State Seeks Death Against Tommy Lee Holiday

News Update 01.31.08

North Carolina

Nash County prosecutors have formally announced their intent to seek death against Tommy Lee Holiday, who is accused of killing a Meals on Wheels worker in 2007. Another woman survived the attack. The case has gained attention from white supremacists because Holiday is black and the victims are white. (An informal announcement of intent to seek death was made a week after the crime occurred.)

Carlos Canady, who was sentenced to death in 1999, has entered a plea to life in prison plus 40 years. Canady’s conviction was overturned by the North Carolina Supreme Court in 2002, which found that his trial had been “riddled with errors,” so much so that the Court didn’t bother to discuss them all before granting relief. “We are satisfied with [the plea],” said a member of the victims’ family. “Our main concern was that he was not out on an early release and then somebody else have to go through this.”

Judge Quentin Sumner has imposed a gag order in the case of Mark Bowling, who stands accused of having his mistress kill his wife. “The case will not be tried in the press. It will be tried in the courtroom,” the judge said. The case has attracted a tremendous amount of publicity in the Rocky Mount area, where Bowling was a well-known businessman.

More on the conviction of Lisa Greene here and here. Jurors will hear evidence in the sentencing phase of the trial beginning on Friday.

Elsewhere

SCOTUSBlog has all you need to know about Callahan v. Allen. James Callahan’s attorneys have filed their petition to the US Supreme Court, asking that the Court delay his execution until they can file a proper appeal from the 11th Circuit’s surprise decision two days before Callahan’s scheduled execution. Callahan’s future petition will raise three issues: 1) whether the 11th Circuit erred in vacating his stay of execution based on a particular statute of limitations; 2) whether a state statute of limitations is properly applied to a claim based in federal civil rights; and 3) whether a statute of limitations can fairly begin to run when the claim is not ready for review because the method of execution remains uncertain. Callahan’s execution is set for 6:00 PM tonight.

Meanwhile back in Alabama, two state lawmakers have introduced bills to change the state’s capital punishment system. Senator Hank Sanders is proposing a moratorium on executions and a study on the fairness of the administration of the death penalty, while Representative Randy Wood is proposing legislation to expand the death penalty statute to include child rape. Click here for more information about the death penalty in Alabama.

The US Supreme Court has issued its argument calendar for April. Kennedy v. Louisiana, the case testing whether a person can be sentenced to death for a non-fatal crime, will be heard on April 16th.

How Appealing has the goods on Judge Hilton Fuller’s surprise decision to step down from the Brian Nichols/courthouse shooting case. Fuller has come under a great deal of fire over the last several years for having the audacity to, among other things, suggest that Nichols’ lawyers should be paid for their work. The final straw was a recent article in The New Yorker, which published comments made by Fuller to the effect that insanity is Nichols’ only possible defense because, “everyone in the world knows he did it.” The search for a new judge is not expected to be easy.

Lisa Greene Found Guilty

The six men and six women chosen to sit on Lisa Greene’s jury have found her guilty. Just two hours earlier they reported to the judge that they were deadlocked – it is unclear what happened to change their minds.

Greene was found guilty of two counts of first-degree murder, one count of first-degree arson, and two misdemeanor drug charges.

The trial will proceed to the sentencing phase, where the jury will decide whether Greene will be sentenced to death or serve life in prison without the possibility of parole.

Lisa Greene Jury Reports Deadlock

After 12 hours of deliberations, jurors in the trial of Lisa Greene have reported that they are at an impasse. The judge ordered the jury to take their lunch break and return to deliberations this afternoon.

Greene stands accused of killing her two children, Addison and Daniel, by setting fire to their home. The defense has presented evidence that the fire started accidentally from a candle in the children’s room.

The jury has four options – to convict Greene of first-degree murder (for which she could face the death penalty), to convict her of second-degree murder, to convict her of involuntary manslaughter, or to find her not guilty.

Greene also faces arson and misdemeanor drug charges. The jury reported that it has reached a verdict on one charge, but it has not been revealed which.

11th Circuit Orders Callahan Execution

This morning, the 11th Circuit Court of Appeals lifted the stay of execution granted to James Callahan by a federal district court in Alabama in December. The two judges in the majority held that Callahan filed his lethal injection complaint too late, and refused to consider any of the constitutional issues he raised. In Alabama, inmates can choose their method of execution – lethal injection or the electric chair. The Court said that Callahan had two years from the date he selected lethal injection, July 31, 2002, to issue a challenge to that method.

In dissent, Judge Charles Wilson wrote that the clock cannot reasonably begin to run “until the prisoner knows or has reason to know the facts giving rise to his claim and the prisoner’s execution becomes imminent.” If the inmate were required to file his complaint years in advance, the protocol might change in the intervening years and the earlier litigation would have been a waste. Courts generally decline to rule on issues until they are ripe. It is also unclear how Callahan can be expected to have known in 2004 that the Supreme Court would grant cert on an issue in 2007 that they have not ruled on since 1879.

Callahan will now appeal to the United States Supreme Court. The Court has not allowed an execution since September of 2007 when Michael Richard was killed in Texas. Oral arguments were heard in Baze v. Rees, the Kentucky case which put executions on hold nationwide, on January 7th. A decision is expected in June.

Biblical Evil

News Update 01.29.08

North Carolina

“I do believe that there is biblical evil that lives among us, and for some crimes you give up the right to be here on the earth.” You might expect these words to pass the lips of a conservative, Religious Right Republican, but it was a little shocking to hear them from Richard Moore, Democratic candidate for Governor. It was perhaps more surprising that Moore uttered these words in response to a question about James Johnson, who sat in jail facing the death penalty for three years despite not having killed anyone, at a debate hosted by the NAACP. (Moore at least bothered to show up, unlike three of the four Republican candidates.)

Deliberations continue in the trial of Lisa Greene. On Friday, jurors asked to see photos of the fire damage and a copy of one child’s autopsy report, among other evidence. Deliberations were canceled on Monday after a juror got into a car accident en route to the courthouse. The juror was not seriously injured, and deliberations will begin again today.

The North Carolina Supreme Court has refused to hear the appeal of Lee Wayne Hunt, who has been imprisoned since the mid-80s for a double murder he may not have committed. No matter that the forensic evidence has been proven faulty and the co-defendant said he acted alone. The Court offered no explanation for its decision.

Elsewhere

In other thwarting innocence news, Congress would like to know why the Department of Justice has failed to distribute any of the $40 million Congress provided for DNA testing in possible false conviction cases. The Kirk Bloodsworth Post-Conviction DNA Testing Program is named for the first person to be freed from death row after DNA conclusively proved his innocence. Despite his innocence, Bloodsworth was convicted not once but twice of raping and murdering a nine-year-old girl.

From The New Yorker, another look at the Brian Nichols/Atlanta courthouse shooting case – the defendant, the witnesses, the lawyers, the judge, the financial meltdown of Georgia’s indigent defense system. Simply put, if you’re going to have capital punishment, you have to do it right, and doing it right is very, very expensive. Georgia seems to be struggling with whether it wants to do things right, or just quickly.

Lisa Greene Jury to Begin Deliberations

News Update 01.24.08

North Carolina

In Concord, the defense has given its closing argument in the trial of Lisa Greene. The prosecution will continue its argument today. If convicted, Greene could be sentenced to death.

Throughout Lisa Greene’s murder trial, prosecutors have suggested Greene, a professional photographer who uses props in her work, may have staged a fire at her house to make it look accidental.

On Tuesday, Greene’s attorneys told jurors that prosecutors had done the staging, twisting witnesses’ statements to make it look as though Greene intentionally set the fire that killed her children.

One of Greene’s attorneys, Lisa Dubs, compared a statement Greene signed — in which Greene says she set the fire Jan. 10, 2006 — to the Salem witch trials in 17th-century Massachusetts, in which people were forced into falsely confessing they were witches.

If Greene’s alleged confession is accepted as credible, “then we haven’t learned anything in 315 years about how valid a confession that looks like this really is,” Dubs said.

Raymond Christian Jedele, a former Kitty Hawk police officer, will face the death penalty if convicted of the 2007 kidnapping and murder of Donald Bradley Smithwick. Smithwick’s ex-wife, Janet Denise Harrell, has been charged with accessory after the fact.

Meanwhile, the Onslow County District Attorney has announced that he will not seek the death penalty against Caesar Laurean, who stands accused of killing a fellow Marine, if Laurean is captured in Mexico. Laurean would still face the death penalty if captured in the US. Mexico, which abolished the death penalty in 2005 after not putting anyone to death since 1961, will not extradite defendants to the United States in cases where the death penalty is sought. The United States agreed to respect its neighbor’s position on capital punishment in a 1980 treaty.

District attorneys announced this week that they will not be seeking death in a number of other cases.

• Renee Yvette McLaughlin will spend less than sixteen years in prison for her part in a quadruple murder that landed Mario Lynn Phillips on death row. Prosecutors believe that McLaughlin had a minor role in the killings and did not herself injure any of the victims.
• Ryan Jermar White will not face the death penalty for his role in a September killing, but at least two of his co-defendants will. White still faces first-degree murder charges, even though prosecutors say he wasn’t at the home where the death occurred.
• The Onslow County District Attorney felt it necessary to announce that he will not be seeking death in two cases for which the law does not permit capital punishment. Casey Rafael Tyler was under the age of 18 when he committed his crime, and Kenneth Gordon Waid, Jr.’s crime did not involve any aggravating factors.

Elsewhere

After ten years on Virginia’s death row, Daryl Atkins has finally had his death sentence converted to life without parole. Atkins did not get relief under the famous case which bears his name – prosecutors still maintain that Atkins is not mentally retarded – but because his co-defendant’s lawyer was finally able to come forward with the truth: prosecutors coached the co-defendant’s testimony against Atkins, telling him that his original story wasn’t good enough and helping him act out the crime to come up with something better. Legal ethics prevented the lawyer from coming forward until his client’s appeals had concluded.  Only fate kept Atkins from being executed before the truth was known.

In California, many are unhappy with the growing cost of building a new death row at San Quentin State Prison. The current estimate is $356 million, $19 million more than last year and roughly $27 million for each inmate California has actually executed in the modern era. Governor Schwarzenneger has vetoed a bill to delay construction on the present site while more cost-effective alternatives are researched. Said one observer, “At a time when the governor’s budget is going to put children on the street, it is absurd to be spending $400,000 a bed for condemned prisoners.” (c/o CDW)

Murder and the Military

News Update 01.15.08

North Carolina

Over the weekened, The New York Times ran a piece about 120 servicemen (and one woman) who have come home from the wars in Iraq and Afghanistan, unable to leave combat mentality behind, and committed murder on American soil. DW immediately thought of North Carolina, home to Fort Bragg and Camp Lejeune. (The article mentions Lucas Borges, a Lejeune Marine whose drug abuse – known to and untreated by the military – resulted in the death of a 19-year-old girl four months after his return from Iraq.) A quick look at today’s papers in Fayetteville (Fort Bragg) and Jacksonville (Camp Lejeune) show that the trend continues. One, two, three, four articles pertain to violent deaths involving servicemembers. (For the record, only two – Pfc. Oscar Cruz and Michelle Theer – are known to DW to be Iraq veterans.) There are over a dozen vets and former servicemembers already on death row in North Carolina.

Yesterday, Lisa Greene‘s family testified that she loved her children, and that Greene’s youngest child liked to play with candles. Greene is accused of killing her children, ages 10 and 8, by setting a fire outside their room. Prosecutors asserted that Greene pretended to care for her children when in the company of relatives, but that she really wanted to get rid of them. “You weren’t there to see what really happened,” said Assistant District Attorney Ashlie Shanley. “No,” replied Greene’s sister. “Neither were you.”

Elsewhere

In Ohio, John Spirko’s death sentence has been commuted to life in prison. That’s nice and all, say Spirko’s lawyers, except that he’s innocent and should be released. Just days earlier, Ohio released another innocent man – Kenny Richey – after 21 years on death row. In neighboring Pennsylvania, the state recently paid a $4 million settlement to Nick Yarris, who was released from prison after serving 22 years and being sentenced to death for a murder he did not commit.

Before Missouri executioner David Pinkley could go to Indiana to assist with the execution of Oklahoma City bomber Timothy McVeigh, he had to get permission from his probation officer. Three years earlier, the nurse had been charged with felony aggravated stalking and first-degree tampering with property after repeatedly vandalizing a man’s home and car, and threatening, among other things, “I’ll burn your (expletive) house down and blow your (expletive) head off!” This is not the first time members of Missouri execution team have been questioned. In 2006, it was revealed that the doctor in charge had been sued for malpractice 20 times and lost his privileges at two hospitals. (c/o CCR) SLAP asks whether the Supreme Court should be reviewing the constitutionality of Missouri’s execution procedures instead of Kentucky’s.

StandDown reports that Pennsylvania plans to begin using a brain wave monitor to ensure that inmates are unconscious before they are executed. Someone should tell them that North Carolina already tried that, and has learned that brain wave monitors are inadequate to determine unconsciousness, particularly in executions because the lethal chemicals used interfere with readings. Also, the manufacturer of the BIS monitor now refuses to sell them to Departments of Correction without assurance that they will not be used in executions.

Presidential candidate John Edwards was on NPR yesterday. When a caller asked about his position on the death penalty, Edwards responded that he is concerned about racism in the criminal justice system, the possibility of executing an innocent person, the dangers of poor representation, and the way that “death-qualified” juries stack the deck in favor of the prosecution…but he still supports capital punishment.

Durham and Moore DAs Seek Death

News Update 01.09.08

North Carolina

Testimony continues in the trial of Lisa Greene.

In Durham, there is debate over whether prosecutors will be able to seek the death penalty against Jasmond Jevon “Catfish” Rogers for his role in a June drive-by shooting. The assistant district attorney failed to give the defense advance notice of his decision to seek death, as required by law. Giving notice only requires filing simple paperwork, but is important because without it the defense cannot gain access to special funds and resources necessary to a capital trial. Moving forward with a capital case in which the DA has not given proper notice means that either the defense will be ambushed (and have a great issue for appeal) or that the trial will be needlessly delayed while the defense conducts the investigation it would have done earlier had the DA complied with the law. Speedy justice requires timely notice.

Meanwhile in Moore County, prosecutors have been given the green light to seek death against Sherrod Nicholas Harrison. Harrison is one of five men accused of a September home invasion-homicide. The case is being closely watched by online hate communities because the victim was white and all of the defendants are black.

NC Policy Watch weighs in on what the Baze litigation means for North Carolina: “First, the debate places the spotlight on the inherent flaws in any capital punishment system. While a majority of the U.S. Supreme Court may not find it violative of the Eighth Amendment, there is no longer any hiding the fact that killing people is, even under the most ‘humane’ circumstances, a grisly business…Second and more broadly, the cases serve to point out the inherent contradictions of state sanctioned killing in the 21^st Century. As more and more Americans appear to be coming to understand…capital punishment is (like slavery, torture, racism and many other once widely celebrated and now dead or dying institutions) a practice that fares worse and worse over time as more of the world comes to truly grasp what’s involved.”

Elsewhere

Reactions to Baze are everywhere. Just a few: NY Times, Volokh Conspiracy, Washington Post, miscellaneous links from How Appealing here and here, plus coverage from PBS and NPR. And of course StandDown has herds of links here and here and here.

A New England Journal of Medicine editorial has thoughts on the proper role of doctors in executions – none. “Physicians and other health care providers should not be involved in capital punishment, even in an advisory capacity. A profession dedicated to healing the sick has no place in the process of execution…We believe that, like the anesthesiologists in the Morales case, all responsible members of the medical profession, when asked to assist in a state-ordered execution, will remember the Hippocratic Oath and refuse to participate. The future of capital punishment in the United States will be up to the justices, but the involvement of physicians in executions will be up to the medical profession.” (c/o StandDown)

Lethal Injection Arguments Heard

The Supreme Court heard oral arguments in Baze v. Rees this morning. You can listen here using Windows Media Player. The transcript (early version, some typos) is available here. SCOTUSBlog has some initial thoughts, as do the LA Times and the Washington Post.

It has been clear from the beginning that this case is not about the constitutionality of the death penalty overall. The question is whether lethal injection – specifically the protocol used in Kentucky – violates the prohibition on cruel and unusual punishment. In this morning’s arguments, the Court seemed more concerned with the three-drug cocktail used in lethal injections than with the efforts made by the State to ensure that the drugs are administered properly.

Justice Stevens, widely considered the most liberal justice, indicated that if the question is simply whether Kentucky has established sufficient safeguards to ensure that executions proceed as planned, the answer is yes. Justice Ginsburg alone seemed to take issue with parts of the protocol unrelated to the three-drug cocktail, asking why Kentucky ensures that qualified medical personnel are involved in the insertion of the IV but not the administration of the lethal chemicals or the direct monitoring of the inmate.

Other justices questioned why the second drug, pancuronium bromide, is necessary to the protocol. Pancuronium bromide paralyzes the inmate. If the first drug, a barbituate known as sodium thiopental, does its job, the inmate would essentially be in a coma and unable to move anyway. The third drug, potassium chloride, causes death by stopping the heart. It has been suggested that the only purpose of pancuronium bromide is to make the execution easier for those watching; should the first drug fail, the paralytic would prevent the inmate from expressing the tremendous pain an unanesthetized execution would cause a conscious person.

However, the alternative suggested by Baze, administering only the barbituate, has not been widely tested in humans. This method is commonly used to euthanize animals, but little evidence was presented in the lower courts about how much sodium thiopental would be required to kill a person, how long it might take, and what complications might occur. Perhaps the best Baze can hope for is that the Court will take up the suggestion put forward by Justice Souter and Justice Breyer – to send the case back for further review. For those eager to recommence executions, taking the time to gather more evidence in this case would enable the Court to resolve the issue more quickly than deciding the narrower Kentucky-only issue now and waiting for another inmate to litigate the drug issue from scratch.

Justice Scalia, predictably, found such an inquiry unnecessary. He asserted that there is no constitutional requirement that executions be painless, or even as painless as possible, and ridiculed those who are “quite willing to take a careful look” at capital punishment. An attorney for Kentucky replied that death penalty opponents have “no shortage of imagination” in finding flaws with capital punishment and lethal injection protocols. I think I’m supposed to be insulted.

The Court spent relatively little time discussing what standard is appropriate for determining whether a method of execution violates the Eighth Amendment. As always, it is anticipated that the outcome of the case will depend largely on where Justice Kennedy ends up. I have no idea where that will be, but given the wide range of concerns expressed by the Court, a decision by clear majority seems unlikely.

Cert Granted in Kennedy v. Louisiana

The U.S. Supreme court announced today that it will consider whether the Eighth Amendment bar on cruel and unusual punishments prohibits capital punishment for the crime of child rape. Basic info here.  Prior related posts here and here.

SCOTUSBlog provides links to:

• Opinion of the Louisiana Supreme Court
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus briefs for
  • Louisiana Public Defender Offices in Parishes Impacted by Hurricanes Katrina and Rita
  • National Association of Social Workers et. al.
  • National Association of Criminal Defense Lawyers