Saturday, 30 June 2007
ELLEN KREITZBERG Santa Clara University - School of Law
DAVID RICHTER Santa Clara University - School of Law
Santa Clara Univ. Legal Studies Research Paper No. 07-28 Santa Clara Law Review, Vol. 47, No. 3, 2007
This article examines the constitutional challenge raised to California's lethal injection protocol (San Quentin Operating Procedure 770). We review the history of lethal injection executions in the U.S. and particularly in California. We explore Eighth Amendment challenges to the death penalty generally and to lethal injection procedures in particular, and finally we detail the evidence presented before Judge Jeremy Fogel in September 2006 on the California protocol for lethal injection executions.
The article demonstrates the basis for which Judge Fogel ultimately concluded that the California procedure, as written and as implemented was broken and suffered from a number of critical deficiencies. The many failings include the random selection and training of the execution team, the inadequate facilities provided for executions, a paucity of oversight for training and implementing executions, the inappropriate choice and administration of drugs, and an overall lack of professionalism in carrying out each execution.
We also examine the ethical conflict presented by the use of medical persons in executions as viewed from within the profession and by the public. We conclude by underscoring the need for transparency and congressional oversight of the procedures and their operations to ensure a more professional, appropriate, and constitutional process. Finally, we suggest taking the time to pause and evaluate our decision to relegate “death work” to prison guards and administrators.
In revolutionary France in the early 1790s, physician Joseph-Ignace Guillotin proposed that a surefire execution mechanism be used to carry out the death penalty for the state. Historians believe that Guillotin suggested the use of the instantaneous decapitation device that would later bear his name as a humane form of capital punishment. The guillotine was thought to bring quick mortality more reliably than the standard methods of prerevolutionary France—beheading by sword or ax, which sometimes involved repeated blows, or hanging by a noose, which could take several minutes or even longer.
In the U.S. in the late 1970s, Oklahoma state medical examiner Jay Chapman developed a fail-safe execution method that many states soon adopted as their main form of capital punishment. Lethal injection, in which three poisonous chemicals are administered to the condemned, largely replaced execution by hanging, firing squad, gas chamber and electric chair, each of which had at some point been judged to be inhumane or excessively violent.
Yet this method is far from foolproof. According to reports, unskilled executioners have caused prolonged suffering in the condemned by mishandling the deadly drug jabs—instances in which they missed veins, used blocked IVs or miscalculated doses, leading to failed anesthesia and chemical burns. Meanwhile ethical prohibitions to the participation of trained medical personnel (“Do no harm...”) have mostly kept the amateurs and their ad hoc methods on the job. In recent months, however, news of numerous botched lethal injections has led courts and state governments to place moratoriums on the practice in a third of the 38 U.S. states that have the death penalty.
In the meantime, some researchers have challenged the assumed airtight efficacy of the drug protocols used in most American lethal injections. The authors of two papers published in Lancet and PLoS Medicine in recent years have questioned whether the recommended protocols, even if carried out as prescribed, would produce death without unnecessary or gratuitous pain—the “cruel and unusual punishment” forbidden by the Eighth Amendment to the U.S. Constitution. Although some critics argue that the studies are flawed, the dearth of research on lethal injection merely highlights our limited knowledge of the procedure.
The generally accepted approach relies on introducing into the sentenced criminal’s bloodstream a chemical cocktail consisting of a barbiturate to bring on sedation and suppress respiration, a neuromuscular paralytic to halt breathing and body convulsions, and a potassium electrolyte to stop the heart. The intent of the mixture is to provide toxic redundancy so that each drug alone would bring on death. Dosages remain the same whether the condemned weighs 150 pounds or twice that. Scientists have found that, as a result, there have been instances in which breathing has continued, the heart beat on, or nerves remained undeadened despite the injections.
In veterinary medicine, the federal government and professional associations keep data on animal euthanasia and have developed guidelines and procedures in accord with the research. Obviously, the same cannot be done for human execution techniques. It would help, however, if states released their data on lethal injections: only two have done so, leaving scientists able to analyze only 41 of the 904 lethal injections that have been conducted in the U.S. (at press time). More complete information would surely help society surmount the lingering uncertainties regarding the deadly protocol and its application.
For those of us who already believe capital punishment is wrong, this situation is just one more outrage. But even those who disagree would have to acknowledge that the Constitution holds that the state must not execute people cruelly. Perhaps capital punishment can never be anything but inhumane, but until society is willing to accept that principle, it is obliged to execute as humanely as it can. Certainly some ways of killing are less cruel than others. So what can and must government do to be more humane? Clearly, the time has come for renewed public discussion and consideration of the death penalty, including all its distasteful details.
Friday, 29 June 2007
June 28, 2007
Death Penalty Gets New Airing
by Matthew Blake, The Nation
The death penalty is finally beginning to remerge as an issue inside the
halls of Congress--and it only took the second Congressional power shift in
50 years and the unprecedented Department of Justice dismissal of 8 or 9 US
attorneys to make it happen.
Wisconsin Democrat Russ Feingold on Wednesday held a hearing of the Senate
Judiciary's Subcommittee on the Constitution that drew attention to the lack
of information available about when the Justice Department seeks capital
punishment and the financial and social costs involved when it does. Fired
US Attorney Paul Charlton testified that even he did not know death penalty
protocol under Attorney General Alberto Gonzales, and told the committee
that he was fired after refusing to authorize the death penalty for a case
with no corroborating forensic evidence.
"It is fitting that we will hear from some of the same organizations that
testified at that last hearing in June 2001," Feingold said, in reference to
the last time the Senate held a hearing on the subject. "That is because in
some respects, we know little more today than we did six years ago."
The US is the only Western democracy that still employs the death penalty.
Yet since 2000 the Justice Department has not released any data on how many
capital cases it has decided to prosecute, the success rate of its
prosecution, the race and ethnicity of the defendants and the cost of
pursuing a death penalty case. This is not merely another instance of the
Bush administration keeping the public in the dark--the department itself
apparently does not keep track.
"A lot of resources go into prosecuting a death penalty case," Feingold said
to Deputy Assistant Attorney General Barry Sabin, who represented embattled
Attorney General Alberto Gonzales. "Now, does the department track monetary
cost in any way?"
"I don't believe we do that," Sabin said.
"Do you have any sense of what it costs for the US attorney's office to
pursue a death penalty case?" Feingold asked.
Sabin replied he did not and when Feingold requested the Department look
into the matter, Sabin said he could not promise that such information is
readily obtainable. In preparation for the hearing, Feingold had learned
from DOJ that in one-third of all cases where the Department sought the
death penalty the Attorney General overruled a prior decision from a US
Attorney that capital punishment should not be pursued.
One such overruling has played a starring role in the scandal surrounding
Gonzales's dismissal of Arizona prosecutor Paul Charlton. Charlton concisely
told the committee that in United States v. Ricos Rio, he defied the Justice
Department's authorization of the death penalty in a murder case after the
Department declined to fund exhumation of the victim's body, which likely
would have determined the defendant's guilt. Charlton had requested to meet
with the Attorney General about Ricos Rio and was denied. He was told by
former Deputy Attorney General Paul McNulty's staff that "McNulty had spent
a significant amount of time on this issue with the Attorney General,
perhaps as much as 5 to 10 minutes."
Stunningly, that's more time than Congress spent on the issue over the past
Source : The Nation
On November 15 and 16, 1999, these proceedings resumed.
At that time, Provenzano presented the testimony of Henry Dee, Ph.D., Robert Berland, Ph.D., and Shannon Loveday.
The State presented the testimony of Harry McClaren, Ph.D., and Frederic Mitchell Lyle.
Dr. Dee was accepted by the Court as an expert on behalf of Provenzano in the field of forensic
psychology. (Transcript of Hearing held November 15 and 16, 1999 (hereinafter "TT" followed by
the corresponding page numbers), page 30). He testified about the examination of Provenzano that
he conducted on September 20, 1999. Dr. Dee opined that Provenzano is not competent to be
executed. Dr. Dee testified regarding the psychological testing that he performed on Provenzano,
and about the materials, which were submitted to him by Provenzano’s counsel, that he reviewed
before reaching his conclusion regarding Provenzano’s competency to be executed. Dr. Dee testified
that at the beginning of his interview of Provenzano, Provenzano’s behavior was similar to the
behavior Provenzano engaged in during Dr. Waldman’s interview of him, in that Provenzano behaved
peculiarly and seemed to be posturing. (TT. 37, 42-43) Dr. Dee testified that he ignored
Provenzano’s behavior, and it subsequently went away. (TT. 37, 42-43) Dr. Dee also testified that
there were times during his examination of Provenzano when he felt that Provenzano was not being
entirely forthcoming, and that he thinks Provenzano may have malingered at times not only with him,
but also with the other doctors who examined him. (TT. 42-45)
Dr. Dee testified that he and Provenzano discussed the death penalty. He stated that Provenzano
has a detailed grasp and knowledge of his trial, conviction, and sentencing, but that Provenzano
claims he is innocent and that he was convicted and sentenced as a result of a conspiracy. (TT. 48-
50, 53-54, 72) Dr. Dee testified that Provenzano understands he is going to be executed, but that
Provenzano was not overly concerned about this because he does not think the State is actually going
to execute him. (TT. 53-54)
Dr. Dee testified that near the end of his examination of Provenzano, he and Provenzano spoke
about Provenzano’s belief that he is Jesus Christ. (TT. 47-48) Dr. Dee testified that Provenzano has
held this belief that he is Jesus Christ since the 1970s. (TT. 57) Dr. Dee stated that Provenzano told
him it was torturous to be Jesus Christ, and that individuals who do not believe in Jesus Christ were
torturing him. (TT. 47-50) Dr. Dee further stated that Provenzano has a delusional belief that he is
going to be executed because he is Jesus Christ. (TT. 47-50) As part of his delusional belief,
Provenzano believes that his trial, conviction, sentence of death, and impending execution were
simply a ruse, and that he really was tried and sentenced to death because he is Jesus Christ. (TT.
When asked why he opines that Provenzano does not meet the standard of competency for
execution, Dr. Dee stated his opinion is based on Provenzano’s long-standing delusion that he is Jesus
Christ, and Provenzano’s belief that his conviction and pending execution are because he is Jesus
Christ. (TT. 62-66, 76, 95) Dr. Dee testified that although Provenzano has a factual understanding
of his impending execution, his delusion of being Jesus Christ prevents him from having a rational
understanding as to why he will be executed. (TT. 62-66, 104) Dr. Dee testified that it is possible
for Provenzano to have the understanding that he is being executed because he is Jesus Christ and
still have an understanding that he is being executed because of his conviction for murder. (TT. 101-
Iran: End child executions
"My daughter Delara is accused of a crime that she did not commit.
Help me and help us until justice is properly served. There are no
signs of humanity and justice in here."
father of Delara Darabi who is awaiting execution in Iran, 11
Amnesty International is calling on Iran's judicial and political
authorities to order an immediate moratorium to prevent further
executions of child offenders and to amend the laws so no children
who commit crimes can be sentenced to death. In a new report, the
organization said at least 71 child offenders were awaiting
execution in Iran, where more child offenders have been executed
than in any other country since 1990.
"Iran stands virtually alone as a country in which child offenders -
persons under 18 at the time of the crime of which they were
convicted - are put to death," said Malcolm Smart, Director of the
Middle East and North Africa Programme. "It is high time that the
Iranian authorities put an end to this shameful practice - for once
and for all - and bring themselves in line with the rest of the
international community, which has long recognized the obscenity of
executing those who commit crimes while children."
In the report, Iran: The last executioner of children, Amnesty
International lists the names of the 71 child offenders known to be
facing the death penalty, but notes that the total number could be
much higher as many death penalty cases in Iran are believed to go
unreported. Of the 24 child offenders recorded as having been
executed since 1990, 11 were still under the age of 18 at the time
of their execution while the others were either kept on death row
until they had reached 18 or were convicted and sentenced after
reaching that age.
"The Iranian authorities deny that they execute children but so far
this year we have already recorded two executions of child
offenders," said Malcolm Smart. "Mohammad Mousavi, aged 19, was
executed in April for a crime committed when he was 16, and Sa'id
Qanbar Zahi, hanged on 27 May 2007 at Zahedan prison, was only 17
when he was sentenced to death with six other members of Iran's
Baluchi minority two months earlier."
The execution of Atefeh Rajabi Sahaaleh, sentenced for "crimes
against chastity" and hanged at the age of 16 on August 2004, is one
of seven cases highlighted by the report. A day after her execution,
a judiciary official told a newspaper that she was 22 years old.
Rajabi's case highlights the failure of the Iranian judicial system
to protect children and provides further evidence that some child
offenders are executed in Iran even before they reach the age of 18.
The report also lists the cases of 17 other people who were executed
for crimes committed when they were under 18.
Although executions of child offenders are few compared to the total
number of executions in Iran, they highlight the government's
disregard for its commitments and obligations under international
law, which prohibits in all circumstances the use of the death
penalty against child offenders. Apart from Iran, the only countries
in which executions of child offenders have been recorded since 2003
are China, Sudan and Pakistan; though the Chinese and Pakistani
authorities insisted that those executed were aged 18 or over at the
time of the crime. In each year the number of child offenders
executed in Iran exceeded the total number of all other executions
of child offenders.
Some members of the government and the judiciary are also believed
to favour at least reducing, if not abolishing, the death penalty
for child offenders, but progress is painfully slow. For example, a
draft law proposed by the judiciary in 2001 could pave the way for
the abolition of the death sentence for minors or at least result in
a reduction in the number of offences for which child offenders
could be sentenced to death, but the draft law is still under
consideration by the political and judicial authorities.
Amid the horror of child executions and the wider problem of the
death penalty in Iran, there are some positive signs, particularly,
the emergence of a growing movement in favour of the abolition of
the death penalty for child offenders. This is being led by a
courageous band of human rights defenders and activists within Iran,
and it has already achieved some notable successes.
"Amnesty International opposes the death penalty unreservedly for
anyone, regardless of their age and regardless of the nature of the
crime or the character of the condemned," said Malcolm Smart. "Every
execution is an affront to human dignity - a human rights violation
of premeditated cruelty that denies the right to life enshrined in
the Universal Declaration of Human Rights."
10:03 AM | Lyle Denniston | Comments (0)
In a startling turn of events in the legal combat over the war on terrorism, the Supreme Court on Friday agreed to reconsider the appeals in the Guantanamo Bay detainee cases. It vacated its April 2 order denying review of the two packets of cases. The Court then granted review, consolidated the cases, and said they would be heard in a one-hour argument in the new Term starting Oct. 1. Such a switch by the Court has not occurred since at least 1968 (Kolod v. U.S., 390 U.S. 136), according to Court sources.
The order also said that new briefs will be sought, after the D.C. Circuit rules in pending cases on how judicial review is to work for detainees under the Detainee Treatment Act of 2005.
Under the Court's Rules and precedents, it would have taken the votes of five Justices to grant rehearing, compared with the requirement of four votes to initially grant an appeal. When the Court denied review in April, only three Justices voted to hear the cases. But two of the other six, Justices John Paul Stevens and Anthony M. Kennedy, indicated they wanted the detainees to first attempt to get legal relief in the D.C. Circuit. Under the Detainee Treatment Act of 2005, the Circuit Court has the authority to provide limited review of military decisions to continue holding Guantanamo prisoners as "enemy combatants."
Friday's order was an indication that those two Justices had decided that the Court needed to change its approach, and so provided the votes needed to grant rehearing. Under the Court's rules, a rehearing is granted only if there has been a change in "intervening circumstances of a substantial or controlling effect" or if counsel can cite "substantial grounds not previously presented."
The new order did not state what changes had come about. The detainees' lawyers, in their rehearing petition, had said that the unfolding of the review process in the D.C. Circuit Court
Thursday, June 28, 2007
10:45 PM | Lyle Denniston | Comments (0)
The Justice Department on Thursday urged the D.C. Circuit to resist a plea that it sit en banc and overturn its recent ruling putting an end to Guantanamo Bay detainees' habeas challenges to their confinement. Responding to that Court's request for its views on a proposal for initial en banc review of Hamdan v. Gates (07-5042), the Department said the Feb. 20 decision was right, has been twice left intact by the Supreme Court, and should not be revisited after only five months. The response can be found at this link.
Earlier, the government had urged the Circuit Court to go ahead and dismiss the appeal of Salim Ahmed Hamdan, who is seeking to challenge his detention and the war crimes charges he expects to face before a "military commission" at Guantanamo. This was based on the Circuit Court's February ruling in two packets of detainee cases (the lead case was Boumediene v. Bush) -- a ruling that the Supreme Court declined to review (once in those packets of cases, and once in an earlier petition by Hamdan).
Because Hamdan regards the Circuit Court ruling as so broad that his pending appeal there would be futile before a three-judge panel, he asked the Circuit Court to take his case initially en banc. That is the plea the government opposed on Thursday.
It is clear, the Department contended, that the Military Commissions Act of 2006 wipes out Hamdan's habeas case. If he has any complaint about his detention as an "enemy combatant," it added, he can raise that in a separate new proceeding in the D.C. Circuit under the Detainee Treatment Act of 2005.
Its opposition recites many of the same arguments that the Department had put before the Circuit Court in the Boumediene cases.
Meanwhile, the Supreme Court may announce on Friday its reaction to a plea by the Boumediene and Al Odah v. U.S. detainees to reconsider its April 2 denial of review of the Circuit Court ruling scuttling their challenges under the MCA. Two rehearing petitions (in 06-1195 and 06-1196) were considered at the Court's final Conference of the Term earllier Thursday, according to the Court docket. Chief Justice John G. Roberts, Jr., said on Thursday morning that orders resulting from that Conference would be made public at 10 a.m. Friday.
High court to hear Guantanamo detainee cases
Justices reverse course, agree to review issue of challenging confinement
WASHINGTON - The Supreme Court, reversing course, agreed Friday to review whether Guantanamo Bay detainees may go to federal court to challenge their indefinite confinement.
The action, announced without comment along with other end-of-term orders, is a setback for the Bush administration. It had argued that a new law strips courts of their jurisdiction to hear detainee cases.
In April, the court turned down an identical request, although several justices indicated they could be persuaded otherwise.The move is highly unusual.
The court did not indicate what changed the justices’ minds about considering the issue. But last week, lawyers for the detainees filed a statement from a military lawyer in which he desribed the inadequacy of the process the administration has put forward as an alternative to a full-blown review by civilian courts.
In February, the U.S. Circuit Court of Appeals for the District of Columbia upheld a key provision of a law the Bush administration pushed through Congress last year stripping federal courts of their ability to hear the detainees’ challenges to their confinement.
On April 2, the Supreme denied the detainees’ request to review the February appeals court ruling.
The detainees then petitioned the court to reconsider its denial.
Dismissing the petitions would be “a profound deprivation” of the prisoners’ right to speedy court review, lawyers for the detainees said.
The administration asked that the detainees’ Supreme Court petitions be thrown out.
The witnesses for Thomas Provenzano's execution were seated. Two sons of one victim and another man Provenzano paralyzed waited together. Then came word. A stay, Provenzano's fifth, had been granted.
By CHRISTOPHER GOFFARD
© St. Petersburg Times, published June 21, 2000
STARKE -- Strapped to the gurney with the needles fixed in his arms and a white hearse waiting for him outside, convicted murderer Thomas Provenzano was 11 minutes shy of execution Tuesday when he won another stay.
At 5:49 p.m., Florida State Prison warden James Crosby got word via telephone from the governor's office that a three-judge panel from the 11th Circuit Court of Appeals in Atlanta had issued the stay.
Earlier Tuesday, the Florida Supreme Court and the U.S. Supreme Court had denied stays and Gov. Jeb Bush had rejected an appeal for clemency made on the grounds that Provenzano is mentally ill.
Provenzano, 51, whose execution was delayed once in 1989 and four times last year -- twice within 24 hours of the appointed time -- was scheduled at 6 p.m. to become the state's fourth murderer die by lethal injection.
"I'm elated for my client," said Provenzano's lawyer, Michael Reiter, who had been sitting in the observation room with 28 other witnesses, waiting for the brown curtains to open and reveal the condemned man in his final minutes.
In the front row sat Gary and Bruce Dalton, sons of bailiff Harry Dalton, who was one of the three law officers gunned down in Provenzano's 1984 shooting rampage at the Orange County Courthouse. Behind them, in his wheelchair, sat Mark Parker, who has been paralyzed since a bullet from the crossfire severed his spine when he was a 19-year-old corrections deputy.
Tuesday morning, Provenzano had declined his last meal of a chicken-salad sandwich, cole slaw, three slices of bread, a cookie and tea. He also had refused to acknowledge two prison chaplains who came to comfort him in his cell.
As the clock ticked toward 6 p.m., both primary and back-up intravenous lines had been inserted in his arms without difficulty, said Department of Corrections spokesman C.J. Drake, though the lines had not yet been hooked up to the lethal chemicals. Provenzano was waiting for the execution team to wheel him into the death chamber.
When the curtains to the chamber did not open at 6 p.m., witnesses began shifting their weight and whispering. Drake entered the room and summoned one of the witnesses, a victim coordinator from the governor's office, Tena Pate, out of the room.
At 6:05, he returned to ask the 12 media witnesses, along with Reiter, to leave the room. He assured Reiter that no harm had come to his client.
"I thought there may have been a problem of some sort," said Reiter, who says the Department of Corrections cruelly botched the execution of Bennie Demps on June 7 while struggling to find a vein.
The federal panel that issued the stay did not specify grounds for it.
"Apparently they need more time to review it," Reiter said, adding he had hoped for a stay earlier. "The wheels of justice are slow."
Gary Dalton, an Orange County sheriff's deputy who wore his uniform with a black band over his badge, said he will keep coming back until he sees his father's killer dead.
"(It was) very close this time," he said. "Maybe next time it'll happen." He added that after 16 years, "I think the process needs to be speeded up."
Parker, now 36, who rode to the prison from his home in Winter Garden, left the prison without talking to reporters. He previously had expressed dread at the thought of another stay. His sister, Colleen, 32, said, "He's just not interested in talking to anybody."
She added, "I'm heartbroken."
At least since 1997, said Drake, the Corrections spokesman, no condemned inmate has come so close to execution and received a stay.
Provenzano, whose supporters say he is too mentally ill to be executed, has said repeatedly that he believes he is Jesus Christ.
It is a claim he was making even before he entered the Orange County Courthouse in 1984 wearing a red bandana, army boots and a camouflage jacket that concealed a 12-gauge shotgun, a .38-caliber revolver, an assault rifle and ammo.
Provenzano shot Dalton, 53, who suffered brain damage and died of his injuries seven years later, as well as bailiff William Arnie Wilkerson, 60, a retired Navy lieutenant commander, who died there. Another of Provenzano's bullets left Parker permanently paralyzed from the neck down.
Provenzano, who has equated his execution with Christ's crucifixion, originally was scheduled to go to Florida's electric chair last July, but his claim of insanity -- and legal attacks on the constitutionality of electrocution -- won him four stays last year.
By state law, condemned killers cannot be put to death unless they grasp what is going to happen and why. The state's switch to lethal injection and a trial judge's ruling in December that Provenzano is sane enough to be put to death despite his messianic delusions set the stage for Tuesday's planned execution.
Juries across the country make decisions every day on the fate of defendants, ideally leading to prison sentences that fit the crime for the guilty and release for the innocent. Yet a new Northwestern University study shows that juries in criminal cases many times are getting it wrong.
In a set of 271 cases from four areas, juries gave wrong verdicts in at least one out of eight cases, according to “Estimating the Accuracy of Jury Verdicts,” a paper by a Northwestern University statistician that is being published in the July issue of Journal of Empirical Legal Studies.
“Contrary to popular belief, this study strongly suggests that DNA or other after-the-fact evidence is not the only way to know how often jury verdicts are correct,” said Bruce Spencer, the study’s author, professor of statistics and faculty fellow at the Institute for Policy Research at Northwestern. “Based on findings from a limited sample, I am optimistic that larger, carefully designed statistical studies would have much to tell us about the accuracy of jury verdicts.”
Spencer cautions that the numerical findings should not be generalized to broader sets of cases, for which additional study would be needed, but the study strongly suggests that jury verdicts can be studied statistically. If such studies were conducted on a large scale, they might lead to better understanding of the prevalence of incorrect verdicts -- false convictions and false acquittals, he said.
To conduct the study, Spencer employed a replication analysis of jury verdicts, comparing decisions of actual jurors with decisions of judges who were hearing the cases they were deciding. In other words, as a jury was deliberating about a particular verdict, its judge filled out a questionnaire giving what he or she believed to be the correct verdict.
“Consider the analogy to sample surveys, where sampling error is estimated even though the true value may never be known,” Spencer said. “The key is replication. To assess the accuracy of jury verdicts, we need a second opinion of what the verdict should be.”
By comparing agreement rates of judges and juries over time and across jurisdictions, and even across types of cases, Spencer’s statistical analysis could give insights into the comparative accuracy of verdicts in different sets of cases.
For his analysis, Spencer utilized a study with a special set of cases that was recently conducted in the United States by the National Center for State Courts (NCSC). An earlier study was conducted by Kalven and Zeisel in the 1950s.
The agreement rate was 77 percent in the NCSC study and 80 percent for the earlier study. Allowing for chance agreement, the agreement rates were not high. (With chance agreement, for example, if two people tossed coins heads or tails independently to see if they matched, one would expect agreement, heads-heads or tails-tails, 50 percent of the time.)
To obtain a numerical estimate of jury accuracy, some assumptions were made, as is the case for virtually any statistical analysis of social groups or programs. A key assumption of Spencer’s study is that, on average, the judge’s verdict is at least as likely to be correct as the jury’s verdict.
Without assumptions, a 77 percent agreement rate could reflect 100 percent accuracy by the judge and 77 percent accuracy by the jury, or 100 percent accuracy by the jury and 77 percent accuracy by the judge, or 88 percent accuracy by both, or even 50 percent accuracy by both if they often agreed on the incorrect verdict.
With the assumption of the Spencer analysis that judges are at least as accurate as jurors after completion of all testimony, we can get an estimate of jury accuracy that is likely to be higher than the actual accuracy. Thus, the 77 percent agreement rate means that juries are accurate up to 87 percent of the time or less, or reach an incorrect verdict in at least one out of eight cases.
“Some of the errors are incorrect acquittals, where the defendant goes free, and some are incorrect convictions,” Spencer said. “As a society can we be satisfied if 10 percent of convictions are incorrect" Can we be satisfied knowing that innocent people go to jail for many years for wrongful convictions"”
Spencer envisions that statistical studies would complement nationwide efforts to expose wrongful convictions, including the work of the Center on Wrongful Convictions at Northwestern University School of Law. The center’s work in exposing flaws in Illinois’ capital punishment system played a significant role in former Gov. George Ryan’s decision to commute Illinois death row inmates’ pending executions to sentences of life in prison.
The NCSC study is not representative of a larger set of cases, Spencer stressed. He hopes that nationally representative studies will be carried out in the future.
Using additional assumptions and statistical models, the extent of wrongful convictions and wrongful acquittals also can be estimated, according to Spencer. The methods also could be extended to estimate accuracy of verdicts in non-jury trials.
While the studies on verdict accuracy will not tell whether the verdict for a particular case was correct or not, they will help assess what proportion of verdicts are correct.
“If you were on trial and not guilty, you certainly would want the jury to do the right thing,” Spencer said. “Now, subject to these assumptions, studies could be employed to give us an idea of how often that happens.”
A technical report is available at http://www.northwestern.edu/ipr/publications/papers/2006/wp0605.pdf
"Even in Agreement, Scalia Puts Roberts to Lash"
WASHINGTON, June 27 — It’s not every day that one Supreme Court justice, even one as rhetorically unrestrained as Justice Antonin Scalia, characterizes another justice, let alone the chief justice of the United States, as a wimp and a hypocrite.
Yet Justice Scalia did something very close to that, not once but twice, in separate opinions on Monday. As a result, he has served to lift the curtain a bit on the differences within the powerful five-justice conservative bloc that has marched in lock step through much of the term, bent on reshaping the law and, in several important areas, well on the way toward doing so.
In the campaign finance case, he accused Chief Justice John G. Roberts Jr. of “faux judicial modesty” for writing an opinion that in Justice Scalia’s view effectively overturned the court’s 2003 campaign finance decision “without saying so.” The clear implication was that the chief justice lacked the courage or honesty to overturn the precedent openly as Justice Scalia himself would have done.
“This faux judicial restraint is judicial obfuscation,” he said.
And Justice Scalia was scathing in his criticism of an opinion signed by Chief Justice Roberts that limited, but did not completely abolish, the right of taxpayers to go to court to challenge government expenditures that promote religion. Justice Scalia would have gone on to shut the courthouse door completely, not simply limiting but overturning the precedent that the new ruling invoked.
“Minimalism is an admirable judicial trait,” Justice Scalia said, “but not when it comes at the cost of meaningless and disingenuous distinctions.”
It made no difference that Justice Samuel A. Alito Jr., another reliable member of the conservative bloc, was the author of that opinion that Chief Justice Roberts joined. Justice Scalia was clearly taking aim at the chief justice, openly mocking his much publicized goal of lowering the court’s temperature through unanimous and jurisprudentially modest decisions.
Justice Scalia is, of course, well known for his verbal barbs. Few colleagues during his 21 years on the court have escaped his insults, not even Chief Justice William H. Rehnquist. He once accused Justice Sandra Day O’Connor of holding “irrational” views that “cannot be taken seriously.” A book published in 2004 under the title “Scalia Dissents” celebrated what it called the justice’s “unique communication skills.”
But what was notable about his attacks on Chief Justice Roberts this week was that the two were on the same side. They were in dispute not over outcomes, but over how far and how fast to move the law. As Prof. Jack M. Balkin of Yale Law School wrote on his blog, Balkinization, “It is the difference between bomb throwing and dismantling.”
Liberals are quick to point out that this may well prove to be a distinction without a difference, because throughout the term, these two justices have been arriving at the same bottom-line conclusions. Prof. Erwin Chemerinsky of Duke Law School observed that Chief Justice Roberts, who has taken the conservative position in every ideologically divided case this term, could hardly be described as less conservative than Justice Scalia.
Prof. Mark Tushnet of Harvard Law School, whose recent book, “A Court Divided,” explored the differences among Republican-appointed members of the Rehnquist court, said that “a consolidated conservative majority, not a divided conservative majority,” was now in charge.
But Justice Scalia has never been a particularly patient man, and at 71, with the conservative ascendancy at the court perhaps at its peak for the foreseeable future if Republicans lose the White House next year, he sees little to gain from incrementalism or its appearance. And even liberals who do not share his agenda concede his point that if a precedent is going to be overruled in all but name, it is better for all concerned to acknowledge the overruling as a fact.
“It’s neither minimalist nor restrained to overrule cases while pretending you are not,” Walter E. Dellinger III, who served as acting solicitor general in the Clinton administration, said in an online conversation on Slate. Mr. Dellinger’s point was that “there can also be a significant cost to the coherence of the system” if lower courts are in the dark as to which precedents they must still rely on.
Chief Justice Roberts, operating on a long timeline at 52, may be responding to a different imperative. Openly overturning numerous precedents early in his tenure would invite criticism that the Roberts court has an agenda to “radically shift American law,” said Thomas C. Goldstein, a student of the court who argues there often.
The conservative alliance at the court may be fractious but not fragile, strong enough to withstand Justice Scalia’s “tweaking and needling,” as Prof. Richard W. Garnett of Notre Dame Law School describes it.
“I look at it as a bit of a kabuki dance,” said Professor Garnett, who clerked for Chief Justice Rehnquist and is close to the court’s conservatives. He said he had no doubt that Justice Scalia had “huge respect for the new chief as a person and as a lawyer.”
What is visible now, he said, is the latest iteration of the endless struggle between the need for stability in the law and the desire to correct previous mistakes.
“Different people who call themselves conservatives resolve that tension in different ways,” Professor Garnett said, adding that Justice Scalia was “laying down markers, making sure the arguments are out there to be used in later cases.”
File Date: 02/04/1981
Judge: CARVEN D ANGEL
| DEFENDANT : |
LIGHTBOURN IAN (DOB: 1959)
Attorney: PUBLIC DEFENDER'S OFFICE
|04/25/1981||1||MURDER IN THE FIRST DEGREE||F||CAPITAL||ADJUDICATED GUILTY|
|Calendar Posting on 06/27/2007|
|07/16/2007||HEARING SET||LIGHTBOURN IAN||$0.00|
|Calendar Posting on 06/19/2007|
|06/28/2007||COURT MINUTES||LIGHTBOURN IAN||$0.00|
|06/28/2007||INCOURT ORDER||LIGHTBOURN IAN||$0.00|
|Defendant's motion for deposition of witness- granted.|
|State's motion to strike Defendant's additional witness|
|list- granted in part, denied in part. Order to follow.|
|06/27/2007||MISC-SEE TEXT DESCRIPTION||LIGHTBOURN IAN||$0.00|
|DEPARTMENT OF CORRECTIONS' OBJECTION TO DEFENDANT'S MAY 31,|
|2007 3.852(I) REQUESTS|
|06/26/2007||ORDER FOR PAYMENT FUNDS||LIGHTBOURN IAN||$0.00|
|FOR COURT TRANSCRIPT|
|OF SUPPLEMENTAL AUTHORITY|
|06/26/2007||ORDER SCHEDULING HEARING||LIGHTBOURN IAN||$0.00|
|CONTINUATION OF EVIDENTIARY HEARING|
|MONDAY, 07/23/2007 @ 9:00 AM IN 3A, JUDGE ANGEL|
|06/25/2007||NTC OF SUPPLEMENTAL AUTHORITY||LIGHTBOURN IAN||$0.00|
|06/25/2007||COVER LETTER||LIGHTBOURN IAN||$0.00|
|06/25/2007||OBJECTION TO||LIGHTBOURN IAN||$0.00|
|DEPARTMENT OF CORRECTIONS' OBJECTION TO DEFENDANT'S MAY 31,|
|2007 3.852(I) REQUESTS|
|FILED BY DEFENSE ATTORNEY|
|06/25/2007||FAX COVER SHEET||LIGHTBOURN IAN||$0.00|
|FILED BY DEFENSE ATTORNEY|
|06/22/2007||TRANSCRIPT OF HEARING||LIGHTBOURN IAN||$0.00|
|(FOR CONTINUED EVIDENTIARY HEARING 6-18-07 & 6-19-07 IN RE:|
|06/19/2007||COURT MINUTES||LIGHTBOURN IAN||$0.00|
|06/19/2007||NOTICE TO APPEAR||0||LIGHTBOURN IAN||$0.00|
|06/19/2007||HEARING SET||LIGHTBOURN IAN||$0.00|
|Calendar Posting on 06/18/2007|
|06/18/2007||COURT MINUTES||LIGHTBOURN IAN||$0.00|
|06/18/2007||ATTORNEY COVER LETTER||LIGHTBOURN IAN||$0.00|
|06/18/2007||NOTICE TO APPEAR||0||LIGHTBOURN IAN||$0.00|
|TO RENEWED MOTION FOR DISCLOSURE OF FAVORABLE EVIDENCE|
|06/18/2007||OBJECTION TO||LIGHTBOURN IAN||$0.00|
|DEFENDANT'S DEMAND FOR ADDITIONAL PUBLIC RECORDS -|
|ADDRESSED TO THE HONORABLE CHARLIE CRIST|
|06/18/2007||OBJECTION TO||LIGHTBOURN IAN||$0.00|
|DEFENDANT'S DEMAND FOR ADDITIONAL PUBLIC RECORDS -|
|ADDRESSED TO THE OFFICE OF THE ATTORNEY GENERAL|
|06/18/2007||MOTION IN LIMINE||LIGHTBOURN IAN||$0.00|
|06/18/2007||HEARING SET||LIGHTBOURN IAN||$0.00|
|Calendar Posting on 06/14/2007|
|06/18/2007||HEARING SET||LIGHTBOURN IAN||$0.00|
|Calendar Posting on 05/21/2007|
The Florida Supreme Court orders a hearing for Thomas Provenzano, whose lawyers say he is too insane to be executed.
Insanity hearing gives killer a chance
The Florida Supreme Court orders a hearing for Thomas Provenzano, whose lawyers say he is too insane to be executed.
By LUCY MORGAN
© St. Petersburg Times,
TALLAHASSEE -- Condemned murderer Thomas Provenzano will get a chance to prove he's too insane to die in Florida's electric chair at a hearing ordered Thursday by the Florida Supreme Court.
Lawyers for the condemned killer say he is so mentally incompetent he cannot be legally executed. Provenzano signs his letters Jesus Christ and stuffs his mouth to keep out demons, his lawyers say.
Psychiatrists for the state say Provenzano is faking and should be executed.
The Supreme Court did not postpone Provenzano's Sept. 14 execution date but did appoint retired Circuit Judge E. Randolph Bentley of Polk County to schedule a hearing and determine whether Provenzano is insane.
Bentley said Thursday night that he plans to hear the case the week of Sept. 6 or by the end of next week, if possible.
Assistant Attorney General Carolyn Snurkowski said she doesn't believe the decision poses a problem for the state since there is plenty of time for a hearing before mid-September.
Attorneys for Provenzano said they were optimistic the hearing will lead to a determination that will save Provenzano's life.
The court's 6-1 ruling said that the evidence presented by Provenzano's lawyers establishes reasonable grounds to believe he is incompetent. In a report presented to the court by his lawyers, Dr. Patricia Fleming, a clinical psychologist, said Provenzano's behavior demonstrates he is incompetent to face execution.
Psychiatrists appointed by the state disagree. It will be up to Bentley to decide who is correct.
Noting the last-minute nature of Provenzano's claim, the court urged legislators to consider establishing a timetable for when such claims must be filed. Provenzano's lawyers filed his claim one day before he was scheduled to die, although he has been on death row for 15 years.
Justice Charles T. Wells disagreed with the majority, saying the court should have accepted the decision of a lower court judge who said Provenzano was not entitled to a sanity hearing. Wells said the opinion of the defense psychologist was issued without a contemporary examination and outweighed by the opinion of three state-appointed psychiatrists who say he is competent to be executed.
Provenzano, 50, was convicted of shooting bailiff William Wilkerson at the Orange County courthouse while there for a hearing on a disorderly conduct charge. He killed Wilkerson and paralyzed two other officers in the 1984 rampage.
Bentley, 66, served as a circuit judge in Bartow for 22 years before retiring in 1997. He twice sentenced men to die and once overturned the state's obscenity law only to see that ruling overturned.
As a circuit judge, Bentley developed a reputation for impatience with lawyers who came to his courtroom unprepared. He is a University of Florida graduate who practiced law with Lawton Chiles before Chiles was elected to the U.S. Senate.
Bentley is no stranger to high-profile death cases. One of the men he sentenced to death was William Kelley for the 1966 contract slaying of Sebring millionaire Charles Von Maxcy. Kelley remains on death row. The other man, Phillip Atkins, was executed in 1995 for the bludgeoning death of a 6-year-old Lakeland boy.
Jun 21, 2000 - 09:10 PM
Florida Executions Since 1979
The Associated Press
Florida has executed 244 inmates since 1924. Here is the list of convicts executed in Florida since the U.S. Supreme Court restored the state's death penalty in 1976:
1. John Spenkelink, 30, executed May 25, 1979, for the murder of traveling companion Joe Szymankiewicz in a Tallahassee hotel room. Second warrant.
2. Robert Sullivan, 36, executed Nov. 30, 1983, for the shotgun slaying of Homestead hotel-restaurant assistant manager Donald Schmidt. Second warrant.
3. Anthony Antone, 66, executed Jan. 26, 1984, for masterminding the Oct. 23, 1975, contract killing of Tampa private detective Richard Cloud. Second warrant.
4. Arthur F. Goode III, 30, executed April 5, 1984, for killing 9-year-old Jason Verdow of Cape Coral March 5, 1976. Second warrant.
5. James Adams, 47, executed May 10, 1984, for beating Fort Pierce millionaire rancher Edgar Brown to death with a fire poker during a 1973 robbery attempt. Second warrant.
6. Carl Shriner, 30, executed June 20, 1984, for killing 32-year-old Gainesville convenience-store clerk Judith Ann Carter, who was shot five times. Second warrant.
7. David L. Washington, 34, executed July 13, 1984, for the murders of three Dade County residents - Daniel Pridgen, Katrina Birk and University of Miami student Frank Meli - during a ten-day span in 1986. Third warrant.
8. Ernest John Dobbert Jr., 46, executed Sept. 7, 1984, for the 1971 killing of his 9-year-old daughter Kelly Ann. Third warrant.
9. James Dupree Henry, 34, executed Sept. 20, 1984, for the March 23 1974, murder of 81-year-old civil rights leader Zellie L. Riley. Second warrant.
10. Timothy Palmes, 37, executed in November 1984 for the stabbing death of Jacksonville furniture store owner James N. Stone. He was a co-defendant with Ronald John Michael Straight, executed May 20, 1986. Second warrant.
11. James David Raulerson, 33, executed Jan. 30, 1985, for gunning down Jacksonville Police Officer Michael Stewart on April 27, 1975. Third warrant.
12. Johnny Paul Witt, 42, executed March 6, 1985, for killing, sexually abusing and mutilating Jonathan Mark Kushner, the 11-year-old son of a University of South Florida professor, Oct. 28, 1973. Second warrant.
13. Marvin Francois, 39, executed May 29, 1985, for shooting six people July 27, 1977, in the robbery of a "drug house" in the Miami suburb of Carol City. He was a co-defendant with Beauford White, executed Aug. 28, 1987. Second warrant.
14. Daniel Morris Thomas, 37, executed April 15, 1986, for shooting University of Florida associate professor Charles Anderson, raping the man's wife as he lay dying, then shooting the family dog on New Year's Day 1976. Second warrant.
15. David Livingston Funchess, 39, executed April 22, 1986, for the Dec. 16, 1974, stabbing deaths of the 53-year-old Anna Waldrop and the 56-year-old Clayton Ragan during a holdup in a Jacksonville lounge. Second warrant.
16. Ronald John Michael Straight, 42, executed May 20, 1986, for the Oct. 4, 1976, murder of Jacksonville businessman James N. Stone. He was a co-defendant with Timothy Palmes, executed Jan. 30, 1985. Second warrant.
17. Beauford White, 41, executed Aug. 28, 1987, for his role in the July 27, 1977, shooting of eight people, six fatally, during the robbery of a small-time drug dealer's home in Carol City, a Miami suburb. He was a co-defendant with Marvin Francois, executed May 29, 1985. Third warrant.
18. Willie Jasper Darden, 54, executed March 15, 1988, for the September 1973 shooting of James C. Turman in Lakeland. SEVENTH warrant.
19. Jeffrey Joseph Daugherty, 33, executed March 15, 1988, for the March 1976 murder of hitchhiker Lavonne Patricia Sailer in Brevard County. Second warrant.
20. Theodore Robert Bundy, 42, executed Jan. 24, 1989, for the rape and murder of 12-year-old Kimberly Leach of Lake City at the end of a cross-country killing spree. Leach was kidnapped Feb. 9, 1978, and her body was found three months later some 32 miles west of Lake City. Fourth warrant (Executed on second warrant in Leach case).
21. Aubry Dennis Adams Jr., 31, executed May 4, 1989, for strangling the 8-year-old Trisa Gail Thornley to death Jan. 23, 1978, in Ocala. Fourth warrant.
22. Jessie Joseph Tafero, 43, executed May 4, 1990, for the February 1976 shooting deaths of Florida Highway Patrolman Phillip Black and his friend Donald Irwin, a Canadian constable from Kitchener, Ontario. Third warrant.
23. Anthony Bertolotti, 38, executed July 27, 1990, for the Sept. 27, 1983, stabbing death and rape of Carol Ward in Orange County. Third warrant.
24. James William Hamblen, 61, executed Sept. 21, 1990, for the April 24, 1984 shooting death of Laureen Jean Edwards during a robbery at the victim's Jacksonville lingerie shop. Third warrant.
25. Raymond Robert Clark, 49, executed Nov. 19, 1990 for the April 27, 1977 shooting murder of scrap metal dealer David Drake in Pinellas County. Fifth warrant.
26. Roy Allen Harich, 32, executed April 24, 1991, for the June 27, 1981 sexual assault, shooting and slashing death of Carlene Kelly near Daytona Beach. Third warrant.
27. Bobby Marion Francis, 46, executed June 25, 1991, for the June 17, 1975 murder of Titus R. Walters, a drug informant, in Key West. Third warrant.
28. Nollie Lee Martin, 43, executed May 12, 1992 for the 1977 murder of a 19-year-old George Washington University student, who was working at a Delray Beach convenience store. Fourth warrant.
29. Edward Dean Kennedy, 47, executed July 21, 1992, for the April 11, 1981 slayings of Florida Highway Patrol Trooper Howard McDermon and Floyd Cone after escaping from Union Correctional Institution. Fourth warrant.
30. Robert Dale Henderson, 48, executed April 21, 1993, for the 1982 shootings of three hitchhikers in Hernando County. He also confessed to a total of 12 murders in five states. Second warrant.
31. Larry Joe Johnson, 49, executed May 8, 1993, for the 1979 slaying of James Hadden, a service station attendant in small North Florida town of Lee in Madison County. Veterans group claim Johnson suffering from post-traumatic stress syndrome. Fourth warrant.
32. Michael Alan Durocher, 33, executed Aug. 25, 1993, for the 1983 murders of his girlfriend, Grace Reed, her daughter, Candice, and his 6-month-old son Joshua in Clay County. Durocher also convicted in two other killings. First warrant.
33. Roy Allen Stewart, 38, executed April 22, 1994, for beating, raping and strangling of 77-year-old Margaret Haizlip of Perrine in Dade County on Feb. 22, 1978. Fourth warrant.
34. Bernard Bolander, 42, executed July 18, 1995, for killing four men in Dade County whose bodies were set afire in car trunk on Jan. 8, 1980. Fourth warrant.
35. Jerry White, 47, executed Dec. 4, 1995, for the slaying of a customer in an Orange County grocery store robbery in 1981. Third warrant.
36. Phillip A. Atkins, 40, executed Dec. 5, 1995, for the molestation and rape of a 6-year-old Lakeland boy in 1981. Second warrant.
37. John Earl Bush, 38, executed Oct. 21, 1996 for the 1982 slaying of Francis Slater, an heir to the Envinrude outboard motor fortune. Ms. Slater was working in a Stuart convenience store when she was kidnapped and murdered. Third warrant.
38. John Mills Jr., 41, executed Dec. 6, 1996, for the fatal shooting of Les Lawhon in Wakulla and burglarizing Lawhon's home. Second warrant.
39. Pedro Medina, 39, executed March 25, 1997 for the 1982 slaying of his neighbor Dorothy James, 52, in Orlando. Medina was the first Cuban who came to Florida in Mariel boat lift to be executed in Florida. During his execution, flames burst from behind the mask over his face, delaying Florida executions for almost a year.
40. Gerald Eugene Stano, 46, executed March 23, 1998, for the slaying of Cathy Scharf, 17, of Port Orange, who disappeared Nov. 14, 1973. Stano confessed to killing 41 women.
41. Leo Alexander Jones, 47, executed March 24, 1998, for the May 23, 1981, slaying of Jacksonville Police Officer Thomas Szafranski.
42. Judy Buenoano, 54, executed March 30, 1998 for the poisoning death of her husband, Air Force Sgt. James Goodyear, Sept. 16, 1971.
43. Daniel Remeta, 40, executed March 31, 1998 for the murder of Ocala convenience store clerk Mehrle Reeder in February 1985, the first of five killings in three states laid to Remeta.
44. Allen Lee "Tiny" Davis, 54, executed in a new electric chair on July 8, 1999, for the May 11, 1982 slayings of Jacksonville resident Nancy Weiler and her daughters, Kristina and Katherine. Bleeding from Davis' nose prompted continued examination of effectiveness of electrocution and eventual switch to lethal injection.
45. Terry M. Sims, 58, became the first Florida inmate to be executed by injection on Feb. 23, 2000. Sims died for the 1977 slaying of a volunteer deputy sheriff in a central Florida robbery.
46. Anthony Bryan, 40, died from lethal injection Feb. 24, 2000, for the 1983 slaying of George Wilson, 60, a night watchman abducted from his job at a seafood wholesaler in Pascagoula, Miss., and killed in Florida.
47. Bennie Demps, 49, died from lethal injection June 7, 2000 for the 1976 murder of another prison inmate, Alfred Sturgis. Demps spent 29 years on death row before he was executed.
48. Thomas Provenzano, 51, died from lethal injection June 21, 2000 for the 1984 murder of William "Arnie" Wilkerson, a 60-year-old bailiff killed when Provenzano opened fire in an Orlando courtroom.