Sunday morning roundup

An article entitled Death penalty ban could be a possibility in N.C. leads the news roundup:

Proponents of passing a two-year ban on capital punishment in North Carolina say they have a better chance this year of pushing through a death penalty moratorium then in any time in recent memory.As evidence, they point to several key factors which they say make the climate right in Raleigh for putting such a ban — albeit temporary — in place.

Among them is the election of moratorium proponent Rep. Joe Hackney, D-Orange, as House speaker, last year’s exonerations of death row inmates Allen Gell and Darryl Hunt and the fight over the role of doctors administering a lethal injection.

Gell and Hunt were exonerated after DNA showed they had no connections to the crimes of which they were convicted. Hunt was imprisoned for 18 years and Gell for nine.

In January, the N.C. Medical Board issued a statement prohibiting doctors from assisting in executions, despite a state law that requires that a doctor be present at all executions.

“Right now we have a de facto moratorium, but the two-year suspension is still needed to study the death penalty in North Carolina,” Rep. Deborah Ross told a crowd of death penalty opponents last week in Raleigh.

The Maryland Senate Judicial Proceedings Committee, one of the key votes on whether Maryland will repeal its death penalty, could vote as early as this week on abolition.

The 11-member Senate committee has been waiting for word from Sen. Alex X. Mooney, a Frederick Republican whose vote could swing the outcome. Mooney, a conservative Roman Catholic, has struggled to decide whether he will support the measure, which replaces the death penalty with life without parole.

Mooney said yesterday that he just finished reading Kirk Bloodsworth’s book; Bloodsworth, a former death row inmate in Maryland, was wrongly convicted of the rape and murder of a 9-year-old girl. He testified last month before the committee.

“It’s a really compelling story,” Mooney said of the book, Bloodsworth: The True Story of the First Death Row Inmate Exonerated by DNA. “It makes me think if there’s 1,000 people on death row and one of them, just one of them, is innocent, is it worth having the death penalty for the other 999?”

The House Judiciary Committee is considering the same proposal. But lawmakers say the House panel is holding off on a vote until the Senate determines its course.

[more on Mr. Bloodworth recent work]

Death penalty for sex offenders may be hard sell notes a recent news analysis piece in Texas:

Rep. Debbie Riddle’s declaration that there’s a “one in a million” chance her bill expanding the death penalty for repeat child sex offenders is unconstitutional might be optimistic, according to legal scholars and death penalty experts who have reviewed the measure.

They point to previous rulings by the U.S. Supreme Court barring the death penalty for adult rape that does not end a life and banning its use for offenders who are mentally retarded or younger than 18 at the time of the crime.

“One could think rather confidently that this would not be upheld,” said Lino Graglia, a constitutional law expert at the University of Texas known for his conservative views, citing precedent on the issue and recent decisions limiting the scope of the death penalty even for convicted killers.

Death penalty experts, moreover, note that of the five states allowing the death penalty for child rape, only one handed that sentence down. And it is the case of pedophile Patrick Kennedy, making its way through Louisiana state courts, that could render the issue moot before Texas ever sends a child rapist to death row.

Why is it so hard to get private bar defense attorneys to take death cases in California? One reason it costs money out of their pockets. [more here]

A seasoned death penalty attorney has agreed to help defend suspected Mexican drug cartel leader Francisco Javier Arellano-Felix who’s being tried in San Diego. The case could be San Diego’s first capital punishment case.. . .

Arizona attorney Larry Hammond initially said he would not participate in the case. He said the trial schedule was too aggressive. He said doing capital cases is a financial drain. Hammond says his salary drops $265 per hour on court appointed cases. However, three weeks ago, Hammond says he consulted his conscience and his colleagues and changed his mind.

Via the irrepressible Greg Worthen at PD Stuff, & from The East Valley (Arizona) Tribune:, it looks like Arizona is getting a new, I should note well respected, chief for its new capital post-conviction defender office:

If all death row inmates could have Marty Lieberman as their attorney, the ones claiming innocence might have a shot at freedom. During his 22 years as a criminal defense attorney, the Phoenician has gained a reputation for being a professional, yet dogged advocate for his clients.

Soon, many on death row will be able claim him as their own, thanks to a 2006 legislative action that established the state’s first Post-Capital Conviction Public Defender’s Office.

On March 1, Gov. Janet Napolitano nominated Lieberman to fill the new position. He and his staff will be responsible for representing anyone sentenced to death who can’t afford a lawyer in post-conviction relief proceedings. Pending Senate confirmation, he’ll serve a fouryear term.

The newly established office will handle questions outside a case’s direct appeal, Lieberman said, such as: Was the defendant’s trial lawyer effective? Is there new evidence that may warrant a new trial? Have new laws been passed that apply retroactively?

The new statute allows Lieberman to serve up to a year in the post before he is formally confirmed. The attorney said he hopes the Legislature will vote on his confirmation during its current session.

In legal circles, death row inmates are notorious for having subpar legal counsel. U.S. Supreme Court Justice Ruth Bader Ginsburg in a 2001 speech said she’d never seen a death penalty case in which the defendant was well-represented.

Many can’t afford good lawyers’ fees, and financiers aren’t exactly banging down their cell doors to help them.

But the Sixth Amendment to the U.S. Constitution guarantees counsel and requires that it be “reasonably effective.”

In creating the new public defender’s office, the state is strengthening the Constitution’s promise to its 124 death row inmates.

Lieberman pointed out that about eight prisoners on death row in Arizona lack representation altogether. His office will alleviate that.

Via Scott at Ohio Death Penalty Information, Jeffrey Rosen has this article in the New York Times Sunday Magazine, entitled "The Brain on the Stand," providing a detailed overview of the profound impact rapidly-evolving developments in neuroscience may have on modern criminal law.

Excerpts:
...The extent of that revolution is hotly debated, but the influence of what some call neurolaw is clearly growing. Neuroscientific evidence has persuaded jurors to sentence defendants to life imprisonment rather than to death; courts have also admitted brain-imaging evidence during criminal trials to support claims that defendants like John W. Hinckley Jr., who tried to assassinate President Reagan, are insane. Carter Snead, a law professor at Notre Dame, drafted a staff working paper on the impact of neuroscientific evidence in criminal law for President Bush’s Council on Bioethics. The report concludes that neuroimaging evidence is of mixed reliability but “the large number of cases in which such evidence is presented is striking.”

...One important question raised by the Roper case [US Sup. Ct. case declaring unconstitutional the execution of minors] was the question of where to draw the line in considering neuroscience evidence as a legal mitigation or excuse. Should courts be in the business of deciding when to mitigate someone’s criminal responsibility because his brain functions improperly, whether because of age, in-born defects or trauma? As we learn more about criminals’ brains, will we have to redefine our most basic ideas of justice? ...

In an article missed when it first hit earlier this week, Dahlia Lithwick looks at a Court increasingly out of step on the death penalty.

[L]ast term Justice Antonin Scalia wrote a separate opinion in a death-penalty case for the sole purpose of excoriating Justice David Souter, who had written in a dissent about exonerated innocents. Scalia’s opinion was a full-bore attack on the notion of innocent exonerees “paraded by various professors” and claimed, in effect, that even if those exonerated were not guilty enough to warrant the death penalty, they were still far from “innocent.” (How that made them candidates for the death penalty he did not explain.)

Oral argument this term has also revealed a subtle hardening on the part of some of the court’s conservatives. In one case, Roberts questioned the need for a trial judge to specifically guide jurors regarding mitigating evidence.

Somehow, just as the American people are beginning to consider the grave injustices pervading the capital system, several justices seem to be staking out strong personal positions on this front in the culture wars.

In his article, Chemerinsky suggests that justices who change course on the death penalty often do so only after decades on the bench. That might suggest that the two new justices will soften on capital punishment only in the far distant future. These justices also would insist that if the death penalty in this country needs fixing, the state legislatures should do it, which is already beginning to happen. But if for most Americans the time for stubborn certainty about the death penalty, at least as it’s currently practiced, seems to be over, a court that is more certain than ever of its fundamental fairness looks grievously out of step with an American public willing to recognize the dangers of injustice, error and doubt.

Another missed story from earlier in the week is in North Carolina where the Attorney General is suing the medical board over an ethics stance:

The state Department of Correction filed suit Tuesday against the North Carolina Medical Board over the board’s policy to discipline any physician who participates in an execution.

The board adopted the policy in January, contending that taking part in an execution would violate a doctor’s ethical code of conduct. Any physician who violated the policy would face suspension of his or her license.

State law requires that a licensed physician be present at all executions to ensure that the condemned inmate doesn’t suffer. But Central Prison Warden Marvin Polk stated in an affidavit that the new policy has made it impossible for prison officials to find a licensed physician to assist in executions.

In Montana hearings on the death penalty continue:

Capital punishment is so expensive, and applied so unfairly, that it should be banned in Montana, advocates of abolishing the death penalty told a legislative committee on Friday.

“It’s a crazy system. It’s broken and it’s costly, and it doesn’t work regardless of how you feel about the criminal, the crime and the retribution,” said Elizabeth Griffing, a former assistant attorney general who once supervised death penalty cases on appeal.

International outrage over Iraqi death sentences is mounting, this time for three women, some recent mothers, who were sentenced to death without counsel.

Although many details of their cases are unclear, the three women are all charged with activities related to the ongoing conflict in Iraq and are incarcerated in al-Kadhimiya Prison in northern Baghdad.

According to information collected by Amnesty International, Wassan Talib and Zayneb Fadhil were sentenced to death by the Central Criminal Court of Iraq on August 31, 2006, after being convicted of killing members of the Iraqi security forces in the Baghdad district of Hay al-Furat in 2005, charges that both deny. Zayneb Fadhil, the mother of a 3-year-old girl, has reportedly said that she was not in the country at the time of the incidents.

Liqa’ Qamar Muhammad was convicted of participating in a kidnapping in 2005 and sentenced to death on Feb. 6, 2006. Her husband was detained and charged with the same crime, according to Amnesty International. Muhammad has an infant daughter, who was born in prison and remains there with her.

The International Committee of the National Lawyers Guild, a network of lawyers in the United States, points out that the U.N. has passed a resolution against imposing the death penalty on new mothers.

The group called for the Iraqi government to repudiate the executions. “We have received information that these three were denied legal counsel,” the group said in a public statement. Denial of counsel violates international guarantees to a fair trial, the group said.

The United Nations High Commissioner for Human Rights in Geneva expressed similar concerns.

In other news, New Mexico killed its death penalty repeal bill — apparently wanting to wait until Gov. Richardson is out of presidential running. Newshounds has a fairly disturbing and yet moderately funny piece on a ”Fair & Balanced” Fox News commentator calling for a lynching. In Pennsylvania, Raymond Jones’ death sentence for the death of Louis Combs was overturned on ineffective assistance of counsel grounds by the trial court. Scripps News Service this week looked at jury selection in Florida. Morocco may be on the verge of abolition.

Finally a very large apology to the good folks at DePaul Law for not spilling more ink on their seminar on Atkins v. Virginia. I wanted to highlight it in last weekend’s roundup & email edition, but for well documented reasons, technical problems prevented it.

[original post modified to correct typos & add an additional story]