UPDATE: (1/27). Ladd was denied a stay by the TX Ct. of Crim. Appeals. Robert Ladd is scheduled to be executed in Texas on January 29, despite having an IQ of 67, an indication of intellectial disability rendering him ineligible for execution. Howver, Texas courts rejected Ladd's previous appeal because the state has a unique way of evaluating intellectual disability. Courts in Texas often consider what is called the "Briseño factors," a set of criteria created by a judge that differs from the usual psychological determination of intellectual disabilty. In particular, Texas may allow an execution if the defendant exhibited forethought or advance planning in commiting the crime. Generally, intellecutal disability is determined independent of the facts surrounding the crime. Texas is the only state that considers such factors, despite the lack of scientific basis, in determining whether a defendant should be spared. Ladd's attorneys are challenging the use of these factors, saying they violate the Supreme Court's recent decision in Hall v. Florida, which held that Florida's unusual standards for establishing intellectual disability were outside the country's standards of decency.
According to a recent article in the New Yorker, it has been diffcult selecting a jury for the trial of Dzhokhar Tsarnaev, who is accused of the Boston Marathon bombing. Many of the 1,350 people who filled out a juror questionnaire have been eliminated from service based on their written answers. But even of those who remain, only a few have been found sufficiently impartial regarding Tsarnaev's guilt or innocence and on potential sentences, putting the selection process behind schedule. Eventually, 18 people - 12 jurors and 6 alternates - will be seated for the trial. Most of those questioned so far have said they believe Tsarnaev is guilty. The judge and lawyers must determine whether those people can set aside their opinions to fully consider the evidence presented at trial. One potential juror who was asked whether she could put aside her belief that the defendant is guilty, said, “I think it’s hard. Because if you have a belief in your head … it’s hard to set that aside. I can try to, but I can’t say that it wouldn’t influence my thinking. I don’t know that the brain works that way.” Because the death penalty is possible if Tsarnaev is found guilty, the jurors must also be willing to consider both capital punishment and life in prison. It is also difficult to arrive at an impartial jury because so many potential jurors have connections to the Boston Marathon or to people who were affected by the bombing.
On January 20 the U.S. Supreme Court (7-2) granted Missouri death row inmate Mark Christeson new attorneys to assist him in pursuing his federal appeal. Christeson's appointed attorneys missed a crucial filing deadline for his federal appeal, not even meeting with him until a month after the deadline. New attorneys offered to represent Christeson, arguing that his current attorneys had a conflict of interest, since advocating for him would mean admitting their own error. The District Court and Court of Appeals both denied the request for substitution of counsel, and Christeson's execution date was set for Oct. 29, 2014. The Supreme Court granted a stay, and, in deciding the case, wrote, "[Christeson's original attorneys'] contentions here were directly and concededly contrary to their client's interest, and manifestly served their own professional and reputational interests." Fifteen former judges filed a brief in support of Christeson, saying, "[O]ur system would be broken indeed if it did not even provide him with an opportunity, assisted by conflict-free counsel, to present his case to a federal court."
EDITORIALS: St. Louis Post-Dispatch Voices Death Penalty Opposition Even in Murder of Fellow Journalist
A recent editorial in the St. Louis Post-Dispatch reiterated its opposition to the death penalty, even as Missouri prepares to execute the man convicted of killing a former Post-Dispatch reporter. Marcellus Williams is scheduled to be executed on January 28 for the murder of Lisha Gayle (pictured), who left her job as a journalist three years before she was killed. The paper noted Gayle's likely opposition to the death penalty: "It would be surprising, in light of her other causes and passions, if Lisha herself was a death penalty supporter." It then catalogued its own reasons for opposing capital punishment: "It is expensive — each case costs about $1 million more to prosecute than a capital case where the death penalty is not sought, according to one study. It serves no deterrent purpose. It can’t help but be imposed arbitrarily and capriciously. Occasionally innocent people are put to death. Occasionally, executions are botched and inmates suffer cruel and unusual pain."
Georgia has set an execution date of January 27 for Warren Hill, an inmate diagnosed with intellectual disabilities (formerly referred to as "mental retardation"). If Hill was convicted in any other state in the country, he almost certainly would be ineligible for the death penalty. The U.S. Supreme Court banned the execution of people with intellectual disabilities in Atkins v. Virginia (2002), but allowed states to set procedures for determining this disability. Georgia set the strictest standard, requiring proof "beyond a reasonable doubt." A Georgia judge found Hill intellectually disabled under a "preponderance of the evidence" standard, which is the test used in most states. Hill's attorneys have asked for a stay of execution, saying that Georgia's unusual standard violates the Supreme Court's 2014 ruling in Hall v. Florida, which struck down Florida's unusual IQ cutoff for determining intellectual disability. Brian Kammer, an attorney for Hill, said, "Twice the lower court found Warren Hill to have intellectual disability by the preponderance of the evidence, a widely-used and appropriate standard. All of the states’ experts have agreed, and in fact no expert who has ever examined Mr. Hill disputes that he has intellectual disability." UPDATE: The Georgia Supreme Court rejected Hill's most recent appeal on Jan. 20. UPDATE: (1/28/15) Warren Hill was executed on January 27, 2015.
On January 14, the U.S. Supreme Court (6-3) handed down a ruling in Jennings v. Stephens, a capital case from Texas dealing with ineffective assistance of counsel. The Court held that when a defendant wins relief in a lower federal court and the state appeals, the defendant may offer theories rejected by the lower court as part of his defense of the relief granted. He does not have to file a new appeal on that rejected theory. In his initial federal appeal (habeas corpus), Robert Jennings had presented three instances of ineffective assistance of counsel. The District Court granted him relief based on two of them, but rejected the third. The state appealed the decision to the U.S. Court of Appeals for the Fifth Circuit, and Jennings presented all three instances in his defense. The Fifth Circuit said it did not have jurisdiction to consider the third claim because Jennings' lawyers had not obtained a "certificate of appealability." Justice Scalia wrote the majority opinion. Jennings' case will be returned to the Fifth Circuit to consider his third claim of ineffectiveness.
As Oklahoma prepared to carry out its first execution on January 15 since the botched execution of Clayton Lockett in April 2014, anesthesiologist Dr. Mark Heath of Columbia University Medical School expressed serious concerns about the drugs it will use, particularly one that paralyzes the inmate: "Oklahoma and other states ... should abandon the barbaric use of paralyzing drugs entirely." He explained that when the prisoner is given paralytic drugs, he "will die of suffocation whether they are unconscious or they are wide awake." Dr. Heath also criticized the use of midazolam, which Oklahoma plans to use again, despite the problems in multiple states with that drug in 2014. He said it is particularly ill-suited as the first lethal injection drug because it is a weaker anesthetic than barbiturates, such as pentobarbital. In an op-ed, he concluded, "Oklahoma and other states should not be executing prisoners with midazolam; they should not proceed in the absence of qualified medical practitioners; they should only use FDA-approved drugs, and they should abandon the barbaric, outmoded and unnecessary use of chemical paralysis – ....The public and the courts could then return their attention to the more important questions and debate surrounding the death penalty enterprise."
Speaking from the bench at a hearing in a Kentucky capital case, Fayette Circuit Judge Pamela Goodwine said, "Something needs to be done legislatively in Kentucky and in every state in the U.S. I think the death penalty probably should not be a penalty, ever." Despite her personal views, Goodwine ruled that the death penalty could be sought against a man accused of participating in a murder, even though he did not shoot the victim. "As the law in Kentucky stands right now ... he's death-eligible as a conspirator in this case," Goodwine said. "That's the law as it stands right now. I, as a trial judge, have to follow that law whether I agree with it or not. If I had my druthers, there would be no death penalty in Kentucky." She added that she was frustrated with the time and expense of capital cases and the emotional toll they take on everyone involved.