of ending the controversy, he said, the ruling would raise questions “about the justification for the death penalty itself.” Since then, evidence has continued to mount, showing the huge injustice of the death penalty — and the particular barbarism of this form of execution.

In the case of Jeffrey Landrigan, convicted of murder and executed by Arizona on Tuesday, the system failed him at almost every level, most disturbingly at the Supreme Court. In a 5-to-4 vote, the court’s conservative majority allowed the execution to proceed based on a stark misrepresentation.

Of the 35 states that allow the death penalty, all now execute by lethal injection. Most use a sequence of drugs that is supposed to provide a painless death, but when it is administered incorrectly it causes agony that amounts to torture. Veterinarians say the method doesn’t meet the standard for euthanizing animals.

Arizona’s plan for Mr. Landrigan’s execution was thrown off by a shortage of sodium thiopental, one of three drugs used in standard lethal injections. The only maker approved by the Food and Drug Administration hasn’t been able to get a critical ingredient for almost a year. The state obtained the drug from a foreign maker.

When Mr. Landrigan tried to ascertain its effectiveness for sedating him so he wouldn’t feel the pain of the other drugs, Arizona refused to divulge the information. After the state defied four orders from a federal district judge to produce it, the judge stayed the execution.

When the case got to the Supreme Court, the majority overturned the stay, saying there was “no evidence in the record to suggest that the drug obtained from a foreign source is unsafe.” There was no evidence — either way — because Arizona defied orders to provide it.

The court’s whitewash highlights the arbitrariness of Mr. Landrigan’s execution. Cheryl Hendrix, the retired Arizona judge who presided over his trial, recently said, “Mr. Landrigan would not have been sentenced to death” if she had been given the medical evidence of the defendant’s brain damage and other factors. Mr. Landrigan’s inept trial lawyer didn’t submit the evidence.

She no longer had the power to alter his fate, but, in an affidavit for the Arizona Board of Executive Clemency, Ms. Hendrix supported his plea to have his death sentence commuted to life. “Since the courts have not corrected this injustice,” she stated, “I am compelled to submit this declaration on Mr. Landrigan’s behalf.” The Supreme Court should have upheld the stay of execution and forced the state to deliver the information called for. It failed, shamefully.

    No Justification, NYT, 28.10.2010, http://www.nytimes.com/2010/10/29/opinion/29fri1.html

Murderer Executed in Arizona

October 27, 2010
The New York Times
By JOHN SCHWARTZ

The State of Arizona executed Jeffrey Landrigan late Tuesday night after the Supreme Court lifted a lower court’s injunction blocking the lethal injection.

Last-minute appeals for Mr. Landrigan, convicted of murder in 1990, focused on the origins of one of the drugs used in the state’s three-drug execution protocol.

Shortages of barbiturates used in executions has led to delays in several states. The only domestic manufacturer approved by the Food and Drug Administration to make sodium thiopental, the barbiturate used in Arizona, is Hospira Inc; it suspended production of the drug a year ago because of supply issues, and is expected to be producing it again in the first quarter of next year.

With no supplies coming from sources approved by the F.D.A., Judge Roslyn O. Silver of Federal District Court had demanded that the state provide information about the origins of Arizona’s drug in order to know whether there were risks of impurity or efficacy that could violate Mr. Landrigan’s rights under the Eighth Amendment barring cruel and unusual punishment.

The state refused to detail the origins of the drug or the process used to obtain it in open court, citing the state’s confidentiality laws, though officials said it had come from England. Thus “the court is left to speculate,” Judge Silver wrote, “whether the non-F.D.A. approved drug will cause pain and suffering.”

A three-judge panel of the Court of Appeals for the Ninth Circuit upheld the order, stating that the state should provide a full accounting. “Because we do not know what was before the district court due to the state’s failure to provide the materials, we cannot say the district court abused its discretion in granting a temporary stay,” the judges wrote on Tuesday. Later in the day, the full Ninth Circuit refused to rehear the case, resulting in the state appealing to the Supreme Court.

In a one-page order issued Tuesday night explaining the 5-to-4 vote to vacate Judge Silver’s temporary restraining order, the Supreme Court stated that Judge Silver’s reasoning was flawed, because the case affirming the constitutionality of the three-drug execution method, Baze v. Rees, had a high standard of proof that an execution method would cause harm.

The court stated that “speculation cannot substitute for evidence that the use of the drug is ‘sure or very likely to cause serious illness and needless suffering,’” citing the decision in Baze v. Rees. and the court added, “There was no showing that the drug was unlawfully obtained, nor was there an offer of proof to that effect.”

The five justices who voted for lifting the stay were Chief Justice John G. Roberts Jr.; Antonin Scalia; Clarence Thomas; Samuel Alito; and Anthony M. Kennedy. The four justices who voted to uphold Judge Silver’s stay were Ruth Bader Ginsburg; Stephen G. Breyer; Sonia Sotomayor; and Elena Kagan, her first publicly released vote. They did not issue an opinion.

Eric M. Freedman, a law professor at Hofstra University, said that the lesson of the Supreme Court’s ruling in the Landrigan case was “crime pays.”

He explained: “The state flatly stonewalled the lower courts by defying orders to produce information, and then was rewarded at the Supreme Court by winning its case on the basis that the defendant had not put forward enough evidence. That is an outcome which turns simple justice upside-down and a victory that the state should be ashamed to have obtained.”

Proponents of the death penalty saw the outcome, instead, as a victory for the rule of law. Kent S. Scheidegger, the legal director of the Criminal Justice Legal Foundation, a victims’ rights group, wrote on the group’s blog that the case draws a bright line for other attempts to stay executions, and singled out a procedural stay in California, where Judge Jeremy Fogel of Federal District Court has delayed the execution of Albert Greenwood Brown Jr. over questions concerning the state’s drug protocols.

“Judge Fogel now has a clear directive from the high court that unless the new California protocol fails this ’sure or very likely’ standard, he should allow executions to proceed,” Mr. Scheidegger wrote. “The protocol surely passes.”

In an interview, Mr. Scheidegger said, “The Supreme Court told the Ninth Circuit and the District Court that they had applied too loose a standard in granting a stay.” The new decision, he said, “sends a message” that “speculation about problems with the source is not sufficient to stay an execution.”

Ty Alper, the associate director of the death penalty clinic at the University of California, Berkeley, said that the Supreme Court’s decision did not end the story, arguing that “it explicitly leaves the door open for a challenge in a case where petitioners can show that the drug was unlawfully obtained.”

The fact that the F.D.A. has not approved foreign sources of sodium thiopental, he said, suggested that “it’s very likely that a petitioner will be able to make this showing in a case where there is more time to litigate the issue than there was in the Arizona case.”

With the stay in Arizona lifted, Mr. Landrigan was executed at 10:26 p.m. local time.

Mr. Landrigan murdered Chester Dyer in 1989 in Phoenix, after having escaped from an Oklahoma prison where he was being held on another murder conviction.

According to The Arizona Republic, Mr. Landrigan offered his last words in a strong voice and a heavy accent from his native Oklahoma.

“Well, I’d like to say thank you to my family for being here and all my friends,” he said, “and Boomer Sooner.”

The Sooners is the team nickname at the University of Oklahoma.

    Murderer Executed in Arizona, NYT, 27.10.210, http://www.nytimes.com/2010/10/28/us/28execute.html

Use of Drug Challenged in Death Penalty Case

October 22, 2010
The New York Times
By JOHN SCHWARTZ

Arizona plans to execute Jeffrey Landrigan next week, but his lawyers are arguing that one of the drugs that the state intends to use to end his life may not be good enough.

The planned execution of Mr. Landrigan, convicted of murder in 1990, coincides with a shortage of the anesthetic used in the state’s execution protocol, sodium thiopental. The thiopental shortage has already caused delays in executions around the country.

Arizona officials have the drug, but defense lawyers for Mr. Landrigan are asking to stay the execution until the state reveals where it got its supply.

If Arizona obtained the drug from an overseas supplier, they argue, it may be substandard and violate Food and Drug Administration rules for importation.

Kent Scheidegger, legal director for the Criminal Justice Legal Foundation, a group that supports the death penalty, said that arguing over the safety of a drug for executions is “absurd.”

“As long as it’s a real drug manufacturer and not mixed up in somebody’s garage, it doesn’t matter where it came from,” Mr. Scheidegger said. While the Food and Drug Administration is supposed to determine whether drugs are safe and effective, he said, “in this case, safe and effective are opposites.”

Shelly Burgess, a spokeswoman for the F.D.A., said that imported drugs must go through an approval process before being used in the United States, but added that executions are “clearly not under our purview or authority.”

Megan McCracken, an adviser on lethal injection issues to the death penalty clinic at the University of California, Berkeley School of Law, argued that the origin of the drug used was nonetheless important under the law.

She cited the Eighth Amendment prohibition against cruel and unusual punishment, and a 2008 decision by the Supreme Court. In that case, Baze v. Rees, the court left room for challenges to execution methods that involve a demonstrated risk of severe pain compared with available alternatives.

To Ms. McCracken, the lack of information about the drug opens Arizona to a challenge under the Baze decision. “Its provenance matters,” she said.

“I don’t think you can say that thiopental is thiopental is thiopental.”

Judge Roslyn O. Silver of United States District Court on Thursday asked the state to voluntarily reveal where the drug had come from. She set the matter for oral argument on Monday.

The state, in a brief filed Friday, declined to identify the source of the drug, citing state confidentiality laws intended to shield those involved in executions from harassment by death penalty opponents. It denied that the drug to be used was substandard, and suggested that the criticism of the drug was an “improper delay tactic.”

The state, the brief said, “takes its responsibility to carry out an execution seriously and has attempted to construct a protocol to carry out executions as humanely as possible.”

Kent E. Cattani, an Arizona assistant attorney general, said that the supply of the drug obtained by the state was effective, and noted that the protocol in place involved several methods for determining that the inmate was unconscious before administering the final drug. While an important concern with the administration of powerful anesthetics is that the patient might receive too much, Mr. Cattani explained, “it’s obviously not a consideration here.”

In fact, the amount that is given to inmates is more than 10 times the recommended dose for surgical procedures. “There’s little or no chance that he would regain consciousness,” he said.

If the judge insists on knowing the origins of the drug, he said, “we would ask that it be disclosed under seal.”

To Ms. McCracken, the state’s response was inadequate, akin to saying, “Just trust us,” she said.

    Use of Drug Challenged in Death Penalty Case, NYT, 22.10.2010, http://www.nytimes.com/2010/10/23/us/23execute.html

Family’s Effort to Clear Name Frames Debate on Executions

October 14, 2010
The New York Times
By JOHN SCHWARTZ

AUSTIN, Tex. — It was an unusual hearing. The subject at the center of it all, Cameron Todd Willingham, was not present. After being convicted of murdering his three children in a 1991 house fire, he was executed in 2004.

Members of Mr. Willingham’s family, working with lawyers who oppose the death penalty, had asked for the rare and controversial hearing, held here on Thursday, to investigate whether Mr. Willingham was wrongfully convicted. They argue that the proceeding, known as a court of inquiry, could restore Mr. Willingham’s reputation, a right guaranteed under Texas law, even to the dead.

But they also say that the hearing is more than symbolic — it could cast in a new light the Lone Star State’s record on executions. And more broadly, they argue, it is a cautionary tale about the power of flawed science to sway a courtroom, and a glaring injustice that could affect debates over the fairness of the death penalty.

That debate has been framed, in part, by a 2006 opinion written by Justice Antonin Scalia of the United States Supreme Court, in which he said that the dissent in a case had not cited “a single case — not one — in which it is clear that a person was executed for a crime he did not commit.”

Many who oppose the death penalty have taken Justice Scalia’s statement as a challenge, and argue that the Willingham case is their proof.

To those favoring the death penalty, Mr. Willingham is guilty, and the efforts to posthumously exonerate him are an abolitionist farce.

Critics of the hearing have said the proceeding is illegal, and have tried to derail it. The district attorney of Navarro County, R. Lowell Thompson, whose office originally convicted Mr. Willingham, filed a motion last week demanding that Judge Charlie Baird recuse himself, arguing a judge cannot appoint himself to lead a court of inquiry, and must instead refer the matter to a higher court for an appointment. At the beginning of the hearing on Thursday, Judge Baird ruled that he would allow the hearing to go forward.

At the end of the day, however, as testimony was closing down, the Texas Third Court of Appeals in Austin issued a stay at Mr. Thompson’s request, ordering Judge Baird not to hold further proceedings or to issue rulings until next Friday, and asked the Willingham team to explain why the case should be allowed to go forward.

The focus of lawyers for Mr. Willingham’s family was on evidence presented by fire marshals at Mr. Willingham’s original trial — evidence that nine experts have said included “many critical errors,” as one report put it. Several of the experts were working at the request of the Innocence Project, an organization that seeks the acquittal of wrongfully convicted people.

The expert who wrote that critical report, Gerald Hurst, argued that evidence suggested the fire was accidental, not arson. His report was sent to Gov. Rick Perry shortly before the execution, but Mr. Perry declined to halt or delay the procedure.

The evidence presented at trial that Mr. Willingham committed arson “amounts to junk science,” Gerald H. Goldstein, a San Antonio lawyer arguing on behalf of the Willingham family, said in the courtroom.

Judge Baird asked Dr. Hurst at the hearing whether his review of the case could rule out arson “within a reasonable degree of scientific certainty.”

Dr. Hurst demurred. “I never had a case where I could exclude arson,” he said. “It’s not possible to do that.”

The judge then asked if “there’s nothing in the evidence you’ve seen here that suggests arson.”

“That’s correct,” Dr. Hurst said.

John Lentini, a fire expert who has studied flawed arson investigations, hammered at the evidence and analysis from fire marshals at the Willingham trial.

Under questioning by Barry Scheck, a founder of the Innocence Project, Mr. Lentini ridiculed critical testimony at the trial that 20 factors, including burn patterns on the floor and cracks in the windows, proved that Mr. Willingham spread accelerants to fuel the fire.

No such chemicals were found in the house, Mr. Lentini said. Much of the analysis of Manuel Vasquez, the state fire marshal in the Willingham trial, “didn’t even meet the standards of 1991,” a time that Mr. Lentini characterized as having “a wretched state of the art.”

The current fire marshal, Paul Maldonado, stands by the work of the original marshals in the Willingham case, which Mr. Lentini said he found mystifying.

Mr. Lentini said that the flaws in the science required the state to go back and take a new look at other arson convictions. “I can understand why the fire marshal doesn’t want to go back and review hundreds of cases,” he said. “But that’s probably his duty.”

Governor Perry has fought the review of the case, and declined to participate in the hearing. Katherine Cesinger, his spokeswoman, said, “Nothing the Austin court does can change the fact that Todd Willingham was convicted in a trial court with the appropriate jurisdiction, and sentenced to death by a jury of his peers for murdering his three young daughters.”

The case, she noted, had worked its way through the appeals process and even reached the Supreme Court over the course of more than a decade. The governor has described Mr. Willingham as “an absolute monster who killed his own kids.”

Closing the hearing, former Gov. Mark White said that “the frailty of the system has been demonstrated clearly and overwhelmingly by the testimony brought forth in this court today.”

In an interview, Mr. Scheck said, “What we’ve proven is there was no crime” in the Willingham case.

“I would expect that at the end of the day, what we’ll get is an opinion that an innocent man was executed in Texas,” he added.

Even if that should happen, its impact will be minimal, said Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, a group that supports the death penalty.

“It’ll be trumpeted on the Death Penalty Information Center site,” he said, referring to a group that opposes capital punishment. “Nobody on the other side of the aisle is going to give it any credence.”

To one person attending the hearing, however, it was anything but meaningless. Eugenia Willingham, Mr. Willingham’s stepmother, said during a break in the proceedings that it was an important day.

“This is what he wanted us to do,” she said of her stepson. “He wanted us to stand up for him.”

    Family’s Effort to Clear Name Frames Debate on Executions, NYT, 14.10.2010, http://www.nytimes.com/2010/10/15/us/15execution.html

Shortage of Widely Used Anesthetics Is Delaying Executions in Some States

September 29, 2010
The New York Times
By KEVIN SACK

A nationwide shortage of several widely used anesthetics, which has been exasperating doctors and veterinarians for months, has now spread to the country’s death rows.

Several states have postponed executions and others may soon do so because of the scarcity of thiopental sodium, a barbiturate that is central to the lethal injection process in most of the 35 states with the death penalty.

Some states face the looming expiration of their only doses and are scrambling to obtain usable vials from other states as execution dates approach. Others, by proposing alternate drugs that are not part of standard protocols, have given defendants new grounds to seek delays in court.

In California on Wednesday, the attorney general’s office said it was abandoning what would have been the state’s first execution in more than four years. A federal district judge had stayed the execution on Tuesday; and the decision to examine the constitutionality of new lethal injection procedures would have pushed any execution date well past Friday’s expiration of the state’s only supply of thiopental sodium.

It is not uncommon for manufacturing problems to cause intermittent shortages of critical medications, particularly intravenous anesthetics that yield low profits once their patents expire. But several leading anesthesiologists said this year’s shortages had been severe.

“I’ve been practicing for 25 years and have never seen anything like the frequency and variety of drugs that are in short supply,” said Dr. Alexander A. Hannenberg of Newton, Mass., the president of American Society of Anesthesiologists.

Two executions in Kentucky were delayed this year because the commonwealth had but one dose of thiopental sodium for the three murderers who have exhausted their appeals. Officials decided last month to assign the dose to Gregory L. Wilson because his 1988 conviction for rape, kidnapping and murder was the oldest of the three. Two weeks ago, a state court judge stayed Mr. Wilson’s execution indefinitely; the dose — with a shelf life of up to two years — expires on Friday

An execution scheduled in Arizona for Oct. 26, two decades after the killer’s conviction, may be at risk unless the state obtains thiopental sodium in time. And an Oklahoma inmate, Jeffrey D. Matthews, succeeded in delaying his death last month by challenging the state’s intent to substitute the sedative Brevital for thiopental sodium in its lethal three-drug sequence.

Oklahoma’s Department of Corrections has since obtained a single dose of thiopental sodium from another state — it will not say which — and plans to use it to kill Donald R. Wackerly II on Oct. 14. A hearing the next day will determine whether Mr. Matthews can be executed using a substitute. “Now we’re thinking about phenobarbital,” said Jerry Massie, a Corrections Department spokesman. “Apparently it has been used or approved for use in assisted suicides in a couple of states. It’s also used by veterinarians to put down large mammals.”

Several anesthesiologists, including Dr. Hannenberg, said they had not yet heard about medical procedures being delayed because of the shortages. But he said it was nearly universal that anesthesiologists were being forced to use less familiar medications that leave patients groggier and with a higher risk of nausea and headaches.

“I have a huge concern,” said Dr. J. P. Abenstein, an associate professor of anesthesiology at the Mayo Clinic School of Medicine in Rochester, Minn., “because we’re having to alter the anesthetics not for the needs of the patient but because of what’s available in the marketplace.”

Hospira Inc., the only domestic manufacturer of thiopental sodium, suspended production of the drug almost a year ago because of problems obtaining its active ingredient, which is supplied by another company, according to Daniel M. Rosenberg, a company spokesman. The firm, which is based in Lake Forest, Ill., hopes to resume production in the first quarter of 2011, he said.

The company informed states this spring that it did not support the use of its products for capital punishment. Mr. Rosenberg emphasized that Hospira was not taking a position on the death penalty itself.

Thiopental sodium, also known by the trademark Pentothal, was largely abandoned by anesthesiologists two decades ago as newer drugs with fewer side effects hit the market.

But for much of this year, the current anesthetic of choice, propofol, has been difficult to obtain because of its own production difficulties. That, in turn, has revived the demand for out-of-favor anesthesia drugs like thiopental sodium, ketamine and etomidate, which have become scarce.

One of two manufacturers of propofol in the United States, Teva Pharmaceutical Industries Ltd., stopped making the product in May after a recall and the discovery of toxic materials during a plant inspection by the Food and Drug Administration. The other manufacturer, Hospira, has issued several recalls after discovering steel particulates in propofol containers. It suspended production in March, except during tests of a new filtration system, and has not set a date to restart.

To insure some supply in the country, the Food and Drug Administration waived its usual review to allow the importation of propofol from Europe. Propofol is the anesthetic implicated last year in the overdose death of the singer Michael Jackson.

Anesthesiologists also are concerned about the growing scarcity of a muscle relaxant called succinylcholine that is used to insert emergency breathing tubes. There is no alternate drug.

Dr. Jonathan Clayton of Atlanta said he was about to cancel surgeries several weeks ago until his hospital’s pharmacy managed to find a supply of succinylcholine at the last minute.

“We had made the decision that if it isn’t there we shouldn’t be doing surgeries,” Dr. Clayton said. “The fewer drugs you have in your armamentarium, the less flexible you are.”

A spokeswoman for the Food and Drug Administration said it had received no reports of recent adverse events caused by shifts in anesthesia. But several doctors said they would be inevitable. “I would not be surprised if there were mishaps and adverse events given the unfamiliarity people have with drugs they use infrequently,” said Dr. Mervyn Maze, chief of anesthesia at the University of California, San Francisco.

Veterinarians said they were also concerned about working with less familiar drugs. Dr. Edward J. Javorka, a small-animal veterinarian in Hobart, Ind., said he was down to his last five-milliliter bottle of propofol and worried that substitute products could endanger older animals by suppressing heart and breathing rates. “Propofol is just a sweet drug,” he said. “We have to be very cautious without it.”

    Shortage of Widely Used Anesthetics Is Delaying Executions in Some States, NYT, 29.9.2010, http://www.nytimes.com/2010/09/30/us/30drug.html

Calif. Governor Postpones Execution

September 27, 2010
The New York Times
By JESSE McKINLEY and MALIA WOLLAN

SAN FRANCISCO — With the clock ticking and uncertainties — both legal and pharmaceutical — hovering, Gov. Arnold Schwarzenegger ordered a temporary last-minute reprieve on Monday in what would be California’s first execution in more than four years.

Mr. Schwarzenegger, a Republican in the final weeks of his administration, announced late Monday that he would postpone the execution of Albert G. Brown Jr. — who had been scheduled to die by lethal injection at 12:01 a.m. on Wednesday — until Thursday to allow time for legal appeals to be exhausted. The state Department of Corrections has rescheduled the execution for Thursday evening, the governor’s office said.

Mr. Brown, 56, was convicted in 1982 of raping and strangling a 15-year-old girl in Riverside, Calif.

The postponement came after a whirlwind day in which Mr. Brown’s fortunes seemed to rise and fall with each passing hour. Earlier Monday, Mr. Brown had been denied a stay from a state judge, Verna A. Adams, in Marin County, where San Quentin State Prison is located.

Shortly after that denial state officials also made a surprise announcement that the execution would be the last in the state until the one of the drugs proposed for his execution — sodium thiopental, a barbiturate — could be restocked by the state’s Department of Corrections and Rehabilitation.

Moreover, Terry Thornton, a spokeswoman for the department, said its supply of sodium thiopental was good only until Friday. That expiration date is now just hours after Mr. Brown’s planned execution on Thursday.

Ms. Thornton said her department was continuing with preparations for Mr. Brown’s execution and had enough sodium thiopental to stop Mr. Brown’s heart. She added that the state was “actively seeking supplies of the drug for future executions.”

How exactly sodium thiopental became scarce is unclear. The Food and Drug Administration reported shortages in March, citing production issues with Hospira, an Illinois-based company that is the sole American manufacturer.

A company spokesman, Dan Rosenberg, said that the drug was unavailable because of a lack of supply of an active pharmaceutical ingredient and that Hospira was working to get the drug back on the market by early next year. But Mr. Rosenberg also expressed displeasure that the drug — meant to be used as an anesthetic — had found its way into death chambers.

“Hospira manufactures this product because it improves or saves lives, and the company markets it solely for use as indicated on the product labeling,” Mr. Rosenberg said in a statement. “The drug is not indicated for capital punishment, and Hospira does not support its use in this procedure.”

He added that the company had made that opinion clear to corrections departments nationwide.

Mr. Brown’s execution was cleared on Friday by a federal district judge, Jeremy D. Fogel, who had effectively halted executions in the state in 2006 after expressing concern about a three-drug cocktail commonly used in lethal injection procedures and various deficiencies in the state’s methods, including the training of execution teams, antiquated facilities and the preparation of execution drugs.

Since then, however, California has drafted detailed new regulations — approved earlier this year — to guide executions and built a new death chamber at San Quentin, north of San Francisco.

Those developments had apparently quelled Judge Fogel’s worries enough to allow Mr. Brown’s execution to proceed.

Mr. Brown is still seeking a stay from the United States Court of Appeals for the Ninth Circuit. His lawyer, John R. Grele, said Judge Fogel’s decision was “neither a legal nor rational response” to his client’s efforts to avoid execution or undue pain.

    Calif. Governor Postpones Execution, NYT, 27.9.2010, http://www.nytimes.com/2010/09/28/us/28execute.html

Inmate Asks Court to Halt His Execution

September 26, 2010
The New York Times
By THE ASSOCIATED PRESS

SAN FRANCISCO (AP) — A death row inmate asked a federal appeals court on Sunday to halt his execution as he declined to choose a method for the lethal injection.

Lawyers for the inmate, Albert G. Brown, filed court papers to appeal a federal judge’s refusal to block the execution, which is set for Wednesday. Mr. Brown also let pass a noon deadline set by the judge to choose between a one-drug lethal injection or execution by a three-drug cocktail.

Mr. Brown’s refusal to choose means a three-drug cocktail will be used if the appeals court does not block his execution, which would be California’s first in nearly five years. He was sentenced to die for abducting, raping and killing a 15-year-old, Susan Jordan of Riverside County, in 1980.

Judge Jeremy Fogel of United States District Court in San Jose denied Mr. Brown’s two requests on Saturday to change his mind about going forward with the execution.

The judge initially delayed the execution in 2006 after finding that poorly trained officials carried out executions in a death chamber too cramped and dingy to protect the inmate from suffering “cruel and unusual” punishment while receiving a lethal injection. The state has since constructed a new death chamber and overhauled the selection and training of its execution team.

Mr. Brown’s latest appeal will be heard by a panel of three judges from the United States Court of Appeals for the Ninth Circuit.

    Inmate Asks Court to Halt His Execution, NYT, 26.9.2010, http://www.nytimes.com/2010/09/27/us/27execute.html

Woman, 41, Is Executed in Virginia

September 23, 2010
The New York Times
By ANAHAD O’CONNOR
 

A woman convicted of orchestrating a plot that led to the murders of her husband and stepson was executed in Virginia Thursday night, becoming the first woman executed in the state in almost a century.

The woman, Teresa Lewis, 41, died by lethal injection at a correctional facility in southeastern Virginia. With a crowd of death penalty opponents protesting outside, Ms. Lewis was pronounced dead at 9:13 p.m., the Associated Press reported, citing officials at the Greensville Correctional Center in Jarratt. She was the 12th woman executed in the United States since the death penalty was reinstated in 1976.

The case against Ms. Lewis, the first woman executed in the country since 2005, had drawn international attention. Many of her supporters questioned the fairness of her sentence — her co-conspirators, who fired the fatal shots, were spared capital punishment — and doubts were raised about her mental capacity. Psychologists involved in her case said she was borderline retarded. And her supporters argued that she had been manipulated by the two triggermen, who stood to gain hundreds of thousands of dollars in savings and life insurance payoffs.

Ms. Lewis received support from an unlikely cast. The novelist John Grisham published an op-ed piece calling for leniency, and the European Union sent a letter to Robert F. McDonnell, the governor of Virginia, asking him to commute Ms. Lewis’s sentence to life because of her mental capacities. The case was also cited by Iranian President Mahmoud Ahmadinejad in a speech to Islamic clerics during a visit to New York this week.

Shortly after her execution, a lawyer for Ms. Lewis, Jim Rocap, called her death "a tragic loss."

“Tonight, the machinery of death in Virginia extinguished the beautiful, childlike and loving human spirit of Teresa Lewis," he said. "Teresa asked that I send her thanks and love to all of those who have supported her in this fight for her life. In her words, ’It’s just awesome.’ It is our hope that Teresa’s death will cause a re-examination of the badly broken system of justice that could allow something as wrong and unjust as this to happen.”

For her part, Ms. Lewis did not deny her involvement in the murders, which took place in October 2002. Prosecutors said Ms. Lewis hatched the murders with two men she had been sleeping with. They said she supplied them with money to buy the murder weapons and showered them with gifts.

On the night before Halloween, they said, Ms. Lewis left the doors of her home unlocked and got into bed as her conspirators entered the home. According to the authorities, Ms. Lewis stood by as the two men opened fire: first on her stepson, Charles J. Lewis, 25, a reservist about to be deployed, and then on her husband, Julian C. Lewis Jr., 51.

Ms. Lewis eventually confessed to the crimes and led the police to the gunmen. The judge presiding over the case, Charles J. Strauss of Pittsylvania Circuit Court, sentenced the two gunmen to life in prison. But Ms. Lewis, he concluded in 2003, had been the ringleader, showing a “depravity of mind” that justified the death penalty.

Lawyers for Ms. Lewis later revealed new evidence that pointed to one of the gunmen as the plot’s mastermind, including statements that he made in a letter and to a girlfriend. Ms. Lewis’s lawyers pleaded unsuccessfully for clemency. Her final, last-ditch appeal for a stay was turned down by the Supreme Court late Tuesday.

According to SkyNews, Ms. Lewis requested a last meal of fried chicken, a slice of German chocolate cake or apple pie, and Dr. Pepper soda. According to reports from the prison, her final words were a message for her stepdaughter.

“I just want Cathy to know that I love her and I’m very sorry,” she said.

    Woman, 41, Is Executed in Virginia, NYT, 23.9.2010, http://www.nytimes.com/2010/09/24/us/24execute.html

Woman on Death Row Runs Out of Appeals

September 21, 2010
The New York Times
By ERIK ECKHOLM

“She is clearly the head of this serpent,” the judge said of Teresa Lewis in 2003 when he sentenced her to death by lethal injection, describing her as the mastermind of the cold-blooded murders of her husband and his son as they slept in rural Virginia.

Late on Tuesday, the Supreme Court denied her last-ditch appeal for a stay, and Ms. Lewis, now 41, is scheduled to die on Thursday night at 9. Her case has drawn unusual attention, not only because she would be the first woman executed in the United States since 2005, and the first in Virginia since 1912, but also because of widely publicized concerns about the fairness of her sentence. Ms. Lewis waited this week in her prison cell, reportedly soothed by intense religious faith.

Her lawyers say her original defense against the death penalty was bungled. They also cite new evidence suggesting that Ms. Lewis — whose I.Q. of 72 is described by psychologists as borderline retarded — was manipulated by her co-conspirators, who were out to share in savings and life insurance worth hundreds of thousands of dollars. Her partners in the crimes, two young men who fired the guns, received sentences of life without parole in what her lawyers call a “gross disparity” in punishment.

On Tuesday, blocking her only other chance for a reprieve, Gov. Bob McDonnell said for the second time that he would not grant clemency for what he called her “heinous crimes.”

Ms. Lewis’s guilt is not at issue. By her own admission, she plotted with the men to shoot her husband, Julian C. Lewis Jr., 51, and his son, Charles J. Lewis, 25, a reservist about to be deployed abroad.

Ms. Lewis, then 33, met her co-defendants, Matthew J. Shallenberger, who was 21, and his trailer-mate, Rodney L. Fuller, 20, in a line at Wal-Mart and, according to court records, they quickly started meeting and hatching murder plans. She became particularly attached to Mr. Shallenberger, showering him with gifts, but she had sex with both men and also encouraged her 16-year-old daughter to have sex with Mr. Fuller, the records say.

Ms. Lewis withdrew $1,200 and gave it to the two men to buy two shotguns and another weapon. The night of the murders, she admitted, she left a trailer door unlocked. Later, she stood by as the intruders blasted the victims with repeated shotgun blasts. As her husband lay dying, court records say, she took out his wallet and split the $300 she found with Mr. Shallenberger. She waited at least 45 minutes to call 911.

Her husband was moaning “baby, baby, baby” when a sheriff’s deputy arrived and he said, “My wife knows who done this to me,” before he died, the records indicate.

After initially claiming innocence, Ms. Lewis confessed and led police to the gunmen. In 2003, she was sentenced by Judge Charles J. Strauss of Pittsylvania Circuit Court, who concluded that Ms. Lewis had directed the scheme, enticing the killers with sex and promises of money and showing the “depravity of mind” that would justify a death sentence. In separate proceedings, the same judge gave life sentences to the gunmen.

Ms. Lewis’s lawyers later unearthed what they called compelling evidence that it was Mr. Shallenberger who did the enticing, including his own statements that he devised the murder plan and a prison letter to a girlfriend in which he said he “got her to fall in love with me so she would give me the insurance money.” Mr. Shallenberger killed himself in prison in 2006.

But prosecutors, in fighting subsequent appeals, said that before and after the crimes, Ms. Lewis had engaged in concerted actions to obtain money from her husband’s account and then from insurance, showing that she was far more capable than her lawyers now assert.

None of the evidence suggesting Mr. Shallenberger’s dominant role has been presented in court, but it was provided to Mr. McDonnell in a plea for clemency, along with details of her limited intellect, her diagnosis of “dependent personality disorder” and her addiction to pain pills.

When he first turned down the appeal on Friday, Mr. McDonnell noted that appeals courts have upheld her sentence and that “no medical professional has concluded that Teresa Lewis meets the medical or statutory definition of mentally retarded.”

Her lawyers argued in their petition to the Supreme Court that the case should be reopened because her original defense lawyer failed to explore whether her low intelligence and her psychiatric vulnerability would have left her able to plan the scheme. State prosecutors disagreed.

Opponents of the death penalty, and others who feel Ms. Lewis’s sentence is unjust, plan to hold vigils on Thursday, including one outside the Greensville Correctional Center in Jarratt, Va., where the execution is to take place.

“She said she is leaving it in the hands of Jesus,” her lead defense lawyer, James E. Rocap III, of Steptoe & Johnson in Washington, said on Tuesday, before she heard of the 7-to-2 decision by the Supreme Court not to consider her case.

    Woman on Death Row Runs Out of Appeals, NYT, 21.9.2010, http://www.nytimes.com/2010/09/22/us/22execute.html

U.S. Court Strikes Down Death Sentence for Killer of Two New York Officers

June 30, 2010
The New York Times
By MANNY FERNANDEZ and A. G. SULZBERGER

An appeals court struck down the first successful federal capital-punishment prosecution in New York State in more than 50 years on Wednesday, overturning the death sentence given to a Staten Island man who was convicted of killing two undercover New York City police detectives in 2003.

The man, Ronell Wilson, now 28, was sentenced by a federal jury in January 2007 to die by lethal injection for shooting each of the detectives in the back of the head in a car on a dead-end street on Staten Island. The detectives, James V. Nemorin and Rodney J. Andrews, had been posing as gun buyers.

A three-judge panel of the United States Court of Appeals for the Second Circuit overturned the death sentence, asserting in a 2-to-1 ruling that federal prosecutors had violated Mr. Wilson’s constitutional rights.

The judges ruled that Mr. Wilson’s conviction still stands, but they essentially ordered a new hearing to determine if he should receive the death penalty. The United States attorney’s office could appeal the ruling to the entire Second Circuit or to the Supreme Court. If prosecutors choose not to appeal, the case will go back to Judge Nicholas G. Garaufis of Federal District Court in Brooklyn for a penalty phase hearing before a new jury.

Another option would involve withdrawing their notice to seek the death penalty, in which case Mr. Wilson would be automatically sentenced to life in prison.

At a news conference, Michael J. Palladino, the president of the Detectives Endowment Association, the union that represents detectives, said the ruling sent “shockwaves through the families of Detectives Nemorin and Andrews as well as the N.Y.P.D., and probably the entire law enforcement community.” He added, “Two judges out of the three have ruled in favor of a ruthless, remorseless killer of two undercover police officers.”

MaryAnn Andrews, who was married to Detective Andrews and who is also a detective, stood next to Mr. Palladino and wiped tears from her eyes. She told reporters she was too distraught to discuss the case. “I can’t,” she said. “It’s just too much.”

No federal juries have been more reluctant to sentence federal defendants to death than those in New York State. Federal prosecutors in the state asked juries to impose death sentences 19 times from 1988 through March 2008, but in only one of those cases — Mr. Wilson’s trial — did a jury vote for execution, according to the Federal Death Penalty Resource Counsel Project. Experts said the reasons for jurors’ reluctance were varied, but included the liberal slant of juries in the state.

Mr. Palladino acknowledged the difficulty facing prosecutors. “It’s going to take a miracle to recreate a death sentence with a new jury,” he said, adding that he would encourage prosecutors to appeal.

The Court of Appeals’ ruling centered on two arguments that prosecutors made to the jury about Mr. Wilson’s remorse and acceptance of responsibility for the killings during the penalty phase of his trial. The judges noted that prosecutors used Mr. Wilson’s demand for a trial and his failure to plead guilty as evidence that he lacked remorse and refused to accept responsibility. The judges said prosecutors had argued to the jury that Mr. Wilson’s statement of remorse should be discredited because he failed to testify.

“He has an absolute right to go to trial, put the government to its burden of proof, to prove he committed these crimes, but he can’t have it both ways,” one of the prosecutors, Jack Smith, is quoted as telling the jury in the judges’ ruling (Mr. Smith now leads the public integrity section for the Justice Department). “He can’t do that, then say I accept responsibility.”

The defense made an objection at that point that was overruled, and the prosecutor continued, “And [say] ‘I’m sorry, only after you prove I did it.’ That’s not acceptance of responsibility.”

The judges wrote that they agreed with Mr. Wilson’s lawyers that the comments “unconstitutionally burdened his Sixth Amendment right to a jury trial.” In addition, the prosecutor’s highlighting of Mr. Wilson’s refusal to testify violated his Fifth Amendment right against incriminating himself, according to the ruling.

“We’re reviewing the decision and considering our options,” said Robert Nardoza, a spokesman for the United States attorney’s office in Brooklyn.

In a separate opinion that one of the three judges, Debra Ann Livingston, characterized as “concurring in part and dissenting in part,” she wrote: “I conclude that if there was Fifth Amendment error here — and I find it doubtful — such error had no impact on the jury that sentenced Wilson. With regard to the Sixth Amendment, there is simply no error to review.”

A jury convicted Mr. Wilson in December 2006 of killing the two detectives. Detective Nemorin was 36, a Haitian immigrant and a father of three. Detective Andrews was 34, a Navy veteran and a father of two.

Morris J. Fodeman, one of the prosecutors in the trial, said he was surprised by the decision, in part because it focused on comments made during rebuttal summations during the last five minutes of a five-month trial.

“The decision illustrates the increasing difficulty prosecutors have in attaining and carrying out a death penalty sentence given the intense albeit justifiable scrutiny on every word uttered in the courtroom,” said Mr. Fodeman, who is now in private practice.

Mr. Wilson had been a member of the Stapleton Crew, a gang involved in robberies and drug dealing that had operated for years on Staten Island but has since been disbanded. A week before the killings, two gang members sold a gun to Detective Nemorin, who was working undercover. He arranged to buy another gun — a Tec-9 assault pistol, for $1,200 — the following week. Detective Andrews volunteered to serve as Detective Nemorin’s backup.

The gang members decided to rob the detectives rather than provide the gun. On the night of March 10, 2003, Mr. Wilson, armed with a .44-caliber pistol, shot Detective Andrews in the head. Mr. Wilson then pointed the gun at Detective Nemorin and asked him where the money was. Jessie Jacobus, another gang member , testified that the detective “was pleading for his life” before Mr. Wilson pulled the trigger.

On Jan. 24, 2007, Mr. Wilson read a brief statement of remorse to the jury: “I have seen the pain that I have caused the family and friends of the victims and to my own family and friends.”

Mr. Wilson has been on the federal death row in Terre Haute, Ind. Beverly Van Ness, one of his appellate lawyers, said she was “thrilled” by the ruling: “It was the right decision, and I’m very grateful and relieved that he will be given another chance to possibly attain a life sentence.”


Colin Moynihan contributed reporting.

    U.S. Court Strikes Down Death Sentence for Killer of Two New York Officers, NYT, 30.6.2010, http://www.nytimes.com/2010/07/01/nyregion/01death.html

Utah Executes Murderer by Firing Squad

June 18, 2010
The New York Times
By KIRK JOHNSON

DENVER — A five-member firing squad at the Utah State Prison took aim and fired .30-caliber bullets at a target pinned on the chest of Ronnie Lee Gardner, a convicted murderer, just after midnight on Friday. He was pronounced dead at 12:20 a.m. Mountain Time, after almost 25 years on death row, and several months as the center of international attention focused not so much on crime as his punishment.

It was the third firing squad execution in Utah — the only state actively practicing that form of punishment — since 1976, when the death penalty was restored by the United States Supreme Court.

“The execution warrant for Mr. Gardner has been served,” The Utah Department of Corrections said in statement.

Mr. Gardner, 49, was convicted in 1985 and sentenced to death for murdering a man in a botched courthouse escape attempt. Last minute appeals on Thursday filed by his lawyers with the United States Supreme Court, the Tenth Circuit Court of Appeals in Denver and Governor Gary R. Herbert were all rejected.

“Mr. Gardner has had a full and fair opportunity to have his case considered by numerous tribunals,” said Mr. Herbert, a Republican, in a letter refusing to stay the execution. “Upon careful review, there is nothing in the materials provided this morning that has not already been considered and decided.”

In the 1985 courthouse escape attempt and shootout — during a hearing about an earlier murder committed by Mr. Gardner at a Salt Lake City bar — he killed an attorney, Michael Burdell, and wounded a court bailiff. The family members of those victims, testifying at a hearing earlier this month before the Utah Board of Pardons and Parole, were divided on the question of punishment, with some favoring execution and some pleading that the defendant’s life be spared.

Mr. Gardner’s attorneys also argued that jurors in the case voted for the death penalty without hearing adequate testimony about the years of abuse he had suffered as a child.

But a member of Mr. Gardner’s legal team, Dale A. Baich, said in a telephone interview a few hours before the execution that Mr. Gardner appeared to have accepted his fate.

“He’s comfortable and he’s at peace,” Mr. Baich said.

Only Utah, of the 35 states that impose the death penalty, still has death by shooting as an option, and then only for some. In 2004, the state legislature changed the penal code, mandating all executions thereafter by lethal injection. A person convicted of a capital crime who received his or her death sentence before the legal change took effect, however, can still choose between lethal injection and the firing squad.

Four other death row inmates, grandfathered in under the old law as Mr. Gardner was, have indicated that they may take the firing squad option if and when their time comes.

The last firing squad execution here was in 1996, when John Albert Taylor, convicted of raping and strangling an 11-year-old girl, was put to death. Mr. Gardner chose the firing squad as his means of execution, over lethal injection, in a hearing in April.

The only other state with a firing squad option in its penal code is Oklahoma, which would allow shooting of condemned prisoners only if lethal injection and electrocution are found unconstitutional.

Executions are not common in Utah. Mr. Gardner was only the seventh person put to death since 1976, compared to more than 450 in Texas. But in executions per capita — measured against Utah’s much smaller population — the state ranked 19th highest in the nation, according to calculations last year by the Death Penalty Information Center, an anti-capital punishment group. Mr. Gardner ate his last meal on Tuesday, prison officials said, having decided to fast prior to his death.

The meal included steak, lobster tail, apple pie, vanilla ice cream and 7-Up, all prepared and served at the Utah State Prison, where the execution took place, about 20 miles south of Salt Lake City. After being moved to an observation cell on Wednesday night, Mr. Gardner spent his time sleeping, reading and watching the “Lord of The Rings” trilogy, the Utah Department of Corrections said on its Web site.

    Utah Executes Murderer by Firing Squad, NYT, 18.6.2010, http://www.nytimes.com/2010/06/19/us/19death.html

Reliving Horror in a Test for the Death Penalty

January 19, 2010
The New York Times
By WILLIAM GLABERSON

NEW HAVEN — More than two years later, the details still have the power to horrify.

In the middle of the night, two parolees break into a tidy clapboard house in the central Connecticut town of Cheshire. They club the father, a doctor, and tie him up.

One of them rapes and strangles the mother, the authorities say. The other molests one of the daughters, 11-year-old Michaela. The father breaks free and shouts for help. But the intruders have set a fire: The girls, Michaela and Hayley, 17, tied to their beds, die of smoke inhalation.

The triple murder on Sorghum Mill Drive — widely compared to the Kansas killings in Truman Capote’s “In Cold Blood” — has transfixed the state ever since. The suspects, both habitual criminals, were arrested a block from the house. The crime prompted a searching review of the state legal system that had freed them.

Now, jury selection in the first of their capital murder trials is set to begin Tuesday, though both defendants tried and failed to avoid trial by offering to plead guilty in exchange for sentences of life in prison.

But in Connecticut, this is more than a murder case. It is a raw test, not only of whether these men deserve execution, but also of public and political sentiment on capital punishment itself. It is a case so well known in the state, fraught with so much emotion, and with so much potential to shape the thinking about capital punishment here, that the selection of 12 jurors and eight alternates could take six months.

“All of the things that are about to play out in the Cheshire case will have a tremendous effect on the death-penalty debate in this state,” said State Representative Michael P. Lawlor, a Democrat from East Haven.

Mr. Lawlor helped lead a failed effort to repeal capital punishment in the state last year. It was an effort that showed, even before the first juror could be selected, the power of the Cheshire murders to roil debate.

Both houses of the General Assembly voted last spring to end capital punishment in future cases. But first, legislators heard a riveting plea from the father who survived that unimaginable night in July 2007, Dr. William A. Petit Jr.

“My family got the death penalty,” he testified in March, “and you want to give murderers life. That is not justice.”

The governor, M. Jodi Rell, a Republican who is stepping down, vetoed the bill to repeal. She cited just one case: the Cheshire killings.

In many ways, the struggle over the Connecticut death penalty mirrors the conversation that has played out nationally in recent years, with three states abandoning capital punishment: New York, New Jersey and New Mexico. But in Connecticut, for some, the death penalty has been seen through the lens of just one crime.

The fall election for legislators and the governor is quite likely to come just as the trial spews out gruesome new details that have been kept sealed. With a potentially crowded field of candidates for the State House, not all of whom have yet weighed in on the death penalty, and legislators who are now on record on capital punishment seeking re-election, voters could well have the Cheshire case on their minds as they head to the polls.

The defendants will be tried separately. Steven J. Hayes, who is to be tried first, with testimony scheduled to begin in September, was the heavyset drug addict and smash-and-grab thief who was 44 at the time of the killings. Joshua Komisarjevsky was the wiry 26-year-old burglar, a rape victim himself, whom a judge had called a “calculated, cold-blooded predator.” Each has blamed the other.

The trial is to offer talking points for partisans on both sides of the capital punishment issue.

For death-penalty opponents, the case is a model of what they see as the waste of capital cases in time, money and misery. It will be slow, expensive and grisly. If the jury votes for death, any execution would be years away, if it is ever carried out.

Even though the defendants have offered to plead guilty in exchange for life sentences, the prosecutors are pushing ahead with their capital cases. The details of the crime will spill out in court, more than three years after the killings occurred.

Ben Jones, the executive director of the Connecticut Network to Abolish the Death Penalty, said capital cases by their nature delay justice and subject victims to painful trials.

“Here we are two years after the murders,” he said, “and that’s in large part because they are seeking the death penalty.”

But for proponents, it would be unthinkable to treat these acts like other crimes.

“The Petit case is the quintessential case of why people like me believe there should be a death penalty,” said Representative Lawrence F. Cafero Jr., the Republican minority leader in the House, who worked against repeal.

Dr. Petit has become a visible death-penalty supporter, even beyond his testimony in the legislature. In an interview last week, he said that when people commit crimes like those in Cheshire, “they no longer have a right to exist in this society.”

He said he knew the trial would be an ordeal. But, he said, “I need to stand up for what is just in society, and I need to stand up for my family personally.”

The court here will put on display the elaborate machinery of capital cases. The questioning of Mr. Hayes’s potential jurors is sure to focus on the saturation coverage of the Cheshire case across the state and beyond. People magazine, for example, headlined its article, “Horror in the Night.”

The lead public defender, Thomas J. Ullmann, and the state’s attorney here, Michael Dearington, will spend months maneuvering over potential jurors’ views. Because of the intense press coverage, judges long ago barred participants from public statements, so neither lawyer would discuss strategy.

But other death-penalty lawyers said the jury selection would be a legal dance that is routine in death-penalty cases. Mr. Ullmann has already argued that the publicity has made it impossible for Mr. Hayes to get a fair trial now, suggesting that a death sentence would be unjust in an atmosphere of intense emotions.

The defense will draw out potential jurors’ attitudes to try to prove the depth of bias against Mr. Hayes, now a gaunt inmate who is on suicide watch. In response, Mr. Dearington will cajole panel members to say that no matter what incendiary facts they know of Mr. Hayes’s deeds, they can put aside their feelings and vote only on the evidence.

It is a familiar routine, said Stephen B. Bright, a death-penalty defense lawyer who teaches about capital punishment at Yale Law School. “Everyone knows it will be very difficult for jurors to put that out of their minds,” Mr. Bright said, “but for the system to work we pretend that they can.”

    Reliving Horror in a Test for the Death Penalty, NYT, 10.1.2010, http://www.nytimes.com/2010/01/19/nyregion/19cheshire.html