Ohio Death Penalty Information

Time for ODPI to check out:  Due to a growing inability to maintain this blog in a consistent manner, ODPI is hereby discontinued.  While it's extremely difficult to depart with many promising new developments happening here, a pretty strong intuition says this is exactly the right time for me personally to step aside from the Ohio abolition milieu.  (Apologies for my neglect in not getting a statement posted sooner.  It's been a struggle coming to terms with having to let go after much work trying to do this blog, and with so much more I wanted to do being left undone, and because of concern for anyone who might feel let down.)

Regards to all Ohio abolitionists (and "adieu!").  May you keep up the good fight (and not the bad!), whether long or (hopefully) short term.

-- Scott Taylor

(Existing posts will remain visible for the indefinite future, but possibly not after Nov. 1, 2007, depending on residual site traffic.)

May those with eyes (especially Buckeyes) finally see.

8^ )

More on US Supeme Court ruling to consider constitutionality of lethal injection:  Robert Barnes has coverage for the Washington Post here.  David Stout has this article in the New York Times.  Jim Malone has this coverage for Voice of America.

VOA excerpt:
...Whichever way the Supreme Court rules could have a far-reaching impact on the use of lethal injection to carry out capital punishment sentences in the United States.

Richard Dieter is executive director of the Death Penalty Information Center, which opposes capital punishment.

"There is going to be a need to hold up executions until there is further clarity," he said. "You would have to err on the side of caution if you are about to execute somebody with lethal injection. This might be a very broad ruling." ...

NYT excerpts;
...The step could have the effect of postponing executions across the country scheduled to be performed by lethal injection, the method is used by nearly all states with a death penalty, as well as by the federal government.

...“This is huge news, which could (and probably should) lead to a de facto moratorium on all lethal-injection executions nationwide until the Supreme Court issues a ruling,” Douglas A. Berman, a professor at the Moritz College of Law at Ohio State University and an authority on sentencing, wrote today on his blog.

US Supreme Court Agrees to Address Constitutionality of Kentucky Lethal Injection Protocol

The U.S. Supreme Court today agreed to hear the Kentucky case of Baze v. Rees, which challenges the constitutionality of Kentucky's standard 3-drug lethal injection protocol.  This has potentially huge ramifications.  Although the Supreme Court ruled last term that death row inmates have the right to challenge the constitutionality of methods of execution, this will be the first occasion for the court to actually consider whether lethal injection as practiced by most states violates the 8th Amendment ban on "cruel and unusual punishment."  Today's grant of certiorari in the Baze case could thus conceivably put a halt to lethal injections across the U.S. pending a ruling in the case sometime next year; and whatever that ruling is will likely determine the outcome of the Ohio challenge to lethal injection in the Cooey v. Taft (now Strickland) case.  However, it's also possible - maybe likely - that different states will respond with varying degrees of deference to the ongoing proceedings in Baze, with some trying to proceed with executions based on lack of timeliness or other procedural inadequacies of inmates' appeals.  Scotusblog notes the cert. grant in Baze here, with links to case documents.  SL&P has this post, entitled "SCOTUS to review lethal injection protocols with Kentucky case," providing some perspective on the significance of the court's ruling granting cert.  Reuters has this concise report, entitled "Supreme Court to rule on lethal injection executions."  Pete Yost has this AP coverage, entitled "Court to Consider Lethal Injection."  Bloomberg News has this coverage.  Some alternate AP coverage here.

SL&P excerpt:
This is huge news which could (and probably should) lead to a de facto moratorium on all lethal injection executions nationwide until the Supreme Court issues a ruling (which might not come until June 2008). ...

Reuters excerpt:
The U.S. Supreme Court said on Tuesday it would decide whether the commonly used lethal injection method of execution violated the constitutional ban on cruel and unusual punishment.

The nation's highest court said it would decide in its upcoming term an appeal by two death row inmates from Kentucky arguing that the three-chemical cocktail used in lethal injections inflicted unnecessary pain and suffering. ...

AP excerpt:
The Supreme Court on Tuesday agreed to consider the constitutionality of lethal injections in a case that could affect the way inmates are executed around the country.

The high court will hear a challenge from two inmates on death row in Kentucky -- Ralph Baze and Thomas Clyde Bowling Jr. -- who sued Kentucky in 2004, claiming lethal injection amounts to cruel and unusual punishment.

Baze has been scheduled for execution Tuesday night, but the Kentucky Supreme Court halted the proceedings earlier this month.

The court has previously made it easier for death row inmates to contest the lethal injections used across the country for executions.

But until Tuesday, the justices had never agreed to consider the fundamental question of whether the mix of drugs used in Kentucky and elsewhere violates the Eighth Amendment's ban on cruel and unusual punishment. ...

Alternate AP excerpt:
The Supreme Court has agreed to rule on whether lethal injection amounts to cruel and unusual punishment.

The high court will hear the case of 2 death row inmates from Kentucky in determining the constitutionality of that form of capital punishment.

1 of the men, convicted killer Ralph Baze, was scheduled to be executed tonight, but the Kentucky Supreme court halted it earlier this month.

The defense attorney for the inmates says this will be 1 of the "most important" death penalty cases in decades. ...

Update:  Expanded AP coverage here.  More Scotusblog legal analysis here.

• Meanwhile, despite today's ruling, Texas appears ready to proceed with its 26th execution of the year tonight.  Michael Graczyk has this AP article on the impending execution of Michael Richard.

Excerpt:
...Lawyers for Richard went to the U.S. Supreme Court asking the lethal injection be halted. The execution will go on as planned despite a Supreme Court decision Tuesday to consider the constitutionality of lethal injection, Gov. Rick Perry's office said. ...

 

More on ABA Ohio Death Penalty Assessment Report:  Reginald Fields has this article in the Cleveland Plain Dealer, entitled "ABA faults Ohio's death penalty system, urges moratorium; ABA asks Gov. Strickland to suspend executions pending review."  Alan Johnson has this story in the Columbus Dispatch, entitled "State's system called unjust; Bar association seeks moratorium in Ohio."  Mark Kovac has this article in the Wooster Daily Record, entitled "Attorneys call for temporary halt to executions."  Jim Provance has this article in the Toledo Blade, entitled "Ohio asked to suspend executions; Bar association panel seeks halt until system's fairness ensured."  Jon Craig and Sharon Coolidge have this article in the Cincinnati Enquirer, entitled "Study: Suspend executions; Report singles out Deters for criticism."  Laura Bischoff has this article in the Dayton Daily News, entitled "Strickland asked to halt executions — for now."

Plain Dealer excerpt:
A number of Ohio death row inmates - some of whom have already been executed - were victims of a flawed and uneven capital punishment system that should be suspended, a national legal group said Monday.

The influential American Bar Association, with over 413,000 members, called on Gov. Ted Strickland to implement a death penalty moratorium.

...Strickland was not immediately swayed by the Ohio report.

The governor continues to support Ohio's death penalty system and believes it is administered fairly, Strickland spokesman Keith Dailey said. But the governor will take the moratorium request under consideration.

State Attorney General Marc Dann, who has suggested that Ohio study whether there are biases in its capital punishment system, and Ohio Supreme Court Chief Justice Thomas Moyer both said they will review the report. ...

Toledo Blade excerpt:
...No promises were forthcoming from Mr. Strickland, a Democratic governor and former prison psychologist who has allowed two executions to proceed during the first months of his administration.

"The governor supports the death penalty," said spokesman Keith Dailey. "He believes certain members of society commit acts so heinous that the death penalty or capital punishment is warranted. Given that the governor is knowledgeable of the system, he thinks it's fair, but he will carefully review this report." ...

Dispatch excerpt:
...Strickland spokesman Keith Dailey said the governor has no plans for a moratorium.

"The governor wouldn't support the death penalty in Ohio if he didn't think it was administered fairly," Dailey said.

Leo Jennings III, spokesman for Attorney General Marc Dann, was noncommittal. "We will read the report carefully and consider their recommendations."

Online polls/comment solicitations:

• The Columbus Dispatch is conducting an online poll, asking the question, "Should Ohio eliminate the death penalty?"  You can vote here.  (As of this posting, poll results showed 53-47% in favor of elimination.)
• The Cincinnati Enquirer is conducting an online survey/comment solicitation asking the question, "Should Ohio Suspend Executions?"  You can submit a comment here.
• The Dayton Daily News website is soliciting comments on the ABA report here. 

More media coverage of ABA Ohio Death Penalty Assessment Report released today:  Jeff Coryell has this post on the Cleveland Plain Dealer's Wide Open blog, entitled "ABA Death Penalty Assessment Team Calls for Suspension of Executions in Ohio."   Tribune News Service legal reporter James Oliphant has this article carried in several news outlets, entitled "ABA calls on Ohio to halt executions."  Andrew Welsh-Huggins has this early AP coverage of today's report, entitled "Bar association calls for Ohio to suspend death penalty system."  Jim Provance has this coverage on the Toledo Blade website, entitled "American Bar Association calls for Ohio to cease executions until it fixes problems."

Coryell excerpt:
...The chair of the Ohio Death Penalty Assessment Team is Phyllis Crocker, an associate dean and professor at Cleveland-Marshall College of Law. She is also my wife. I have observed the process as she painstakingly assembled the researchers, overcame numerous obstacles to obtaining the necessary information, reviewed drafts of chapters of the report as prepared by members of the team, and finally assembled the information into an amazingly comprensive and detailed analysis of capital punishment in Ohio. It contains data that has never been publicized before. And the overwhelming conclusion one draws from the report is that the death penalty is not being applied fairly or accurately (or in conformity with the constitutional requirement of due process) in this state. ...

 

Updates: 

• The ABA Office of Media Relations and Communications has issued this press release, entitled "Statewide Expert Legal Panel Calls for Temporary Halt to Executions in Ohio; Study uncovers systemic problems with death penalty cases."
• The Toledo Blade has this updated coverage featuring a response by Ohio Prosecuting Attorneys Assn. spokesman John Murphy, who calls the report a "a hatchet job on our death penalty statutes, totally unjustified...”
• Paul Kostyu has this article for GateHouse Media, entitled "Panel:  Moratorium sought on Ohio death penalty cases."
• WLWT-TV in Cincinnati has this report, entitled "Hamilton Co. More Likely to Give Death Sentence."
• The ACLU of Ohio issued this press statement, entitled "Ohio Must Halt Executions: Findings in American Bar Association Study Show Death Penalty Unfair, Arbitrary."
• Andrew Welsh-Huggins has this expanded AP coverage, entitled "Bar association calls for Ohio to suspend death penalty system," with various responses to the report - and noting that Governor Strickland is already reviewing it, according to Strickland press secretary Keith Dailey.
• The ABA issued an audio press release on the report (featuring an actuality of former ABA president MIchael Greco) here (0:57).

ABA Report Finds Numerous Serious Flaws In Ohio's Capital Punishment System / Calls for Governor to Declare Moratorium Pending Death Penalty Study

As part of the American Bar Association's series of comprehensive studies of several states' death penalty systems, the ABA's Ohio Death Penalty Assessment Report was released today, finding numerous serious flaws in the implementation of Ohio's system of capital punishment - and calling on Governor Strickland to halt executions pending the outcome of a study to determine if the system can be corrected.  A breakdown of the report - by far the most comprehensive and scientific look at how Ohio's death penalty is working - is on the ABA website here, and as follows... 

Major sections of the report:

• Executive Summary of the Ohio Death Penalty Report (42-page pdf)
• Full Ohio Death Penalty Assessment Report (495-page pdf)
• Ohio Death Penalty Assessment Guide (88-page Word doc.)
• Ohio Death Penalty Assesment Team Biographies (4-page Word doc.)
• Fact Sheet: Problems with Ohio's Death Penalty System and Recommendations for Reform (2-page Word doc.)
• Compliance Charts: Ohio's Compliance with ABA Recommendations (18-page Word doc.)
• Frequently Asked Questions [about ABA Death Penalty Moratorium Implementation Project] (8-page Word doc.)

Excerpt from Executive Summary (pp. 4-8):
The Team has concluded that the State of Ohio fails to comply or is only in partial compliance with many of these recommendations and that many of these shortcomings are substantial. More specifically, the Team is convinced that there is a need to improve the fairness and accuracy in Ohio’s death penalty system.

…Despite the best efforts of a multitude of principled and thoughtful actors who play roles in the criminal justice process in the State of Ohio, our research establishes that at this point in time, the State of Ohio cannot ensure that fairness and accuracy are the hallmark of every case in which the death penalty is sought or imposed. Basic notions of fairness require that all participants in the criminal justice system ensure that the ultimate penalty of death is reserved for only the very worst offenses and defendants. It is therefore the conclusion of the members of the Ohio Death Penalty Assessment Team that the State of Ohio should impose a temporary suspension of executions until such time as the State is able to appropriately address the issues and recommendations throughout this Report, and in particular the Executive Summary. ...

Update:   Andrew Welsh-Huggins has this early AP coverage of today's report, entitled "Bar association calls for Ohio to suspend death penalty system."  Jim Provance has this coverage on the Toledo Blade website, entitled "American Bar Association calls for Ohio to cease executions until it fixes problems."

AP excerpt:
Ohio should temporarily suspend executions to allow a review of the state's capital punishment system because of several flaws, including racial and geographic imbalances, a team of lawyers concluded in a study to be released Monday.

Too many defendants don't get adequate legal help and ways to guard death row inmates' rights are missing from the system, such as failing to require that all DNA evidence from a case is preserved while an offender is on death row, according to a 30-month review of Ohio's death penalty system by the American Bar Association.

The ABA team called on Gov. Ted Strickland to halt executions to allow a review of the system.

"The state fails to provide adequate measures to protect defendants," ABA President William Neukom said in a statement. "Nobody should be executed until the problems identified by these experts are addressed, and we urge a temporary halt to executions until fairness and accuracy are assured."

Among other findings, the ABA concluded:

_The state's system is flawed by racial disparities in death penalty sentencing, including a greater likelihood of defendants being sentenced to death if a victim is white.

_There are major differences in how counties sentence death row cases, for example, a defendant in Hamilton County, which includes Cincinnati, is far more likely to receive a death sentence than a defendant in Cuyahoga County, which includes Cleveland.

_Death sentences are being imposed and carried out on people with severe mental disabilities.

_The state's appeals system does not allow for a meaningful comparison of cases to determine if a defendant deserves a death sentence based on other similar cases.

Strickland, a Democrat and death penalty supporter, has allowed two executions to proceed since taking office in January. A message was left seeking comment Monday morning. ...

Stand Up For An End To Executions Rally, Wednesday, Sept. 26, in Columbus

Full information on this Wednesday's Columbus rally and day of action, including schedule, sign-up information, flyers, maps and directions, is on the Ohio ACLU website here.

From Ohio ACLU website:

STAND UP for an END TO EXECUTIONS

Wednesday, September 26, 2007, Columbus, Ohio

Download flyers for this event here and here.

If you have any questions or would like to register a large group, please email stopthedeathpenalty@acluohio.org or call 216-472-2200

Need a ride to Columbus for the rally?  Go to our travel page.

Maps, Directions, and Parking for the September 26 event.

Download a petition to halt executions here.

Attention Educators: This fall, give your students a hands-on civics lesson.

Elvis Tribute Show coming up on Saturday:  As noted here in the Cincinnati Enquirer, the Northern Kentucky Saddle Club's 6th Annual Elvis Tribute Show takes place this Saturday.

Excerpt:
The Northern Kentucky Saddle Club will hold its sixth annual Elvis Tribute Show 8 p.m. to midnight Saturday at the club, Four Mile and Poplar Ridge roads.

The event will feature Steve Chuke as well as music, fun and scarves. ...

You're welcome!

Posts continue to be limited due to poor remote internet connectivity.  Hope to be back on a regular connection on Monday.

John Paul Stevens: "The Dissenter":  George Washington University Law Professor Jeffrey Rosen has this profile piece on US Supreme Court Justice John Paul Stevens in the New York Times.

Excerpt:
The last Supreme Court term, which ended in June, was the stormiest in recent memory, with more 5-to-4 decisions split along ideological lines than at any time in the court’s history. In a series of controversial cases about abortion, racial integration in schools, faith-based programs and the death penalty, the court’s four more conservative justices prevailed, with Justice Anthony M. Kennedy providing the crucial fifth vote. The four more liberal justices were often moved to dissent in unusually personal and vehement terms. “It is my firm conviction,” Justice John Paul Stevens wrote in the case striking down race-based enrollment policies in public schools, “that no Member of the Court that I joined in 1975 would have agreed with today’s decision.” According to the gossip among Supreme Court law clerks, the level of tension among the justices is higher than at any point since Bush v. Gore in 2000. ...

More on Kenny Richey effort to obtain retrial change of venue:  Greg Sowinski has this article in the Lima News, entitled "Richey wants trial outside Putnam County."

Excerpt:
Kenneth Richey wants to go to trial so the world can see the evidence against him.

But, more than anything, Richey wants a fair trial, something he said he can’t get in Putnam County.

“I couldn’t get a fair trial in Putnam County if I paid for it,” he said.

Richey said he doesn’t believe residents in Putnam County would give him a chance and keep open minds while listening to the evidence. Because of that, he wants his trial moved to another county. ...

• IPetition in support of the legal effort to secure a change of venue for Richey retrial is at this link.

(Earlier coverage of Kenny Richey case here.)

US district court judge rules new Tennessee lethal injection protocol unconstitutional: Sheila Burke has this story in the Nashville Tennessean, entitled "Judge halts executions by injection; 'unnecessary pain' risk noted in ruling."  Theo Emery has this article in the New York Times, entitled "U.S. Judge Blocks Lethal Injection in Tennessee."  Erik Schelzig has this coverage for AP, entitled "Court Ruling Halts Tennessee Executions."  BBC News has this coverage, entitled "Tennessee bans lethal injection: A judge in Tennessee has ruled the state's method of executing prisoners by lethal injection is illegal because it is a cruel and unusual punishment."

AP excerpt:
A federal judge ruled Wednesday that Tennessee's new lethal injection procedures are cruel and unusual punishment, interrupting plans to execute a killer next week.

The protocol "presents a substantial risk of unnecessary pain" and violates death row inmate Edward Jerome Harbison's constitutional protections under the Eighth Amendment, U.S. District Judge Aleta Trauger said.

The new protocol, released in April, does not ensure that inmates are properly anesthetized before the lethal injection is administered, Trauger said, which could "result in a terrifying, excruciating death."

A spokeswoman for the state attorney general's office said officials are reviewing the ruling and haven't decided whether to appeal. Gov. Phil Bredesen's office had no immediate comment. ...

• Yesterday's ruling in Harbison v. Little is here (56-page pdf). Accompanying order staying Jerome Harbison's September 26 execution is here (1-page pdf).

• Nashville Tennessean columnist Dwight Lewis has this commentary, entitled "Lethal-injection ruling gives governor an opportunity."

Excerpt:
Stand tall, Gov. Bredesen, stand tall! There's no better time to stand tall for justice than now. ...

More on Richey removal from death row:  The UK Scotsman has this story, entitled "My first days off death row have given me a new taste for freedom in Scotland."

Excerpt:
...Ken Parsigian, his lawyer, will apply for bail next week. It is unclear whether that will result in his freedom; Richey has no money to make bail even if it is granted, though his brother Stephen - who lives locally - has offered his house as collateral.

"We have never been closer to winning freedom for Kenny than this."

The Boston-based lawyer describes Richey's case, which he has conducted pro bono, as the most significant and fulfilling case he has ever handled.

He added: "This is a defining case; we can get Kenny home where he belongs. I think it will be the crowning moment of my career the day Kenny walks free."  ...

• IPetition in support of the legal effort to secure a change of venue for Richey retrial is at this link.

 

Ted Strickland: No soul man:  Ted Strickland sold his soul to become governor of Ohio.  He'll eagerly resell it - in the form of signing off on many more executions in late 2007 and 2008 - to further his political agenda in other areas, particularly if he thinks it will enhance his '08 vice-presidential prospects.  No one should be fooled by his protestations of concern about executions in Ohio -- regardless of whether made privately to people wearing collars, or anyone else.  These are completely disingenuous representations. 

How Clintonesque.

Ohio Supreme Court oral arguments Wednesday in Roland Davis case:  As noted in this oral argument preview on the Ohio Supreme Court website, oral arguments will be heard Wednesday in the direct appeal of Ohio death row inmate Roland T. Davis.  You can link to live streaming video of the arguments beginning at 9:00 AM on Wednesday here or here, or view an archived recording later at this link.

More on Kenny Richey move from Ohio death row:  BBC News has this story, entitled "British man moved off death row."  The UK Telegraph has this article, entitled "Kenny Richey moved off death row."  The Scotsman.com has this article, entitled "Richey leaves Death Row 'in good spirits.'"  The UK Herald reports here: "Richey out of death row jail for first time in 20 years." The Toledo Blade has this article, entitled "Richey moves from death row to Putnam Co. jail for retrial."  AP has this coverage, entitled "Briton moved from death row to Ottawa jail."  The Lima News has this article, entitled "Richey returns to Putnam County."  The Columbus Dispatch reports here: "Scotsman moved to jail for retrial in '86 death; Leaving Death Row 'emotional,' he says."

BBC excerpt:
A Briton moved off death row in the US after two decades is in "good spirits", his leading supporter has said. Kenny Richey's conviction for murder over a fire which killed a two-year-old girl in Ohio was overturned last month.

The 43-year-old, originally from Edinburgh, was transferred on Monday from Ohio's death row to another jail.

Karen Torley, head of the Kenny Richey campaign, said he seemed "very upbeat". Amnesty International called for him to be granted bail ahead of his retrial.

Amnesty's Scotland director John Watson welcomed the news Richey was coming off death row.

"Having experienced the dreadful ordeal of getting only shoddy justice and then having to fight desperately for years to clear his name, Kenny is at least now away from the mental torture of life on death row.

"No-one should have to face a death penalty in the first place - now the important thing is that Kenny gets a proper retrial and the opportunity for justice long denied to him.

"On humanitarian grounds, we would now like to see Kenny granted bail as he prepares for his retrial."

Ms Torley, Richey's ex-fiancee, said: "He said that on the way to the other jail, he managed to get his head out of the window which he enjoyed because he has not had the wind in his hair for a long time."

She said a bail hearing was expected to be held in the next few weeks but Richey was not getting his hopes up.  ...

• Amnesty International, UK issued this statement regarding the Richey move.

Kenny Richey moved off Ohio's death row

Kenny Richey was transferred from death row at the Ohio State Penitentiary to the Putnam County jail today.  AP report is here.

Excerpt:
A U.S.-British citizen whose death sentence was tossed out by a federal appeals court has been moved from Ohio's death row to a jail in the county where he was convicted two decades ago.

Authorities transferred Kenneth Richey from a state prison in Youngstown to the Putnam County jail in Ottawa on Monday, said JoEllen Lyons, a spokeswoman for the Ohio Department of Corrections. ...

Correction:  Richey was transferred from the Mansfield Correctional Institution (former site of Ohio's death row, where a few Ohio death row inmates still reside) to the Putnam County jail.

Posts will resume on Tuesday.

Ohio Parole Board recommends against clemency for Romell Broom:  The Ohio Parole Board recommended unanimously yesterday that Governor Strickland not grant clemency to death row inmate Romell Broom.  Parole Board report is here (16-page pdf).  Reginald Fields has this article in the Cleveland Plain Dealer, entitled "Death row inmate Romell Broom gets thumbs-down from Ohio Parole Board."

Plain Dealer excerpt:

The Ohio Parole Board has unanimously voted against offering clemency to Cleveland death row inmate Romell Broom, who police say kidnapped, raped and murdered a 14-year-old Shaw High School girl in 1984.

Whether Broom's sentence is commuted to life in prison, as he seeks, rests with Gov. Ted Strickland, who is likely to follow the board's recommendation.

Broom's execution date is scheduled for Oct. 18.

But Broom, one of 20 Ohio death row inmates who are plaintiffs in a lawsuit challenging the state's lethal-injection procedures, has a court-ordered stay of execution while that case is pending. So he probably would not be sent to death next month even if Strickland won't spare him. ...

Recent related posts:

• Romell Broom execution stayed
• Romell Broom stay of execution apparently will not be appealed

(More information on Romell Broom case here.)

Kenny Richey scheduled to be moved off Ohio death row on Monday:  The Edinburgh Evening News has this coverage.

Excerpt:
Death Row Scot Kenny Richey is set to be moved from his Death Row prison for the first time in 20 years on Monday.

Edinburgh-born Richey, 43, will be moved to the low-security Putnam County jail in Ohio ahead of a planned retrial of his case.

The move has been delayed after torrential floods hit the jail last month, forcing him to be kept in Mansfield Correctional Unit. ...

 

(Earlier coverage of Richey case here.)

Daryl Holton electrocution burns called "normal":  Sheila Burke has this article in the Nashville Tennessean, entitled "Minor burns during execution called normal," with autopsy results and other follow-up to Wednesday's execution by electrocution of Daryl Holton in Tennessee. 

Excerpt:
...After Holton was pronounced dead, a spokeswoman for the prison system said the execution had been carried out according to Tennessee law.

Days before, the man who built Tennessee's electric chair in 1989 said he feared the contraption had been modified in such a way that Holton would be tortured.
Fred Leuchter, the Malden, Mass., man who built the chair, had asked Gov. Phil Bredesen not to use it.

But Wiechert, the engineer who modified the chair, had said repeatedly that it would work as intended and that Leuchter's original chair was flawed.

• Tennessean columnist and editorial board member Dwight Lewis has this opinion piece, entitled "Tennessee must find courage to stop executions."

Capital punishment as a technical problem:  Susan Lehman had this article in the February, 1990, Atlantic Monthly, entitled "A Matter of Engineering: Capital Punishment as a Technical Problem," with a profile of electric-chair (and lethal injection) expert Fred Leuchter 

Five additional plaintiffs granted inclusion in Ohio lethal injection challenge lawsuit

US District Court Judge Gregory Frost today granted inclusion of five additional Ohio death row inmates to the Cooey v. Taft lawsuit challenging Ohio's lethal injection protocol.  Those granted inclusion by today's order are Grady Brinkley, Marvin Johnson, Daniel Wilson, James Conway and Darryl Durr.

• Today's opinion and order is here (22-page pdf) (fixed link).

• As noted in previous posts (see links below), a three-judge panel of the US 6th Circuit Ct. of Appeals ordered the Cooey case to be dismissed in March (17-page opinion here (pdf)), finding the lawsuit to be procedurally barred due to a statute of limitations violation.  In a split vote, the full 6th Circuit denied reconsideration of the dismissal on June 13 (order here (3-page pdf)).  An application to the US Supreme Court was subsequently filed asking the court to hear an appeal of the dismissal.  Pending the Supreme Court's response to that request - expected sometime this fall - the US 6th Circuit has "stayed the mandate" of the dismissal order, and district court proceedings are continuing in the case until there is a final resolution of whether or not the case can continue.

• AP has this report on today's ruling, entitled "Judge allows 5 more death row inmates to fight injection process."

• Earlier related posts:
  • US 6th Circuit Court of Appeals orders dismissal of Cooey v. Taft lethal injection challenge case
  • Full US 6th Circuit Court of Appeals refuses to reconsider dismissal of lawsuit challenging Ohio lethal injection protocol
  • US 6th Circuit Court of Appeals "stays mandate" in Ohio lethal injection challenge case
  • Six additional plaintiffs granted inclusion in Ohio lethal injection challenge case

 

US District Court Judge Gregory Frost today granted inclusion of five additional Ohio death row inmates to the Cooey v. Taft lawsuit challenging Ohio's lethal injection protocol.  Those granted inclusion by today's order are Grady Brinkley, Marvin Johnson, Daniel Wilson, James Conway and Darryl Durr.

• Today's opinion and order is here (22-page pdf) (fixed link).

• As noted in previous posts (see links below), a three-judge panel of the US 6th Circuit Ct. of Appeals ordered the Cooey case to be dismissed in March (17-page opinion here (pdf)), finding the lawsuit to be procedurally barred due to a statute of limitations violation.  In a split vote, the full 6th Circuit denied reconsideration of the dismissal on June 13 (order here (3-page pdf)).  An application to the US Supreme Court was subsequently filed asking the court to hear an appeal of the dismissal.  Pending the Supreme Court's response to that request - expected sometime this fall - the US 6th Circuit has "stayed the mandate" of the dismissal order, and district court proceedings are continuing in the case until there is a final resolution of whether or not the case can continue.

• AP has this report on today's ruling, entitled "Judge allows 5 more death row inmates to fight injection process."

• Earlier related posts:
  • US 6th Circuit Court of Appeals orders dismissal of Cooey v. Taft lethal injection challenge case
  • Full US 6th Circuit Court of Appeals refuses to reconsider dismissal of lawsuit challenging Ohio lethal injection protocol
  • US 6th Circuit Court of Appeals "stays mandate" in Ohio lethal injection challenge case
  • Six additional plaintiffs granted inclusion in Ohio lethal injection challenge case

 

Putnam County Common Pleas Court Judge Randall Basinger to step aside for Kenny Richey retrial:  AP notes in this article that Putnam County Common Pleas Court Judge Randall Basinger - the prosecutor at Richey's original trial - has asked the Ohio Supreme Court to appoint another judge to preside over Richey's retrial.

Excerpt:
...Prosecutors plan to try Richey again on aggravated murder, aggravated arson and child endangering charges.

Basinger was the prosecutor at Richey’s original trial and later was elected Putnam County’s only common pleas judge. His decision to recuse himself had been expected. ...

• IPetition in support of the legal effort to secure a change of venue for Richey retrial is at this link.

• Earlier coverage of Kenny Richey case - and recent US 6th Circuit retrial order - here.

Trumbull County Judge again denies mental retardation hearing for Andre Williams:  Ed Runyan has this confusing article in the Youngstown Vindicator, entitled "Killer isn't retarded, Trumbull judge rules," noting Trumbull County Common Pleas Court Judge W. Wyatt McKay's second denial of a request for a mental retardation hearing for Ohio death row inmate Andre Williams.

Excerpt:
A Trumbull County judge has once again ruled against the request of 39-year-old death row inmate Andre Williams, who asked to be deemed ineligible for the death penalty on grounds that he is retarded.

Williams was convicted in 1989 of killing George Melnick, 65, and severely beating Melnick's wife, Katherine, 65, in Warren.

Judge W. Wyatt McKay of common pleas court ruled Tuesday that none of the evidence he received since the August 1988 crime or after the landmark federal ruling in 2002 banning the execution of mentally retarded defendants indicates that Williams should be spared execution.

The 11th District Court of Appeals in Warren ordered judge McKay to reconsider his 2004 ruling, in which he denied Williams' request to be spared the death penalty the first time.

The appeals court said Judge McKay had confused a distinction between dismissing Williams' request and granting summary judgment in the state's favor. LuWayne Annos, an assistant county prosecutor, called it a procedural error. Judge McKay also impermissibly weighed conflicting evidence and made a number of findings of fact, the appeals court stated.

Background

In 2002, after the U.S. Supreme Court ruled it is unconstitutional to execute people who are mentally retarded, Williams filed a petition in Trumbull County Common Pleas Court stating that his death sentence should be vacated on those grounds. It is that petition, sometimes called an Atkins claim, that Williams appealed.

In Tuesday's ruling, Judge McKay granted summary judgment to the state, which means he ruled in favor of the state and against Williams without needing to conduct a hearing. [sic]

Attached to Williams' petition was an affidavit from his cousin, Stacey Vail, which said Williams was "severely challenged" mentally and could not cope on a day-to-day basis as a child.

But Judge McKay cited four intelligence tests showing his IQ score to be between 67 and 78, as well as many exhibits showing Williams' writings in prison. These factors and others suggest he is not retarded, Judge McKay wrote. The state generally considers IQ tests of below 70 to indicate mental retardation.

 

Possibly further-confusing note:  Yesterday's ruling by Judge McKay states that, based on evidence established at trial, Andre Williams has not made a prima facie case showing mental retardation, and therefore the petition for an evidentiary hearing to further look into the matter is denied.  The ruling is ostensibly based only on evidence in the case that was established as fact at trial.  Judge McKay's earlier (2004) ruling denying Williams' request for a hearing was overruled by the 11th Ohio Appellate Court because it was made after McKay reviewed additional evidence submitted by the State which was never considered at trial ("evidence dehors the record") -- materials impermissible upon which to make the ruling, because doing so constituted an impermissible finding of fact by McKay.  (Ohio 11th Appellate Court reversal of Judge McKay's first denial of a request for a mental retardation hearing is here (11-page pdf).)  Whether yesterday's ruling is a reasonable finding that Williams did not make an adequate prima facie case for mental retardation to justify a hearing is still subject to appeal.

 

Daryl Holton execution:  Sheila Burke has this article for the Nashville Tennessean, entitled "State executes child killer Holton.  Anahad O'Connor has this coverage for the New York Times, entitled "Murdered executed in Tennessee.  AP has this story, entitled "State uses electric chair for first time since 1960."  UPI has this.  Reuters here.  Nicholas Beadle has this coverage for the Jackson Sun, entitled "Protesters burn candles, oppose execution."

Tennessean excerpt:
...When the blinds inside the death chamber were opened at 1:09 a.m., the media witnesses saw Holton already strapped in the electric chair.

He yawned several times and appeared to have been sedated, they said.

But prison officials said Holton had not been drugged.

“He was hyperventilating as he was brought into the execution chamber,” Carter said. “The warden gave him a minute or so to try and catch his breath, so what you all were seeing was the effects of him hyperventilating and him trying to calm down.”

His hands were fastened to the arms of the chair, and straps crossed over his shoulders and his upper body in the same way a pilot is secured, said Scott Couch, a reporter and anchor with WZTV Fox 17 News who was a witness to the execution.

Holton’s ankles were also restrained.

Prison official immersed a large sponge in saline solution and put it in what looked like an old-fashioned football helmet and placed it on Holton’s head, Couch said.

Water from the sponge dripped on Holton’s shirt and two security guards with towels moved to dry him. Holton appeared to tell them not to worry about it.

Prison officials then placed a small leather shroud over Holton’s head and snapped it shut over his face, Couch said.

Holton got the first jolt of electricity at about 1:16 a.m., a violent jerking that left the inmate rising up and grabbing the arms of the chairs with his fingers.

He was shocked again, a second time, and witnesses saw Holton jerk up again in the chair.

“I don’t think any of us can say whether he felt pain,” Couch said. ...

Jackson Sun excerpt:
Daryl Holton is a man who shot his children, placed their bodies in a stack, and told the police what he did while still stained with their blood.For the lives of his three sons and their half-sister, Holton was set this morning to become the first man Tennessee would execute with an electric chair in almost a half-century - a fate he legally chose.

Still, five hours before the 45-year-old was slated to die, Joe Kolosky held a candle, sang and prayed with others in Jackson's Conger Park that God would not hold it against the state for ending the life of a child killer.

Kolosky, 71, had to wait in his car for the protesters to wrap their half-mile march from Skyline Drive to Conger Park so he could limp over to a picnic table to join them.He said he came because God wanted him to be with people who believe that men should never willingly kill - a conviction he said has swelled within him for years.

"The details have nothing to do with it," Kolosky said. "It's not up to us."

Wednesday night's vigil at Conger Park was one of many across the state organized by the Tennessee Coalition to Abolish State Killing to protest Holton's execution. Protesters here held tight to one idea.

"He is a person God created for a purpose," said Cheryl Fisher, a representative of the group. "God does forgive."

Joining them was Elbon Kilpatrick, who was a chaplain for convicted Oklahoma City bomber Timothy McVeigh and his accomplice Terry Nichols during their Denver trials.

He, too, talked of forgiveness and deferring death to God.

"Man has learned to dehumanize his brother and sister in this world," said Kilpatrick, 47. "God is not on the side of the powerful, but the side of the powerless."

Kilpatrick's talk ended with him speaking the lead verse of the "Litany of Christ the Prisoner."

The small crowd chanted back, "Have mercy on us, have mercy on us."

 

Tennessee prepares to electrocute Daryl Holton despite chair designer's warning that new electrocution procedure is flawed:  Erik Schelzig has this coverage for AP, entitled "Chair Tested for Planned Tenn. Execution."  WKRN-TV in Nashville has an updated AP report and brief video here.  Leon Alligood has this article in USA Today, entitled "Tenn. killer set to die in electric chair."  UPI reports here: "Killer Set for Chair, Maker Says Not Enough Juice to Kill."  (AP photo: Mark Humphrey (of TN electric chair & former Riverbend Maximum Security Facility Warden Ricky Bell))

USA Today excerpt:
Fred Leuchter, who built the chair in 1989, asked Tennessee Gov. Phil Bredesen not to use it, saying it's been modified in such a way that it will be "tantamount to torture." Leuchter said the voltage specified by the state — 1,750 volts — is too low and should be at least 2,000.

The state plans to comply with Holton's request.

"We are prepared to use the chair," Department of Correction spokeswoman Dorinda Carter said. ...

 

AP excerpt:
...His lawyers have said he has a long history of mental illness and may suffer from post-traumatic stress disorder from his Army service.

Nine states allow some or all condemned inmates to choose between lethal injection and another execution method, according to the Death Penalty Information Center, a research group that opposes the death penalty. Ten states have the electric chair, but only Nebraska uses it exclusively.

The last Tennessee inmate to die by electric chair was convicted rapist William Tines, who was executed Nov. 7, 1960.

Virginia inmate Brandon Hedrick was the last person executed by electric chair in the U.S., on July 20, 2006, according to the center.

• Tennessee Governor Phil Bredesen contact info:

Phone: 615-741-2001
Fax: 615-532-9711
Email: phil.bredesen@state.tn.us

(Earlier coverage here.)

William Garner conviction and death sentence reversed by US 6th Circuit Court of Appeals

A three-judge panel (Moore, Martin, Rogers) of the US 6th Circuit Court of Appeals today reversed the conviction and death sentence of Ohio death row inmate William Garner by a 2-1 vote (Rogers dissenting), and remanded the case back to the US District Court for Southern Ohio to, in turn, order a new trial.  The court found that the borderline-retarded Garner's waiver of his Miranda rights at the time of arrest, followed by the signing of a confession to certain elements of the crime (a botched burglary, accompanied by arson (for the purpose of hiding fingerprints), that led to the death of five children) was not "knowingly and intelligently" made (and not harmless error).  (The court did not address the issue of lack of specific intent to kill the children, or the failure of trial counsel to challenge the Miranda waiver, or counsel's failure to properly secure expert testimony for the mitigation phase of the trial sentencing proceeding -- all of which, along with several other apparent problems at the original trial, can now be addressed at retrial.)

• Today's ruling in Garner v. Mitchell, No. 02-3552, is here (26-page pdf).

Update:  AP has this coverage of today's ruling.

Excerpt:
...Judge Karen Nelson Moore, joined by Judge Boyce L. Martin, wrote that evidence showed that Garner, 19 at the time of the statement, was poorly educated, and had low intelligence and other limitations directly related to understanding and comprehending his rights. Expert testimony also showed that Garner didn't understand the word “right” or his right to remain silent, their opinion stated.
 
The judges granted Garner's request for habeas corpus, which protects inmates from unlawful imprisonment, and ordered his release in 180 days unless the state sets a new trial. The state could appeal the ruling.

 

Romell Broom stay of execution apparently will not be appealed

Apparently the Ohio Attorney General is not going to appeal the stay of execution granted to Romell Broom last week in US district court, according to this updated AP article quoting Asst.  Ohio AG Leo Jennings to that effect. 

Excerpt:
...Ohio is waiting for the high court's decision and its impact on the entire lawsuit and so won't appeal the decision to delay Broom's execution.

"We're not going to do this piecemeal," said Leo Jennings, a spokesman for Attorney General Marc Dann. "It's not the best use of our resources." ...

• Waiting for confirmation of the accuracy of this AP report.

UPDATE:  According to a reliable source, the AP story linked to above - quoting Leo Jennings as stating that the AG's office will not appeal the Broom stay - is accurate.  An expanded AP update is here.

(Earlier coverage here.)

AP on Romell Broom stay of execution:  Andrew Welsh-Huggins has this AP article, entitled "Federal judge grants execution delay," noting the stay of execution granted to Ohio death row inmate Romell Broom last Wednesday.

• Earlier coverage here.
• Note: There has been no indication yet as to whether the Ohio Attorney General Marc Dann will appeal the US district court order staying Broom's execution to the US 6th Circuit Ct. of Appeals.

Kenny Richey expected to be moved off Ohio death row this week.  As noted in this article in the UK Scotsman, Kenny Richey is expected to be transferred from death row at the Ohio State Penitentiary to the Putnam County jail sometime in the next few days.

• IPetition in support of the legal effort to secure a change of venue for the Richey trial is at this link.

Posts may limited due to work/travel-related time constraints (and a maddeningly-intermittent Verizon wireless broadband connection).

Well-heeled boggers:  Picture here.

Tennessee set to electrocute inmate with documented mental illness on Wednesday: Dan Barry has this article on the TimesSelect (i.e., pay-to-view) section of the New York Times website, entitled "En route to death, killer still lives by his code: His behavior may seem strange, but it is part of the reason why Daryl Keith Holton is heading to the electric chair in Tennessee this week."  (Article is viewable for free via this link to a Minneapolis Star Tribune re-post.)

Excerpt:
Daryl Holton shaved his head clean a couple of months ago. He thought he could retain some control in this small way. But he also wanted to save the corrections officers the trouble. "I wouldn't want them to leave with a feeling of guilt," he says, speaking from the other side with his hands and feet shackled. "As far as I'm concerned, it's just a job. They're just a bunch of guys trying to pay their rent."

His head needs to be shaven; his legs, too. That is because, not long ago, he marked an "X" beside a sentence on a document handed to him at the Riverbend Maximum Security Institution. That sentence read: "I waive the right to have my execution carried out by lethal injection and choose to be executed by electrocution."

...Now, after all the motions filed in his behalf, often against his will and without his participation, and after the years of speculation about why he did what he did and does what he does, Daryl Keith Holton, 45, of sound body and court-determined competence -- a supporter of the death penalty, by the way -- is scheduled to be killed by the state of Tennessee on Wednesday morning, one o'clock. ...

• The Jackson Sun has this editorial, entitled "Tennessee has its scapegoat in tragic case of Daryl Holton," with an effective statement on the ineffective legal representation Holton received at trial -- particularly the failure to properly present evidence of Holton's well-documented mental illness.

Excerpt:
...The case of Daryl Holton is a classic example of a modern-day scapegoat. Holton has a history of mental illness, had abysmal representation at trial and now faces an execution date and time of Wednesday at 1 a.m.

While serving in the military, Holton spent a month in a psychiatric facility. He has a history of suicide attempts. Holton has been diagnosed with severe depression, making his perception of reality extremely tenuous and leading him to commit the tragic crime that brought him to death row. ...

• Amnesty Int'l urgent action appeal for Daryl Holton is here.
• NCADP execution alert here.
• More information on Daryl Holton is on the Tennessee Coalition to Abolish State Killing website here.

 

Stephen Henderson on importance of background examination in capital cases:  Stephen Henderson has this opinion piece in the Detroit Free Press, entitled "Justice demands full life stories," in follow-up to the recent PBS Expose' feature "Death is Different" on his work documenting the overwheleming importance of proper presentation of defendants' background information in determining the sentencing outcome of capital trials. 

Excerpt:

The premise of the series was simple: I reviewed 80 capital cases in four prominent death penalty states to see how vigorously defense attorneys investigated their clients' backgrounds as part of the case.

In 73 of those cases, the attorneys had dropped the ball in profound ways. They missed mountains of evidence about childhood abuse, deep mental problems and unfathomably low intelligence.

The details in these cases were almost uniformly horrific. One Virginia killer had been raised by drug dealers who hosted wild parties where guests were invited to molest him and his siblings. Another was beaten regularly by his mother with a lead pipe. Others had witnessed their parents' suicide attempts, or grew up in filthy shacks with no running water or electricity, or had been forced into child prostitution. IQs among the killers often dipped into the 60s.

The consistency of those factors was an eye-opener, as was the routine failure of the lawyers in those cases to bring out those facts at trial. And in case I was still skeptical that telling a defendant's life story would matter to a jury eyeing an awful murder, there was this revelation: Georgia, one of the states in the study, started assigning more qualified lawyers to these cases two years ago, and emphasizing the role of a defendant's life story in his or her case. Those lawyers haven't had a single client sentenced to death. They've successfully defended 31, and counting. ...

See earlier post: PBS program to examine issue of effective assistance of counsel in death cases