Wednesday, January 12, 2011

2011 So Far: Life and Life and Life While Dead and Death and Death and Who Knows

The new year is just 12 days old, but if you've been trying to keep up with the death penalty news, good luck.  It's come fast and furious.  A few highlights, in no particular order, some of which I'll probably write more about in the days to come.
  • Missouri Governor Jay Nixon grants clemency to Richard Clay, commuting his sentence from murder to death in prison (LWOP).  Nixon has been a staunch supporter of the death penalty.  He gave no explanation.  Here from Missourinet, is his entire statement.
  • After an exhaustive review, I am convinced of Richard Clay’s involvement in the senseless murder of Randy Martindale and find that the evidence clearly supports the jury’s verdict of murder in the first degree.
    Having looked at this matter in its entirety and after significant thought and counsel, I have concluded, however, to exercise my constitutional authority and commute Richard Clay’s sentence to life without the possibility of parole. Richard Clay’s involvement in this crime is clear, and he must, and will, serve the remainder of his life behind bars for his role in this heinous act.
  • Tennessee Governor Phil Bredesen granted clemency to Edward Harbison, commuting his sentence from murder to death in prison.  Harbison's was one of a number of cases in which Bredesen granted some sort of relief Tuesday.  It was the only one involving a death row inmate.  His explanation, per the Tennessean, was a general one.
  • "I've looked at these cases for a long time," Bredesen said in a statement. "I believe they represent a responsible and humane exercise of the governor's power and best serve the interests of fairness and justice."
  • Colorado Governor Bill Ritter granted a full and posthumous pardon to Joe Arridy for a 1936 murder he didn't commit.  Of course, it's too late for Arridy.  He was killed in the gas chamber in 1939.  But it's a rare acknowledgment of out-and-out innocence in a guy we killed.  Here's the press release, including the governor's entire statement. 
  • Arridy Press Release                                                            
  • Our own, outgoing, Governor Ted, knowing there would be no political cost to commuting dozens of death sentences, granted relief to dozens of people.  None of them on death row.
  • BBC reports that the drugs Arizona used to kill Jeffrey Landrigan came from Dream Pharma Ltd in London which shares a storefront with the Elgone Driving Academy.  Arizona promptly sent some of them over to California to alleviate a shortage there.  AP's Andrew Welsh-Huggins adds the information that the FDA helped Arizona make the connection to Dream Pharma.   In the same report, Welsh-Huggins notes that Ohio apparently has enough thiopental on hand to kill Frank Spisak in February but won't say whether it's also got enough to murder Johnny Baston in March.
  • Oklahoma, which solved the no-thiopental problem by switching to a different drug, has killed two so far this year (Billy Alverson and Jeffrey Matthews).  The rest of the nation: None.
  • And then there's Illinois which is now poised to be the third state (after New Jersey and New Mexico) to abolish capital punishment legislatively.  Last week, the Illinois House voted for abolition.  Yesterday the senate joined.  It's now up to the as-yet unindicted (this is Illinois) governor, Pat Quinn.  The News (Jersey & Mexico) were small potatoes.  They put few people on the row and killed fewer (NJ killed none, NM one).  But Illinois, until Ryan called a moratorium and then emptied the row, was a busy place.  They killed a dozen.  Ryan took off more than 160.  Now, in just a few years, they're back up to 15 on the row.  Connecticut voted abolition and the governor vetoed.  New Hampshire voted abolition and the governor vetoed.  Quinn hasn't said what he'll do, according to abc news, he said he "would look at the bill 'very carefully,' calling it an important measure that deserves lots of study."  We're watching.  Fingers crossed.
But while we await developments in the Land of Lincoln, it's time to head back to the Lone Star State where the Court of Criminal Appeals, to the likely-surprise of nobody, issued its opinion this morning in State ex rel Lykos v. Fine, the John Green case in which Judge Kevin Fine has been trying to hold a hearing to determine whether Texas procedures generate too significant a chance of the conviction, death sentence, and execution of the innocent.  Texas, they said, has no interest in discovering whether it's killing off bunches of innocent people.
In fairness, that's really not what the court said.  Instead, the court said this.
In the present case, however, Mr. Green is attempting to bring what he calls an "as applied" challenge to Article 37.071§ 2, in a pretrial motion before any evidence in his case has been heard.  His amended motion makes reference to "sufficient risk factors inhering in the application of Texas' capital punishment statute that the statute creates a constitutionally unacceptable risk of convicting and sentencing an innocent person to death."  He then sets out various subsections of his general discussion.
“A. The number of exonerations in capital cases nationwide is steadily increasing;

           “B.     Exonerations demonstrate there is a risk that innocent people have been executed, and that post-trial review cannot be trusted to catch all errors;

           “C.     State governors and legislatures, Supreme Court Justices, and American Law Institute have acknowledged the risk of executing innocent people;

           “D.     Five factors that produce a risk of wrongful conviction are peculiar to capital cases;
                      1.        Crime clearance rates and pressure on the police;
                      2.        Publicity;
                      3.        Death qualification of prospective jurors;
                      4.        Fear of the death penalty in defendants and their defense team;
                      5.        The tendency of capital juries to consider punishment prior to determining guilt;

           “E.      Seven factors based in Texas’ criminal procedure exacerbate the risks of wrongful convictions created by the risk factors peculiar to capital cases;
                      1.        Inadequate compensation of jurors results in jury pools that are not representative of a fair cross section of the community, diminishing the protection afforded by the jury against overzealous prosecution;
                      2.        Eyewitness identification testimony is introduced which has not been obtained through the use of safeguards established to reduce the risk of mistaken identification;
                      3.        Confessions are introduced without having been obtained through the use of procedures necessary to guard against false confession;
                      4.        Perjured testimony by informants who are paid or provided leniency in their own cases is often introduced;
                      5.        The prosecution’s introduction of forensic evidence appears to lend certainty to important forensic issues which is not justified and is misleading;
                      6.        Pretrial discovery procedures are inadequate to safeguard against the suppression of Brady evidence and the introduction of unreliable evidence;
                      7.        Juries are selected in a racially discriminatory manner, thereby reducing the thoroughness and accuracy of their deliberations;

           “F.      Two factors that are supposed to safeguard against the risk of wrongful convictions are so flawed that they contribute to the risk of wrongful convictions being sustained;
                      1.        State habeas proceedings;
                      2.        Clemency proceedings;

           “G.     Numerous Texas officials and agencies have expressed concern about many of the risk factors discussed here but no one has yet taken any remedial action;
                      1.        Texas Forensic Commission;
                      2.        Governor Perry’s Criminal Justice Advisory Council;
                      3.        Texas Criminal Justice Integrity Unit;
                      4.        Timothy Cole Advisory Panel on Wrongful Convictions.”

In a final section, Mr. Green then asserts that "the risk of wrongful conviction in Texas is epitomized by the tale of two arson-murder cases." And he proceeds to set out the facts of those particular cases in detail. Of course, there is no allegation of any arson in Mr. Green's indictment, so the relevancy of information concerning other defendants in other wholly unrelated proceedings seems highly dubious for purposes of the present case.
These are all very important issues and they certainly deserve careful consideration in an appropriate forum.
Important, perhaps.  But not today.  Not in court.  Not in Texas.  No no.


  1. Not in Texas and probably not anywhere else. In fairness to the CCA (and fwiw, the judges on that panel likely consider me among their harshest critics), what other state ever declared the death penalty unconstitutional on a pretrial motion? It was sort of a novel gambit to begin with.

    That said, IANAL. I'm curious if you disagreed with the CCA's legal analysis of a facial vs. "as applied" challenge, or just the outcome?

  2. Grits, New Hampshire has. State of New Hampshire v. Johnson, 595 A.2d 498 (N.H. 1991). The statute at the time precluded the death penalty if a defendant pled guilty, which was clearly unconstitutional, so before trial the trial judge declared the death penalty law unconstitutional and barred its use. The prosecution did an interlocutory appeal and the New Hampshire Supreme Court agreed with the trial court.

    There may be other states that did this as well. I don't think it is as unusual as you think it is.

  3. We routinely file pre-trial motions to declare Ohio's death penalty broadly unconstitutional. They're routinely denied. Occasionally the state argues that they aren't ripe. Nobody pays attention to that argument unless there's an actually targeted motion dealing with something more specific. I had a partial win on one a couple of years ago. I've got another that I'm appealing (pre-trial, though Ohio is very wary of ever letting a defendant take pre-trial appeals) right now.

    But as for your more specific question, Scott, Green was making a claim that could not have been raised post-trial and that the CCA had already said couldn't be made as a facial challenge. So they made it personal. That threw them into a different sort of mess, but the court could easily have gotten around it if they'd cared to.

    That's why I keep saying that I don't believe in the uppercase Law. Legal analysis becomes the after-the-fact excuse for the decision courts want to make rather than the basis for the decision. The arguments in favor of jurisdiction were strong. So were the ones on the other side. The court just wasn't interested in having the case go forward, so it chose.