Plea Bargaining in Capital Cases

December 30, 2014

Tuesday, December 30, 2014

Good afternoon:

I am now writing articles for the main page at Firedoglake (firedoglake dot com) during the owner’s hiatus from the site. I am volunteering my time there. My articles are published on Monday, Wednesday and Friday at 6 pm EST. I will continue to publish articles here, although you may not notice any change except I will be posting a little later each day and taking a day off now and then.

This article about plea bargaining was prompted by a comment to one of my posts at the Lake. The person who posts under the name Eternal Vigilance asked the following question:

Would an ethical lawyer still advise an innocent client to go to trial even when the trial might not be fair and the consequence of losing is death?

Here’s my answer:

Great question. Tough question. Please forgive the long response.

You have to keep in mind that the lawyer rarely knows for certain whether the client is innocent, unless there is an exculpatory DNA result, because clients have been known to lie to their lawyers. I went with the flow because I did not judge my clients.

I rarely confronted a client, unless the evidence against him was so overwhelming that there was no chance of success and the penalty for conviction was severe, as in a death case.

Ultimately, it’s the client’s decision to go to trial or not. Even guilty people have a right to go to trial and force the government to overcome the presumption of innocence by proof beyond a reasonable doubt. The lawyer can’t put them on the stand to deny guilt, if they have admitted guilt. That’s unethical and a lawyer who does that can lose his license for doing that.

I used to estimate the probability of success after reviewing all of the evidence and possible strategies to counter it. I would discuss that with the client and let them decide whether to go to trial. I would tell them if there were no realistic chance of winning and discourage them from going to trial, if they could get a better result by pleading guilty. If they couldn’t get a better result by pleading guilty, I told them I was willing to go for it, if they were. Some opted to plead guilty. Others opted to go to trial.

I never counseled an innocent client to plead guilty and never would in any case, including a death penalty case. And this would be true even if I had reason to believe we were dealing with a corrupt prosecutor and cops. If I believed that were the case, I would certainly tell my client and explain why I believed that to be true.

The problem is the criminal justice system is corrupt and no one can reasonably assume otherwise. That’s why I don’t practice law anymore.

Another consideration is a client has to provide a factual basis under oath to support a guilty plea. For example, “On or about (fill in the date) in (fill in the place) I took $50 from (fill in the victim) by threatening him with a knife.” A lawyer cannot ethically advise an innocent client to perjure himself by saying he did something that he did not do.

There is a type of guilty plea, called an Alford plea, in which a defendant concedes that the government has enough evidence to convict him if the case goes to trial, so he is going to plead guilty to avoid a trial and take advantage of the government’s plea offer. I don’t like these pleas, especially in cases where the plea deal requires the defendant to enter and complete a counseling program because the client is likely to be kicked out of the program for being not amenable to treatment because he refused to admit that he committed the offense to which he pled guilty.

Alford pleas (i.e., pleading guilty without admitting guilt) are equivalent to wanting to have your cake and eat it too. They promote avoiding responsibility and the reality is that a guilty plea is a guilty plea is a guilty plea, as far as the record is concerned. There is no real advantage to them.

Probably more information than you wanted to know, but the subject is complex and fascinating and probably should be the subject of a separate article.


Tsarnaev: Death penalty cases are won or lost during jury selection

December 29, 2014

Monday, December 29, 2014

Good evening:

Most death penalty lawyers will tell you that a death penalty case is won (i.e., LWOP) or lost (i.e., death sentence) during jury selection. That is because we have seen and done it all and have generally mastered the art of trying cases so that we know to a reasonable certainty whether the jury will convict or acquit the client.

Today we are going to learn about and discuss jury selection in a federal death penalty trial. As you will soon discover, jury selection is more aptly described as deselection. Each side attempts to get rid of the prospective jurors they do not want by challenging them for cause or by peremptory challenge.

1) Challenge for Cause: No limit to the number of challenges, but you have to satisfy the judge that the prospective juror whom you challenge cannot fairly and impartially try the case or follow the court’s instructions. Your challenge will be denied, if you fail to convince the judge.

2) Peremptory Challenge: Each side gets 20 challenges. You don’t have to give a reason to support your challenge, but you cannot use your challenges to exclude prospective jurors solely on the basis of race, gender or religion. For example, the prosecution cannot use peremptory challenges to exclude Muslims. They would have to genuinely have other reasons or the challenge would be denied. The defense has a pending motion to increase the number of peremptory challenges to 30 per side because of extensive pretrial publicity. The government opposes the motion and it will likely be denied since the rule is quite specific about 20.

Jurors will be questioned in three ways. First, they will be asked to fill out a questionnaire. Then they will questioned together as a group and thereafter individually, depending on their answers to some of the questions on the questionnaire or during group voir dire. BTW, voir dire means to question. Attorney voir dire occurs when the lawyer do the questioning.

1,000 prospective jurors have been summoned in the Tsarnaev case. The goal is to seat a jury of 12, plus alternates who will well and truly try the case according to the instructions given by the court.

The first task in the selection process is to go through the questionnaires and excuse people who cannot serve because of the length of the trial, economic hardship, poor health, bias (related to or know victims, witnesses, lawyers or court personnel), prepaid vacations, etc. This usually reduces the pool of prospective jurors by about 50% or more.

Since this is a highly publicized death penalty case, the two major areas of inquiry during voir dire will be: (1) effect of pretrial publicity on ability to fairly and impartially try the case based only on the evidence introduced in court and, assuming the defendant is found guilty, (2) effect of opinions about the death penalty on a juror’s ability to follow the jury instructions that require weighing the aggravating evidence and mitigating evidence in deciding whether to sentence the defendant to death or to LWOP. Jurors will be questioned individually out of the presence of the others to avoid influencing them with their responses regarding these topics and possibly religious beliefs, since Dzhokhar Tsarnaev is allegedly a Muslim jihadist.

More specifically,

1) Pretrial publicity: The test is not whether someone has heard or read about the case. The test is whether they have formed an opinion about the guilt or innocence of the accused such that they would not be able to fairly and impartially try the case. They will be excused for cause, if the answer is “Yes.” If the answer is, “No” they will be questioned individually out of the presence of the others for more information to challenge or pass the juror for cause on the subject of pretrial publicity. If a challenge for cause is denied, the party asserting the challenge likely will use a peremptory challenge later on to get rid of that person.

2) Opinions about the death penalty: Jurors are told that they have to be questioned regarding their opinions about the death penalty before the trial starts because there will not be an opportunity to question them later, if the defendant is convicted. Therefore, they are told to assume guilt when they are questioned. Invariably, a majority of the time spent selecting a jury involves the death qualification process. The test is whether the prospective juror could weigh the aggravating and mitigating evidence and render a verdict according to the jury instructions. Anyone who would automatically vote for the death penalty, if the defendant is convicted as charged, will be excused for cause, Same is true for anyone who would automatically vote for LWOP because they are opposed to the death penalty. This is called death qualifying a jury and it inevitably produces conviction prone jurors because so-called scrupled jurors (who oppose the death penalty) are more likely to vote not guilty than guilty. This feature is another major reason why it’s so difficult to win a death penalty trial.

The goal will be to get a panel of probably 75 or more people who have been passed for cause by both sides. The size of the panel has to be large enough so that there will be enough people left to seat a jury of 12, plus the alternates. If each side uses its full complement of 20 peremptory challenges, that would reduce the panel by 40 people, and possibly a few more, if one side or the other successfully challenges the other side’s improper use of a peremptory challenge to get rid of people based solely on race, gender or religion. Each side also gets a peremptory challenge to assert for each alternate.

It’s OK to end up with a few too many. It’s not OK to end up without enough because then you have to bring in another group of people to question.

One of the extremely bizarre aspects of the death qualification process is the effort by defense counsel to save scrupled jurors from being excused for cause by getting them to admit that they could follow the instructions and impose the death penalty despite their opposition to it, if the aggravating circumstances outweighed the mitigating circumstances. Similarly, prosecutors befuddle jurors who would automatically vote for the death penalty by attempting to get them to admit that they could vote LWOP despite their support for the death penalty, if the mitigating circumstances outweighed the aggravating circumstances.In either case, the object is to force the opposing counsel to use one of their precious silver bullets (i.e., peremptory challenges). The hope is they will run out of ammo before you do and you’ll get some scrupled jurors on the jury.

That is more likely to happen in Massachusetts where a majority of the voters are against the death penalty than would be the case in Texas or Florida where you would be lucky to find a scrupled juror in a group of 1,000 people.

Last but not least, both sides will be on the lookout for possible ‘stealth jurors.’ They are agenda driven people who will lie to sneak on a jury and vote for a particular outcome, regardless of the evidence. This is called jury nullification when the stealth juror votes contrary to the evidence and the instructions. Both sides are likely to have support staff checking social media for potential stealth jurors.

It took 3-4 weeks for me to select a jury in every death penalty case that I tried. Then it took 6-9 months to try the cases.

Since federal court does not allow cameras or audio recordings in the courtroom, we will not be able to watch this fascinating process that is so critically important to the outcome of every trial.

And there you have it.


Debra Jean Milke is free after spending 22 years on death row

December 12, 2014

Friday, December 12, 2014

Good evening:

Debra Jean Milke is finally free after spending 22 years on death row in Arizona for a murder she did not commit: the murder of her 4-year-old son Christopher. The cause of her wrongful conviction was egregious misconduct by an obsessed police detective who played God and a prosecutor who covered up for him. Judge Kozinsky, the Chief Judge of the Ninth Circuit Court of Appeals, lays out the facts:

On the last evening of his short life, Christopher Milke saw Santa Claus at the mall. He woke up the next morning begging his mother to let him go again. Debra agreed and sent Christopher to the mall with her roommate, James Styers. On the way, Styers picked up his friend, Roger Scott. But instead of heading to the mall, the two men drove the boy out of town to a secluded ravine, where Styers shot Christopher three times in the head. Styers and Scott then drove to the mall, where they reported Christopher as missing.

Sunday morning, less than a day into the missing-child investigation, police began to suspect Styers and Scott. It was supposed to be Detective Saldate’s day off, but the homicide sergeant in charge of the case called him in. A veteran of the police force, Saldate was confident he could get the truth out of anyone he interrogated. At headquarters he started in on Styers almost immediately, while his partner, Detective Bob Mills, worked on Scott. Shortly before 1 p.m., Saldate joined Mills in interrogating Scott. According to Saldate, Mills and other officers were happy to let a suspect talk, but Saldate’s “style,” as he described it, was “a little different” — he preferred a frontal assault. “I knew that I was going to be straightforward with [Scott], I was going to be very truthful with him, but I was going to make sure that whatever he told me was going to jive with the facts.”

Soon after Saldate’s appearance, Scott broke. He led the detectives to Christopher’s body and told them where he and Styers had thrown the unspent ammunition. According to Saldate, Scott said along the way that Debra Milke had been involved.Detective Saldate seized on the statement and flew by helicopter to Florence, Arizona, where Milke had gone to stay with her father and step-family after she learned of Christopher’s disappearance.

In Florence, a deputy sheriff invited Milke to headquarters to wait for Saldate. Saldate found Milke waiting in a 15-by-15-foot room of the Pinal County jail. She hadn’t been arrested, nor had she been told anything about Christopher. Saldate pushed into the room and introduced himself. He pulled his chair close to Milke, a forearm’s length at most, and leaned in even closer. That’s when he told her that the police had found her son — dead.

“What, what,” Saldate testified Milke said. Saldate also reported that Milke started yelling and “seemed to try crying.” But the detective saw through the ploy: “When someone is told that their child was murdered and they start to sob and no tears come to their eyes, it’s obviously a way for her to try to make me feel for her, and I didn’t buy it. I didn’t buy it….”

Saldate placed Milke under arrest and read out her Miranda rights. According to Saldate, when Milke started to tell him that she’d complained about Christopher to Styers but never realized Styers would hurt the boy, Saldate shut her down: “I immediately, of course, told her that wasn’t the truth and I told her I wasn’t going to tolerate that, that I wasn’t there to listen to lies, nor did I have the time.”

With that, Saldate claims, Milke opened up to him about the most intimate details of her life. He testified that, in the span of just thirty minutes, Milke knowingly waived her rights to silence and counsel, reminisced about her high school years when she was “in love with life,” feigned tears, calmed down, narrated her failed marriage to Mark Milke — his drug and alcohol abuse and his arrests — recounted how she’d gotten pregnant while on birth control and contemplated an abortion, even making an appointment for one, discussed her fear that Christopher was becoming like his father, confessed to a murder conspiracy, characterized the conspiracy as a “bad judgment call” and solicited Saldate’s opinion about whether her family would ever understand. (His view: No.)

By the end of the interview, Saldate had more than just cinched the case against Milke; he’d helped her emotionally. According to Saldate, Milke said she was “starting to feel better and was starting to get some of her self-esteem back.” Saldate also testified that Milke asked whether she would be released that night, and when he said she wouldn’t be, she asked whether the court could give her “probation for life” if “she could have her tubes tied and never have children again.”

Gasp! What a guy! A living, breathing, no bullshit polygraph machine. If only we had more detectives like him, we would not need courts. We could just take the guilty out into the desert, order them to dig their own grave, cuff them with their hands behind their back, force them to kneel by the side of the grave, execute them with a single gunshot to the back of the head and kick their body into the grave.

Milke had a different story. She denied confessing and claimed innocence. She said she asked for a lawyer, but he refused her request and kept telling her she was a liar.

The trial was a swearing contest between Milke and Detective Saldate with no corroborating evidence to support either one. Juries generally believe cops in swearing contests and this case was no exception. The jurors believed him and she was sentenced to death.

The Ninth Circuit reversed the conviction because the prosecution withheld powerful exculpatory information about Detective Saldate from the defense that likely would have resulted in an acquittal if the jury had known about it. Again, here’s Judge Kozinsky,

Normally that would be the end of the matter. Right or wrong, a jury’s credibility determinations are entitled to respect. But the Constitution requires a fair trial, and one essential element of fairness is the prosecution’s obligation to turn over exculpatory evidence. This never happened in Milke’s case, so the jury trusted Saldate without hearing of his long history of lies and misconduct.

The Appendix contains summaries of some of Saldate’s misconduct and the accompanying court orders and disciplinary action. This history includes a five-day suspension for taking “liberties” with a female motorist and then lying about it to his supervisors; four court cases where judges tossed out confessions or indictments because Saldate lied under oath; and four cases where judges suppressed confessions or vacated convictions because Saldate had violated the Fifth Amendment or the Fourth Amendment in the course of interrogations. And it is far from clear that this reflects a full account of Saldate’s misconduct as a police officer. See pp. 1010-11 infra. All of this information should have been disclosed to Milke and the jury, but the state remained unconstitutionally silent.

The Ninth Circuit reversed and remanded her case for a new trial. The prosecution was unable to retry her because the Saldate refused to testify. He took the Fifth because he is being investigated by the feds. Milke’s lawyers moved to dismiss the case and yesterday the Arizona Court of Appeals ordered the case dismissed. The Court wrote,

The failure to disclose the evidence “calls into question the integrity of the system and was highly prejudicial to Milke, In these circumstances — which will hopefully remain unique in the history of Arizona law — the most potent constitutional remedy is required.

Comments on Torture

Normally, I would stop here, but I am compelled to go further because of the right wing reaction to the Senate torture report. Make no mistake. The torturers, their enablers, and those who have willfully and intentionally concealed what they did belong in prison for the rest of their lives. That includes the two sex-psycho psychologists James Mitchell and Bruce Jessen, who were paid $81 million to feed their addictions, President George Bush, Vice President Dick Cheney, and CIA Director George Tennant. Torture is unlawful and never justified, ever. I have heard a lot argument about whether it provided useful information, but that is irrelevant.

I oppose Anthony Romero’s proposal that President Obama pardon the torturers. He is the Executive Director of the ACLU whom I normally support. However, I cannot do so this time because a pardons send the wrong message. Even though a pardon does not technically excuse the criminal behavior, people throughout the world would misinterpret it as a form of approval. I believe we have a right to insist that not be done in our names. These sadistic sexual psychopaths are war criminals, not patriots who got a little carried away.

We have developed a standardized procedure in this country for interrogating people suspected of committing crimes. It does not work all the time because we still see examples of false confessions. It does appear to work most of the time

Detective Saldate did not follow that standard procedure, which is so ingrained that police can recite it in their sleep. When they vary from it, one can reasonably assume they did so to conceal misconduct.

The standard procedure:

1) audio and video record the interrogation;

2) provide the suspect with a standard printed form that informs her of her Miranda rights:

– right to remain silent

-anything she says can be used against her in a court of law

-right to consult with a lawyer and have the lawyer present during any questioning

-right to have the court appoint a lawyer if she cannot afford to hire one.

3) Read her the rights, have her initial each one as they are read, and have her acknowledge that she understood her rights by signing the acknowledgement

4) Have her sign the waiver, if she agrees to give up her Miranda rights and give a statement.

5) Write out her statement

6) Have her read it out loud and sign it acknowledging that it is voluntary, true and correct.

It’s generally a good idea to have another detective present to witness the interrogation.

This procedure was adopted by the United States Supreme Court in Miranda v. Arizona, 384 US 436 (1966) with the hope of finally stopping police from extorting involuntary or false confessions from suspects, a widespread practice often involving the use or threatened use of torture to break the suspect’s will to resist. No one knows how many innocent people have been convicted, imprisoned and executed because of false confessions but it remains a problem despite Miranda.

Please read it, if you have any doubts about the efficacy of torture.

Meanwhile, Detective Saldate and the prosecutor who concealed Saldate’s odious history of playing God and committing perjury to obtain convictions should spend the rest of their lives in prison.

They almost cost Debra Jean Milke her life.


Why the Jordan Davis murder was not a death-penalty case and update on Jodi Arias

October 2, 2014

Thursday, October 2, 2014

Good morning:

Several readers have asked why the prosecution did not seek the death penalty in the Michael Dunn case.

It is not a death-penalty case.

The death penalty is reserved for the most egregious premeditated murders. In other words, it applies to premeditated murders with “aggravating circumstances” that are listed in the death-penalty statute.

For example, a premeditated intent to kill a witness to a crime you have committed in order to conceal the crime you have committed is an aggravating circumstance that qualifies for the death penalty. A rape murder qualifies where the purpose of the murder is to prevent the victim from reporting the rape and identifying the rapist.

Other examples are premeditated murders of certain people such as police officers, judges, prosecutors, defense attorneys and children under age 12.

Another example that might have applied to Dunn, if he had killed the other boys in the Dodge Durango, is multiple victims. This statutory aggravating factor also would apply to terrorist bombings, such as the Oklahoma City and Boston Marathon bombings.

The Jodi Arias case provides another example. She is charged with killing her former boyfriend, Travis Alexander, with premeditation and the aggravating factor alleged in the indictment is that she killed him in a “cruel, heinous, or depraved” manner. Wikipedia describes the killing:

The killing of Travis Alexander occurred on June 4, 2008. On June 9, 2008, Alexander’s body was discovered by his friends in a shower at his home in Mesa, Arizona. Alexander had been stabbed repeatedly, with a slit throat and a fatal gunshot wound to the head. There have been conflicting reports over the number of stab wounds; some reports state that Alexander had been stabbed 29 times, while others state 27 times. Medical examiner Kevin Horn testified that Alexander’s jugular vein, common carotid artery, and windpipe had been slashed. Alexander had defensive wounds on his hands. Horn further testified that Alexander “may have” been dead at the time the gunshot was inflicted, and that the back wounds were shallow. Alexander’s death was ruled a homicide. He was buried at the Olivewood Cemetery in Riverside, California.

Arias was convicted of premeditated murder, but the jury was unable to unanimously agree that death was the appropriate penalty.

The parties are now attempting to select a new penalty-phase jury. ABC News is reporting that more than half of the 400 prospective jurors have been dismissed because they were too familiar with the case and could not fairly and impartially evaluate the evidence in deciding whether she should be sentenced to death or life without possibility of parole.

The effort to select a jury continues today.

Unfortunately, there is no television or live-stream coverage.

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Thank you.


US Attorney General Eric Holder dares to mention elephant in living room

July 14, 2014

Monday, July 14, 2014

Good morning:

The Washington Times, a conservative rag if ever there was one, reports that United States Attorney General, Eric Holder, dares to mention the elephant in living room.

Attorney General Eric Holder threw down the race card and said on national television that at least some of the political resistance that he and President Obama face is due to the color of their skin.

“There’s a certain level of vehemence, it seems to me, that’s directed at me [and] directed at the president,” Mr. Holder told ABC News. “You know, people talking about taking their country back. … There’s a certain racial component to this for some people. I don’t think this is the thing that is a main driver, but for some, there’s a racial animus.”

The Washington Times is reporting this statement because it wants to show that Holder is a scandalous and unhinged race-baiter.

We can figure that out because the article is linked by video to a report that he was hospitalized Thursday for shortness of breath and feeling faint.

We know he is not unhinged, of course, because his statement is an understatement.

I say this because racism in this country is a raging infection consuming this nation. That should be readily apparent to anyone with eyes to see and we should be having a national dialogue about what we need to do to end it.

The right-wing-hate-machine, which specializes in denying reality and mocking the reality-based world, laughably claims that we live in a post-racial society and that is but one example of why they so disgust me.

Do not misunderstand. I am not a fan of Eric Holder. I disagree with his decisions not to prosecute the war criminals and the Wall Street banks. My opposition has nothing to do with race.

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The death penalty does not bring closure

February 25, 2014

Tuesday, February 25, 2014

Good morning:

Ironically, it is much easier to adjust and begin to focus on how one wants to live the rest of their life when the sentence is life without parole.

The death penalty does not bring closure.

Instead, it brings year after year after year of appeals, collateral attacks, stays of execution and remand hearings. The emotional roller coaster may last more than 20 years and there is no certainty that the process will end in an execution.

Putting one’s life on hold and investing one’s limited amount of energy into obsessively and compulsively hating another person and praying for their death is self-destructive.

Nothing good can come of it.


Time to permanently stop executions by lethal injection

February 24, 2014

Monday, February 24, 2014

Good morning:

The death penalty is back in the news today as Missouri gets ready to execute Michael Taylor by lethal injection on Wednesday for the rape and stabbing-death of 15-year-old Ann Harrison in 1989.

The issue is not a claim of innocence because Taylor has admitted to kidnapping her from a school bus-stop in Kansas City and committing the crimes with Roderick Nunley, who also is on death row.

The issue is about the manner of execution. Taylor’s lawyers claim that the State of Missouri plans to execute him by lethal injection using a secret mix of chemicals in violation of the Eighth Amendment prohibition against cruel and unusual punishment made applicable to the states by the Due Process Clause of the 14th Amendment.

This is a serious claim. For example, he barely avoided execution in 2006, when a court issued an order staying his execution after the doctor who carried out the executions by lethal injection admitted that he had used improper dosages.

The problem today is that the states can no longer use the three-drug cocktail approved for executions by a plurality of the United States Supreme Court in Baze v. Rees, 128 S.Ct. 1520, 1526-1527, 1537 (2008).

A total of 36 States have now adopted lethal injection as the exclusive or primary means of implementing the death penalty, making it by far the most prevalent method of execution in the United States. It is also the method used by the Federal Government. See 18 U.S.C. § 3591 et seq. (2000 ed. and Supp. V); App. to Brief for United States as Amicus Curiae 1a-6a (lethal injection protocol used by the Federal Bureau of Prisons).

Of these 36 States, at least 30 (including Kentucky) use the same combination of three drugs in their lethal injection protocols. See Workman v. Bredesen, 486 F.3d 896, 902 (C.A.6 2007). The first drug, sodium thiopental (also known as Pentathol), is a fast-acting barbiturate sedative that induces a deep, comalike unconsciousness when given in the amounts used for lethal injection. App. 762-763, 631-632. The second drug, pancuronium bromide (also known as Pavulon), is a paralytic agent that inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration. Id., at 763. Potassium chloride, the third drug, interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest. Ibid. The proper administration of the first drug ensures that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs. Id., at 493-494, 541, 558-559.

/snip/

A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.

Meanwhile, on January 21, 2011, Hospira (the only pharmaceutical company that manufactures sodium thiopental, which is also known as Pentothal) announced that it would no longer produce it.

The company issued the following explanation for its decision:

Hospira had intended to produce Pentothal at its Italian plant. In the last month, we’ve had ongoing dialogue with the Italian authorities concerning the use of Pentothal in capital punishment procedures in the United States – a use Hospira has never condoned. Italy’s intent is that we control the product all the way to the ultimate end user to prevent use in capital punishment. These discussions and internal deliberation, as well as conversations with wholesalers – the primary distributors of the product to customers – led us to believe we could not prevent the drug from being diverted to departments of corrections for use in capital punishment procedures.

The State of Ohio executed Dennis McGuire on January 16th using midazolam and hydromorphone that caused him to writhe in pain for 25 minutes before he died prompting Ohio Governor John Kasich to order an 8-month stay of execution for Gregory Lott in order to allow the Department of Corrections to review the state’s lethal injection procedure.

That was a good idea, given what happened, since the method of execution likely would not have satisfied the SCOTUS test.

Figuratively speaking, the State of Missouri “hit the streets” to find a drug to kill people.

The The Death Penalty Information Center reports,

In Missouri, the Director of the Department of Corrections testified [before the House Committee on Government Oversight and Accountability] that the state obtains its lethal injection drugs by sending a correctional official to another state with $11,000 in cash to pay a compounding pharmacy called The Apothecary Shoppe. The officer then hand delivers the drug to the department. At a legislative hearing on February 10, George Lombardi of the DOC said pentobarbital was obtained in Oklahoma by paying in cash in order to maintain the anonymity of the pharmacy. Also testifying was Jacob Luby, an attorney with the Death Penalty Litigation Center. Luby raised concerns that the drug would not be stored at the proper temperature in transport: “First, let’s address the fact that this drug is supposed to be kept frozen and not at room temperature,” Luby said. “We’ve got someone driving a drug across state lines after purchasing it in cash and delivering it to the department and until a few weeks ago, we didn’t even know who was selling us the drug.” Bills have been proposed in Missouri to require execution protocols to be more open to public scrutiny. The Department of Corrections is currently exempt from that process.

We now know why Missouri officials were so secretive about their method of acquiring Pentobarbitol, which is also known as Nembutal, and using it to execute people. The drug, which is similar to Pentothal, is produced by Lundbeck, a pharmaceutical company in Deerfield, IL. On January 26, 2011 the company contacted Gary C. Mohr, Director of the Ohio Department of Corrections and Rehabilitation and asked him to stop using Pentobarbitol to execute people.

The manufacturers of other drugs, such as propofol and phenobarbitol, also have objected to the use of their products to execute people and have taken steps to prevent states from acquiring them for that purpose.

The DPIC also reports:

Both the American Medical Association (AMA) and the National Association of Emergency Medical Technicians (NAEMT) recently issued public statements reminding members of their ethical obligation not to participate in legally authorized executions. As courts and legislatures throughout the country continue to struggle with questions related to lethal injection procedures, AMA president William G. Plested III noted that AMA policy clearly prohibits medical professionals from participating in executions because it “erodes public confidence in the medical profession.” The NAEMT issued a position paper stating that member participation in executions is forbidden because it “is inconsistent with the ethical precepts and goals of the EMS profession.”

Missouri’s determination to do whatever it needs to do, including acting in secret and paying cash to acquire drugs that will kill people is an absurd tinkering with the machinery of death that is both abhorrent and indefensible to reasonable people.

Death by lethal injection is the last of the “best” solutions for humane executions that do not violate the Eighth Amendment prohibition against cruel and unusual punishment.

The time has come to stop sentencing people to death, permanently stop executions by lethal injection or by any other method and convert all death sentences to life without parole.


Greene County prosecutor may seek death penalty for Craig Wood

February 21, 2014

Friday, February 21, 2014

Good afternoon:

According to KMOV.com, Greene County Prosecuting Attorney, Dan Peterson, has announced that he intends to seek the death penalty against Craig Michael Wood for the kidnap and murder of 10-year-old Hailey Owens.

If true, such an announcement is premature and improper.

For the following reasons, a prosecutor’s decision to seek the death penalty should be delayed until defense counsel has had a reasonable opportunity to prepare and submit a report regarding the evidence that it would present to a jury in support of a request for an LWOP sentence instead of the death penalty.

First, the United States Supreme Court (SCOTUS) has ruled that the death penalty can only be imposed in some, but not all murder cases, and there is no murder, no matter how aggravated, gruesome or depraved, that automatically warrants the death penalty.

Instead, the jury or the judge in a case where the defendant waives his right to a jury trial, must decide whether to impose the death penalty by weighing evidence in aggravation (i.e, the manner in which the crime was committed and the defendant’s criminal record) against evidence in mitigation (e.g., youthful age, immaturity, developmental disability, mental illness, diminished capacity, minimal role in a multiple defendant case and absence of a criminal record are some, but not all of the factors that might call for a sentence of LWOP rather than the death penalty).

Second, since there is no murder for which the death penalty is automatic, a prosecutor’s decision to seek it should be based on a thoughtful consideration of both the aggravating and mitigating evidence in the case.

Third, since the prosecution must necessarily rely on defense counsel to discover and disclose the mitigating evidence before it decides to seek or not to seek the death penalty, it must give defense counsel an adequate period of time to prepare a mitigation report.

Pursuant to current practice in most jurisdictions, the prosecution initiates the process of deciding whether to seek the death penalty by obtaining an indictment for a death-penalty eligible murder. The prosecutor then has a specific period of time (typically at least 30 days) following the defendant’s arraignment on the charge or charges in the indictment within which to decide whether to file a notice that it intends to seek the death penalty, if the defendant is convicted of the death penalty eligible murder.

This deadline is often extended by agreement of the parties for a period of months (1) to allow the defense a reasonable opportunity to prepare a mitigation report and (2) to allow the prosecution a reasonable opportunity to review it.

A meeting usually takes place a day or so before the deadline during which lawyers for both sides discuss the relative merits and demerits of their respective positions. These meetings are surreal because they are discussions that presuppose the defendant will be convicted and focus on whether he should live or die.

Sometimes the prosecution decides not to seek the death penalty, in which case it does not file the notice.

Sometimes it does.

If followed in good faith, this process assures that the decision to seek the death penalty will not be based on a defendant’s refusal to plead guilty.

Indeed, ethical prosecutors should be opposed to using the death-penalty as a bargaining chip in plea negotiations.

Plead-guilty-as-charged-and-agree-to-a-sentence-to-life-without-possibility-of-parole (LWOP)-or-I-will-seek-the-death-penalty is extortion of the worst sort because it forces a defendant to gamble with his life, if he wants to exercise his right to a jury trial. We have seen far too many wrongful convictions of innocent people to allow a prosecutor to extort guilty pleas in premeditated murder cases.

There is one important exception to this process and that occurs when a defendant seeking to avoid the death penalty offers to plead guilty in exchange for an LWOP sentence. In this situation, the defendant’s desired outcome is an LWOP sentence and he is not being forced to accept it.

For example, in the Green River Killer case in Seattle, Gary Ridgway offered to plead guilty to 48 premeditated rape murders in exchange for providing information about the location of missing bodies. The prosecution accepted his offer, so he is serving LWOP.

Craig Michael Wood is charged with kidnapping and murdering 10-year-old Hailey Owens. This is potentially a death-penalty-eligible offense under Missouri law because it is a premeditated murder committed while engaged in a kidnapping offense and the victim was a witness or potential witness against him.

The offense probably also qualifies as a murder “outrageously or wantonly vile, horrible or inhuman.”

Whether Dan Peterson has already made up his mind or will follow the process I have described in good faith or eventually use the death penalty as a bargaining chip in plea negotiations remains to be seen.

Ironically, such an offer might be quickly snapped up by the defense, if the evidence of guilt is as overwhelming as it now appears to be.


Racism is an insane delusion about people of color

February 16, 2014

Sunday, February 16, 2014

Good morning:

Although I am pleased with the three guilty verdicts of attempted second degree murder and the guilty verdict for shooting into a car that will keep Michael Dunn locked up for the rest of his life, I am disappointed with the jury’s failure to reach a verdict on count 1, which charged him with first degree murder for the death of Jordan Davis.

Ironically, without the presence of the three boys in the Durango and the guilty verdicts to diminish our disappointment, we would be in a much different emotional state today.

I support Angela Corey’s decision to retry him, but she is going to have to change her strategy to obtain a different result.

I am going to focus on Jordan Davis today, which is his birthday, and explain what she must do to obtain justice for Jordan.

The time has come to stop white-washing racially motivated crimes. By that, I mean ignoring the elephant in the living room, racism.

Although motive is not an element of most crimes and therefore irrelevant, it may be relevant (i.e., probative) to prove intent.

The importance of introducing evidence of racial motivation comes into sharp focus when the victim, like Jordan, was black unarmed, and the defendant, like Dunn, is white and claims he saw a weapon or a portion of a weapon and killed the victim in self-defense.

Such a killing would be justifiable homicide in self-defense, if the defendant reasonably believed himself to be in imminent danger of death or serious bodily injury.

As our United States Supreme Court has often said, reasonableness depends on the “totality of the circumstances.”

We know from Dunn’s letters that he regarded the four boys as dangerous thugs and gangsters listening to “thug” music.

That is a racist assumption unsupported by any evidence.

Sometimes people see what they expect to see or want to see and that certainly applies to racists who are substantially more likely to assume that an unarmed black male teenager is an armed thug than an unprejudiced person.

Like it or not, that mindset is part of the totality of the circumstances that a jury should have a right to consider in deciding whether a defendant like Dunn gave a truthful account of his actions and acted reasonably.

Our legal system needs to acknowledge the existence of racism and call it what it is, an insane delusion.

A claim of self-defense must be evaluated according to whether a reasonable person in the same situation as the defendant would have believed himself to be in imminent danger of death or serious bodily injury such that the use of deadly force in self-defense was reasonably necessary.

There is no such thing as a reasonable insane delusion and we do justice to no one by excusing a violent act committed by a person pursuant to an insane delusion and ignoring the consequences of that act.

I do not mean to suggest or imply that Dunn actually saw a weapon or believed that he did. I believe he lied about that to avoid arrest and prosecution.

Evidence of a racial motivation to kill makes comprehensible the otherwise incomprehensible crime.

For example, let’s assume that a defendant in a murder case, who shot and killed an unarmed teenage girl whom he did not know, testifies and says,

“Why would I have killed her unless I believed she had a gun and was going to rob and kill me?”

A racist is more likely to believe that she had a gun or lie about it than a person who is not racist.

White washing racist defendants by concealing or withholding evidence of their racial motivation from a jury will produce injustice, not justice.

It is not a coincidence that my hypothetical resembles the Renisha McBride case in Detroit, which is coming up for trial in June.

I do not know if Theodore Wafer is a racist, but I certainly would be looking for such evidence with the intent of introducing it at trial, if I were the prosecutor.

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Police officer shoots and kills schizophrenic 18-year-old

January 10, 2014

Friday, January 10, 2014

Good afternoon:

We have yet another tragic incident to consider in which a police officer shoots and kills a mentally ill person.

CNN reports:

A man calls 911 saying his family needs help. His wife is scared of their schizophrenic son, armed with a screwdriver. One, then two, then three law enforcement officers — all from different agencies — arrive. After the situation calms somewhat, according to the family, a tussle ensues.

What happens next?

In a case this week out of Boiling Spring Lakes, North Carolina, one officer responded by firing his gun, killing 18-year-old Keith Vidal, who was mentally ill.

The teen’s furious family soon take their case public, saying there’s no justification for Sunday’s shooting. Vidal, they say, weighed all of 100 pounds; he was mentally ill, yes, but he was a “good kid.”

The shooter is Byron Vassey, a detective with the Southport (NC), Police Department, which has placed him on administrative leave pending an investigation of the shooting.

The legal test to apply is whether the officer reasonably believed that Keith Vidal was an immediate danger to himself or to others. Writing for the majority of the SCOTUS in Graham v. Connor, 490 U.S. 386, 396-397 (1989), Chief Justice Rehnquist explained the test as follows:

Determining whether the force used to effect a particular seizure is “reasonable” under the Fourth Amendment requires a careful balancing of ” `the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ ” against the countervailing governmental interests at stake. Id., at 8, quoting United States v. Place, 462 U. S. 696, 703 (1983). Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. See Terry v. Ohio, 392 U. S., at 22-27. Because “[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,” Bell v. Wolfish, 441 U. S. 520, 559 (1979), however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. See Tennessee v. Garner, 471 U. S., at 8-9 (the question is “whether the totality of the circumstances justifie[s] a particular sort of . . . seizure”).

The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. See Terry v. Ohio, supra, at 20-22. The Fourth Amendment is not violated by an arrest based on probable cause, even though the wrong person is arrested, Hill v. California, 401 U. S. 797 (1971), nor by the mistaken execution of a valid search warrant on the wrong premises, Maryland v. Garrison, 480 U. S. 79 (1987). With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,” Johnson v. Glick, 481 F. 2d, at 1033, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.

As in other Fourth Amendment contexts, however, the “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. See Scott v. United States, 436 U. S. 128, 137-139 (1978); see also Terry v. Ohio, supra, at 21 (in analyzing the reasonableness of a particular search or seizure, “it is imperative that the facts be judged against an objective standard”). An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional. See Scott v. United States, supra, at 138, citing United States v. Robinson, 414 U. S. 218 (1973).

In the Boiling Spring Lakes case, there were three different officers at the scene. The first two didn’t open fire, but Vassey did. His lawyer, W. James Payne told CNN that Keith Vidal attempted to stab one of the officers multiple times with a screwdriver, but the officer was wearing a bulletproof vest, did not request assistance and was not injured.

Keith Vidal’s stepfather, Mark Wilsey, who witnessed the shooting with Vidal’s mother, told CNN that the detective disrupted the situation,

“(He) walks in the room, walks around the corner, (and) says, ‘We don’t have time for this. Tase that kid now. Let’s get him out of here.'”

The North Carolina Bureau of Investigation is investigating this shooting.

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This is our 846th post in 26 months.

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