NOVEMBER 4, 2012 http://www.pennlive.com
It’s been more than a decade since Pennsylvania executed an inmate on death row. Although another execution is scheduled for Thursday, it’s possible the execution will not happen and that the chamber at Rockview State Prison will remain empty for some time to come.
There’s a little-known 6-year-old federal class action lawsuit — Chester v Beard — that has the potential to stay all executions in Pennsylvania until it is resolved.
HUBERT MICHAELThe suit challenges the constitutionality of Pennsylvania’s execution protocol; the “class” in the action is composed of all inmates on death row, and there’s a hearing in the case Monday morning.
The immediate relevance is the pending execution of Hubert Michael, whose lawyers have asked the judge for a stay.
Michael is on death row for the July 12, 1993, murder of 16-year-old Trista Eng near Dillsburg in York County.
Michael, who was living in a boarding house in Lemoyne at the time, picked up Eng as she walked to work at the Dillsburg Hardee’s on Route 15. He drove her to a remote area of State Game Lands 242 and shot her three times with a .44 magnum — twice in the chest and once in the head.
When Michael subsequently pleaded guilty to the murder, he said he had been frustrated with women due to an unrelated rape charge in Lancaster County.
His attorneys recently asked a federal judge to reopen his appeals proceedings, citing serious mental health issues as the reason for Michael having repeatedly changed his mind on whether or not he wanted the appeal to proceed.
There’s a hearing on that later this week.
But the separate class action suit, in which his attorneys have also filed a motion for a stay, has the potential to affect all executions in Pennyslvania.
The U.S. Supreme Court ruled in 2008 that death by lethal injection is not — in and of itself — unconstitutional, but the ruling left open the possibility that individual state protocols for lethal injection could be challenged on constitutional grounds.
At issue is the fact that two of the three drugs used in the procedure can cause excruciating pain if the first drug — a fast-acting barbiturate — is an insufficient dose or improperly administered. What’s more, the second drug paralyzes the person, so he would not be able to communicate the fact he’s in excruciating pain. For this reason several states have banned use of the second drug when euthanizing animals.
In an oft-cited concurring opinion in the 2008 decision, Justice John Paul Stevens wrote, “It is unseemly — to say the least — that Kentucky may well kill [inmates] using a drug that it would not permit to be used on their pets.”
Nevertheless, the Supreme Court — including Stevens — ruled that Kentucky’s protocol passed constitutional muster.
Among the issues raised in the Pennsylvania case is the source of drugs to be used in the execution.
Certain drug manufacturers have banned the use of their product in executions, and lawyers for the prisoners argue that if black market or diluted drugs are used, the procedure could be unconstitutional.
The Department of Corrections argues that revealing the source of the drugs could result in the source refusing to sell them the drugs.
Two federal judges have ruled that the source of the drugs is pertinent and ordered DOC to reveal the information, but in doing so, both judges recognized DOC’s concern and ordered the information to be kept confidential. DOC refused.
Last week, Secretary of Corrections John Wetzel, on the advice of lawyers from the Attorney General’s office, refused to divulge the source of the drugs desipte the federal court orders.
Today’s hearing now includes a request for sanctions against Wetzel and DOC for “clear, flagrant and deliberate” violation of federal court orders.
With the parties in the case still fighting over discovery, it’s possible there might be no final resolution soon.
Experts in death penalty law say execution stays could be likely as long as the case is open.
Marc Bookman of the Atlantic Center for Capital Representation said the judge in the Pennsylvania case — Yvette Kane — “is a thorough judge who wants to do it properly.”
He noted that, “Lethal injection litigation has stayed executions in other states.”
Michael’s death warrant is the only one signed by Gov. Tom Corbett that has not been stayed for some other reason.
If Kane grants a stay, and if Chester v Beard continues its path through federal court, it could render any future death warrants moot until the case is settled.
When asked about that, Janet Kelley in the governor’s press office said, “The governor took an oath to uphold the law, and the law in Pennsylvania includes signing execution warrants.”
LIVINGSTON — Preston Hughes III, a death row inmate, is 46 but seems much older, with white hair, thick glasses and a quiet, slow voice that rises only when the subject of his lawyer comes up.
Survivor on Death Row, a new e-book co-authored by death row inmate Romell Broom and Clare Nonhebel, tells the story of Ohio‘s botched attempt to execute Broom by lethal injection in 2009. In September of that year, Broom was readied for execution and placed on the gurney, but the procedure was terminated after corrections officials spent over two hours attempting to find a suitable vein for the lethal injection. Broom was removed from the death chamber and has remained on death row ever since. In the book, Broom discusses his troubled childhood and his life of over 25 years on death row, including his repeated requests for new DNA testing and a new legal team. Broom has always maintained his innocence. Jon Snow, a reporter for Channel 4 News in England, called the book “A horrifying story embracing all the evils of the death penalty. Bad forensics, dodgy DNA, awful lawyers, render this a must-read.”
A new book by Larry Koch, Colin Wark and John Galliher discusses the status of the death penalty in the U.S. in light of recent legislative activity and court decisions. In The Death of the American Death Penalty, the authors examine the impact of factors such as economic conditions, public sentiment, the role of elites, the media, and population diversity on the death penalty debate. The book highlights the recent abolition decisions in New York, New Jersey, New Mexico, and Illinois, and the surprising decline of the death penalty even in the deep South. James R. Acker, Distinguished Teaching Professor in Criminal Justice at the University at Albany, said, “Support for capital punishment in this country, as measured by the laws authorizing it, prosecutors’ enthusiasm for seeking it, jury verdicts that dispatch it, and executioners’ final deliverance, has eroded rapidly in recent years. A decade after the publication of its predecessor and carrying on in that volume’s fine tradition, The Death of the American Death Penalty provides detailed explanations—the where, how, and why—of these dramatic developments in death penalty laws and practices.”
Long-time death penalty scholar Hugo Adam Bedau died on August 13, 2012 . Dr. Bedau had been the Austin B. Fletcher Professor of Philosophy at Tufts University, and is best known for his work on capital punishment. Dr. Bedau frequently testified about the death penalty before the U.S. Congress and many state legislatures. He authored several books about the death penalty, including The Death Penalty in America (1964; 4th edition, 1997), The Courts, the Constitution, and Capital Punishment (1977), Death is Different (1987), and Killing as Punishment (2004), and co-authored In Spite of Innocence (1992). This last book, written with Prof. Michael Radelet of the University of Colorado and Constance Putnam (Dr. Bedau’s wife), contained one of the best early collections of people who had been wrongly convicted in death penalty cases. In 1997, Bedau received the August Vollmer Award of the American Society of Criminology, and in 2003 he received the Roger Baldwin Award from the ACLU of Massachusetts. Dr. Bedau was a founding member of the National Coalition to Abolish the Death Penalty.
A new book by Professors Saundra Westervelt and Kimberly Cook looks at the lives of eighteen people who had been wrongfully sentenced to death and who were later freed from death row. In Life After Death Row: Exonerees’ Search for Community and Identity, the authors focus on three central areas affecting those who had to begin a new life after leaving years of severe confinement: the seeming invisibility of these individuals after their release; the complicity of the justice system in allowing that invisibility; and the need for each of them to confront their personal trauma. C. Ronald Huff, a professor at the University of California, Irvine, noted, “The authors skillfully conduct a journey inside the minds of exonerees, allowing readers to see the world from their unique perspectives.”
A new electronic book by former journalist Peter Rooney offers an in-depth look at the case of Joseph Burrows, who was exonerated fromIllinois’s death row in 1996. In Die Free: A True Story of Murder, Betrayal and Miscarried Justice, Rooney explains how Burrows was sentenced to death for the murder of William Dulin based on snitch testimony. He was convicted primarily on the word of Gayle Potter, who recanted her testimony eight years later and admitted to committing the crime herself. According to one review, “Rooney makes it clear his book Die Free isn’t an argument against the death penalty, but simply another example of why such an extreme punishment should be re-evaluated. His points are made clearly and with merit as he details obvious evidence withholding by an over-aggressive district attorney, threats and intimidation of a borderline mentally challenged man, and the old school thoughts of little women versus big, burly men.” Rooney is a former staff writer for the Champaign-Urbana News-Gazette and is currently the director of public affairs at Amherst College. Joe Burrows died at age 56 in 2009. This case, and similar exonerations, led to the abolition of the death penalty in Illinois in 2011. The book is available for 
A new book by Clive Stafford Smith, a British lawyer who has defended death row inmates in the U.S., offers an in-depth view of capital punishment in America. In Injustice: Life and Death in the Courtrooms of America, Stafford Smith examines the case of Kris Maharaj, a British citizen who was sentenced to death in Florida for a double murder, to expose problems in the justice system. The book reveals disturbing details of Maharaj’s case, including anomalies in the prosecution files–witnesses with exculpatory testimony who were never called, falsified and suppressed evidence, and reports that a witness to the shootings failed a lie detector test. Maharaj’s death sentence was later commuted to life without parole. Stafford Smith is the Legal Director of Reprieve, which provides legal assistance in death penalty cases. In 2005 he received the Gandhi International Peace Award. He was a founder of the Louisiana Crisis Assistance Center, defending death row inmates in that state.
American Bar Association recently published The State of Criminal Justice 2012, an annual report that examines major issues, trends and significant changes in America’s criminal justice system. This publication serves as a valuable resource for academics, students, and policy-makers in the area of criminal justice, and contains 24 chapters focusing on specific areas of the criminal justice field. The chapter devoted to capital punishment was written by Ronald Tabak, special counsel and pro bono coordinator at Skadden Arps. Tabak addresses the decline in the use of the death penalty, the geographic, racial and economic disparities in implementing capital punishment, important Supreme Court decisions, and other issues such as the continuing risk of wrongful executions. In concluding, he writes, “Ultimately, our society must decide whether to continue with a system that has been found in study after study, and has been recognized by a growing number of leading judges, to be far more expensive than the actual alternative – in which life without parole is the most serious punishment. In view of the lack of persuasive evidence of societal benefits from capital punishment, this is one ineffectual, wasteful government program whose elimination deserves serious consideration.”
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