From this week’s intro:
Leading off this edition is John Wayne Conner v. Hall from the Eleventh Circuit. As Tim Cone notes, here “[t]he district court had rejected Conner’s challenge to his execution on the grounds of mental retardation because it found that Conner had procedurally defaulted this claim in the Georgia state courts. The Court noted that the procedural default bar only applies to State procedural rules that were consistently applied. The Court found that Georgia did not consistently apply a procedural bar to persons who claimed they were mentally retarded and should not be executed. The Court therefore remanded the case to the district court.”
In two separate cases, Roy Phillip Ballard v. State and Kevin Jerome Scott v. State, the Florida Supreme Court found imposition of the death penalty to be disproportionate. In Ballard the one aggravator was held to be outweighed by nonstatutory mitigation and three statutory mititgators: “(1) the defendant was under the influence of extreme mental or emotional disturbance at the time the capital felony was committed, (2) the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired, and (3) the age of the defendant.” Scott “was not a case with substantial mitigation” but “the aggravation is dissimilar to other robbery-murder cases where the imposition of the death penalty was upheld, this case is unlike those where the most aggravating circumstances exist.”
Other decisions of note include, the Ninth Circuit in Richard D. Hurles v. Ryan granted relief on a judicial bias claim on the “highly unusual facts of this case — in which the trial judge became involved as a party in an interlocutory appeal, was denied standing to appear as an adversary, and then proceeded to preside over a murder trial and single-handedly determine Hurles’s death sentence.” In Roth v. Dep’t of Justice the D.C. Circuit granted access to certain FBI reports that could show “whether the federal government is withholding information that could corroborate a death-row inmate’s claim of innocence.” In State v. Gary Haugen the Oregon Supreme Court has ordered a competency evaluation prior to execution. Finally, in David Eugene Matthews v. Parker the Sixth Circuit has granted relief on issues relating to extreme emotional distress and prosecutorial “comments during closing arguments regarding (Matthews’) supposed exaggeration of EED, and collusion with his attorney and doctor.”
DPIC notes”[b]etween January and June 2011, there have been 25 executions in nine states. Of the 25 executions, only eight were carried out using the drug sodium thiopental, while the rest involved a new drug, pentobarbital. Earlier in 2011, Hospira Inc., the sole U.S. manufacturer of sodium thiopental, announced that it will no longer manufacture the drug, forcing states to search for alternative sources or alternative drugs for their lethal injection protocols. Many states, inlcuding Alabama, Arizona, Mississippi, Ohio, Oklahoma, Texas, and South Carolina, have used pentobarbital instead of sodium thiopental in their executions in 2011. Ohio is the only one of those seven states to use pentobarbital as the sole drug in its lethal-injection process. Additionally, at least five states (Alabama, Georgia, Kentucky, Tennessee, and South Carolina) that acquired sodium thiopental through an overseas source have had the drug seized by the U.S. Drug Enforcement Administration. In the first half of 2011, there have been 18 death cases in which a clemency was granted, commuting the defendant’s sentence to life without parole. Fifteen of such pardons were in Illinois, where Governor Pat Quinn signed a bill that repealed the state’s death penalty statute.” DPIC has also released Struck by Lightning: The Continuing Arbitrariness of the Death Penalty Thirty-Five Years After Its Reinstatement in 1976.
A federal judge on Friday delayed the execution of Kenneth Smith who was scheduled to be executed mid-month in Ohio. Lundbeck has put substantial new controls on pentobarbital to prevent its use in executions. The latest edition of the NAACP Legal Defense Fund’s “Death Row USA” is out, and again shows the slow withering of the death penalty in the United States. John Edward Green, whose challenge to the last year to Texas’ death penalty, resulted in international attention, has been permitted to plead guilty to a term of years. Finally, and in contravention of American treaty obligations, Texas executed Humberto Leal.
Paul Raskind, in his usual brilliance, has a wrap of the current Supreme Court term.
Finally, this is the last edition, at least for now, of the newsletter. CDW’s been going since 1997 and it is time to move on. My practice has simply moved away from capital litigation and with each edition it has become harder and harder to justify taking times away from my current clients, my kid, and other interests I have. The website will stay up for a few more months, with an occasional post or two until it is eventually migrated elsewhere. Be sure, as we go dark, to check out the work of Steve Hall, DPIC, Jeff Gamso, Tim Cone at Defense Newsletter, Jon Sands (and crew) at the Ninth Circuit blog, CapDefNet, and Doug Berman. Thanks to all those who have contributed behind the scenes, introduced themselves over the years ,and especially those who, while I was in private practice, sent a referral or two my way in light of the newsletter. Its been fun, and, as always, thanks for reading. – karl