supreme court

With Death Penalty, How Should States Define Mental Disability?

march 3, 2014 (npr.org)

Twelve years after banning the execution of the “mentally retarded,” the U.S. Supreme Court is examining the question of who qualifies as having mental retardation, for purposes of capital cases, and who does not.

In 2002, the high court ruled in Atkins v. Virginia that executing “mentally retarded” people is unconstitutionally cruel and unusual punishment. But the justices left it to the states to define mental retardation.

Now the court is focusing on what limits, if any, there are to those definitions.

The case before the court involves the brutal murder of Karol Hurst, who was 21 years old and seven months pregnant when she was kidnapped, raped, and killed by Freddie Lee Hall and an accomplice.

Hall was sentenced to death, but after the Atkins decision, his lawyers challenged the sentence. They cited multiple diagnoses of Hall as having a mental retardation and quoted the state supreme court as having previously declared that Hall had been “mentally retarded his entire life.” The state court, nonetheless, subsequently upheld Hall’s death sentence on grounds that his IQ tests averaged higher than 70.

Hall appealed to the U.S. Supreme Court, where the question Monday is whether states can establish a hard statistical cutoff in these cases.

Florida’s statute, as interpreted by the state supreme court, sets the definition of developmental disability at an IQ score of 70 or below. With anything higher, the defendant cannot put on other evidence to show he is intellectually disabled. Moreover, the state does not allow use of the standard error of measurement that is deemed inherent in IQ tests.

Hall’s various test scores added up to an average of more than 70, but no more than 75, meaning that he would qualify as having a disability if the state had used the standard five-point error of measurement. Without that statistical norm, however, Hall’s lawyers were barred from putting on any other evidence of disability — for example, school records that consistently identified Hall as being mentally retarded.

“Florida’s position is inconsistent with the views of all the mental disability organizations and professional organizations that are involved in the definition of mental retardation,” says Jim Ellis, a longtime advocate for people with mental disabilities. He has also filed a brief in the case.

Allowing states to redefine “mental retardation” in defiance of professional standards, he argues, is nothing more than a way to undo the Supreme Court’s 2002 ruling.

But the state of Florida counters that the Supreme Court did not require any particular clinical definition. Rather, the court relied on what it deemed to be a national consensus that executing mentally disabled people is cruel and unusual punishment. And Florida argues that national consensus is not necessarily the same as a clinical definition.

“The line separating ‘retarded’ from ‘not retarded’ is itself arbitrary,” says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation. “It is itself a matter of convention and not science.” Scheidegger has filed a brief in support of Florida’s position.

Florida is one of only five states that have set an inflexible line for determining intellectual disability in capital cases. The others are Alabama, Kentucky, Virginia and Idaho, and the results there have been stark. Only two claims of mental retardation have been successful in those states since 2002, according to a Cornell University study. That’s about 2 percent, compared to a 28 percent success rate in the other 45 states.

The Ghost of Herbert Smulls Haunts Missouri’s Death Penalty Plans

february 21, 2014 (theatlantic)

It has been only 21 days since Missouri began to execute convicted murderer Herbert Smulls some 13 minutes before the justices of the United States Supreme Court denied his final request for  stay. And it is fair to say that the past three weeks in the state’s history of capital punishment have been marked by an unusual degree of chaos, especially for those Missouri officials who acted so hastily in the days leading up to Smulls’ death. A state that made the choice to take the offensive on the death penalty now finds itself on the defensive in virtually every way.

Whereas state officials once rushed toward executions—three in the past three months, each of which raised serious constitutional questions—now there is grave doubt about whether an execution scheduled for next Wednesday, or the one after that for that matter, will take place at all. Whereas state officials once boasted that they had a legal right to execute men even while federal judges were contemplating their stay requests now there are humble words of contrition from state lawyers toward an awakened and angry judiciary.

Now we know that the Chief Judge of the 8th U.S. Circuit Court of Appeals, as well as the justices of the Supreme Court of the United States, are aware there are problems with how Missouri is executing these men. Now there are fresh new questions about the drug(s) to be used to accomplish this goal. Now there are concerns about the accuracy of the statements made by state officials in defending their extraordinary conduct. Herbert Smulls may be dead and gone but his case and his cause continue to hang over this state like a ghost.

The Supreme Court Wants Answers

Missouri’s problems started almost immediately after Smulls was executed on January 29. On January 30, the Associated Press published a story titled: “Lawyers: Mo. Moving Too Quickly on Executions” in which it was disclosed, for the first time to a national audience, that state officials were executing prisoners before their appeals were exhausted. On February 1, we posted a piece here at The Atlantic titled: “Missouri Executed This Man While His Appeals Was Pending in Court,” in which we published emails from Smulls’ attorneys to Missouri officials showing that the state was aware that Smulls’ appeal was pending at the Supreme Court at the very moment he was being injected with lethal drugs.

Clearly, the justices in Washington were paying close attention to what Missouri had done (killed Smulls) and not done (waited for the justices to tell them they could). On February 3, five days after Smulls’ execution, the Clerk of the Court wrote to Missouri officials directing them to file a second response to a petition for certiorari that had been filed on behalf of Smulls and several other death row inmates (who are still alive). The request demonstrated, at the least, that the Court did not consider Smulls’ final appeal to be frivolous. Here is the link to that letter. Missouri’s response is due March 5. I am curious to know whether state officials reveal any regret for the timing of the Smulls’ execution.

A Roiling Hearing

One week after Missouri received that letter from the Supreme Court, state officials appeared at a legislative hearing to discuss and defend Missouri’s execution protocols. David Hansen, a state assistant attorney general, spoke at length about the Smulls’ execution. There was no stay in effect at the time of the condemned man’s execution, Hansen told lawmakers, and the controversy over premature executions was caused not by overzealous state officials but rather by “death row attorneys” who, he said, “have developed a legitimate and very deliberate strategy to ensure that there is always a stay motion pending during the course of the [death] warrant which is a de facto repeal of the death penalty.”

Here is the link to much of Hansen’s testimony. It was confident. It was defiant. And in several material respects, it was inaccurate. For example, Hansen quoted James Liebman, the distinguished professor at Columbia Law School, for the proposition that what Missouri has been doing is also being done in other states. But Liebman did not say that and was so dismayed by the misuse of his words that he submitted a letter late Tuesday night to Missouri’s lawmakers seeking to clarify the record. Here is the link to Liebman’s letter. And here is the essence of his position on the inappropriateness of Missouri’s current execution protocol:

I pointed out that the Supreme Court has occasionally issued orders in capital cases saying it will no longer entertain papers from a particular capital prisoner, having found that previous papers filed were frivolous. I pointed out that, if Missouri believed that this same point had been reached in Mr. Smulls’ case—a conclusion that Mr. Smulls and his attorneys strongly disputed—it would not be appropriate for one adversary to resolve that matter unilaterally over the objection of the other.

Instead, Mr. Hansen’s office should have formally asked the Supreme Court to deny Mr. Smulls’ pending papers and to refuse to accept further papers from him, thus allowing the state to proceed with an execution without fear that the legal basis for that solemn and irreversible action was in doubt. Only then would the crucial contested matter of law and fact have been resolved, not unilaterally by one party to the dispute, but by the decision of a neutral court of law.

This was not the only problem with Hansen’s testimony. Joseph W. Luby, an attorney for Smulls and other death row inmates in the state, also felt compelled to write a letter to Missouri lawmakers seeking to correct the record that Hansen had created. Not only had Hansen mischaracterized the procedural posture of the three cases in which Missouri had executed inmates before their appeals were exhausted, Luby wrote, but state officials were engaged in a pattern and practice of not even responding to opposing counsel in the final hours and minutes before executions. Here is the link to Luby’s letter. He didn’t say it but I will: This is inappropriate and perhaps unethical conduct by of state lawyers.

Another Federal Judge Calls Out Missouri

Two days after that hearing, on February 12, the Chief Judge of the 8th U.S. Circuit Court of Appeals, William Jay Riley, who repeatedly had voted against Smulls, interrupted oral argument in an unrelated death penalty case to tell a lawyer for the State Attorney’s General office that the federal appeals panel did not in any event appreciate Missouri officials executing men before the courts had concluded their judicial review. Specifically, Chief Judge Riley said:

I might just tell you this. I’ll probably regret saying this later, but I think it was the execution of Nicklasson, but the State of Missouri executed somebody which they probably had the right to do, right in the middle of our petition for rehearing voting. And I just wanted you to take back the word that… some of the members of the Court did not appreciate that. That we were right in the middle of that…

And I think you have probably heard that some people have written on it. But we were moving as fast as we can and, as Chief Judge, I was pushing to get everything done in time. But I think you need to be a little more patient.

The “Nicklasson execution” to which the Chief Judge referred, took place on December 12 and it prompted from 8th U.S. Circuit Court Judge Kermit Bye a remarkable dissent. “I feel obliged to say something,’ Judge Bye wrote at the time, “because I am alarmed that Missouri proceeded with its execution of Allen Nicklasson before this court had even finished voting on Nicklasson’s request for a stay.” He continued:

In my near fourteen years on the bench, this is the first time I can recall this happening. By proceeding with Nicklasson’s execution before our court had completed voting on his petition for rehearing en banc, Missouri violated the spirit, if not the letter, of the long litany of cases warning Missouri to stay executions while federal review of an inmate’s constitutional challenge is still pending.”

Here are the links to Judge Bye’s first and second dissents in these premature execution cases.

The Drug Supplier Bags Out

Seven days after Chief Judge Riley’s admonition, this past Monday, came the next bad thing to happen to Missouri officials in their quest to expedite the implementation of the death penalty in their state.  Under legal pressure from death row inmate Michael Taylor, the compounding pharmacy that was poised to supply the drug (pentobarbital) the state wanted to use to execute him next week backed out of its commitment to provide the drug. The Apothecary Shoppe, in Tulsa, Oklahoma, announced that it would not give the Missouri Department of Corrections the pentobarbital it had compounded and that it had not previously given state officials the drug for Taylor’s execution.

Missouri immediately reacted to this unexpected news by declaring that it would be able to proceed anyway with Taylor’s execution, now scheduled for the 26th, without materially changing its lethal injection protocols. Late Wednesday, state officials informed Taylor’s lawyers that they have obtained pentobarbital from another, unidentified supplier. “There is no reason to believe that the execution will not, like previous Missouri executions using pentobarbital, be rapid and painless,” state attorneys wrote in a motion filed with a federal trial judge in Missouri opposing a stay request by Taylor. Here is the link to Missouri’s filing.

A New Challenge to Missouri’s Lethal Injection Rules

The confusion over precisely how Missouri intends to execute Taylor generated on Tuesday another big headache for state officials– a substantial new request for a stay of execution in Taylor’s case. Here is the link to that motion and here is how defense attorneys summarize their argument:

Missouri has identified no lawful means of executing Taylor next week. Any pentobarbital Missouri previously acquired is now expired. Though Missouri has indicated it has midazolam and hydromorphone, its execution protocol does not permit administration of those drugs; even if it did, Taylor would warrant a stay because those drugs have already inflicted unconstitutional pain and suffering in an execution and the states using them have thus temporarily halted executions.

In any event, switching the protocol or the pentobartibal supplier now – a week before the scheduled execution – would violate Taylor’s right to due process of law.

Taylor’s lawyers made those arguments before they learned that Missouri had reportedly acquired a new supply of pentobarbital. State lawyers would say only in their court filing Wednesday that “Missouri has now arranged with a pharmacy, that is not the pharmacy Taylor threatened and sued, to supply pentobarbital for Taylor’s execution.” In their response Thursday, the link to which may be found here, Taylor’s lawyers wrote this:

Utterly nothing is known about this pharmacy. Has it been cited for
violating federal and state laws more or less often than the previous pharmacy? Does it also send its drugs, to be tested for purity and sterility, to a laboratory that approved a batch of tainted steroids that killed over 60 people? For that matter, does the pharmacy test its drugs at all?

If Missouri has its way, it will not tell Taylor anything more about the drug officials seek to use to execute him next week. It will argue that the conduct of its officials should be presumed to be lawful, and proper, and designed to respect the constitutional rights of the condemned. A few weeks ago, we know, the federal courts were willing to accept these arguments and to allow these dubious executions to proceed. Now I’m not so sure. No matter what the trial judge decides on Taylor’s stay request, this dispute is going first to the 8th Circuit and then to the Supreme Court. Will those appellate judges be motivated to remind Missouri who gets the final say on executions in this nation?

 

Arizona death-row case to get unusual 13th look by high court – Richard hurles

february 20, 2014, (azcentral)

WASHINGTON – When the Supreme Court’s justices sit down Friday to consider which cases to hear, one appeal will be familiar – an Arizona murder case that the justices have taken up the last 12 times they met.

Experts say it is unusual for the justices to consider one case 13 times in a row – so far – at their regular case conference without turning it down or agreeing to hear it. And while they say no one can know for sure, they have several theories why Ryan v. Hurles has been hanging around since before the court’s current term started in October.

“Twelve is a long time,” said Dale Baich, an assistant federal public defender in Arizona. “I don’t recall seeing a case held over for that many times.”

The petition to the Supreme Court is the latest twist in the 22-year case of Richard Hurles, who killed Buckeye librarian Kay Blanton in 1992 when he stabbed her 37 times as she worked alone in the library. He was convicted in 1994 of burglary, attempted sexual assault and first-degree murder, and sentenced to death.

Hurles has filed repeated appeals since then, getting to the point that a death warrant was issued in 2000 before it was stayed.

Among the claims in his latest round of appeals is a charge of judicial bias against trial Judge Ruth Hilliard. Hurles had asked that Hilliard – the judge at both his trial and his sentencing – not be allowed to consider his second post-conviction review.

But that request was denied by Maricopa County Superior Court Judge Eddward Ballinger. Hilliard then denied Hurles’ second petition, a decision that was affirmed by the Arizona Supreme Court.

But the 9th U.S. Circuit Court of Appeals disagreed and in January 2013 a three-judge panel of that court ordered an evidentiary hearing into Hurles’ bias claim.

The Arizona attorney general’s office appealed that ruling last summer to the U.S. Supreme Court, which first put Hurles’ case on its conference calendar Sept. 30. It has put the case on every conference calendar since then, 12 so far, without deciding whether or not to hear it.

“We really don’t know why the case is being held,” said Baich.

But he, like others, offered several possible explanations: The court could be waiting for a decision in a different case to be resolved first, it could be writing an opinion, or a justice, or justices, might be writing a dissent should the case get rejected.

“This is pure speculation on my part,” Baich said. “There could be a number of reasons.”

Amy Howe, editor for the U.S. Supreme Court blog SCOTUSblog, said it is also possible that a justice might be rewording the petition. Or it could just be that the four votes needed to issue a writ of certiorari – agreeing to hear the case – are not there yet and justices are trying to pick up that fourth vote.

Paul Bender, a law professor at Arizona State University’s Sandra Day O’Connor College of Law, said the delay is most likely caused by the court waiting to see a 9th Circuit decision on a similar case that “might resolve the issues in this case.”

The Hurles’ case is “an issue that they’re potentially interested in, but whether they’re really going to take it depends upon what the 9th Circuit did and what the state’s going to do after that,” Bender said.

Howe said despite the theories, there will be no way of knowing the reason for the delay until after the court has either granted or rejected the appeal.

“You just don’t know until you actually see what’s happening,” she said.

US- Youngest Serial Killer on Death Row – Harvey Robinson

Tales of serial killers have grown commonplace, but adolescent serial killers are rare. Harvey Robinson from Allentown, PA, is among them, and he’s currently the youngest contemporary serial killer to be sent to death row in America. His case crystallizes some issues surrounding a growing trend toward leniency with juvenile offenders, even the most violent ones.

In Roper v. Simmons (2005), the U.S. Supreme Court struck down the death penalty for offenders who had committed extreme crimes when they were juveniles. In Graham v. Florida (2010), the Court outlawed life without parole sentencing for juveniles convicted of non-homicide crimes. The decision was based in part on neurological research that demonstrated that adolescents are more impulsive and more susceptible to negative influences than adults; mentally and emotionally, their brains are immature. On June 25, 2012, the Court took another step and abolished all mandatory sentences of life without parole for juveniles convicted of homicide.

 

Also in June, the citizens of Allentown collectively held their breath as Harvey Robinson went before a judge to request new sentencing, based on undetected brain damage implicated in his crimes. If the judge were to decide in his favor, they knew, he could chip at the eroding wall that stands between him and possible freedom one day.

In less than a year in 1993, Robinson attacked five females, killing three. He was just 17 years old when he committed his first murder.

He spotted this victim through her window as she undressed for bed. He broke in and killed her. Then after a brief stint in a juvenile facility for a burglary, he grabbed a fifteen-year-old girl off her bike, raped her, and stabbed her twenty-two times.

Six weeks later, Robinson entered another home, but saw his targeted victim with her boyfriend, so he attacked her five-year-old daughter, raping and strangling her. She was found unconscious but miraculously alive.

Soon thereafter, Robinson chased down a woman as she tried to flee from him. He caught up and was raping and choking her when a neighbor switched on an outside light, scaring him away. Aware that he’d left a living witness, he soon entered her home again, but she was not there.

The police believed he would return, so they implemented a risky plan to trap this killer, knowing he would continue until he was stopped. Bravely, the victim agreed to act as bait. In the meantime, Robinson had raped and strangled another woman.

Yet he’d not forgotten the one who got away. He broke in once more, but an officer was waiting for him. After a desperate gunfight, Robinson was caught.

During Robinson’s trial, a forensic psychiatrist testified that he suffered from a dependency on drugs and alcohol and had experienced visual and auditory hallucinations, which had made it difficult for him to adjust to social norms. He’d been under severe stress. Because he had a violent role model in a criminal father, he’d understandably relieved his stress with violence. The psychiatrist believed that, with help, Robinson could overcome his violent impulses.

However, Robinson did not just make an immature mistake; he was a cold-blooded rapist and killer, returning again and again to ensure that his targeted victims were dead. He even tried killing a child.

To the relief of many in the community, on November 8, 1994, Robinson was convicted on three counts of murder and sentenced to death three times.

A new attorney challenged his convictions on the grounds that there were fundamental flaws in the trial procedures. Robinson got his day in court, but he wasted it complaining about his former lawyers.

Still, in 2001 a judge vacated two of Robinson’s death sentences and ordered new hearings. Four years later, the Supreme Court abolished the death penalty for juveniles age 17 and under. This ruling commuted Robinson’s remaining death sentence to life. He knew he had a chance to get off death row.

To prepare for the new sentencing hearings, Robinson’s attorneys had neurological testing performed. The results, they claimed, showed that Robinson had suffered from frontal lobe damage at the time of the murders, which had adversely affected his ability to control his behavior.

However, as the survivors and victim’s families hoped, the judge who listened to Robinson’s new argument decided against him. He had failed to prove that these tests had shown brain damage dating back so many years. This decision restored one death penalty, which will make it more difficult for Robinson to use this reasoning during the next round (next March).

He probably won’t give up. He has many years yet in which to make arguments and await advances in neuroscience. However, for now, the threat of any argument for leniency or eventual parole has been defused. Robinson remains the youngest serial killer on death row.

Kentucky. high court to hear death penalty appeal – Michael Dale St. Clair

february 13, 2014

The Kentucky Supreme Court is set to hear arguments in the case of a death row inmate who has twice won a new trial.

The justices on Thursday will take up the case of 57-year-old Michael Dale St. Clair, who was convicted in the 1991 slaying of distillery worker Frank Brady in Bullitt County.

St. Clair has won three trials in the case, which has lingered for years in appeals.

St. Clair and another inmate escaped from an Oklahoma prison before going on a multistate spree that ended in Kentucky with Brady’s death. St. Clair also faces a murder charge in New Mexico for the 1991 kidnapping and slaying of paramedic Timothy Keeling.

St. Clair also received a second death sentence for capital kidnapping from the Hardin County Circuit Court.

FLORIDA – Jimmy Ryce’s Killer Appeals SCOTUS To Stay His Execution – Juan Carlos Chavez

February 7, 2014 (cbs)

The South Dade man convicted of killing Jimmy Ryce in 1995 has filed an appeal with the United States Supreme Court to stay his execution, which is currently scheduled for next Wednesday.

Juan Carlos Chavez has been on death row since his conviction in 1998.

The Ryce family declined to comment on the appeal Friday, but Don and Ted Ryce sat down for interviews with CBS4 News earlier in the week ahead of the pending execution.

“I just want it to be over. I want to get it behind us,” Don Ryce said.

Now there is a chance the day Done Ryce has waited almost 19 years for will be delayed.

“There is a reasonable possibility that the Supreme Court would consider a stay in this instance,” Miami-based appeals attorney Richard Klugh said Friday night.

Klugh is not connected to the case, but is familiar with the history and the letter of the law.

“It could take days, it could take a matter of weeks. But most likely the Supreme Court will try to move expeditiously,” he said.

Chavez was convicted in 1998 of the kidnap, rape and murder of 9-year-old Jimmy Ryce.

The farm hand told police he dismembered the boy’s body, put the parts in planters, and then filled them with concrete.

Jimmy’s family held out hope he’d be found alive. Posters with his pictured were plastered all over South Florida.

After Chavez’s arrest, confession and conviction, they waited patiently for justice to be served.

Jimmy’s mother and sister would not live to see the day.

“This person, Juan Carlos Chavez, who’s been on death row for so long, he’s outlived my mother, Claudine. He’s outlived my sister,” Jimmy’s brother Ted said. “Now… Now, it’s time.”

Chavez’s attorneys argue the lethal cocktail administered to death row inmates violates the U.S. Constitution, saying it amounts to “cruel and unusual punishment.”

It’s a punishment Don Ryce thinks is well-deserved, even though it won’t bring his little boy back.

“I hate the word closure because what it implies is that there’s an end and everything is okay,” Ryce said. “And that’ll never happen.”

If the execution moves ahead as planned on Wednesday, Don and Ted Ryce said they plan to be in the viewing gallery at the state prison in Starke.

Florida Supreme Court Orders Review of Lethal Injection Cocktail Ahead of Feb. 26 Execution

february 7,2014

The Florida Supreme Court on Thursday ordered a review of the new drug used in the state’s lethal injection cocktail in the case of Paul Augustus Howell, a Death Row inmate scheduled for execution Feb. 26.

 

Justices ordered a circuit court to hold an evidentiary hearing on whether substitution of the drug midazolam violates the constitutional protections against cruel and unusual punishment by the government.

 

Howell’s lawyers argued in briefs filed Tuesday that midazolam, the first of the three drug-cocktail that induces unconsciousness, paralysis and cardiac arrest, is problematic because it will not anesthetize him and would leave him “unable to communicate his agony” when the other drugs are administered.

 

The justices rejected an appeal about the new drug in a previous case, but in a four-page order issued Thursday said that an expert’s report submitted by Howell “has raised a factual dispute, not conclusively refuted, as to whether the use of midazolam, in conjunction with his medical history and mental conditions, will subject him to a ‘substantial risk of serious harm.’ ”

 

The court also ordered the Department of Corrections to produce correspondence and documents from the manufacturer of midazolam concerning the drug’s use in executions, “including those addressing any safety and efficacy issues.”

 

The high court ordered the 2nd Judicial Circuit in Jefferson County, where Howell was originally tried and convicted of the murder of a highway patrol trooper in 1992, to hold a hearing and enter an order on the issue by 2 p.m. Wednesday.

 

In September, the Florida Department of Corrections substituted midazolam for the barbiturate pentobarbital as the first of the three-drug lethal injection “protocol.” Florida and other states switched to the new drug because the manufacturer of pentobarbital stopped selling it for use in executions.

 

The second drug, vecuronium bromide, renders muscle, including the diaphragm, unable to contract, making it impossible to breathe.

If not completely anesthetized when that drug is administered, the condemned would “experience the physical and psychological agony of suffocation,” Howell’s lawyers argued in briefs filed Tuesday.

The new drug protocol has been used four times since its adoption in September, but Howell’s lawyers argued that three of those executed were not fully anesthetized before the other drugs were administered.

The Supreme Court on Thursday also ordered the court to consider testimony from University of Miami anesthesiologist David Lubarsky regarding problems with the state’s protocol for making sure that inmates are unconscious. According to Lubarsky, the state is not waiting long enough between injections for the anesthetic to take effect. Lubarsky also testified the drug poses a significant risk for “paradoxical reactions” for Howell because he has mental health disorders and possible brain injuries.

Howell was scheduled to be executed last year but a federal appeals court issued a stay the day before he was slated to die. The stay was lifted in November, and Gov. Rick Scott rescheduled his execution for Feb. 26.

MISSOURI – Death row inmate appeals over police beating – Reginald Clemons

February 5, 2014

JEFFERSON CITY — An attorney for a Missouri man who has been on death row for two decades asked the state Supreme Court on Tuesday to overturn his conviction, asserting that prosecutors suppressed evidence indicating he may have been beaten into confessing.

Reginald Clemons is one of four people who were convicted or pleaded guilty to the 1991 deaths of sisters Julie and Robin Kerry, who prosecutors say were shoved off a St. Louis bridge into the Mississippi River after being raped.

Clemons was scheduled to die by lethal injection in June 2009. But a federal appeals court blocked the execution, and the state Supreme Court then appointed a special judge to investigate Clemons’ claims that he was wrongly convicted.

After a lengthy legal process, Judge Michael Manners issued a report last year concluding that prosecutors suppressed evidence that police may have beaten Clemons while questioning him.

Manners noted that former bail investigator Warren Weeks came forward in 2012 to say he had observed a bump the size of a golf ball or baseball on Clemons’ cheek a few hours after his police interview. Weeks had recorded that on a form at the time, but Manners said it was crossed out by someone on behalf of the state’s prosecution.

Manners wrote in his report that, had Weeks’ testimony been provided to Clemons’ attorneys, it “may have resulted” in a trial court ruling that Clemons’ confession could not be used at his trial.

The arguments before the Supreme Court on Tuesday focused on whether that would have created “a reasonable probability” that Clemons would not have been convicted.

Clemons’ attorney, Joshua Levine of New York, argued that a new trial was necessary because the confession was a critical piece of evidence.

“It’s a somewhat offensive proposition, the notion that a physically coerced confession that is the centerpiece of the state’s case could somehow not be something that results in a new trial for a defendant,” Levine told the Supreme Court. “Give Mr. Clemons what he’s been looking for all these years, which is just a fair trial.”

Clemons, who now is 43, was 19 at the time of the crimes. His parents and a busload of supporters traveled from the St. Louis area to watch Tuesday’s Supreme Court arguments.

“The whole trial was based on a lie, and based on a false confession,” said Maxine Johnson, who described herself as a “prayer warrior” for Clemons.

TEXAS – SUZANNE BASSO TO BE EXECUTED TODAY at 6 p.m EXECUTED 6.26 pm

Basso went quietly enough. When asked for a final statement, she said “No, sir,” with a tearful look in her eyes. She reportedly looked to a couple of friends positioned behind a window and “mouthed a brief word to them and nodded.” As the drug began to take hold, she began to snore deeply; the snoring slowed and eventually halted and, eleven minutes after the injection, she was declared dead.

*Last Meal: Last meal requests no longer allowed.

Execution Watch with Ray Hill
can be heard on KPFT 90.1 FM,
in Galveston at 89.5 and Livingston at 90.3,
as well as on the net here
from 6:00 PM CT to 7:00 PM CT
on any day Texas executes a prisoner.

filed  february 4 : 5th circuit appeal  pdf

February 5, 2014

HUNTSVILLE, Texas (AP) — A woman convicted of torturing and killing a mentally impaired man she lured to Texas with the promise of marriage was scheduled to be executed Wednesday in a rare case of a female death-row inmate.

If 59-year-old Suzanne Basso is lethally injected as scheduled, the New York native would be only the 14th woman executed in the U.S. since the Supreme Court allowed capital punishment to resume in 1976. By comparison, almost 1,400 men have been put to death.

Texas, the nation’s busiest death-penalty state, has executed four women and 505 men.

Basso was sentenced to death for the 1998 slaying of 59-year-old Louis “Buddy” Musso, whose battered and lacerated body, washed with bleach and scoured with a wire brush, was found in a ditch outside Houston. Prosecutors said Basso had made herself the beneficiary of Musso’s insurance policies and took over his Social Security benefits after luring him from New Jersey.

The 5th U.S. Circuit Court of Appeals refused to halt the execution in a ruling Tuesday, meaning the U.S. Supreme Court is likely her last hope. A state judge ruled last month that Basso had a history of fabricating stories about herself, seeking attention and manipulating psychological tests.

Leading up to her trial, Basso’s court appearances were marked by claims of blindness and paralysis, and speech mimicking a little girl.

FLORIDA – Convicted killer Emilia Carr’s lawyer argues appeal before Florida Supreme Court

february 3, 2014 (Ocala)

Counsel for a Marion County woman sentenced to death row argued for a sentence reversal before the Florida Supreme Court Monday morning, stating his client is less culpable in the crime than her co-defendant — who is serving life imprisonment for the same offense.

Standing before the panel in Tallahassee, Emilia Carr’s attorney, Christopher S. Quarles, argued the Supreme Court should rule on the issue instead of choosing another remedy: sending the case back to the trial court to deal with the sentence question, either in a separate hearing or through a post-conviction relief proceeding.

“I think the evidence is very clear Joshua Fulgham is more culpable,” argued Quarles, referring to Carr’s co-defendant. “He had the motive, he hatched the plan, he brought the victim to the scene of the crime, and it’s very unfair…he is serving a life sentence when she is sentenced to death.”

According to trial testimony, Fulgham, who was Carr’s lover, lured his estranged wife, Heather Strong, 26, to a trailer in Boardman, which is in north Marion County near McIntosh. There, the pair duct taped her to a chair, suffocated her and then buried the body.

The co-defendants were tried in separate trials, and the state sought the death penalty for both. They both were found guilty of first-degree murder and kidnapping.

In the first trial, a jury recommended death for Carr in a 7-5 vote in December 2010. The judge in that case followed the recommendation and put her on death row.

The jury in the second trial returned a recommendation of life imprisonment for Fulgham in April 2012. Again, the judge followed the recommendation.

“They had different judges, they had different juries, they had different legal teams,” said Quarles.

He argued that during each trial the state painted that defendant as the mastermind, even though evidence shows Fulgham had been manipulating both Strong and Carr in the time period leading up to the crime.

Justice Charles Canady pointed out that Carr, 29, has an IQ of 125, while Fulgham, 32, is intellectually challenged.

“In the actual commission of the crime Ms. Carr was heavily involved in what was going on,” countered Assistant Attorney General Sara Macks.

She pointed to several factors motivating Carr including the fact that Carr wanted to raise a family with Fulgham.

Carr gave birth to Fulgham’s child during her time inside the Marion County jail pending trial. Macks also pointed to threats Carr had made of hiring someone to kill Strong.

Justice Jorge Labarga wondered why the two trial court judges didn’t wait and sentence the co-defendants around the same time after receiving the respective jury recommendations.

As part of her explanation, Macks said Fulgham’s trial had been delayed more than one year when counsel from Miami had become involved.

She urged the high court to resolve the direct appeal before redirecting the case back to the trial court. Macks said if the issue is addressed at the trial court level during post-conviction relief, Carr’s defense would also be able to bring up any issues connected with mitigation.

“This is not a death case,” Quarles argued in rebuttal before the panel adjourned.

A ruling is expected at a later date.

Carr is currently housed at Lowell Correctional Institution with the other five women on Florida’s death row. Fulgham is currently housed at Florida State Prison in Raiford, according to state prison records.

In August, Fulgham sent a hand-written letter to the Marion County Jail through his mother intended for convicted murderer Michael Bargo. Inmates are not granted the same privacy as the general public and therefore their mail is public record except for medical records and legal correspondence.

In the letter, Fulgham offered Bargo advice about prison. “A lot of people will tell you a life sentence is the same as death row,” he wrote, adding that such advice is wrong.

“If you do end up in prison at all, it isn’t that bad,” Fulgham wrote, describing his access to an MP3 player, television and Playboy magazine.