Supreme Court

Florida’s lethal-injection drug gets Supreme Court nod

June 29, 2015

The Supreme Court’s decision Monday to uphold the use of a controversial drug in lethal-injection executions will have ramifications for the 395 people on Florida’s death row as well as on the upcoming execution of a man who killed four family members in Orlando in 1985.

Florida Supreme Court justices stayed the Feb. 26 execution of Jerry Correll pending the high court’s ruling over midazolam — the first drug administered during a three-step process to execute inmates in a handful of states, including Florida.

Monday’s decision prompted a motion from Florida officials state to lift the stay.

Executions in other states have raised concerns the sedative did not perform its intended task of putting inmates into a comalike sleep. Correll’s attorneys argued that point in an emergency motion to delay his execution at least until the Supreme Court offered its opinion. A jury convicted their client of stabbing and killing his 5-year-old daughter, ex-wife, mother-in-law and sister-in-law.

But Monday’s ruling just preserves the status quo in Florida and in the other 31 states that use capital punishment, said Orlando attorney Steven Laurence. It means midazolam can be used in executions without violating the Eighth Amendment prohibition on cruel and unusual punishment.

“The Florida Supreme Court acknowledged when they granted a stay that there has been some issues [with the drug], and they wanted to the U.S. Supreme Court to speak to that issue,” said Laurence, who’s been trying death-penalty cases at the state Supreme Court for more than a decade.

“Now they’ve spoken to that issue, and from the perspective of a Florida practitioner such as myself, it’s back to business as usual.”

Florida remains among the most active states using the death penalty, putting 16 people to death in the past three years, according to the Death Penalty Information Center, a national nonprofit research group.

Florida Gov. Rick Scott has signed more death warrants than any other modern Florida governor in a single term.

The Orange-Osceola State Attorney’s Office is seeking the death penalty in seven cases this year, according to a spokeswoman. Defendants in those cases include Sanel Saint Simon, the Orange County man accused of beating his girlfriend’s 16-year-old daughter to death, and Bessman Okafor, the suspected mastermind behind a witness-execution plot.

This won’t be the last time a U.S. Supreme Court ruling affects Florida’s death penalty.

The high court agreed to hear in its next term a case called Hurst v. Florida, a challenge to the state’s procedure for determining a death sentence.

Florida is the only state that doesn’t require a unanimous jury to recommend death. Rather, a majority vote, after a special hearing on factors that could justify or mitigate the death penalty, will send a convict to death row.

A trial judge must either approve or reject that recommendation.

Laurence said this case has a better chance at affecting Florida’s procedures because the practice is an outlier among other states.

“It seems contrived that to find a person guilty of the death penalty requires a unanimity, but to actually execute them does not,” he said. “To me, that’s a much more compelling issue.”

In its ruling on Correll’s execution, Florida Chief Justice Jorge Labarga wrote in the majority opinion that the stay was justified because the Oklahoma protocol under review by the U.S. Supreme Court is “virtually identical” to Florida’s process.

“Without the stay of execution in this case, Florida risks the unconstitutional execution of Correll, for which there is no remedy.”

Clarification came Monday in a 5-4 decision by the Supreme Court as two dissenting justices said for the first time that they think it’s “highly likely” that the death penalty itself is unconstitutional.

Justice Samuel Alito said arguments the drug could not be used effectively as a sedative in executions are speculative.

In dissent, Justice Sonia Sotomayor said, “Under the court’s new rule, it would not matter whether the state intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake.”

In a separate dissent, Justice Stephen Breyer said the time has come for the court to debate whether the death penalty itself is constitutional. Justice Ruth Bader Ginsburg joined Breyer’s opinion.

Information from The Associated Press was used in this report.

BREAKING: U.S. Supreme Court Rules that Midazolam Can be Used in Executions

June 29, 2015

The Supreme Court ruled today in Glossip v. Gross that the use of midazolam as part of lethal injection protocols is constitutional.

Midazolam is a sedative that—according to the petitioners—“cannot reliably ensure the ‘deep, comalike unconsciousness’ required where a State intends to cause death with painful drugs.’” A paralytic is then injected, making it impossible to tell if the prisoner is experiencing extreme pain upon administration of the final drug that stops the heart. This is where the argument of cruel and unusual punishment enters the debate.

Diann Rust-Tierney, Executive Director of the National Coalition to Abolish the Death Penalty issued the following statement on today’s ruling:

“Today, the Supreme Court ruled that using a cocktail of illegal drugs, which has been proven to cause torture in the prisoners to whom it’s been administered, as a form of execution, is not ‘cruel or unusual’ punishment.

“It’s hard to imagine what could be crueler than a prolonged, torturous death, or more unusual, given that 80% of the executions in the United States last year took place in just 3 states.

“The death penalty is on the outs, with even conservative states like Nebraska outlawing the policy. Yet that message clearly hasn’t risen up to the highest Court in the land. That means our work is far from done.

“Death penalty opponents from all walks of life must recommit ourselves to ensuring that policymakers, attorneys and, yes, the Supreme Court understand America doesn’t want or need the death penalty any more. That’s exactly the goal of the 90 Million Strong campaign, and the reason we feel confident that one day, not one more American will be put to death by the government.”

The fact remains that the death penalty does not enhance public safety; every day it exists it risks executing the innocent and it perpetuates racial bias and unfairness in a way that takes our country backwards.

We must continue to join together to speak up and do the work necessary to make sure that this archaic, barbaric, wasteful and unfair practice is abolished.

Read the full decision at: http://www.supremecourt.gov/opinions/14pdf/14-7955_aplc.pdf

The National Coalition to Abolish the Death Penalty has created the 90 Million Strong Campaign to unite the voices of those who believe the death penalty is wrong. We need to demonstrate that the broad public support to end this practice is already here in America, and 90 million people speaking up can make a difference.

Oklahoma Justices Send Execution Case To Lower Court

April 18, 2014

Clayton Lockett and Charles Warner have sued the state seeking more information about the drugs that would be used to kill them.

The Oklahoma Supreme Court says it is not the place for death-row inmates to go if they want a stay of execution.

Justices said Thursday that the Oklahoma Court of Criminal Appeals should take up stay requests from 2 inmates scheduled to die in the next 2 weeks. The appeals court had said previously it didn’t have the authority because the inmates hadn’t met all technical requirements under the law.

Clayton Lockett and Charles Warner have sued the state seeking more information about the drugs that would be used to kill them. They say they need stays of execution so they can continue their challenge.

The justices wrote that the Court of Criminal Appeals erred in not taking up the request.

Death penalty abolitionists and others who seek to end the death penalty will protest the executions of two death-row inmates on the days of their executions.

The Oklahoma Coalition to Abolish the Death Penalty will host “Don’t Kill for Me” demonstrations at the governor’s mansion followed by silent vigils on Tuesday for death-row inmate Clayton Lockett and on April 29 for Charles Warner.

The inmates have been in a legal battle with the state over the secrecy surrounding which drugs are used in executions and their origins. The executions are still scheduled to take place, despite pending litigation in the case.

Lockett was found guilty of the 1999 shooting death of a 19-year-old woman, Stephanie Nieman. Warner was convicted for the 1997 death of his roommate’s 11-month-old daughter.

(source: Associated Press)

Arthur Tyler, slated to die May 28 in controversial capital case, asks Ohio for mercy

April 18, 2014

Arthur Tyler, who has been on Ohio’s death row 3 decades for the murder of a produce vendor during a robbery in Cleveland, has asked the Ohio Parole Board to commute his sentence to life in prison with a chance of parole.
The parole board will hold a clemency hearing April 24 to hear Tyler’s pleas. The board will make a recommendation to Gov. John Kasich, who will ultimately decide Tyler’s fate.
He is scheduled to be executed May 28.
Tyler’s case has been controversial because he was 1 of 2 people convicted in the killing of Sanders Leach, but the only one sentenced to die. And there are questions as to who actually pulled the trigger.
Tyler’s co-defendant, Leroy Head, confessed almost immediately. Head admitted to police, family and friends that he shot Leach in a struggle for the gun during the March 1983 robbery attempt, according to court records.
He signed a confession, but later changed his story, telling prosecutors that Tyler fired the gun.
Tyler was convicted of aggravated murder and aggravated robbery and sentenced to die. Head pleaded guilty to the same charges and was sentenced to prison. He was released in 2008.
Tyler’s lawyers, in a brief filed with the parole board, said Tyler recognizes he shares responsibility for Leach’s death. But they urge clemency be granted, commuting his death sentence to life imprisonment with parole eligibility.
“Ideally, Arthur Tyler should be granted parole and released from prison for time served, they wrote. “As we will demonstrate, Arthur Tyler did not shoot Mr. Leach. Head falsely testified against Mr. Tyler in order to save himself from the death penalty.”
Source: Cleveland.com,

FLORIDA – Gonzalez death sentence upheld in Billings murders

April 11, 2014

The Florida Supreme Court unanimously upheld the conviction and death sentence for the man authorities said masterminded the robbery and killings of Byrd and Melanie Billings nearly five years ago.

Leonard Patrick Gonzalez Jr., 40, was convicted in 2010 of two counts of first-degree murder and one count of home invasion robbery with a firearm.

Gonzalez led a group of men who forced their way into the Billings home in Beulah in July 2009 and gunned down the couple during an attempted robbery. The Billingses had 17 children, 13 of them adopted. Nine of the children were home at the time of the killing.

On Feb. 17, 2011, Circuit Judge Nicholas Geeker followed a jury recommendation and sentenced Gonzalez to death.

In imposing the death sentence, Geeker found as aggravating factors that Gonzalez had a conviction for a prior violent felony, that the murder was committed during the course of a robbery, and his crimes were heinous, atrocious and cruel.

In upholding the conviction, the state Supreme Court found that the convictions were supported by competent, substantial evidence, according to the State Attorney’s Office.

“We’re very pleased with the decision and the court’s opinion on the sentence and use of the death penalty,” said Assistant State Attorney John Molchan, who prosecuted Gonzalez along with State Attorney Bill Eddins.

Although Gonzalez’s direct appeal was denied, he still can attempt to have his conviction or sentence overturned.

Gonzalez has the option to seek post-conviction relief, a review of whether deficiencies in his attorney’s performance led to Gonzalez’s conviction. He also can file a petition for a U.S. District Court to review the case, which could overturn the conviction or overturn his sentence.

OHIO – Man wrongfully sent to Death Row hopes court will reverse ruling – Dale Johnston

april 9, 2014

A Grove City man sentenced to death for a pair of Hocking County murders he did not commit is turning to the Ohio Supreme Court in his bid to be declared wrongfully imprisoned.

Dale Johnston has attempted for more than 20 years to win a court judgment so he could seek monetary damages for the seven years he spent on Death Row before being freed when an appellate court overturned his convictions.

He now is asking the justices to reverse a Feb. 20 ruling by the Franklin County Court of Appeals that threw out a trial-judge’s finding he was illegally detained for the 1982 dismemberment slayings of his stepdaughter and her fiancé.

The appellate judges ruled that the judge erred when he retroactively extended a 2003 change in the wrongful-imprisonment law to Johnston’s case.

Johnston and his lawyer are arguing the appellate ruling, sought by the office of Ohio Attorney General Mike DeWine, misinterprets the law and asks the justices to rule in his favor.

“It may be safe to say that no reasonable person in the history of the world would or could review the facts surrounding these gruesome homicides and think anything other than Dale Johnston is and was an innocent man victimized by Ohio’s criminal justice system,” his lawyers wrote in their filing.

Johnston was sentenced to die in the electric chair in 1984 for the shooting deaths of Annette Cooper, 18, and Todd Schultz, 19, whose bodies were cut up and buried in a cornfield and thrown into the Hocking River.

In 2008, Chester McKnight, a drifter and drug addict, confessed to killing the couple and was sentenced to life imprisonment, freeing Johnston to again pursue his quest to be declared wrongfully imprisoned.

Court spurns appeal by Arizona death row inmate – Graham Sanders Henry

april 10, 2014

PHOENIX (AP) — Saying that finality is long overdue, a federal appeals court is spurning the latest appeal on behalf of an Arizona death row inmate convicted of the 1986 killing of a Nevada man.

The 9th U.S. Circuit Court of Appeals this week refused to reconsider a previous ruling that turned down an appeal on behalf of Graham Sanders Henry.

The appellate court said it won’t reconsider Henry’s appeal because that would delay Supreme Court review of the case, including Henry’s convictions for what the court’s order called his “ghastly crimes” from nearly 28 years ago.

Henry was sentenced to die for killing Las Vegas-area resident Roy Estes. He was driven to the desert north of Kingman in Arizona’s Mohave County where he was stabbed in the heart and his throat cut.

Mississippi death row inmate Michelle Byrom to get new trial

April 1, 2014

(CNN) — A new trial has been ordered for Mississippi death row inmate Michelle Byrom, according to a state Supreme Court opinion issued Monday.

Byrom’s capital murder conviction was reversed, and the case has been remanded to the circuit court for a new trial, the opinion said.

“We are very grateful that the Mississippi Supreme Court has granted Michelle Byrom’s request for relief from her death sentence,” said Byrom’s attorney, David Calder. “This was a team effort on the part of the attorneys currently representing Michelle, and we believe that the court reached a just and fair result under the facts presented in this case.”

Byrom has been on death row since her 2000 conviction for capital murder. The 57-year-old woman was convicted of being the mastermind of a murder-for-hire plot to kill her allegedly abusive husband, a killing her son had admitted to committing in several jailhouse letters and, according to court documents, in an interview with a court-appointed psychologist.

He recanted when he was put on the stand, according to court records.

Attorney General Jim Hood, who had requested Byrom’s execution, said Monday his office would seek the court’s reasoning for the reversal.

“While we respect the Mississippi Supreme Court’s decision, it is important that the trial court know and understand the specific errors that were found by the justices so that the lower court knows the best way to proceed,” he said. “Our citizens can once again take comfort in the fact that we have a legal system that works for all parties involved.”

The Supreme Court opinion noted that the decision “is extraordinary and extremely rare in the context of a petition for leave to pursue post-conviction relief.”

Oliver Diaz, the former presiding justice of the Supreme Court, called the opinion “actually kinda amazing,” from the order for a new trial to the ruling’s release on a Monday instead of a Thursday, as usual.

“The lawyers filed a last ditch motion for additional post conviction relief. These are almost never granted. Defendants are limited to a single post conviction motion,” he wrote in an e-mail to CNN. “It is extremely rare to grant and send back for a new trial.”

The court further instructed that a different judge should be assigned to Byrom’s new trial.

Circuit Judge Thomas J. Gardner, who imposed the death sentence on Byrom after her conviction, declined to comment to CNN, saying, “The matter is ongoing.”

Diaz also said the order for a new judge was extraordinary.

“Also, taking the step of removing the original trial judge is very unusual as well,” he wrote.

Tara Booth, spokeswoman for the Mississippi Department of Corrections, said the department expects an order Tuesday to transfer Byrom from the Central Mississippi Correctional Facility to Tishomingo County, where the killing occurred.

Hood, the attorney general, had requested that Byrom be executed “on or before (the date of) March 27,” but the Mississippi Supreme Court, which has the final say on execution dates, denied Hood’s request.

During Michelle Byrom’s original trial, prosecutors said she plotted to kill her husband, who was fatally shot in his home in Iuka, Mississippi, in 1999 while Michelle was in the hospital receiving treatment for double pneumonia. A jury convicted her based on evidence and testimony alleging that she was the mastermind of the plot.

Byrom Jr. admitted in jailhouse letters that he had committed the crime on his own after growing tired of his father’s physical and verbal abuse, and a court-appointed psychologist has said that Byrom Jr. told him a similar story.

On the stand, Byrom Jr. pinned the slaying on one of his friends, whom he said his mother had hired for $15,000.

Following her attorney’s advice, Michelle Byrom waived her right to a jury sentencing, allowing the judge to decide her fate. He sentenced her to death.

Prior to Monday’s ruling, Michelle Byrom’s defense attorneys had filed a motion asking the court for additional discovery so the alleged confession to the court-appointed psychologist could be fully explored.

The defense attorneys also want to depose the prosecutor from her trial, Arch Bullard, regarding his knowledge of Byrom Jr.’s alleged confession to the psychologist.

Bullard has told CNN that he firmly believes Michelle Byrom was the mastermind of the murder-for-hire plot.

Torture on Death Row: Court Rules Against Automatic Use of Solitary Confinement for the Condemned

March 17, 2014

The Supreme Court has ruled that the death penalty itself does not constitute “cruel and unusual punishment.” Yet the treatment of the condemned is nonetheless subject to Eighth Amendment protections, as well as Fourteenth Amendment guarantees of due process.

In the past few years, this ironic legal reality has been the subject of a renewed national debate centering on execution methods. The European drug companies that U.S. states have historically relied on to provide the materials for lethal injections have refused to replenish supplies. As a result, states have developed new drug protocols, often implementing them without testing or research. Last month, Dennis McGuire struggled and gasped for well over ten minutes before he finally died.

But at a recent Senate Judiciary Subcommittee hearing, exoneree Damon Thibodeaux called attention to a different, rarely-discussed aspect of death row that he believes also constitutes “torture, pure and simple” – the conditions of confinement that people endure prior to execution:

“I spent my years at Angola, while my lawyers fought to prove my innocence, in a cell that measured about 8 feet by 10 feet. It had three solid walls all painted white, a cell door, a sink, a toilet, a desk and seat attached to a wall, and an iron bunk with a thin mattress. These four walls are your life. Being in that environment for 23 hours a day will slowly kill you. Mentally, you have to find some way to live as if you were not there. If you cannot do that, you will die a slow mental death and may actually wish for your physical death, so that you do not have to continue that existence. More than anything, solitary confinement is an existence without hope.”

Thibodeaux was exonerated after spending fifteen years on death row at Angola State Penitentiary in Louisiana. While his story may be unusual, his experience of extreme isolation is standard for people facing execution.

A recent ruling, however, suggests that the federal courts may soon mandate higher due process protections for individuals sentenced to death. Last November, U.S. District Court Judge Leonie Brinkema found in Prieto v. Clark that the state of Virginia had violated the Constitution by automatically placing individuals on death row in indefinite isolation.  In January, she rejected a request from state attorneys to delay the implementation of her ruling.

In her determination, Judge Brinkema describes what people on death row in Virginia must bear from the time of their sentencing to the time of their execution:

“Plaintiff’s conditions of confinement on death row are undeniably extreme and atypical of conditions in the general population units at [the prison]. He must remain alone in his cell for nearly 23 hours per day… The lights never go out in his cell, although they are scaled back during the overnight hours… Plaintiff is allowed just five hours of outdoor recreation per week…and that time is spent in another cell at best slightly larger than his living quarters… He otherwise has no ability to catch a glimpse of the sky because the window in his cell is a window in name only… Nor can he pass the time in the company of other inmates; plaintiff is deprived of most forms of human contact… His only real break from the monotony owes to a television and compact disc player in his cell and limited interactions with prison officials…”

As the judge outlines, those on death row are automatically and permanently placed in solitary confinement – forced to withstand particularly severe conditions purely as a consequence of their sentence.  This placement is functionally indefinite since it can take years, or even decades, before individuals exhaust their appeals and finally face execution.  (According to the Bureau of Justice Statistics, those executed in 2010 had spent an average of 14.8 years on death row).  By contrast, all others incarcerated in Virginia are assigned an initial security classification based on eight factors, including several unrelated to their sentences: their history of institutional violence, escape history, current age, etc.

The Court’s finding in Prieto v. Clark is that the automatic placement of death row prisoners in solitary confinement violates their Fourteenth Amendment rights, since they endure “uniquely severe” conditions without any kind of procedural protections or stopgap measures.

Judge Brinkeama concludes that the Virginia prison authorities have two options: either providing an individualized classification procedure for each person sentenced to execution, or altering conditions on death row “such that confinement there would no longer impose an atypical and significant hardship.”

The court’s ruling comes several months after the publication of an American Civil Liberties Union (ACLU) report that examined the conditions of confinement endured by those on death row. As the ACLU notes, this extreme isolation constitutes a “punishment on top of punishment”:

  • Cell size: Most common cell size is 8×10 feet (27% of prisoners), just a bit bigger than the size on an average bathroom.
  • Basic comfort: Beds provide in death row cells are made out of: Steel 60%; Concrete 13%; Steel with mattress 9%; Concrete with pad 6%; Metal 6%.
  • “Enforced idleness”: States that allow death inmates to exercise for one hour or less: 81%.
  • Social isolation: States with mandated no-contact visits for death row inmates: 67%.
  • Religious services: States that fail to offer religious services to death row prisoners: 62%.

At the Senate hearing on solitary confinement last month, Thibodeux told the Senate Judiciary Subcommittee that he had contemplated ending the appeals process – despite his innocence – in order to escape his extreme isolation:

“Fairly early during my confinement at Angola, I very seriously considered giving up my legal rights and letting the State execute me. I was at the point where I did not want to live like an animal in a cage for years on end, only to lose my case and then have the State kill me anyway. I thought it would be better to end my life as soon as I could and avoid the agony of life in solitary. Fortunately, my lawyer and friend, Denise LeBoeuf, convinced me that I would be exonerated and released someday, and she gave me hope to keep fighting and living.”

According to the NAACP’s most recent quarterly report on the death penalty, published last week, since the death penalty was reinstated 140 individuals – about 10% of those placed on death row – were executed after giving up their appeals.

Judge Brinkema’s ruling is significant since it accords at least minimal due process protections to those placed in solitary confinement, even the so-called “worst of the worst.” But calls to change the blanket use of isolation on death row have also emerged from outside the courts and the Senate subcommittee hearing. Last month, Texas’s largest correctional officers’ union called for low-risk individuals on death row to be housed with others, and recommended that state prison officials introduce privileges to those on death row, including work assignments and streaming television.

(solitarywatch.com)

Court to rehear appeal for Ariz. death row inmate – James Erin McKinney

March 14, 2014
PHOENIX (AP) — A federal appeals court is reconsidering an appeal filed on behalf of an Arizona Death Row inmate convicted of two killings during burglaries.

A three-judge panel of the 9th U.S. Circuit Court of Appeals last September upheld a trial judge’s denial of James Erin McKinney’s challenges to his murder convictions and death sentences.

However, the San Francisco-based appellate court now says a larger panel of its judges will consider McKinney’s appeal.

The three-judge panel’s ruling said it didn’t matter much that McKinney was seated so he faced the jury while on trial with a co-defendant before separate juries. And it rejected his other challenges in the appeal.

McKinney was convicted in the 1991 killings of Christene Mertens and Jim McClain during separate burglaries in Maricopa County.