Thursday, 1 November 2007

Judge to review lethal injection



Thursday, November 1, 2007
By ANDREW WELSH-HUGGINS ASSOCIATED PRESS WRITER

COLUMBUS A judge can hold hearings on whether Ohio’s lethal injection procedures are constitutional, the Ohio Supreme Court ruled Wednesday in a case that could determine the fate of the state’s process for executing condemned inmates.

The court ruled 5-2 that Judge James Burge of Lorain County Common Pleas Court has the authority to hold the hearings and to order the state to turn over documents related to the execution process.

The court rejected the state’s argument that Burge, as the presiding judge of a criminal trial, does not have the authority to decide the constitutionality of death penalty law.

Depending on how the hearings proceed, Wednesday’s decision could provide the most complete look to date at how Ohio puts inmates to death.

Burge has ordered the state to produce detailed explanations of the equipment and procedures used during executions, including an “exhaustive and detailed” list of the qualifications and training of the state’s execution team.

Burge has ordered the hearings in the case of Ruben Rivera, charged in the 2004 shooting death of Manuel Garcia. Rivera asked Burge to drop the death penalty aspects of his case on the grounds that the state’s lethal injection process amounts to unconstitutional cruel and unusual punishment.

Since then, two other Lorain County defendants facing death penalty charges have made similar requests of other judges.

Wednesday’s decision clears the way for Burge to consider Rivera’s request. More significantly, it means the broader issue of the constitutionality of injection could end up before the state Supreme Court, since Burge’s conclusion will likely be appealed regardless of how he rules.

“Once my decision gets back up through there then we’ll have an answer on whether lethal injection is going to be a method of execution in Ohio,” said Burge, who called the court’s ruling gratifying.

DA decides to hold off on some death penalty cases

Nov. 1, 2007, 12:15AM

County will wait until Supreme Court rules on punishment's constitutionality


By MIKE TOLSON and ALLAN TURNER
Copyright 2007 Houston Chronicle


The Harris County District Attorney's Office said Wednesday it will place some of its capital cases on hold until the U.S. Supreme Court rules on the constitutionality of the lethal injection process next year.

It made little sense to pursue execution dates when those who already have them are receiving stays, District Attorney Chuck Rosenthal said.

"Since we don't know when the Supreme Court will rule, we thought we'd wait until they decided and then set them all," Rosenthal said.

The decision will affect only defendants who have been convicted of capital murder and sentenced to death, and whose appeals are nearing an end.

Roe Wilson, an assistant DA who handles appellate matters in capital cases, also said she will ask that an upcoming execution date for a man convicted of murdering an Humble woman and her 2-year-old son be withdrawn.

Derrick Sonnier, 40, is scheduled to die Feb. 26 for the 1991 rape and murder of Melody Flowers and the stabbing death of her son, Patrick. Sonnier attacked the pair after Flowers rejected his sexual advances, authorities said.

Dave Atwood, founder of the Texas Coalition to Abolish the Death Penalty, said the respite from executions was welcome, albeit likely short-lived.

"For people like myself, when there is any sort of break in this relentless execution machine, it's a good thing," Atwood said. "But I would be surprised if that subject matter caused this machinery to grind to a halt. I'm happy that they have (stopped asking for dates) because it might help with this image problem we have of pursuing the death penalty at all costs. But it only reflects that they just understand that the Supreme Court is not going to allow executions."

The high court agreed in September to hear the appeal of a Kentucky inmate who argued that the lethal injection method of execution violates the constitutional ban on cruel and unusual punishment. Such appeals have argued that the chemical cocktail used in most states could cause excruciating pain while masking the condemned prisoner's ability to express it.

That court's acceptance of the case has resulted in a de facto temporary ban on executions across the United States. On Tuesday, Supreme Court justices stepped in again, staying the execution of Mississippi killer Earl Berry just minutes before he was to die.

The only exception was 48-year-old Michael Wayne Richard of Houston, who went to his death just hours after the court said it would consider the Kentucky case. His lawyers contend they were unable to get courts to properly consider their last-minute appeal in light of the day's developments.

Adding to the uncertainty, a California judge Wednesday tossed out the state's lethal injection method, saying prison officials failed to treat the procedure as a new state regulation, which mandates public comment among other requirements.

Two executions are scheduled in Texas for early 2008, but neither is likely to go forward.

In Central Texas, Bell County District Attorney Henry Garza said he asked a judge to cancel a Jan. 24 date for Bobby Woods.

"It just seemed to me that the writing was very apparent," Garza said. "Now we'll let them rule, and we can come back in and act accordingly."

Karl Chamberlain of Dallas has a Feb. 21 date. A spokeswoman for Dallas County District Attorney Craig Watkins said the office will ask to withdraw the date if the Supreme Court has not ruled by then. The Kentucky case has not been set for oral arguments yet, so a decision by that date is unlikely.

In Texas, dates for executions are set by trial judges, typically at the request of local prosecutors. Wilson said her office waited to see how appeals courts responded to the Supreme Court's willingness to review the Kentucky case before deciding how to deal with execution dates.

When Richard's case proved to be an exception, it became clear there was little reason to pursue them, she said.

If the law is unchanged by the Supreme Court decision, executions could resume within a few months.

Twenty-six of the nation's 42 executions this year have taken place in Texas. No other state has had more than three. Harris County leads the nation in sentencing killers to death and seeing those sentences carried out.

The Associated Press contributed to this report.

mike.tolson@chron.com

allan.turner@chron.com

Put away all the death penalty machinery


November 1, 2007

As a practitioner of the death penalty, the United States is now in virtual moral solitude among civilized nations. So it's sometimes hard not to see the raging debates over capital punishment in this country as somewhat arcane, and just a little bizarre.

That couldn't be truer than with the argument, set to reach the Supreme Court this term, over whether the current protocols for lethal injection amount to cruel and unusual punishment under the Constitution. Turns out some prisoners may be feeling pain during the procedure, but they're unable to express it because they're paralyzed, and unconscious.

Now, the high court has never concluded that, say, sending 2,000 volts through a prisoner's body is unconstitutional. The justices have never hinted that sticking a prisoner in an airtight chamber with a mix of cyanide and sulfuric acid is cruel, or unusual. Indeed, even hanging has never been ruled unconstitutional in America.

States abandoned those procedures on their own, as conventional wisdom and medical science came to agree that lethal injection was a more "civilized" way of taking someone's life. So it would be a little strange, to say the least, if the court were to now say that a certain way of mixing deadly chemicals in a syringe was cruel and unusual; clever states might just revert to the chair, or the gas chamber, as an easy response, right?

But all this is a just the absurd fallout from a discussion that has itself become daffy. The debate over capital punishment seems terminally hobbled by the internal inconsistency of trying to apply the rule of law, and proper procedure, to the willful taking of life by the state. It's trying to put a square argument in a round hole.

The better course might be to follow the advice of justice Harry Blackmun, who announced in 1994 that he would no longer "tinker with the machinery of death." Stop quibbling about how, and why and with what method to do it, and begin talking forthrightly about whether the greatest nation on Earth ought to engage in behavior that you have to visit Tehran or Rangoon to see elsewhere.

It's the only death penalty question really worth answering anymore.

Death-penalty debate shifts to Florida case


Sarah Lundy Sentinel Staff Writer
November 1, 2007

The U.S. Supreme Court's move to delay a Mississippi execution -- moments before the inmate was to die Tuesday -- has cast doubt on whether Florida will go ahead with its next lethal injection, just weeks away.

Still, Florida prison officials are gearing up for Mark Dean Schwab's execution Nov. 15. Already, he has been moved to a cell closer to the death chamber. In seven days, all of his belongings will be taken away.

The high court's ruling is a "strong signal that executions across the country should be stayed," said Schwab's lawyer, Mark Gruber.

Schwab's fate is in the hands of the Florida Supreme Court justices, who have remained mum on how they will rule.

"It would be unconscionable for this execution to go forward," said Elisabeth Semel, director of the death-penalty clinic at the University of California-Berkeley law school.

If the Florida Supreme Court rules against the 48-year-old Schwab, his attorneys can appeal to the federal courts. That route has proven successful in other states, including Alabama and Arkansas.

Tuesday's U.S. Supreme Court decision marks the third stay of execution by the justices since September, when they accepted a Kentucky case in order to review the constitutionality of lethal injection.

The question is what standard will be used to determine whether the three-drug cocktail used by 37 states constitutes cruel-and-unusual punishment.

"This is an unprecedented situation," said Deborah Denno, a law professor at Fordham University and death-penalty expert.

Executions in more than a dozen states have been delayed pending the outcome in the Kentucky case. Some say that amounts to a temporary moratorium on the death penalty.

But it has happened gradually, state by state. Florida -- which has the next scheduled execution -- is in the spotlight now.

"Nothing is certain until the [Florida] court rules," said Wayne Holmes, a Seminole-Brevard County state attorney chief of operations and prosecutor on the Schwab case.

Schwab was convicted and sentenced to death for the 1991 kidnap, rape and strangulation of 11-year-old Junny Rios-Martinez of Cocoa. For the past 15 years, Schwab has lived in a 6-by-9-foot cell at Florida State Prison in Starke.

Gov. Charlie Crist signed the killer's death warrant in July.

That marked the end of a seven-month halt of execution since a botched one in December. Problems arose when prison officials failed to properly insert intravenous needles into convicted killer Angel Nieves Diaz, who murdered a Miami club manager. It took 34 minutes for him to die and required a rare second dose of chemicals. Some witnesses reported Diaz appeared to grimace in pain as the execution dragged on.

The state responded by requiring more staff training and better monitoring of proceedings in the death chamber.

Even though the high court's ruling has resulted in a de facto moratorium on executions in many states, there's no indication it signals the end of capital punishment.

"I don't think it's going to end the death penalty or lethal injections," said Richard Dieter, executive director of the Death Penalty Information Center. "It may just change some standards, or it may not."

Sarah Lundy can be reached at slundy@orlandosentinel.com

Wednesday, 31 October 2007

State judge set to toss out California's new execution method


By Paul Elias
ASSOCIATED PRESS

2:21 a.m. October 31, 2007

SAN FRANCISCO – A judge is set to toss out California's new lethal injection method for condemned inmates, a move that would throw even more uncertainty into the state's stalled capital punishment law.
Marin County Superior Court Judge Lynn O'Malley Taylor tentatively ruled Tuesday that prison officials did not follow proper procedures when revising the way the state administers the lethal three-drug cocktail.

Taylor was expected to finalize her decision after government attorneys get a chance to change the judge's mind at a hearing Wednesday.
Officials rewrote the injection method in May, after a federal judge halted executions in the state because he found executioners were improperly trained and equipped.

But Taylor said Tuesday that officials failed to treat the revision as a new state regulation, which requires public comment and the approval of the Office of Administrative Law, among other requirements.

The state contends that the new execution method, which includes the remodeling of the death chamber to make it more spacious and better lit, is limited to only San Quentin Prison in Marin County and therefore not a statewide regulation.

All state executions take place at San Quentin. There are 667 inmates currently on death row, including 15 women held at a prison in Madera County.

In Tuesday's tentative ruling on a case brought by two condemned inmates, the judge said “it cannot be denied” the new execution method “implements a statewide policy on lethal injections for condemned inmates, including those condemned inmates who are housed at other institutions throughout the state and later transferred to San Quentin prior to their execution.”

Deputy Attorney General Michael Quinn, who is leading the state's legal efforts to restart executions in California, declined to comment late Tuesday.

David Senior, the lawyer representing one of the two plaintiffs, said he expects adoption of the tentative ruling to stall the federal proceedings until the state matter is resolved.

“It will put off everything,” said Senior, who represents convicted rapist and killer Michael Morales in state and federal courts.

Morales, who was convicted of killing 17-year-old Terri Winchell in a Lodi vineyard 26 years ago, came within hours of death in February 2006 before the state called off his execution. Prison officials said they could not comply with U.S. District Court Judge Jeremy Fogel's order that licensed medical professionals assist with the execution.

No inmate has been executed in California since January 2006.

Fogel said in December he would declare the state's lethal injection process unconstitutional unless prison officials improved the procedure with better trained staff and an improved conditions in the death chamber. Fogel was scheduled to tour the prison's remodeled death chamber Nov. 19.

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

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

It's the third such high court reprieve since Michael Richard was executed in Texas on Sept. 25, the same day the court said it would hear a lethal injection challenge from two death row inmates in Kentucky. State and lower federal courts have halted all other scheduled executions since then.

Court Allows Hearings On Constitutionality Of Lethal Injection


Last Update: 11:32 am

COLUMBUS, Ohio (AP) - A judge can hold hearings on the constitutionality of Ohio's lethal injection procedures, the Ohio Supreme Court ruled Wednesday in a case that could determine the fate of the state's process for executing condemned inmates.

The court ruled 5-2 that Judge James Burge of Lorain County Common Pleas Court has the authority to hold the hearings and to order the state to turn over documents related to the execution process.

The court without comment rejected the state's argument that Burge, as the presiding judge of a criminal trial, cannot decide the constitutionality of death penalty law.

Burge ordered the hearings in the case of Ruben Rivera, charged in the 2004 shooting death of Manuel Garcia. Rivera asked Burge to drop the death penalty aspects of his case on the grounds that the state's lethal injection process amounts to unconstitutional cruel and unusual punishment.

Wednesday's decision clears the way for Burge to consider Rivera's request. More significantly, it means the broader issue of the constitutionality of injection could end up before the state Supreme Court, since Burge's conclusion will likely be appealed regardless of how he rules.

Burge said he was gratified by the court's ruling. Attorney General Marc Dann is disappointed with the decision, said spokesman Ted Hart.

The decision means the state can no longer hide the process it uses for putting inmates to death, said Jeffrey Gamso, an American Civil Liberties Union lawyer representing Rivera.

-

On the Net:

Ohio Supreme Court: http://www.sconet.state.oh.us/

Capital Punishment : A Penological Barbarity

Mainstream, Vol XLV, No 45

Capital Punishment : A Penological Barbarity
WHY DEATH SENTENCE ON DEATH SENTENCE?

Wednesday 31 October 2007, by V R Krishna Iyer

Compassion for all living creatures (Article 51A) and human rights in its spectral dimensions, including the right to reform oneself out of a diabolic past, if any (Article 21), are great constitutional values spelt out in Sunil Batra (AIR 1978 SC) and Maru Ram (1981 SCC) and a number of other refined rulings of the Supreme Court. We have accepted in our Buddha-Gandhi country the reformatory theory of criminal jurisprudence and impliedly departed from the retributive theory which once prevailed with a savage imperial flavour.

Independence heralded Social Justice commitment and the State’s profound reverence for human life however malignant by culpable conduct it may be. The Universal Declaration of Human Rights and the general ethos of the United Nations contradict the unconscionable punitivity of ‘an eye for an eye’. From Macaulay, who drafted the Indian Penal Code, to Mahatma Gandhi, the Father of the Nation, who stood unexceptionably against death penalty, there has been a benignant value shift.

The Amnesty International has, for long, been carrying on an uncompromising campaign against this appalling penal inhumanity practiced as death sentence. The United Nations is seriously concerned with this sentencing terror. In this context I have addressed an epistolary appeal to Prime Minister Dr Manmohan Singh. We, the People of India, using its Sovereign Constitutional Power, must abolish Death Sentence as the United Kingdom and a large majority of nations have already done.

The State cannot sanction murder by hanging or otherwise and justify this shocking violence on the score of reprisal against the brutality of private butchers. Sanguinary atrocity by a non-state agency is no paradigm at all to justify burking the offender based on the blood-thirsty retributive justice commandment. ‘Thou Shall Not Kill’ is the cultural quintessence and spiritual majesty of our Republic’s justice system.

India, with its heritage of Gautama Buddha, and Mahatma Gandhi, has stood for a culture of compassion for living creatures (now constitutionalised in Article 51A). Therefore, there is a moral mandate that no one shall be deprived of life by the State as it savages humanity and sanctifies barbarity. Between Macaulay, whose country even publicly hanged pick-pockets, and the Mahatma, who sublimely astonished the world with indefeasible nonviolence, there has been a phenomenal transformation in global criminological values and in the vision of our nation. This glorious Gandhianisation persuaded me to conscientise punitive justice in two Supreme Court rulings where my opinion prevailed. .

The Supreme Court of California has acknowledged in two cases the cruel and degrading effect of dalay: People V. Chessman (34 P. 2d 679 (1959) at page 699) and People V. Anderson (493 P.2d 880, 894 (1972). In the latter case the Court expressly mentioned the dehumanising effects of lengthy imprisonment prior to execution. Justice Krishna Iyer of the Indian Supreme Court has expressed a similar view, when the delay after sentence was six years. They were Edigma Annamma (1974) 4 SCC 443) and Rajendra Prasad (1979) (3 SCC 646), which were cited with approval by the great judge Lord Scarman in a Privy Council case (vide Supreme Court On Criminal Law, p.1465)

WAY back in 1976 (?) I was invited by Amnesty International to speak at the inaugural of a seminar against death penalty held in Stockholm. I made an emphatic demand at that conference for the absolute abolition of death sentence, a plea which was firmly shared by Olaf Palme (?) who was the then Prime Minister of Sweden. I have always stood for clemency for death sentencees on the theory that every person, even if he has committed murder ‘most foul’, must be given an opportunity to reform himself. Retributive justice, based on an eye for an eye, makes the whole world blind, as Mahatma Gandhi powerfully put it. The State cannot kill, even if a private murderer is found guilty of terrible killing. Refined jurists have supported this humanising process which I described in one of my judgments as Operation Valmiki. Valmiki was a forest robber who went to the extent of even murder, but when he was chastened by a saintly message he proved to be one of the noblest souls in the cosmos who composed the Ramayana and is regarded as perhaps the greatest epic poet in Sanskrit. It will be the grandest event of our century if, as a universal rule, death penalty is abolished.

Indeed, a momentum is gathering to end capital punishment in all countries. 130 nations, from all regions of the world, have abolished the death penalty in law or in practice and only 25 countries carried out executions in 2006. Amnesty International (AI)’s statistics also show a significant, overall decline in the number of reported executions in 2006. (Excerpts from a statement by Amnesty International)

Death sentence on Death Sentence is an inviolable command of compassionate culture and fundamental expression of social justice grandeur. No civilised state shall have authority to inflict death penalty even in the rarest of rare cases, lest it be condemned as guilty of barbarity and devoid of humanity. Universal respect for Human Rights commands absolute abolition of capital punishment as no state, committed to social justice and human rights can stultify or demolish the right to life of any human being.

Before I conclude this militant plea against death sentence I must place on record an extraordinary piece of information hardly known to the outside world. The late Nikhil Chakravartty, while inaugurating at Trivandrum my campaign as the presidential candidate some years ago, stated what is rarely written about President Radhakrishnan. Nehru was the Prime Minister and Radhakrishnan, the President. Death warrants, before actual execution, had to be signed by the President. It would appear that Dr Radhakrishnan, our great philosopher and humanist, did not believe in death sentence and did not sign death warrants because they were against his conviction. When these instances multiplied, Nehru, the Prime Minister, sent a special official to convey his wish that the President may be pleased not to delay signing death warrants. Dr Radhakrishnan, the rarest of the rare Presidents, told this high official, who had come from the Prime Minister: please tell the Prime Minister that he had better wait for the next President to sign.

Justice V.R. Krishna Iyer is a former Supreme Court judge and a distinguished champion of civil liberties and human rights.

Death penalty rules put on hold


Regulations not followed, judge will rule today


By Scott Smith
Record Staff Writer

October 31, 2007 6:00 AM

A Marin County Superior Court judge is expected to rule today that the state prison system did not follow its own procedures by failing to hold a public hearing when it changed the lethal injection protocol for carrying out the death penalty.

The anticipated ruling could further delay the execution of Stockton's Michael Angelo Morales, sentenced to death for the 1981 rape and murder of 17-year-old Terri Lynn Winchell, also of Stockton.

Superior Court Judge Lynn O'Malley Taylor issued the tentative ruling, which she is expected to finalize in a hearing today in a Marin courtroom. Morales' attorneys filed the civil suit in April 2006, which takes issue with the state's Administrative Procedures Act.

"We've seen the tent ruling, and we'll wait to see what the final ruling is before we draw any conclusions," said Morales' lead attorney, David Senior.

Senior filed the suit in Marin County, where San Quentin State Prison and the state's lethal injection chamber are located, arguing that under California law, the state has to publish any regulation changes and offer the public a chance to ask for a hearing.

Morales' execution was scheduled for Feb. 21, 2006, but his attorneys won a delay by convincing a federal judge the state's combination of three drugs could lead to a painful death, violating the constitutional protection from cruel and unusual punishment.

Attorneys for the California Department of Corrections and Rehabilitation later reworked the three-drug cocktail in an effort to ensure a quick and painless death, but Morales' attorneys said such changes had to undergo a public hearing process.

Taylor agreed in the tentative ruling, saying the state "was required to, but did not, comply with the Administrative Procedures Act when it adopted this regulation. ... The defendants were required to comply with the APA."

Contact reporter Scott Smith at (209) 546-8296 or ssmith@recordnet.com

California may be forced to redesign executions


A decision to toss latest plan would increase uncertainty over state's death penalty, already on hold because of a constitutional challenge.

By Henry Weinstein, Los Angeles Times Staff Writer

October 31, 2007

California may have to go back to the drawing board to redesign how to execute condemned inmates by lethal injection, under a tentative ruling Tuesday by a Marin County Superior Court judge.

Judge Lynn O'Malley Taylor's decision to toss the state's design, if it becomes final, will cast more uncertainty on California's death penalty, already on a de facto moratorium for the last 20 months because of a constitutional challenge to lethal injection.

Critics across the country have objected that lethal injection amounts to cruel and unusual punishment, contending that the three-drug cocktail that is used includes a paralyzing chemical that masks extreme pain.

The U.S. Supreme Court is considering a challenge to lethal injection in a Kentucky case.

Last December, U.S. District Judge Jeremy Fogel in San Jose ruled that inmates on California's death row run an unnecessary risk of excessive pain.

In response to Fogel's ruling, the state started building a new death chamber and revised lethal injection guidelines, largely behind closed doors.

Attorneys from the Munger, Tolles & Olson law firm sued on behalf of two inmates, saying that state corrections officials made a "deliberate and undisputed" decision to ignore the Administrative Procedure Act, which called for public scrutiny of the state's overhaul.

Lawyers from the California attorney general's office asserted that the Administrative Procedure Act did not apply because of an exemption for policy changes that affect only one prison or correctional facility. All state executions are carried out at San Quentin State Prison.

Attorneys also argued that the state's lethal injection procedure "is not a rule of general application."

Taylor, on the eve of a court hearing on the issue, flatly rejected both of those arguments.

"None of the exceptions to this rule raised by the defendants apply," she wrote.

She said she will issue an injunction against enforcing the new state plan.

Administrative law experts said the ruling could have a dramatic effect on the more than 650 people on California's death row. Corrections officials would have to draw up new lethal injection procedures, publish a rule, seek comment, hold a public hearing and submit the rule to review by the state Office of Administrative Law, an independent agency, according to law professors Michael Asimow of UCLA and Clare Pastore of USC.

That could take up to six months or longer, Asimow said.

Bradley S. Phillips, the lead lawyer for the plaintiffs, death row inmates Michael Morales and Mitchell Sims, said it would be inappropriate for him to comment on a tentative ruling. The attorney general's office had no immediate comment.

Both professors Asimow and Pastore said the judge's ruling was well within the mainstream of the courts' thinking on the issue in California.

"The California Administrative Procedure Act is unusual because it is very strong and detailed," said Pastore, who brought a number of cases under the law while she was at the Western Center on Law and Poverty. "We want the public to know what government is doing."

Asimow said similar rulings are issued many times a year, frequently in cases of what have come to be known as "underground regulations," issued without a public voice.

Lawyers from the state attorney general's office are expected to ask Judge Taylor to reverse her tentative ruling at the hearing today. If that does not succeed, they can appeal.

Attorneys also have filed a court challenge to the merits of the state's new lethal injection procedures. Judge Fogel has scheduled a hearing on that challenge for Dec. 10 and 11.

henry.weinstein@latimes.com

High court’s decision indicates most lethal injection executions could be halted until ruling


Wednesday, October 31, 2007

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

The last-minute reprieve Tuesday for Earl Wesley Berry was the third granted by the justices since they agreed late last month to decide a challenge to Kentucky’s lethal injection procedures.
The decision brought an emotional response from about two dozen members of the victim’s family, who called a news conference to express their outrage.
"Now you want to tell me that we got a fair shake today?" said Charles Bounds, whose 56-year-old wife, Mary, was kidnapped from a church and killed by Berry in 1987.
"Please don’t ever let that man out of prison, ’cause you’ll have me, then. ... I’ll kill him," he said.
Justices Samuel Alito and Antonin Scalia would have allowed the execution to go forward.

Berry was convicted in 1988. His confession was used against him during the trial.
The Supreme Court has allowed only one execution to go forward since agreeing to hear the Kentucky case, which it is likely to hear before its July recess. Michael Richard was executed in Texas on Sept. 25, the same day the court said it would hear a lethal injection challenge from two death row inmates in Kentucky.
State and lower federal courts have halted all other scheduled executions since then, putting the nation on a path toward the lowest annual number of executions in a decade.

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

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

Halt executions in Alabama until problems fixed


Published Wednesday, October 31, 2007

Attorney Gen. Troy King's dismissal Monday of an American Bar Association recommendation for an immediate moratorium on executions in Alabama was reminiscent of the late Gov. George C. Wallace's railing against "outside agitators" during the Civil Rights

King said "it takes far too long to execute someone without interference by outside groups that come to Alabama and tell us how to run our state."

It was a flippant dismissal of a thoughtful and detailed study of capital punishment in Alabama that was three years in the making.

While the ABA takes no position on the death penalty, it called for a nationwide moratorium on executions to allow states to study their legal systems to see if they meet standards for fairness and due process.

Alabama was one of five states in which the ABA said there are so many problems with capital punishment that a temporary moratorium should be established immediately.

The ABA study found that capital defendants in Alabama too often do not get the full benefit of their constitutional guarantee to competent counsel at every stage of the process. It recommends that Alabama create a statewide indigent defense commission.

It found that Alabama is one of only two states in the country that do not guarantee an attorney in the state post-conviction portion of the death penalty process, even if the inmate might have new evidence of innocence.

Alabama has failed to pass a law that ensures access to DNA testing for people convicted of capital crimes, the study said. Moreover, the state does not require that biological evidence be preserved throughout the capital inmate's incarceration. As a consequence, evidence that could be used to prove innocence may be destroyed.

State lawmakers have failed to pass a law to make Alabama compliant with the U.S. Supreme Court ban on executing offenders with mental retardation.

The study called for eliminating Alabama's rule allowing judges to override jury decisions in capital cases, a potential danger in a state that continues to elect its judiciary. In addition, the state should require juries to be unanimous in recommending a death sentence, it said. Recommending that Alabama reserve the death penalty for "the worst of the worst" criminals, the report said the state needs to collect and study the data needed to fully understand how its capital punishment system is working.

The study pointed out troubling racial disparities in Alabama's death penalty system. More than 82 percent of the people executed in Alabama since 1976 were convicted of killing white people, despite the fact that more than 65 percent of all the murders in Alabama each year in Alabama involve black victims. Eighty percent of the state's current Death Row inmates were convicted of murdering white people.

A spokesperson for Gov. Riley, who supports capital punishment, said he has not read the ABA report. He needs to. So should members of the Legislature.

Given King's recent grandstanding on death penalty issues, including intemperate comments that drew the opposition of most of the state's district attorneys, his opposition to the ABA report is not particularly surprising. But there is more than enough solid evidence in the study to convince most people of conscience that the state needs to take a long, hard look at its capital punishment system before allowing executions to continue in Alabama.

ABA keeps execution fight going

By Al Knight Denver Post columnist
Article Last Updated: 10/30/2007 04:41:32 PM MDT

The American Bar Association has been calling for a nationwide moratorium on executions since 1997, so it was no surprise when it renewed that call this week.

The ABA has, in fact, had a committee working since 2001 to obtain a nationwide moratorium. This year, the ABA tried to bolster its position by announcing the results of a three-year study that covered eight different states. Four of the eight — Florida, Alabama, Georgia and Tennessee — are in the South. The other four are Indiana, Ohio, Pennsylvania and Arizona.
The ABA claimed it found a "deeply flawed" system lacking in fairness and accuracy.

It's a little difficult to take this conclusion at face value. After all, the association was saying the same things way before it launched the eight-state study. It would have really been news if the organization had found something that caused it to reverse its long-standing call for a moratorium on executions.

Still there is value in the study. Few people would be opposed to the preservation of all evidence, including DNA, in capital cases either until the person is freed from prison or executed. In fact, it is fair to say that most people wouldn't oppose keeping the evidence forever.
The ABA is also right to complain that some states still don't require interviews with suspects in capital cases to be filmed and recorded. It is on less firm ground when it complains about minor variations in the way states handle cases involving the retarded or those suffering from mental illness.

The study is particularly disappointing in the way it handles claims that there are racial disparities in the application of the death sentence. At times, it emphasizes the race of the convicted killer and at other times says the disparities show up mostly in relation to the victim. In other words, a person has a higher chance of being executed for killing a white victim.
In any case, because the ABA did such a poor job defining the racial problem, it was unable to offer a coherent suggestion on what to do about it beyond studying the issue further.

ABA wants states to stop

What is most disturbing about the ABA's overall position is that it basically bypasses the traditional way that problems should be addressed in this country. The association doesn't call out for the various legislatures to reconsider the imposition of the death penalty. It doesn't claim the innocent are being executed as a justification for a moratorium. It simply calls for a state to stop executing murderers until they have studied the justice system.

Florida and California have moratoriums, but neither was imposed for general reasons. In Florida, a "botched" execution led to the governor calling for a review of lethal-injection procedures. In California, the moratorium was ordered by a federal judge over lethal injection issues.

Later this term, the U.S. Supreme Court will hear arguments in a case challenging the lethal injection procedure on the grounds it violates the cruel and unusual clause of the Eighth Amendment to the U.S. Constitution. It would be convenient to believe that the pending case will settle the death penalty controversy once and for all, but any sensible person knows better.
Other cases will develop over the question of whether the punishment fits the crime. The ABA says every state should have a method to determine that like crimes are being punished.

That recommendation may be sound, but there is no reliable national standard — and perhaps there shouldn't be. A murderer who killed almost 50 victims is currently serving a life term in one state, while others with single victims have been executed.

This is clearly not "fair," but it doesn't mean that all executions must be stopped.
Governors have no business imposing moratoriums on executions absent specific provocation. Those who don't like the death penalty should do the heavy lifting necessary to repeal the laws instead of using organizations like the ABA to obtain what they can't get by traditional and more legitimate means.

Al Knight of Fairplay (alknight@mindspring.com) is a former member of The Post's editorial-page staff. His column appears twice a month.

Supreme Court Stays Execution in a Sign of a Broader Halt

By LINDA GREENHOUSE

WASHINGTON, Oct. 30 — Moments before a Mississippi prisoner was scheduled to die by lethal injection Tuesday evening, the Supreme Court granted him a stay of execution and thus gave a nearly indisputable indication that a majority intends to block all executions until the court decides a lethal injection case from Kentucky next spring.The vote was not immediately announced but there were two dissenters, Justices Antonin Scalia and Samuel A. Alito Jr.. Neither the majority nor the dissenters gave reasons for their positions.

The stay will remain in effect until the full court reviews an appeal filed on Monday by lawyers for the inmate, Earl W. Berry, who is on death row for having killed a woman 20 years ago.While there is no schedule for that review, it almost surely will not take place until the court decides the Kentucky case, Baze v. Rees, which will be argued in January.The issue in that case is not the constitutionality of lethal injection as such, but rather a more procedural question: how judges should evaluate claims that the particular combination of drugs used to bring about death causes suffering that amounts to cruel and unusual punishment, in violation of the Eighth Amendment.

Even without a written opinion, the Supreme Court’s action Tuesday night clarified a situation that had become increasingly confusing as state courts and the lower federal courts, without further guidance from the justices, wrestled with claims from a growing number of death-row inmates that their imminent executions should be put on hold.Of these inmates, Mr. Berry had perhaps the weakest case. He had run through many appeals in the 19 years since he was sentenced to death, but had not challenged the method of execution until recent days. His federal court lawsuit on which the justices acted was not filed until Oct. 18. The Federal District Court in Jackson, Miss., dismissed it as untimely on Oct. 24 in a ruling that the United States Court of Appeals for the Fifth Circuit affirmed last Friday.

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

David P. Voisin, one of Mr. Berry’s lawyers, said he had not yet read the order but felt that the court’s decision to issue a stay made would “put everyone on the same page” on the issue of lethal injections. “I think it’s a positive sign that as long as this issue is under consideration the court is going to hold executions,” Mr. Voisin said.

Mr. Berry was condemned for abducting and killing Mary Bounds, 56, as she was leaving her church in Houston, Miss., on Nov. 29, 1987. Mr. Berry, who had been drinking heavily, drove the victim to the edge of a remote field intending to rape her, prosecutors said.Then he decided not to rape he, but beat her with his fists.

Afterward, Mr. Berry, who is 6 feet 1 inch tall and weighs more than 250 pounds, carried his victim into a patch of woods, where she was found dead of head injuries a few days later. The trail soon led to Mr. Berry, who was convicted in Chickasaw County Circuit Court in March 1988.

Mr. Berry was a troubled young man who twice tried to kill himself by swallowing razor blades, according to evidence introduced in his case over the years. He has been treated for mental illness, and doctors have rated his intelligence as well below average.He spent time in prison for assault, larceny, burglary and other relatively minor crimes before the murder. Since then, he has had a good record in prison, state authorities say.

Brenda Goodman contributed reporting from Atlanta and David Stout from Washington

The Legacy

Rachel Meeropol, the granddaughter of Julius and Ethel Rosenberg who were executed after being convicted of conspiracy to commit espionage, has been recognized for her success as a civil rights lawyer in New York. She is suing the government over post-9/11 detentions. (Elizabeth Lippman for the Boston Globe)



The execution of Rachel Meeropol's grandparents in 1953 resonates in her work as a lawyer today


By Bella English, Globe Staff


NEW YORK - Her last year at New York University law school, Rachel Meeropol spent a semester working at a legal clinic in Alabama that represented prisoners on death row. Her client, she says, was typical: poor black man, borderline retarded, convicted of killing a white woman, represented by incompetent trial counsel. With Meeropol's help, the inmate is now serving a life sentence without parole.

"Given my background, it's not surprising I would be anti-death penalty," she says. "When the state executes anyone, it's simply perpetrating another crime. It doesn't create any justice. I think what happened to my grandparents is criminal."


Meeropol is the youngest grandchild of Ethel and Julius Rosenberg, who were executed in 1953 for conspiracy to commit espionage for the Soviet Union. Rachel's father, Robert, was 6 when his parents went to the electric chair at Sing Sing prison, becoming the first US civilians to be executed in a spy case. History has cast serious doubts on Ethel's conviction, which was based largely on the perjured testimony of her brother. According to declassified Russian documents, Julius may have been a spy.


The two orphaned boys - Robert and his older brother Michael - were adopted by Abel and Anne Meeropol, and grew up in comfortable anonymity. As adults, both settled in Springfield, Mass., where their own children were taught to fight injustice and question authority.
Rachel was born in 1975, shortly after the brothers went public in a book titled "We Are Your Sons." Now 31, she is a staff attorney at the nonprofit Center for Constitutional Rights, founded during the civil rights movement. She's been named one of the best "40 Under 40" lawyers by the National Law Journal, one of the "Fab Fifty" top young litigators by American Lawyer magazine, and is co-editor of "The Jailhouse Lawyer's Handbook," for prisoners without an attorney.


On a recent day in the center's lower Manhattan office, Meeropol, dressed in jeans and sneakers, spoke about the family legacy that led her to social justice law. Her office is a clutter of books, files, and a photograph of the 2004 Red Sox celebrating their World Series win. Given her family history, one of her legal projects is an irony her grandparents might appreciate: She is suing President Bush, the FBI, CIA, and others, alleging that they are spying on her and fellow attorneys at the center. Specifically, the suit states that the government's use of warrantless electronic surveillance in its war against terrorism has curtailed communications with clients.
"This has huge implications for attorneys here at CCR," Meeropol says. "We have to depend on the confidentiality of communications with our clients. If you can't use the telephone or e-mail, it makes communications, especially in a foreign country, very hard."


Because of the fear of eavesdropping, she says she's flown to Egypt to see her clients a couple of times - an expensive and time-consuming task. Those clients include Muslim non-Americans who were picked up in the post-Sept. 11 security frenzy and held at the Metropolitan Detention Center in Brooklyn. Meeropol is the lead attorney in Turkmen vs. Ashcroft, which alleges that the men, who had overstayed their visas, were the victims of racial and religious profiling.


"They took people off the streets and disappeared them," says Meeropol, who specializes in prisoners' rights, immigration, and First Amendment law. "No one knew where they were being held, and they weren't allowed contact with the outside world."
Her clients, she says, were beaten and taunted, shackled, locked down for 23 hours a day, subjected to strip searches, and denied contact with the outside world. "They came here to make better lives for themselves and to send money back home," she says, adding that they worked as cab drivers, in delis, and other small businesses.


The government has since acknowledged that they were not terrorists and deported them. A federal judge dismissed the challenge to the roundup and detention but allowed the claims of abuse, poor prison conditions, and profiling to go forward. Both sides are appealing, and arguments are expected to be heard by spring.


Meeropol sees discomfiting parallels in what happened with her grandparents and "the repressive targeting" of Muslims a half-century later.


"A lot of people have drawn comparisons between the 1950s and today, and certainly I think that the repression being visited on 'suspect' communities - then communists, now Muslim non-citizens - is closely analogous," she says. "With my grandparents specifically, as compared to the 9/11 detentions, you can see how in both situations, the government relied on public fears to justify extremely harsh treatment."


An early startRachel and her sister, Jennifer, 34, were brought up in a liberal household in Springfield, where as youngsters they accompanied their parents to political demonstrations. Their father runs the Rosenberg Fund for Children, which helps children whose parents have been persecuted for their activism. Jennifer, who wrote her senior thesis at Harvard on Ethel Rosenberg, works for the foundation; Rachel is on the board.


"It's something that's important to the whole family," Rachel says. "I think what my father does is amazing. He's taken the legacy of what happened to his parents and turned it around. He calls it his form of constructive revenge." Her mother, Elli, is a nurse who writes fiction, often about the intersection of politics and family life.


Their daughter attributes her own politics to both her grandparents' legacy and her parents' example. "I think you can say my passion for social justice grew out of a profound sense of injustice," she says.


Sometimes that injustice was writ small. As a child, whenever she'd object to a parental edict, Rachel would dress in blue pants, blue sweatshirt, and a blue blanket tied, cape-style, around her neck. She'd grab a homemade sign and picket outside her parents' bedroom: "Unfair to Pre-Teens!" Her self-imposed nickname was "The Blue Avenger."


Meeropol always had a flair for the dramatic, with lead roles in Shakespeare productions at Springfield Central High School: "heroines, villains, and jokers," as she puts it. It was, she says, good practice for her courtroom career.


"She always had a very well-developed sense of what was fair," her mother says. Their home included framed photos of the Rosenbergs, and an artist friend was once so struck by the strong resemblance between Rachel and her grandmother that he painted a portrait of the girl standing near Ethel's picture.


Robert Meeropol believes his daughters learned two things from their family history: "The first one is be very skeptical of what the government tells us because they often lie, and the other is to have a strong sense of social justice not only in the big political sense but also in the repercussions all those big social issues have on individual lives."


A tenacious spiritMeeropol lives in Brooklyn with her boyfriend of eight years, Tomas Hunt. They met as counselors at Camp Kinderland, a leftist "red diaper" camp in Tolland, Mass., where the cabins are named after activist heroes such as Emma Lazarus and Paul Robeson. She spent seven summers there and included it in her senior thesis at Wesleyan University, "Playing With Politics: The Transformation and Appropriation of Politics and Social Belief From One Generation to the Next." Hunt, who is from New Hampshire, works in education policy at the New York State Public Advocate's Office.


At work, her boss says that her passion for political cases, her courage and tenacity have been a boon for the center. "Her work embodies a spirit of justice, a spirit of accountability that was sorely missing with the way that her grandparents were handled, and I think Rachel's commitment to social justice stems in very large part to righting the wrongs that the government is making," says CCR executive director Vincent Warren.


Still, "as radical as her politics are - and happily so," Warren says, Meeropol is a careful, measured litigator. "She will only put her name on something she knows will be able to stand up in court."


Meeropol says her grief and anger over the Rosenbergs' fate have largely dissipated, replaced by her passion for civil liberties. "I think I'm doing work my grandparents would have been proud of," she says.

State's new lethal injection procedures ruled invalid



Bob Egelko, Chronicle Staff Writer

Wednesday, October 31, 2007

California's new procedures for lethal injections are invalid because they were never submitted to the public for comment or reviewed by the office that approves all state regulations, a Marin County judge said Tuesday in a tentative ruling that could prolong the state's moratorium on executions.

Superior Court Judge Lynn O'Malley Taylor agreed with lawyers for two condemned prisoners that the state Department of Corrections and Rehabilitation was enacting a regulation when it announced new procedures in May for lethal injections at San Quentin State Prison.

Under state law, an agency that adopts a new regulation must first publish the text, invite public comments, hold a hearing if a member of the public requests one, and submit the final draft to the Office of Administrative Law, which decides whether the proposed rule was legally authorized.

The Corrections Department has never gone through that process with new execution procedures, saying they are not regulations because they apply only to a limited group of inmates at a single prison. Taylor disagreed.

"The undisputed evidence establishes that (the execution protocol) is a rule or regulation of general application," said Taylor, a retired judge sitting by special assignment in the court.

The protocol, she said, "implements a statewide policy on lethal injections for condemned inmates," prescribes duties for state officials outside San Quentin and applies to prisoners at other institutions.

The 667 condemned inmates in California include 15 women at the Central California Women's Facility in Chowchilla (Madera County), who, if their appeals fail, will be executed at San Quentin. Some of the male inmates are being held in medical institutions or, in the case of one of the Marin County plaintiffs, a prison in another state where he has also been sentenced to death.

The state will contest Taylor's preliminary decision at a hearing Wednesday in San Rafael.

Taylor said the new procedures cannot be implemented legally until they go through the regulatory process, including public input. Her ruling, if it stands, poses a new obstacle to California's beleaguered capital punishment system.

No one has been executed in California since January 2006. The following month, U.S. District Judge Jeremy Fogel blocked the execution of Michael Morales of Stockton, convicted of raping and murdering 17-year-old Terri Winchell in a vineyard near Lodi in 1981.

Fogel said records of past executions convinced him that there was a risk that a sedation drug would not work and that Morales would be conscious, paralyzed and in agony while dying.

After hearing testimony from medical experts and execution witnesses, Fogel issued another ruling in December saying he would find that California's lethal injections - carried out by a poorly trained and supervised prison staff, in dimly lit and chaotic conditions - violated the constitutional ban on cruel and unusual punishment unless the state overhauled the execution process.

The state responded by changing the drug doses, promising improvements in staff selection and training, and building a new execution chamber, which Fogel is scheduled to visit in advance of a Dec. 10-11 hearing in his San Jose court.

The U.S. Supreme Court is preparing to review a similar case from Kentucky that could lead to changes in execution methods in virtually every state with a death penalty law, including California.

The Marin County suit was filed in April 2006 by Morales, now 48, and Mitchell Sims, 47, who has been sentenced to death in California and South Carolina for murdering employees of Domino's Pizza in both states. He once worked at the pizza chain.

Both men have unsuccessfully appealed their convictions and death sentences.


In Main News: The Supreme Court halts an execution in Mississippi while it considers a challenge to Kentucky's lethal injection procedures.

E-mail Bob Egelko at begelko@sfchronicle.com

Signals Execution Halt During Lethal-Injection Case



By Greg Stohr

Oct. 31 (Bloomberg) -- A divided U.S. Supreme Court signaled it probably will prevent any executions from taking place while it considers the constitutionality of the lethal- injection method used in dozens of states.

The justices yesterday issued a stay of execution about 15 minutes before Earl Wesley Berry was scheduled to be put to death in Mississippi for a 1987 murder. Justices Antonin Scalia and Samuel Alito dissented.

The Mississippi case presented perhaps the best chance for prosecutors seeking to proceed with some death sentences. Berry, who has been on death row since 1988, didn't challenge the method of his execution until this month. The justices intervened even though the state's highest court had said Berry filed his objections too late.

``The prospects of any execution going forward are extraordinarily unlikely between now and the time the court rules,'' said Deborah Denno, an expert on the death penalty who teaches at Fordham University Law School in New York.

The rejection is the third issued by the justices since they agreed Sept. 25 to consider lethal injections in a Kentucky case called Baze v. Rees. The court will hear arguments in that case early next year and is scheduled to rule by July.

Botched Executions

Two death-row inmates say Kentucky's lethal injection procedures violate the constitutional ban on cruel and unusual punishment. The inmates, pointing to botched executions in Ohio and Florida, say they might be subjected to unnecessary suffering and that Kentucky must consider more humane alternatives.

All but one of the 38 death-penalty states use lethal injections, and almost all of those use the same three chemicals that Kentucky uses. Inmates are first injected with sodium pentothal, an anesthetic, followed by pancuronium bromide, which causes the lungs to shut down and paralyzes the body. The final chemical, potassium chloride, then induces a fatal heart attack.

That protocol was adopted by Oklahoma almost three decades ago and then copied by other states. Texas conducted the first execution by lethal injection in 1982.

A 2005 study published in the medical journal Lancet found that in 21 of 49 executions the prisoner endured a feeling of suffocation and a burning sensation through the veins, followed by a heart attack.

The Supreme Court has never struck down a form of execution and hasn't directly addressed the issue since allowing firing squads in 1878.

All told, courts at various levels and state officials have stayed more than a dozen executions since Sept. 25. No executions have taken place since a Texas man was put to death on the day the Supreme Court agreed to take up the lethal injection issue.

In the Berry case, the Mississippi Supreme Court and the 5th U.S. Circuit Court of Appeals both had refused to block the execution.

The case is Berry v. Epps, 07-7348 and 07A367.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

Last Updated: October 31, 2007 00:07 EDT

Supreme Court blocks another lethal injection



A last-minute action by the US Supreme Court to block the lethal injection of a condemned murderer late Tuesday suggested that the nine-member panel intends to block such executions until it rules on the constitutionality of the specific method of capital punishment.

At least five Supreme Court justices voted to halt the execution by the state of Mississippi of Earl Wesley Berry, 48, who confessed to the November 1987 abduction and beating death of Mary Bounds.

It is the second scheduled lethal injection to be blocked by the court since it accepted a Kentucky case that challenges whether lethal injection violates the US Constitution's protection against cruel and unusual punishment.

The Supreme Court has previously ruled that capital punishment is not innately unconstitutional, and the appeal on behalf of death row inmates in Kentucky makes a narrow claim that the three-drug cocktail used for nearly all US executions inflicts undue suffering.

The method is meant to render prisoners unconscious, halt breathing and stop the heart in a three-step process carried out within a few minutes. The Kentucky appeal and similar cases, including Berry's, argue that the condemned may remain conscious but paralyzed and suffering before death from cardiac arrest.

The Supreme Court is scheduled to hear the Kentucky case in January.

"The real inhumanity in this case is that the life of an innocent woman ... was taken 20 years ago, and now justice has been delayed again," said Mississippi Governor Haley Barbour shortly after the stay-of-execution was announced, the daily Clarion-Ledger of Jackson, Mississippi reported.

Barry had already eaten his last meal when the Supreme Court's decision reached state prison officials, 19 minutes before his scheduled death.

Lawmakers studying fairness of death penalty

Date created: 10/30/2007 11:40:08 PM
Last updated: 10/30/2007 11:40:45 PM



Lawmakers and others studying the state's death penalty are stressing the need to ensure fairness in the way prosecutors decide to seek the death penalty.

James Wally Kirby, executive director of the Tennessee District Attorney's General Conference, says the discretion for prosecutors lies in the decision not to seek the death penalty in a first-degree murder case.

They can only pursue capital punishment if a case has one of 15 aggravated factors.

Kirby says prosecutors must also consider likelihood of conviction, community standards and concerns of the victims' family.

Sen. Doug Jackson says some question whether prosecutors apply the death penalty fairly and he is considering whether a law could ensure more even treatment.

Down to the wire with execution now stayed in Mississippi

October 30, 2007


Along with Kent at Crime & Consequences, I am still awaiting word on whether the Supreme Court will block Mississippi's effort this evening to execute Earl Wesley Berry. I am bad at reading tea leaves, so I am not sure what to make of the fact that the Supreme Court still has not yet resolved Berry's request for a stay coming from his lethal injection case in federal court. Perhaps the delay is a sign that the Justices are putting together some sort of opinion to accompany whatever action (or non-action) they take. Given that this Mississippi case has been on everyone's radar screen since last week, the Justices have had a bit more time than usual to adjudicate this matter with everyone is watching closely.

Some recent related posts:

Execution drama building in Mississippi case
Mississippi moratorium test case now primed for SCOTUS
Could states eager to execute quickly adopt a new execution method?
News on the Alabama execution stay from the Eleventh Circuit
UPDATE: While I was spending the evening playing dad taxi, the Supreme Court continued the de facto moratorium on lethal injection executions by granting a stay for Berry. This post from Lyle Denniston at SCOTUSblog provides all the peculiar details, including the court's stay order here. Up-to-date media coverage includes this piece by Jan Crawford Greenburg at ABC News, this piece by Linda Greenhouse at the New York Times and similar articles from Bloomberg and Reuters.

Over at CDW, Karl Keys provides this nuanced assessment of where matters now seem to stand in the moratorium debate:

In light of the United States Supreme Court’s stay tonight of the Earl Berry execution in Mississippi, I strongly suspect the fluid situation that has marked the subject of lethal injection has now somewhat solidified. There will likely be no additional executions by lethal injection until at least after oral arguments & conference in Baze v. Rees, save for volunteers, and most likely until well in to 2008. Note Nebraska does not use lethal injection, volunteers will still likely be executed, and states are free to abandon lethal injection for another method of execution; I still have difficulty calling it a “de facto national moratorium,” but without getting in to why it doesn’t work, as a general concept it aptly explains our current situation. [I would prefer to borrow a term from elsewhere, “a patch quilt moratorium” that is likely to show signs of fraying as it gets tested, pulled, and ages, however, nuance and clarity are, at least in this context, mutually exclusive].

Justices Stay Execution, a Signal to Lower Courts

Published: October 31, 2007

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Brenda Goodman contributed reporting from Atlanta.

'De Facto Moratorium' on Lethal Injections?


With Lethal Injection Case Pending, Supreme Court Blocks Miss. Execution

By JAN CRAWFORD GREENBURG
Oct. 30, 2007

Earl Wesley Berry is a killer. He murdered Mary Bounds 20 years ago after the Mississippi grandmother left her church choir practice.

Bounds' daughter Jena Watson expected to see Berry die Wednesday evening by lethal injection.

"It has brought back all of the grief," she said.

But the Supreme Court gave Berry a last-minute reprieve that could have an affect on other death row inmates across the country.

The Court blocked the execution until it decides a separate, pending case next year on whether death by lethal injection is so cruel and unusual it violates the Constitution.

"Right now I think we have a de facto moratorium on lethal injections in this country," said Richard Dieter, executive director of the anti-capital punishment Death Penalty Information Center.

The Court's order will bring capital punishment across the United States to a sudden stop. It's the third time in a month the Justices have blocked an execution.

But the eleventh-hour decision to spare Berry, at least temporarily, angered some victims' rights groups.

"This means further delay in an execution that is already very long overdue," said Kent Scheidegger, legal director for the Criminal Justice Legal Foundation.

"This is a man who beat a woman to death 20 years ago. And we shouldn't be concerned that much about a very remote chance that he might feel some pain in being punished for that crime," he continued.

The justices plan to decide a Kentucky case next year on whether lethal injections are unconstitutional. But 35 other states also use the method. Eighteen have executions on hold until the Court rules. Others, like Mississippi, tried to go forward.

The states, as well as the federal government, began implementing lethal injections as a more humane alternative to a firing squad or the electric chair. Three drugs are used: one induces sleep, one causes paralysis and the final drug stops the heart.

But the process isn't always as so simple.

Death row inmate Joseph Clark murdered a gas station attendant in Ohio, and for his crime, he said he deserved to die.

"If it's time for me to go, it is just time for me to go," Clark said before his execution.

But it took him 86 minutes to die last year while he screamed in pain.

The brother of Clark's victim witnessed the ordeal.

"His foot was bouncing around for a bit and it stopped and we thought he was gone," Michael Manning recalled. "Soon after that is when his head and the top of his shoulders came up and he started to shake his head from side to side."

It took a technician 19 tries to insert the intravenous needle into Clark's body.

Manning says what he saw in that execution chamber should not have happened.

"I believe in the death penalty, but I side on the constitutionality side of it. The Eighth Amendment says no cruel and unusual punishment, and that's what I think that was," Manning said.

Clark's brother Dennis says his brother had to pay the ultimate price for his crime and he, like most Americans, supports the death penalty. But he says lethal injections are inhumane.

"The death penalty is the last, the only thing that you can do at the end if a person has done really wrong," Dennis Clark said. "But it still needs to be done right, and what happened to my brother was not right."

"States have just been careless about this, and that amounts to a tortuous way of treating a human being," the Death Penalty Information Center's Dieter said. "Even though you can execute them, you're not free to do with them as you wish."

The Supreme Court's decision won't overturn death sentences, but it could force states to change their procedures before there's another execution.

ORDER IN PENDING CASE EARL WESLEY BERRY

(ORDER LIST: 552 U.S.)


TUESDAY, OCTOBER 30, 2007


ORDER IN PENDING CASE


07-7348 BERRY, EARL W. V. EPPS, COMM’R, MS DOC, ET AL.
(O7A367)

The application for stay of execution of sentence of death presented to Justice Scalia and by him referred to the Court is granted pending the disposition of the petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.
Justice Scalia and Justice Alito would deny the application for stay of execution.

Court delays Mississippi execution



Tuesday, October 30th, 2007 6:42 pm | Lyle Denniston
Final update 8:01 p.m.

Over the dissents of two Justices, the Supreme Court on Tuesday postponed the execution of Mississippi death row inmate Earl Wesley Berry. Justices Samuel A. Alito, Jr., and Antonin Scalia noted that they would have denied the application to put off the execution, scheduled for 6 p.m. in Mississippi. The delay order (found here) came about 15 minutes before Berry was to be put to death by lethal injection in the state penitentiary at Parchman, Miss.

Like some of the Court’s other recent orders refusing to clear the way for executions, this new one is expected to stir greater speculation that the Court — as a more or less regular practice — will now block planned use of the lethal injection protocol in use by 36 states, even if the Justices do not declare a “moratorium” in any formal legal sense. The Court, though, is expected to continue to issue orders a single case at a time, whatever larger implications outside observers may read into its actions. The language the Court used in the Berry order was identical to what it routinely says when it is delaying the effect of a lower court ruling to give itself time to consider whether to hear the underlying appeal.

The Court has allowed only one execution to go forward since announcing on Sept. 25 that it would rule this Term on the constitutionality of the three-drug protocol now in common use. It has blocked three planned executions, either by issuing stays itself or by refusing to lift a stay issued by a lower court. (The Court on Monday had found that it had no jurisdiction to consider an earlier stay application in Berry’s case. That case had reached the Court through the state courts; the new order came in a case arising from the federal courts, arriving at the Supreme Court later.)

The one execution to occur since Sept. 25, of Michael W. Richard in Texas, occurred in the evening of the day the Court announced it would rule this Term on the constitutionality of the protocol. (That review will come in the case of Baze v. Rees, 07-5439, a Kentucky case. It will be argued either in January or February.)

The Berry case had been considered a significant test of the Court’s willingness to continue to issue stays, since Earl Berry had taken so long to file his constitutional challenge to the protocol. The Fifth Circuit Court, like the Mississippi Supreme Court, had concluded that Berry was not entitled even to a ruling on his constitutional claim, because he had been tardy in filing it. The state has noted that it has used the lethal injection method since 1984, so that method was the standard protocol for all of the 19 years that Berry has been on death row for a 1987 murder of a woman he abducted as she left Sunday choir practice at a church in Houston, Miss.

The Court has said several times in recent years — in fact, as recently as June of last year in Hill v. McDonough – that lower courts should take into account the last-minute nature of challenges to execution methods in considering whether to grant a delay. The state of Mississippi had relied heavily upon those statements in arguing that Berry’s execution should go ahead as planned.

Some lower courts or state officials have interpreted the Supreme Court’s grant of review in the Baze case as an indication that they should delay executions by the lethal injection protocol. Others, like the Fifth Circuit in Berry’s case, have disagreed, saying that the grant of a petition for certiorari by the Justices in one case does not change the law so it does not directly affect others.

The Court on Tuesday did not delay Berry’s execution indefinitely. It said the order was to remain in effect pending its action on a newly-filed petition for review, filed Monday (Berry v. Epps, docket 07-7348). If it decides to deny review of that appeal, the order said, “this stay will terminate automatically.” But, if review is granted, the stay will remain in effect until a final ruling in the case, according to the order. Among the questions raised in the petition, Berry’s counsel are asking the Court to spell out whether executions may be allowed to go forward solely because of the late filing of a challenge to the method. It argues that lower courts are split on their power to dismiss a ”last-minute” challenge over an issue that is currently pending before the Supreme Court. The petition also raises issues parallel to those in the Baze case from Kentucky, on whether the current three-drug protocol risks unnecessary pain and suffering for the inmate, and thus is cruel and unusual punishment under the Constitution’s Eighth Amendment.

The only votes on Tuesday’s order that were publicly recorded were those of Justices Alito and Scalia in dissent. It is not necessarily so, however, that all of the other seven Justices favored the stay. It would have taken the votes of five Justices either to grant or deny the stay.

Tuesday, 30 October 2007

Convicted killer hoping Supreme Court will grant appeal in 6 o'clock execution

By Kathleen Baydala
kbaydala@jackson.gannett.com

PARCHMAN — Earl Wesley Berry is still hoping his appeal before the U.S. Supreme Court will be granted, though his execution for beating a woman to death in 1987 is about three hours away.

"He cried quite a bit when we visited with him this morning," Mississippi Department of Corrections Commissioner Chris Epps said during a press briefing this afternoon at the Mississippi State Penitentiary. "He's very concerned."

No word has come so far from the high court.

Though Berry is in a somber mood, he has not expressed any remorse for the killing, officials said.

"He has not expressed any sorrow" except over the time he's spent in prison, said Daryl Neely, policy adviser to Gov. Haley Barbour.

Berry, 48, was convicted of kidnapping and murdering Mary Bounds in the small Mississippi town of Houston nearly 20 years ago. Berry confessed to the killing.

Berry has been on death row 19 years. Despite numerous appeals, he is scheduled to be executed at 6 p.m. by lethal injection.

Berry was placed in an isolated cell near the execution chamber on Sunday. He also was baptized that day.

This morning, Berry ate about a third of his large breakfast of hard-boiled eggs, grits, sausage and pancakes. He also had a healthy appetite at lunch, eating turkey salad and a biscuit but forgoing the vegetables, Epps said.

This afternoon, Berry has been visiting with his mother, several of his siblings, his two attorneys and a prison spiritual advisor.

Twenty-five members of the victim's family will be at Parchman this evening for the execution, Epps said. At least two members will witness Berry's death.

Berry requested that two of his brothers also be witnesses, but they declined, Epps said.

Miss. death row inmate awaits execution, hopes for reprieve

By HOLBROOK MOHR
Associated Press Writer


JACKSON, Miss. -- Death row inmate Earl Wesley Berry spent what could be his last hours Tuesday in a somber mood visiting with family and his attorneys, but he has not expressed remorse for the 1987 beating death of Mary Bounds, corrections officials said.
Berry is scheduled to die around 6 p.m., but he is hoping for a reprieve from the U.S. Supreme Court.

"His mood is talkative, but somber. He's in a somber mood," said Corrections Commissioner Chris Epps. "He's hoping that he will get the appeal. When we visited with him he cried quite a bit."

Berry has an appeal pending before the U.S. Supreme Court that challenges the constitutionality of lethal injection as the state's method of execution.

Berry's legal team filed a motion Monday that says Mississippi's legal statutes do not allow latitude in the administration of the three-drug mixture used in lethal injections.

Berry "believes that he is under imminent threat of having his federal constitutional right to remain free from cruel and unusual punishment violated by the state of Mississippi," the motion says. "In the course of administering a death sentence - a sentence unchallenged by Mr. Berry in the these proceedings - the State of Mississippi intends to employ a procedure that creates wholly unnecessary and easily avoidable risk of gratuitous pain."

Berry admits kidnapping Bounds outside the First Baptist Church on a cold November day in 1987 and beating her to death before dumping her body in the woods.

He stomped her head hard enough to leave a tennis shoe imprint on her face, according to Chickasaw County Investigator John A. Porter.

Berry asked Sunday to be baptized and prison officials accommodated the request.

Epps, who has spent his entire career working in Mississippi's prison system, called Berry "a career criminal" that he knew even before Bounds' murder.

In the past, Berry was usually talkative and playful and liked to crack jokes, Epps said.

"He's not doing a lot of joking today," Epps said. "He's not playing a lot."

Berry requested a last meal of barbecue pork sausage and barbecue pork chops, buttered toast, a salad heavy on the onions, mashed potatoes and gravy, pecan pie and juice.

He joked that he could eat pork without concerns about high blood pressure, said Daryl Neely, an adviser for Gov. Haley Barbour.

Several members of Berry's family visited with him on Tuesday, but none would witness the execution, Epps said, adding that 25 members of Bounds' family would be at the prison to honor her memory.

The U.S. Supreme Court on Monday denied one of two appeals - a state court decision - on the basis that it did not have jurisdiction in the case.

The current motions before the court asks that Berry's execution be delayed at least until the U.S. Supreme Court rules on challenges to lethal injection filed by death row inmates in Kentucky. Several states have halted executions until the Supreme Court makes a decision. The court is likely to rule on the matter next year.

Berry was sentenced to death by a Chickasaw County jury on Oct. 28, 1988. His confession was used against him during the trial.

Berry, who was 28 at the time of the murder, had been treated for paranoid schizophrenia and spent most of his adult life behind bars and in institutions.

But on Nov. 29, 1987 he was driving his grandmother's car around the tiny north Mississippi town of Houston. That's when he saw Bounds, a 56-year-old manufacturing plant supervisor, who was planning to attend the weekly choir practice that night.

This is what prosecutors say happened: Berry forced Bounds into his car and drove to a secluded area on the outskirts of town. He told her to lay on the ground with the intentions of raping her, but for some reason changed his mind. He put her back in the car - promising to return to town - and drove down a dark gravel road into the woods where he beat her to death.

After carrying Bound's body deeper into the woods, Berry returned to his grandmother's house, disposing of a mismatched pair of bloody shoes along the way. He burned his bloodstained clothes and wiped the vehicle down with a towel, which he threw into a nearby pond.

Berry's odd behavior in trying to conceal the crime aroused his brother's suspicion and he called police on Dec. 5, 1987, just after the body was found thanks to a man who spotted Bounds' black high heel shoes on the side of the road.

Berry was arrested the next day and confessed. Investigators later found his bloody shoes and the towel used to clean the car.