"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." -- Oscar Wilde

Thursday, June 29, 2017

Czech Republic: "Last Address" project commemorates victims who were executed by Communist regime

"Last Address" commemorative plaque
"Last Address" commemorative plaque
The country's Institute for the Study of Totalitarian Regimes on Tuesday launched a new project to commemorate victims of former Czechoslovakia's communist regime. Called "Last Address", the idea was inspired by similar initiatives in Russia. Within the project, plaques will be installed at victims' final addresses - recalling their lives and what they stood for, for which they died.

Tuesday is the 67th anniversary of the execution of Milada Horakova a member of parliament and democrat found guilty in a notorious show trial in 1950 staged by Czechoslovakia's Communist regime. The death penalty was carried out in spite of last minute pleas for clemency from the likes of Albert Einstein and the Pope. The day has seen a number of commemorative events honouring her memory but also that of others who suffered and perished as enemies of the regime. "Last Address" focusses on those who never came back.

Michaela Stoilova, the main organizer of the project at the Institute for the Study of Totalitarian Regimes, told Czech Radio more:

"The project marks the last address of people who were arrested for political reasons and never returned. That means either people who were sentenced to death or whose deaths were hastened by the regime ... It was inspired by an organization called gulag.cz ... After a pilot program, we decided to focus primarily on victims of the Czechoslovak regime, as opposed to victims of Soviet repression in general."

One of four plaques to go up on Tuesday is at the Swedish Embassy in Prague, honouring the memory of Veleslav Wahl, a zoologist executed in 1950. A total of 4 plaques around Prague have already been approved while a 5th is pending. Michaela Stoilova again:

"We were interested in the fate of Veleslav Wahl; as it happens Josef Ruzicka, the father of his wife who was also a political prisoner, also lived at the address. But that is a coincidence. We highlighted the fact in the materials but the primary focus here is on the on lives destroyed for political reasons. How the information is used, or used comparatively, is up to others to assess."

If you'd like to see the exact addresses of the plaques which went up on Tuesday, please visit http://www.posledniadresa.cz

Source: radio.cz, June 28, 2017

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Ohio can use 3-drug combination to resume executing those on death row, appeals court says

The 6th U.S. Circuit Court of Appeals on Wednesday said it would allow the state of Ohio to use a certain 3-drug mixture to carry out lethal injections, paving the way for the state to resume executing those on death row.

The full court's opinion, decided 8-6 mostly along the court's conservative-liberal split, reverses a preliminary injunction granted by federal magistrate Judge Michael Merz in Dayton in January, as well as a three-judge appellate panel's April decision to uphold the injunction while the case heads to trial.

Merz found there is a "substantial risk of serious harm" in using midazolam, a sedative that is one of the three drugs the state endeavors to use in executions.

Judge Raymond Kethledge, a George W. Bush appointee writing for the majority, wrote that "some risk of pain 'is inherent in any method of execution -- no matter how humane.'" He also wrote that people have differing views on whether the potential for pain is acceptable, but that the plaintiffs must show the drug combination is "'sure or very likely' to cause serious pain."

The anti-death-penalty advocates who brought the case said they would ask the Supreme Court to review the 6th Circuit's decision.

"Multiple executions have demonstrated that midazolam is not a suitable drug for lethal injection, and especially when used with the 2 excruciatingly painful drugs Ohio abandoned in 2009. Wednesday's 8 to 6 narrowly divided ruling doesn't change that fact," attorney Allen Bohnert said in a statement.

Ohio hasn't performed an execution since January 2014, when it took killer Dennis McGuire 25 minutes to die from a previously unused execution drug combination. The state chose a new mixture and scheduled executions, though they have repeatedly been pushed back because of the most recent legal challenge.

The state's new proposed blend includes midazolam, as well as potassium chloride, which stops the heart, and a paralytic agent.

McGuire was administered a combination that included midazolam. Witnesses said he appeared to gasp several times during his execution and made loud snorting or snoring sounds.

"Ohio should not take the risk of continued botched executions by going back to using these dangerous, unsuitable drugs. This is especially true because Ohio still has open avenues where it may be able to obtain reliable execution drugs," Bohnert's statement said.

The challenge to the new mixture was made by death row inmates Gary Otte, Ronald Phillips and Raymond Tibbetts. Phillips, who raped and killed a 3-year-old girl in Akron in 1993, is the first inmate scheduled to die, with an execution date set for July 26.

A spokeswoman for the Ohio Department of Rehabilitation and Correction said in an email that the department "remains committed to carrying out court-ordered executions in a lawful, humane and dignified manner."

Kethledge wrote that Merz applied the wrong standard in determining the level of harm a person being executed could be exposed to with the 3-drug combination.

He also wrote that the state proved viable alternatives to the combination -- namely sodium thiopental or pentobarbital -- were not readily accessible.

Judge Karen Nelson Moore, who authored a previous opinion striking down the state's proposed use of the combination, wrote the dissent for the mostly-liberal group of judges.

But it was Judge Jane Stranch, a Barack Obama appointee, who opposed the ruling in the most blatant language.

Writing separately, Stranch wrote that certain drug makers have refused to sell the alternative drugs to states to carry out executions, and that the majority's decision ignores the possibility that the refusal to sell "may well evidence a recognition of changing societal attitudes toward the death penalty and a conclusion -- whether based on principle, profit motivation, or both -- that the business in which drug companies engage, selling drugs that improve health and preserve life, is not consistent with selling drugs that are used to put people to death."

She wrote that questions about the death penalty are closely intertwined with issues regarding unfairness in the criminal justice system.

Source: cleveland.com, June 28, 2017

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Miami murder conviction to test Florida's new death-penalty law

12 jurors deliberated just half-an-hour Wednesday before convicting a man of murdering a security guard outside a popular North Miami-Dade restaurant.

Now, they will become the 1st jury in Miami to be asked to agree unanimously on meting out the death penalty.

Wednesday's verdict came 3 months after Florida lawmakers changed the law so that jurors must agree in unison when handing down execution as punishment for murder.

The same jury will reconvene later this summer to consider Silver's sentence. DNA on a bloody ski mask was the key evidence.

At closing arguments on Wednesday, prosecutors said Silver - dressed in black and wielding a 9mm pistol - targeted 62-year-old Solmeus Accimeus as he sat in his car at closing time outside Esther's Restaurant.

Intending to rob the guard, Silver walked up to the car and fired at the guard, penetrating the man's aorta, spraying blood all over the gunman, prosecutors said. Moments later, as he fled, Silver threw away the ski mask, which had Accimeus' blood on the outside, and Silver's DNA on the inside, prosecutors said.

Prosecutor Gail Levine told jurors that Silver, his mouth having been covered in blood, later blurted out to some friends:

"'Can you smell it? Can you smell the death on me?'" Levine said. "The words of this defendant after he murdered Solmeus Accimeus in cold blood ... those words alone tell the whole story."

Prosecutors Levine, Tammy Pitiriciu and Josh Hubner began presenting evidence on June 21.

Assistant Public Defender Steven Yermish suggested to jurors that the DNA evidence was flawed and didn't prove he wore the mask during the murder.

"The DNA is not as definitive as one would think," Yermish said.

This will be the 2nd time Silver has faced possible execution.

A different jury, in 2015, convicted Silver of murdering a jogger in Coral Gables, part of a crime spree that also included shooting up a pizzeria in Delray Beach. Jurors, however, decided against recommending the death penalty, and Silver was sentenced to life in prison.

For decades in Florida, prosecutors only needed at least a majority 7 votes for a death-penalty recommendation, with the judge ultimately meting out the punishment.

Then in January 2016, the U.S. Supreme Court ruled that Florida's sentencing scheme was unconstitutional because defendants have a right to a trial by jury.

Florida lawmakers responded by rewriting the state law, replacing the judge's override and requiring a vote of at least 10 of 12 jurors to sentence someone to death.

But the Florida Supreme Court later ruled that the new law was unconstitutional because jury verdicts need to be unanimous.

In March, the Legislature passed a new law requiring jurors to unanimously agree on a death sentence.

Source: miamiherald.com, June 28, 2017

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Texas: Surviving bad lawyers just got tougher for death row inmates

Texas' death row, Polunsky Unit, Livingston
Texas' death row, Polunsky Unit, Livingston
For inmates on death row, having a bad lawyer just got deadlier.

In a ruling Monday against a Texas death row inmate who claimed his lawyer failed to argue his case adequately, the Supreme Court ruled that federal courts could not review prisoners' claims that their state appeals lawyers were ineffective, resolving an issue that had split courts across the country.

The decision makes it harder for death row inmates who had poor legal representation to make that part of their appeals, a particular issue for poor inmates who likely have court-appointed lawyers in the early stages of their cases.

"It does perpetuate a system of inequality," said Sean O'Brien, a law professor at the University of Missouri-Kansas City School of Law who has argued several capital punishment cases and served as the director of many of the school's criminal defense law clinics. "It gives the state a reward for giving prisoners incompetent lawyers in state post-conviction.... That's the net effect of this."

In 2008, Erick Davila was convicted of fatally shooting a 5-year-old girl and her grandmother. Davila argued that he had meant to shoot a rival gang member - the girl's father. The fact that he had not meant to kill more than 1 person should have made him ineligible for a capital murder verdict and the death penalty. But the judge gave the trial jury incorrect instructions about Davila's eligibility, and they sentenced him to death by lethal injection.

During Davila's appeal, his lawyer failed to argue that those bad instructions affected Davis' sentencing. Then, crucially, during Davila's post-conviction proceedings in state court, a new lawyer didn't bring up the appeal lawyer's failure to mention the instructions. With his case now up for a federal appeal, Davila's latest lawyer argued that because his appeals lawyer was incompetent, the federal court should review the impact of the inaccurate instructions to the jury.

Federal courts, however, typically won't rule on issues that could have been reviewed at the state level.

"The question is [not] really whether or not Davila had a fair trial," O'Brien said. "He did not. The question is whether the federal court can remedy that he had an unfair trial."

The answer to that question, the justices ruled in a 5-4 decision in Davila v. Davis, is no.

"Claims of ineffective assistance of appellate counsel, however, do not pose the same risk that a trial error - of any kind - will escape review altogether," Justice Clarence Thomas wrote in the majority opinion. (Thanks to a 2011 Supreme Court case, federal courts can already review lawyers' mistakes at the trial level.) Thomas added that, if the court ruled in Davila's favor, "Not only would these burdens on the federal courts and our federal system be severe, but the benefit would - as a systemic matter - be small."

It's unclear just how many cases will be affected by Monday's ruling. During oral arguments, lawyers for Texas argued that a ruling in Davila's favor could unleash a "flood" of cases into federal courts. Texas Attorney General Ken Paxton echoed that assessment in a statement celebrating the ruling, saying, "Had the high court ruled otherwise, states and the federal court system would have been burdened with an avalanche of claims facing an infinitesimal chance of success."

"It's going to exacerbate the difference between prisoners who have access to good lawyers and those who don't."

Stephen Vladeck, a professor at the University of Texas School of Law who wrote about the case for the Supreme Court outlet SCOTUSBlog, says this case wasn't just about the fates of what both he and O'Brien believe will actually be only a small number of prisoners who find themselves in situations like Davila's. Instead, Vladeck says, the case demonstrates a "lack of doctrine that responds to and accounts for these inequalities" in the criminal justice system - particularly for people facing capital punishment.

"It's going to further exacerbate the difference between state prisoners who have access to good lawyers for their post-conviction proceedings, and those who don't," Vladeck said. "Because the good lawyers will be able to salvage the ineffectiveness of the appellate counsel."

That difference may be steep. A Harvard Law School study of the 16 counties that imposed the death penalty 5 or more times between 2010 and 2015 (3 were in Texas) found "appalling inadequacies" in the quality of legal defense.

"You've got to win the lottery and get 3 good lawyers in a row," O'Brien said of the trial, appellate, and post-conviction process. "Even if you do get 1 good lawyer, the other 2 lawyers are going to undo the work of that lawyer.... They have a hard time consistently providing competent lawyers at the trial level, especially Texas."

As of late last year, Texas had executed more people than any other state - including 3 people who were sentenced to death after their lawyers slept through parts of their trials.

"It's going to be the occasional case that we'll see where this case makes a difference between life and death," O'Brien said of the Supreme Court ruling. "There will be some prisoners who will lose the capital punishment lottery because of this principle."

Source: vice.com, June 28, 2017

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Wednesday, June 28, 2017

Capital Punishment and Extreme Mental Torture

The death penalty, the Supreme Court claims, is an act of retribution; so whatever suffering the condemned endure is part of the price they pay for their crimes. Punishment, after all, is meant to inflict pain. And while the Court disapproves of any form of physical abuse of prisoners (such as beatings, prolonged sleep deprivation, or withholding food and water or necessary medications), thus far it has ignored mental suffering endured by men and women condemned to death. In the Court's reasoning, even though life sentences without parole are available, only a "death for a death" will do. In Gregg, the Court says: "Retribution is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death." And, as I noted in my letter to Pope John Paul II, the U.S. Supreme Court has ruled that killing human beings is not an assault on their dignity. Thus, by legalizing premeditated homicide, the Supreme Court legalizes torture. Morally speaking, this is dangerous, for it presupposes that a system of justice can in all cases identify the truly guilty with a degree of certainty that, we know, cannot be obtained. This ruling also seems oblivious to the corrosive effects on the souls of those who carry out the killings. "Afterward, when I get home I sit up in my La-Z-Boy chair the rest of the night. I can't sleep, can't eat," Major Kendall Coody told me after participating in his fifth execution in the Louisiana death chamber. And his participation in the killings wasn't even direct. After prisoners were executed, his job was to collect their personal belongings to send to their families. 

When the Abu Ghraib scandal first broke, government officials tried to confine blame to a few rogue soldiers, but inquiries revealed that the soldiers were working within a climate of abuse that had raised questions all the way up to the White House. Memos documented that government officials first sought legal advice before ordering torture tactics against terrorist suspects. The question of Pentagon and Defense Department officials to their lawyers is shocking in its callous simplicity: "The Geneva Conventions prohibit us from torturing or humiliating prisoners of war; how might we legally circumvent those prohibitions so we can inflict pain on detainees during interrogation and not be held legally accountable?" The response was to replace the designation "prisoners of war" with "enemy combatants."

"Prisoners of war" have human rights protected by international agreements. There is little consensus on the legal rights, if any, of "enemy combatants." Terrorist suspects detained in U.S. bases in Afghanistan, Guantanamo Bay, Cuba, and in Abu Ghraib and other bases in Iraq may be held indefinitely with-out charge and without legal counsel as long as their captors see fit.' International human rights groups have been barred from the camps. As of June 2004, more than five thousand foreign nationalists have been jailed and stripped of their civil liberties in the United States, Guantanamo, or Iraq since September 11, in anti-terrorism "prevention detention" measures. Military intelligence officers told the Red Cross that 70-90 percent of the people locked up in Iraq have been arrested by mistake. 

Torture was legalized under Nazi Germany's Nuremberg Laws, which "redefined" Jews as non-citizens and non-human. By the same legal logic, the Louisiana Legislature legalized cockfighting by designating roosters as "fowl," not "animals," thus circumventing the state's prohibition against cruelty to animals.' 

President Bush's legal counsel, Alberto Gonzales, remarked that the nature of the war on terror "renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint [italics added] some of its provisions." Gonzales, you may recall, gave legal guidance to Governor Bush, who dispatched 152 persons to the Texas death chamber. 

But the Pentagon's list of approved "stress and duress" interrogation techniques, which includes throwing suspects against walls, hooding them, depriving them of sleep for days at a time, and binding them in painful positions, forbids "extreme" mental torture, such as "threatening detainees with immediate death." (italics added) 

The Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (wording from Article 5 of the UN Universal Declaration of Human Rights), which has been ratified by the U.S. Senate, holds us to a higher standard of moral con-duct than we have been able to achieve on our own. By signing on to the Convention Against Torture, we have committed ourselves never to engage in "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted." 

The concept of severe "mental" suffering is revolutionary. It reveals an "evolving standard of decency" of human rights never before embraced by the United States. With these words, the United States Supreme Court and its people face a new reality about the death penalty: There is simply no way that we are ever going to figure out how to preordain the killing of a human being without inflicting severe mental suffering. 

The defenselessness of persons under the control of their captors is central to understanding torture. If someone can resist an aggressor, we don't call it torture. It is the defenselessness of the victim that makes us loathe torturers and cringe when we see the photographs of our soldiers smiling and giving a thumbs-up at the plight of suffering Iraqi 'prisoners. 

I was glad when the Supreme Court consulted the wisdom and experience of the world community in Atkins and ruled that executing mentally retarded persons is an act of cruelty. Most of our democratic allies stopped killing mentally handicapped persons long ago, though Justice Scalia, as we have seen, dissented in Atkins, scornfully refusing to consider international moral standards of cruelty. "[Other countries'] notions of justice are (thankfully) not always those of our people," he said. 

Sister Helen Prejean
Sister Helen Prejean
I wonder what the Framers of the Constitution would think of how the United States holds on to the death penalty while so many of our allies have abandoned it over the last fifty years. The Framers wrote the best Constitution they could, incorporating the best ideas and values from other countries. They very much wanted the new Republic to stand tall among other nations in its respect for the human person against the massive powers of the state. I think they would be appalled by the way constitutional protections of defendants have been ignored or abused in the administration of the death penalty. In the absence of those protections, they would not be surprised that so many innocents have been caught up in the system. I think they'd be shocked at the legalistic quagmire the courts have created and immensely saddened by the Supreme Court's heavy emphasis on procedure over law. With long-term imprisonment available, as it was not in their day, they'd be quick to see that capital punishment was no longer necessary or desirable. And I think they'd take Senate ratification of the UN Convention Against Torture very seriously, embracing its prohibition against mental and physical cruelty. I can see them proudly holding high the United Nations Universal Declaration of Human Rights on which the torture convention was based.

The execution chamber in Central Prison, Raleigh, North Carolina, is airtight. A wooden chair with a high back, armrests, and footrest is mounted against the chamber's back wall. Under the chair a metal container contains cyanide, and under the cylinder is a metal canister filled with a sulfuric acid solution. When executioners turn three keys in the control room, an electric switch causes the bottom of the cyanide container to open, dropping the cyanide into the acid, which produces the lethal gas. A heart monitor, which can be read in the control room, is attached to the chest of the condemned. After the warden pronounces the prisoner dead, ammonia is pumped into the chamber to neutralize the gas, and exhaust fans pump the inert fumes from the chamber. Members of the prison staff then enter the chamber and remove the body for release to the county medical examiner. Leather belts, strapped across chest, arms, and legs, affix the condemned to the chair, and a leather mask with small holes near the nose and mouth is attached to the face. 

In 1983, the General Assembly of North Carolina gave the condemned the option to choose death by lethal injection. Under this provision, the warden must be notified in writing by the condemned at least five days before the execution that he or she would prefer death by lethal injection. 

David Lawson chose to die in the gas chamber. He said he wanted the people of North Carolina to know they were killing a man. He tried to have his execution videotaped and broadcast, but state and federal courts denied his request, arguing that he did. not have a constitutional right to make his death public. 

In a last appeal to the U.S. Supreme Court, David Lawson's lawyers requested a stay of execution, arguing that execution by gas was a form of cruel punishment and in violation of the Eighth Amendment, but the Court refused to hear the petition.

On June 15, 1994, David Lawson was killed by the state of North Carolina for the murder of Wayne Shinn, whom he had shot during a burglary in 1980. It took thirteen minutes for the gas to kill him. 

Lawson, wearing only socks and boxer shorts over a diaper, sat in the chair and watched as guards strapped his chest, arms, and legs to the chair and hooked up an electrode over his heart. Guards then placed a leather mask over his face. Soon after 2:00 a.m., the cyanide was dropped into the acid and the lethal fumes began to rise. Lawson, choking and gasping and straining against the straps, took short breaths and cried out, "I am human. I am a human being." He pushed up on his feet and kicked his legs. His hands gripped the ends of the armrests. Drool and tears slid from under the mask. A few deep breaths of the gas would have killed him sooner, but David Lawson continued to take short breaths and despite paroxysms of choking cried out until his voice was but a whisper: "I . . . am . . . a human . . . being."

➤ Excerpted from The Death of Innocents, An Eyewitness Account of Wrongful Executions, Sister Helen Prejean, Vintage Books, 2006. Sister Helen Prejean is the author of Dead Man Walking. She travels extensively, giving, on average, 140 lectures a year, seeking to ignite public discourse on the death penalty. She is a member of the Sisters of St. Joseph of MĂ©daille and lives in Louisiana. (NB: Commercial links provided for information purpose only.)

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Texas death row inmate loses at U.S. Supreme Court, could face execution date

The U.S. Supreme Court ruled against a Texas death row inmate Monday, making Erick Davila's case ineligible for review in federal court.

A Texas death row inmate whose case made it all the way to the U.S. Supreme Court could now face an execution date after the justices ruled against him in a 5-4 decision Monday morning split among ideological lines. The man was convicted in the 2008 shooting deaths of a 5-year-old girl and her grandmother in Fort Worth.

The question before the high court in Erick Davila's case was whether claims of ineffective assistance of counsel during state appeals should be treated the same as during the original trial. Appellate courts throughout the country have ruled differently on the issue, a situation that often prompts the Supreme Court to step in. In the Monday opinion presented by Justice Clarence Thomas, the justices ultimately decided that the different types of lawyers should not be treated the same, making Davila's case ineligible for consideration in federal court.

"Because a prisoner does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default," Thomas wrote in his opinion, joined by Chief Justice John Roberts and justices Anthony Kennedy, Samuel Alito, and Neil Gorsuch.

Justice Stephen Breyer, a notable death penalty critic, wrote a dissenting opinion, joined by liberal justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

"The fact that, according to Department of Justice statistics, nearly 1/3 of convictions or sentences in capital cases are overturned at some stage of review suggests the practical importance of the appeal right, particularly in a capital case such as this one," Breyer wrote in his dissent.

Davila's case started in Fort Worth in 2008, when he fatally shot a rival gang member's 5-year-old daughter and mother during a child's birthday party, according to court documents. Davila, now 30, claims he only meant to kill his rival, Jerry Stevenson. In his confession to police he stated he was trying to get Stevenson and "the guys on the porch."

If the jury had believed Davila only intended to kill 1 person, he would have been ineligible for a capital murder verdict and the death penalty would have been off the table. In this case, Davila must have intended to kill multiple people to be found guilty of capital murder.

During deliberations, the jury asked the judge for clarification on the intent issue, and the judge said Davila would be responsible for the crime if the only difference between what happened and his intention was that a different person was hurt. He did not affirm to the jury that Davila must have intended to kill more than 1 person to be found guilty.

It's that jury instruction that Davila's long, complicated case hinged upon. His lawyer at trial objected to the instruction, but was overruled. But in his automatic, direct appeal after being convicted and sentenced to death, his new lawyer never mentioned the judge's instruction, even though that is the appeal where death-sentenced individuals raise what they think are wrongdoings from the trial. Afterward, during his state habeas appeal, which focuses on issues outside of the trial record, the lawyer didn't fault the previous lawyer for not raising the issue on direct appeal.

The next step in the death penalty appeals process after going through state courts is to move into the federal court system. But federal courts generally can't rule on issues that could have been raised in state appeals. So, when Davila's current lawyer, Seth Kretzer, tried to claim his client's direct appellate lawyer was inadequate for not raising the issue of an improper jury instruction by the judge, the federal courts said they couldn't look at the issue because it could have been raised by the state habeas appellate lawyer.

"The way the law works right now is if the trial counsel made a mistake, the federal court could save the inmate's life, but if the appellate counsel made the mistake, they would have to go ahead and execute," Kretzer told The Texas Tribune in January.

One exception to this rule was created in 2012 by the Supreme Court in Martinez v. Ryan, which says that if a state habeas lawyer failed to question a trial lawyer's inadequacy, the federal courts can review the claim to ensure that defendants are guaranteed a fair trial. But Davila argued that the Martinez exception should apply to inadequacy of the appellate attorneys, as well.

Federal courts have disagreed on this issue, with most circuit courts ruling that appellate lawyers can't be treated the same as trial lawyers. But the often liberal 9th U.S. Circuit Court of Appeals has previously ruled there is no distinction between the 2.

During oral arguments on the case in late April, conservative justices appeared concerned that opening up the exception would cause a "flood" of appeals into the federal court system, but the left-leaning members of the court dismissed the idea. Justice Sonia Sotomayor predicted there may be an "initial uptick of claims until people settle down" and realize only a small number of cases are eligible for federal review.

The state of Texas also argued in its brief to the high court that in Davila's case, none of the larger legal questions matter, because even though the 5th U.S. Circuit Court of Appeals ruled that it couldn't review the case based on its interpretation of the Martinez exception, it still reviewed the issue of the jury instruction and rejected Davila's argument that it was improper.

This was the 3rd Texas death penalty case heard by the U.S. Supreme Court this term, which began in October and ends this week, but it was the 1st time the justices sided with the state over the inmate. In February, the court agreed with inmate Duane Buck that his case was prejudiced by an expert trial witness who claimed Buck was more likely to be a future danger because he is black. And in March, the justices sided with Bobby Moore, declaring that Texas' method for determining intellectual disability for death row inmates was unconstitutional.

Davila's lawyer, Seth Kretzer, told the Texas Tribune Monday after the Supreme Court announced its decision that the 5-4 ruling shows "why it's so important to keep pressing these things." Kretzer is looking into other possible appeals for Davila in the state courts, but recognizes that Tarrant County could soon set an execution date for his client.

"We took this case farther than anyone thought we would, and we intend to keep fighting it," he said.

Source: Texas Tribune, June 27, 2017

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Former Florida Chief Justice Says Death Penalty Process Faces Chaos

Florida's death chamber
Florida's death chamber
A former chief justice of the Florida Supreme Court says the state’s death penalty process will be left in “chaos” as a result of recent court decisions involving how the process is administered.

In the past, a jury would recommend whether someone convicted of murder should be given the death penalty. The jury’s recommendation could be a simple majority. But, the final decision as to whether a person would receive the death penalty was left up to the judge.

The U.S. Supreme Court ruled that giving the judge the final say violated a defendant’s right to a trial by jury. The high court also took exception with a majority vote, saying the jury’s decision on the death penalty needed to be unanimous. (1)

Earlier this year, the Florida Legislature enacted a law requiring a unanimous jury decision before a person can be sentenced to death.

The rulings mean that approximately 150 inmates on Florida’s death row can now request a new sentencing hearing to determine if their death sentences will stand.

Former Florida Supreme Court Chief Justice Gerald Kogan says that could be a big problem.

“That’s not an easy thing to go back and dig up all of this evidence and especially to dig up all the witnesses,” Kogan told reporters during a conference call Tuesday afternoon. “We have been very, very negligent in the state of Florida in handling these types of cases.”

Kogan said there are inmates on Florida’s death row who were convicted 30 or more years ago. He says it won’t be as simple as letting a new jury read the transcripts from the old trial. He says both sides will have to put on evidence for a new jury to consider.

“You’ve got a mess and there’s no doubt about that,” said Kogan.

Juanita Perez’s son, Benjamin Hamilton, and granddaughter, Ivory, were both murdered in Brevard County in 2009. The man convicted of killing them, Justin Heyne, did not receive a unanimous decision in the sentencing phase and will likely receive a new hearing.

“The fact that this process has to begin all over again when we were promised it was over. It’s harmful to all families, even if you want it or not,” said Perez. “The only one who benefits from this is the state attorney.”

Perez said she didn’t ask for the death penalty in her son’s and granddaughter’s murders in the first place and doesn’t want to be put the process again.

(1) DPN received the following comment: "The US Supreme Court did not address the issue of unanimity at all. The requirement that the jury vote be unanimous was imposed by the Florida Supreme Court, construing long-standing Florida law as well as the Florida and United States Constitutions." - Florida Center for Capital Representation at FIU College of Law.

Source: The Capitolist, John Lucas, June 27, 2017

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Deputy governor-elect to establish sharia tourism zone in Jakarta

Deputy governor-elect Sandiaga Salahuddin Uno
Deputy governor-elect Sandiaga Salahuddin Uno
Deputy governor-elect Sandiaga Salahuddin Uno said on Tuesday that he planned to establish a sharia tourism zone in Kwitang, Senen, Central Jakarta.

Sandiaga explained that he had been inspired to build such a zone after he visited Ali bin Abdurrahmad Al Habsyi, better known as Habib Kwitang, at Ar Riyadh Mosque in Kwitang on Tuesday.

Kwitang is known among local Muslims for its regular learning forums held by a local Islamic center.

"I think it will be interesting if there is a religious tourism zone [in the area], which is properly arranged with tents. Hence, mobility can be ensured," Sandiaga said as quoted by wartakota.tribunnews.com.

He said he planned to realize the idea by building home stays in the area after his inauguration as Jakarta deputy governor in October.

He expressed hope that the tourism zone would support small and medium enterprises in Jakarta.

Source: The Jakarta Post, June 28, 2017

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Tuesday, June 27, 2017

A Presumption of Guilt

Lynching in America
Lynching in America
People of color in the United States, particularly young black men, are often assumed to be guilty and dangerous. In too many situations, black men are considered offenders incapable of being victims themselves. As a consequence of this country’s failure to address effectively its legacy of racial inequality, this presumption of guilt and the history that created it have significantly shaped every institution in American society, especially our criminal justice system.

Between the Civil War and World War II, thousands of African-Americans were lynched in the United States. Lynchings were brutal public murders that were tolerated by state and federal officials. These racially motivated acts, meant to bypass legal institutions in order to intimidate entire populations, became a form of terrorism. Lynching had a profound effect on race relations in the United States and defined the geographic, political, social, and economic conditions of African-Americans in ways that are still evident today.

Many African-Americans were lynched not because they had been accused of committing a crime or social infraction, but simply because they were black and present when the preferred party could not be located. In 1901, Ballie Crutchfield’s brother allegedly found a lost wallet containing $120 and kept the money. He was arrested and about to be lynched by a mob in Smith County, Tennessee, when, at the last moment, he was able to break free and escape. Thwarted in their attempt to kill him, the mob turned their attention to his sister and lynched her instead, though she was not even alleged to have been involved in the theft.

Records show that racial terror lynchings from Reconstruction until World War II had six particularly common motivations: (1) a wildly distorted fear of interracial sex; (2) as a response to casual social transgressions; (3) after allegations of serious violent crime; (4) as public spectacle, which could be precipitated by any of the allegations named above; (5) as terroristic violence against the African-American population as a whole; and (6) as retribution for sharecroppers, ministers, and other community leaders who resisted mistreatment—the last becoming common between 1915 and 1945.

Our research confirmed that many victims of terror lynchings were murdered without being accused of any crime; they were killed for minor social transgressions or for asserting basic rights. Our conversations with survivors of lynchings also confirmed how directly lynching and racial terror motivated the forced migration of millions of black Americans out of the South. Thousands of people fled north for fear that a social misstep in an encounter with a white person might provoke a mob to show up and take their lives. Parents and spouses suffered what they characterized as “near-lynchings” and sent their loved ones away in frantic, desperate acts of protection.

The decline of lynching in America coincided with the increased use of capital punishment often following accelerated, unreliable legal processes in state courts. By the end of the 1930s, court-ordered executions outpaced lynchings in the former slave states for the first time. Two thirds of those executed that decade were black, and the trend continued: as African-Americans fell to just 22 percent of the southern population between 1910 and 1950, they constituted 75 percent of those executed.

Probably the most famous attempted “legal lynching” is the case of the “Scottsboro Boys,” nine young African-Americans charged with raping two white women in Alabama in 1931. During the trial, white mobs outside the courtroom demanded the teens’ executions. Represented by incompetent lawyers, the nine were convicted by all-white, all-male juries within two days, and all but the youngest were sentenced to death. When the NAACP and others launched a national movement to challenge the cursory proceedings, the legal scholar Stephen Bright has written, “the [white] people of Scottsboro did not understand the reaction. After all, they did not lynch the accused; they gave them a trial.” In reality, many defendants of the era learned that the prospect of being executed rather than lynched did little to introduce fairness into the outcome.

Today, large racial disparities continue in capital sentencing. African-Americans make up less than 13 percent of the national population, but nearly 42 percent of those currently on death row and 34 percent of those executed since 1976. In 96 percent of states where researchers have examined the relationship between race and the death penalty, results reveal a pattern of discrimination based on the race of the victim, the race of the defendant, or both. Meanwhile, in capital trials today the accused is often the only person of color in the courtroom and illegal racial discrimination in jury selection continues to be widespread. In Houston County, Alabama, prosecutors have excluded 80 percent of qualified African-Americans from serving as jurors in death penalty cases.

The crucial question concerning capital punishment is not whether people deserve to die for the crimes they commit but rather whether we deserve to kill. Given the racial disparities that still exist in this country, we should eliminate the death penalty and expressly identify our history of lynching as a basis for its abolition. Confronting implicit bias in police departments should be seen as essential in twenty-first-century policing.


Source: The New York Review of Books, Bryan Stevenson, July 13, 2017 Issue

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13 Chinese sentenced to death for drugs offences as thousands look on in public trial

"13 people were sentenced to death for producing and selling drugs."
Eight executed immediately after open hearing in a stadium in notorious drug producing area of Guangdong province

Two courts in southern China’s Guangdong province sentenced 13 people to death for producing and selling drugs at a public trial in a stadium in the city of Shanwei watched by some 10,000 people, the official Xinhua news agency reported.

The Shanwei Intermediate People’s Court and the Lufeng People’s Court handed out sentences on Saturday for 18 people, the report said, without giving the names of the accused or details of the charges.

Five were given suspended sentences. Of the 13 sentenced to death, eight were executed immediately after the trial.

The city of Lufeng, which is administered by Shanwei, is notorious for making and trafficking drugs. 

In 2014 more than 3,000 paramilitary personnel, police and border guards from Guangdong raided a village near Lufeng and seized three tonnes of crystal meth. 

Nearly 200 people from the village, which has a population of 14,000, were detained at the time.

The Lufeng court heard 234 cases involving drugs last year and sentenced 107 people to prison terms of at least five years.

A similar public trial was held in 2015 in Lufeng, with five people sentenced to death and executed immediately and another eight given suspended death penalties. 

A further 25 people were sentenced to at least 10 years in jail each.

Source: South China Morning Post, Zhuang Pinghui, June 27, 2017

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The Death Penalty and Mental Illness: An Evolving Standard?

SCOTUS
The use of the death penalty in the Americas dates to the 15th century when European settlers brought with them the practice of capital punishment. Because nowhere in the US Constitution is capital punishment explicitly addressed, the death penalty was imbued with intrinsic constitutionality by the Founding Fathers. The Fifth Amendment, Eighth Amendment, and Fourteenth Amendment (due process clause) of the Bill of Rights have attempted to provide guidelines on how capital punishment should be handled. The Fifth Amendment states that "no person shall be held to answer for a capital [crime], unless on a presentment or indictment of a Grand Jury," while the Eighth Amendment states that "nor cruel and unusual punishments [be] inflicted."

Although the death penalty was viewed as an acceptable form of punishment at the time the US Constitution was created, it did not take long for various states to begin to limit or even ban such practices. The 1st state to do so was Michigan in 1846. 

Today, 31 states still permit capital punishment. Although this number may represent a majority of the states, it may not represent the true national mood regarding capital punishment because many of these states have not had an execution in more than 10 years.


Evolving standards


Over the years, the US Supreme Court has ruled on many cases that have addressed the topic of evolving standards of decency in regards to the Eighth Amendment. The 1910 Supreme Court case Weems v US helped define the notion of evolving standards as a basis to view historically accepted punishments as no longer acceptable in modern society. In the Weems case, a man was sentenced to multiple years of "hard and painful labor [in chains]" for the crime of falsifying documents.

Although the use of "irons" was common in the 1700s, the Court found that its use was not appropriate for a sentence in the 1900s. The term "evolving standards of decency" was coined by Chief Justice Earl Warren in Trop v Dulles (1958) when he noted that, when determining what punishment the Eighth Amendment prohibits, "evolving standards of decency . . . mark the progress of a maturing society."

The 1972 case of Furman v Georgia (1972) resulted in a brief national moratorium on the death penalty because of a 5 to 4 ruling that "[the death penalty] could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner." In an unusual scenario, each justice wrote his own opinion, with Justices Brennan and Marshall citing evolving standards of decency to explain why they believed the death penalty was unconstitutional.

The landmark cases of Atkins v Virginia (2002) and Roper v Simmons (2005) determined that because of evolving standards of decency, certain definable groups such as individuals with intellectual disability and minors could not be sentenced to death. In both instances, the Court, within a relatively short period, revisited the issue of an evolving standard after already having ruled on the issue, ie, execution of people with intellectual deficiencies previously addressed in Penry v Lynaugh (1989) and certain youths in Stanford v Kentucky (1989). The majority opinion for Atkins v Virginia, written by Justice Stevens, noted that the "consistency of the direction of change," but "not so much the number of these States [prohibiting the execution of individuals with intellectual disabilities]," was important in determining an evolving standard.

The cases of Atkins v Virginia and Roper v Simmons are particularly interesting because the opinions were based on legal as well as scientific and medical principles. The legal principles that were discussed included whether the death penalty had a deterrent effect for these populations and whether these populations were at a fundamental disadvantage in defending themselves in the court system against the ultimate irreversible punishment. In Atkins v Virginia, Justice Stevens wrote, ". . . frequently [individuals with intellectual disability] know the difference between right and wrong and are competent to stand trial . . . [but] because of their impairments . . . by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others."

Source: Psychiatric Times, June 22, 2017

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The Supreme Court's Mixed Year on Capital Punishment

SCOTUS
The U.S. Supreme Court's latest term, which ended this week as the justices began their summer recess, saw death-penalty opponents achieve some notable victories even as the Court moved further away from abolishing capital punishment.

In one of those wins Monday, the justices vacated an Alabama death-row inmate's sentence after ruling the state had not given him adequate professional assistance to evaluate his mental health during his trial more than 3 decades ago. The Court said the state's failure to provide James McWilliams with the experts required under one of its 1985 rulings made his sentence unconstitutional.

"Since Alabama's provision of mental-health assistance fell so dramatically short of what Ake [v. Oklahoma] requires," Justice Stephen Breyer wrote for the majority, "we must conclude that the Alabama court decision affirming McWilliams's conviction and sentence was 'contrary to, or involved an unreasonable application of, clearly established Federal law.'" He quoted from a federal statute governing certain appeals from state courts.

In Ake, the Court ruled that states must provide impoverished defendants with access to "sufficiently independent" mental-health experts for help during trials. Shortly after that ruling came down, McWilliams was charged with the rape and murder of a convenience-store clerk. The trial court appointed John Goff, a neuropsychologist who worked for the state's Department of Mental Health, to evaluate McWilliams as a neutral party. After he filed his report, the court denied the defense's request for an independent expert to help them understand the report and its implications.

The ruling fell along the traditional ideological divide, with Justice Anthony Kennedy joining the Court's liberal wing. Justice Samuel Alito, writing for himself and 3 conservative colleagues, sharply criticized the majority for disregarding the question the justices had been asked to resolve when they took the case. Instead of deciding whether Ake required a mental-health expert for the defense, and not simply a neutral one for both sides, the majority held that Alabama's assistance to McWilliams fell short of the Court's current standards for indigent defendants with signs of mental-health issues.

"Neither Dr. Goff nor any other expert helped the defense evaluate Goff's report or McWilliams' extensive medical records and translate these data into a legal strategy," Breyer wrote. "Neither Dr. Goff nor any other expert helped the defense prepare direct or cross-examination of any witnesses, or testified at the judicial sentencing hearing himself."

Monday's ruling was the 3rd of 4 capital-punishment cases the Court heard this term. Their ruling on one final case could come as soon as Thursday morning. In February, the justices vacated the death sentence of Texas inmate Duane Buck in a long-running racial-bias case. At the center of the dispute was testimony from psychologist Walter Quijano, who was called to the stand by Buck's lawyer during the sentencing phase of his trial in 1995. Quijano told the jury about his statistical model for evaluating "future dangerousness," one of the thresholds Texas uses to determine whether a defendant receives life imprisonment without parole or a death sentence. One of the factors in Quijano's model was race.

"It's a sad commentary that minorities, Hispanics, and black people, are over-represented in the criminal-justice system," Quijano told jurors at one point. When Buck appealed his sentence, Texas countered that the statements were only a minor part of days of testimony. But Chief Justice John Roberts, writing for the Court in a 6-2 majority, said it was enough to toss out the sentence. "Some toxins are deadly in small doses," he wrote.

"What does this case tell us about a capital-punishment system that, in my view, works in random, virtually arbitrary ways?"

Kennedy and the Court's liberal justices also sided with the inmate in Moore v. Texas, an intellectual-disability case, in March. A Texas jury gave Bobby Moore a death sentence in 1980 for killing a convenience-store clerk during an armed robbery. After the Court banned the execution of people with intellectual disabilities in 2002's Atkins v. Virginia, Moore appealed his sentence on those grounds. A state court gathered a wealth of evidence from doctors and psychologists, concluding Moore should receive life imprisonment without parole and be retried.

But the Texas Court of Criminal Appeals rejected the lower court's decision and instead relied upon an outdated set of seven factors from one of its earlier cases to make its decision. The factors were not grounded in medical authority. Instead, they focused on the subjective perceptions of laypersons and family members to determine a defendant's mental disability. All 8 justices agreed the factors were unacceptable for capital cases, but Roberts, Alito, and Clarence Thomas dissented from the means by which the majority reached its decision.

The Court has yet to hand down a ruling in its fourth death-penalty case, Davila v. Davis. At issue in that dispute is an arcane but important procedural question about when a death-row inmate can claim his or her lawyer was unconstitutionally ineffective during the appeals process. At oral arguments in April, the justices appeared to be leaning toward a ruling in favor of the Texas Department of Criminal Justice.

But this term the justices did not take up any cases on a question frequently pushed by one of their colleagues: whether the death penalty itself violates the Eighth Amendment's prohibition against cruel and unusual punishment. In 2015, Breyer dissented from a major case on botched lethal injections and said it was time for the Court to reconsider the constitutionality of capital punishment. His dissent, which was joined by Ruth Bader Ginsburg, reopened a battle over the death penalty that had once faded from the court.

Some observers - myself included - speculated at the time that Breyer's dissent signaled the justices could actually abolish the practice for a second and likely final time. (The Court struck down all death-penalty statutes nationwide in 1972, then approved a raft of revised state laws 4 years later.) Assuming all four justices on the Court's liberal wing would agree to strike down the death penalty, only the vote of Kennedy - an intermittent voice in reducing the punishment's scope - and the proper case would be needed.

After 2 years, the Court has yet to consider the question despite multiple petitions asking the justices to do so. Kennedy's opinions on capital punishment have not noticeably changed in tone or tenor since Breyer's dissent in the lethal-injection ruling. And Donald Trump's electoral victory in November increased the likelihood that Kennedy or 1 of the 4 liberals could be replaced by a conservative stalwart, which would likely foreclose abolition for a generation.

Breyer has still continued to urge his colleagues to take up the issue. When Arkansas attempted to execute 8 inmates in 10 days in April, he sharply criticized the state for putting them to death only because its lethal-injection drug supply was about to expire. "In my view, that factor, when considered as a determining factor separating those who live from those who die, is close to random," he wrote when his colleagues denied a request from 1 of the inmates for a stay of execution.

A few days later, when the Court rejected the petition of an Arizona prisoner who had spent almost 4 decades in solitary confinement awaiting execution, Breyer said it underscored the need for the Court to revisit the death penalty. "What legitimate purpose does it serve to hold any human being in solitary confinement for 40 years awaiting execution?" he asked. "What does this case tell us about a capital-punishment system that, in my view, works in random, virtually arbitrary ways?" None of his colleagues joined either of his writings.

Source: theatlantic.com, Matt Ford, June 22, 2017

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