by TChris

When an accused murderer is willing to plead guilty in exchange for a life sentence without parole, does it make sense to insist on a death penalty trial? Can a judge accept a guilty plea in exchange for a life sentence over the objections of death-seeking prosecutors? These are the questions posed by Jonathan Mills in New Haven, who has been trying to plead guilty for three years.

In their motion to be filed this week, Mills' lawyers argue that Judge [Jon] Blue "has the inherent discretionary sentencing power" to accept Mills' plea. Prosecutors' insistence on the death penalty, the motion says, "is irrelevant to the court's sentencing powers."

If Blue agrees, he could provide finality for the families of victims and murderer alike. He would also save Connecticut taxpayers money--at least $1 million, probably much more.

Connecticut has not executed a prisoner since 1960. Assuming that prosecutors are successful in their efforts to persuade jurors that death is the appropriate penalty for Mills, it may take decades for post-conviction proceedings to conclude, at a cost to taxpayers of at least $2.5 million (an estimate that the New Haven Advocate suggests may be "ridiculously low"), far more than the cost of imprisoning Mills for the rest of his life.

Is it worth it?

by TChris

In another victory for opponents of the death penalty, a New Jersey appellate court ruled that the state cannot execute any prisoners until it implements procedures for halting an execution after the process has begun, or proves that the process, once started, is irreversible.

In the "unlikely" but possible event of a reprieve being issued after the first of three lethal drugs has been injected, the court said, the state would owe the condemned inmate a duty to do everything possible to bring him back from the brink of death. The court said the current regulations assume, without medical evidence, that the process is irreversible.

The court also criticized prison regulations that prohibit contact between the news media and the condemned inmate during his final 72 hours. The regulations permit news media witnesses to see the condemned inmate only after he has been sedated and strapped to a gurney.

Appellate Division Judge Sylvia Pressler rejected the state's arguments that prison security required those restrictions. She added that there is "a significant public interest" in learning about executions.

"It is one thing for proponents and opponents to talk about capital punishment as an abstract proposition. It is quite another to see it carried out," Pressler wrote. She said giving the press and public greater opportunity to see what actually occurs during an execution is not just "a matter of voyeurism. We believe, to the contrary, that it is a matter of demonstrating to the public the reality of the choices it makes."

Since New Jersey has not eecuted anyone since 1963, has only 13 people on death row, and would not be likely to execute any of those in the near future, the ruling, in response to a lawsuit filed by New Jerseyans for a Death Penalty Moratorium, will have no immediate impact. It will nonetheless add fuel to the capital punishment debate, and may contribute to the erosion of public support for the death penalty.

A study in the Journal of Empirical Legal Studies finds that Nevada hands down more death sentences than any other state. Between 1976 and 1998, death sentences were imposed in 6% of all murder cases. In Texas, the rate was only 2%. But don't let Texas off the hook--Nevada's death sentences are rarely carried out. Since 1977, Nevada has executed 9 prisoners, while this year alone, Texas has killed 7 inmates.

A year ago, we reported unfavorably on brain fingerprinting, a new technology trying to make its way into the criminal justice system. It's in the news again as its foremost proponent argues it shows a man about to be executed may be innocent:

The technique, called "brain fingerprinting", has already been tested by the FBI and has now become part of the key evidence to overturn the murder conviction of Jimmy Ray Slaughter who is facing execution in Oklahoma.

Brain Fingerprinting, developed by Dr Larry Farwell, chief scientist and founder of Brain Fingerprinting Laboratories, is a method of reading the brain's involuntary electrical activity in response to a subject being shown certain images relating to a crime.....it simply detects scientifically if that information is stored in the brain," says Dr Farwell.

"It doesn't depend upon the subjective interpretation of the person conducting the test. The computer monitors the information and comes up with information present or information absent." .... brain fingerprinting doesn't have anything to do with the emotions, whether a person is sweating or not; it simply detects scientifically if that information is stored in the brain

Dr. Farwell tested Jimmy Ray Slaughter a few days ago in the Oklahoma prison where he awaits execution next week:

We were doing a debate on MSNBC's Dan Abrams Report today on the Scott Peterson case, and in particular, the request of the defense for two juries, one for the guilt phase and one for the punishment phase. A prosecutor on the show did not believe us when we said there were numerous studies showing that death-qualified jurors are more likely to convict in the guilt phase. Upon returning to our computer, it took less than five minutes to find the following:

The Risks of Death: Why Erroneous Convictions Are Common in Capital Cases by Samuel Gross, 44 Buffalo L. Rev. 469, 494 (1996)

Page 494:

Death Qualification. In capital cases, juries decide the sentence as well as determine guilt or innocence. As a result, the jury selection process includes a unique procedure, "death qualification," that is designed to ensure that the jury is qualified for the sentence phase. Most jurors who are strongly opposed to the death penalty, and some who are strongly in favor, are excluded at the outset. fn 108 Many studies have shown that these exclusions make the jury more likely to convict. fn 109 In addition, the process of question- ing jurors about their willingness to impose the death penalty before the defendant has been convicted tends to create the impression that guilt is a foregone conclusion, and the only real issue is punishment. fn 110

fn 109 (some studies)

Claudia L. Cowan et al., The Effects of Death Qualification on Jurors' Predisposition to Convict and on the Quality of Deliberation, 8 LAW & HUM. BEHAV. 53 (1984);

Robert Fitzgerald & Phoebe C. Ellsworth, Due Process v. Crime Control: Death Qualification and Jury Attitudes, 8 LAW & HUM. BEHAV. 31 (1984).

See generally Hovey v. Superior Court, 616 P.2d 1301, 1315-1341 (Cal. 1980) and studies cited therein;

see also Grigsby v. Mabry, 569 F. Supp. 1273 (E.D. Ark. 1983), aff'd 758 F.2d 226 (8th Cir. 1985) (en banc), rev'd sub nom Lockhart v. McCree, 476 U.S. 162 (1986).

Someday we hope the Supreme Court revises the jury selection process in death cases and holds that jurors must be life-qualified instead of death qualified. Until then, we hope and expect that lawyers in Mark Geragos' situation continue to make the motion for separate juries.

Kevin Cooper, whose California execution was postponed last week, has written an article detailing his hours in the execution chamber not knowing if the Supreme Court would uphold or reverse the stay of execution granted by the 9th Circuit.

The legal team that stepped in weeks before Kevin Cooper's scheduled execution and won him a reprieve is made up of an unlikely group:

Condemned murderer Kevin Cooper might be dead today if it weren't for an unorthodox dream team of lawyers -- a commercial litigator, a former White House special counsel and a corporate trial lawyer -- who stepped in just weeks before his scheduled execution and won him a rare stay.

"Maybe that's our strength as a team," said attorney Gregory Evans, whose usual clients are Fortune 100 CEOs. "Maybe because we're not criminal lawyers day to day, when we took a look at this case we could see very quickly that Mr. Cooper did not receive a fair trial and might be an innocent man."

Evans, along with former White House special counsel Lanny Davis and litigator David Alexander, took over Cooper's defense in December after their San Francisco-based firm Orrick, Herrington and Sutcliffe -- one of the nation's top corporate legal law firms -- agreed to provide the legal services pro bono.

The ABA's Death Penalty Representation Project is always looking for litigators in big firms to pitch in and represent those on death row. So many death row inmates have no counsel for their final appeals. If you're in a big firm, or know someone who is, think about it. The rewards are tremendous. You may save a life.

There are 97 inmates on death row in Tennessee. 38 of them were convicted in trials in Shelby County. The medical examiner in Shelby County is O.C. Smith, who has recently been charged with a rather bizarre crime.

O.C. Smith pleaded not guilty Wednesday to charges he lied when he said an unknown assailant wrapped him in barbed wire and hung a bomb around his neck. He also pleaded not guilty to possessing an illegal explosive.

Authorities have given no indication why Smith, 51, would have staged an attack. He was discovered in June 2002 in a stairwell outside his office. He suffered minor injuries, and told authorities he was attacked by someone who threw a chemical in his face.

....Smith "either did the autopsies, or testified, or at least supervised the autopsies" in 30 percent to 40 percent of the convictions of the state's death row inmates, Dawson said.

The Governor of Tennessee has postponed one execution to date due to the investigation into Mr. Smith's conduct.

A psychiatrist testified before the Arizona Senate Judiciary Committee that juveniles who kill should not face the death penalty because the part of their brains that controls violent reaction is not fully formed.

Dr. Mark Wellek, past president of the Society for Adolescent Psychiatry, testified in support of Sen. Linda Aguirre’s bill (S1139), which would prohibit a court from imposing a death sentence on a person who committed first-degree murder while under the age of 18. He said major medical organizations oppose the death penalty for minors “because discoveries in recent years suggest that their brains are not yet developed and, therefore, they are probably not as culpable.”

17 states prohibit killing those under 18 at the time of their crime. Arizona is not one of them. In 2000, the Arizona Attorney General’s Capital Case Commission was formed and has since voted to recommend that the death penalty not be applied to those under 18. Five of Arizona's 127 death row inmates were under 18 at the time of their crime.

A new report by Amnesty International finds that the death penalty in Nigeria is unfairly applied to women:

In the report Amnesty International highlights cases of women facing the death penalty and whose rights to a fair trial and due process have been denied both under the criminal law system and the new Sharia penal codes.

Women are charged with capital offences and are in some cases awaiting trial for prolonged periods of time, without access to legal representation. "Under the criminal law system women are in some cases kept in prison awaiting execution for up to 10 years," the organization said. This is contrary to international human rights law and standards as well as Nigerian law.

The report also examines ways in which the application of the death penalty discriminates against women in certain cases and for certain crimes. Such discrimination derives from the categories of crimes that carry the death penalty and from the particular difficulties women face in accessing justice. This discriminatory effect is particularly apparent on women from socio-economically deprived backgrounds and who are illiterate, who have no husband and who become pregnant outside marriage.

The report is available here.

The Supreme Court rejected a petition from the California Attorney General's office to revoke a stay of execution issued by the 9th Circuit Court of Appeals in the Kevin Cooper case.

The 9-2 ruling by the U.S. Court of Appeals in San Francisco left Cooper's fate up to the U.S. Supreme Court, which had the power to lift the appeals court's stay of execution. Even before the appeals court acted, California Attorney General Bill Lockyer's office asked the high court to undo a temporary stay of execution that the appellate court had imposed Monday morning.

The appeals court ordered the case returned to a federal judge in San Diego for Cooper's lawyers for testing of evidence that, Cooper claimed, would demonstrate his innocence.

"No person should be executed if there is a doubt about his or her guilt and an easily available test will determine guilt or innocence,'' the court majority wrote, adding that the tests should be conducted promptly.

Update: What's next for Kevin Cooper? Criminal Appeal has some thoughts.

The 9th Circuit has issued a stay of Kevin Cooper's execution:

A condemned murderer whose bid for clemency was denied by Gov. Arnold Schwarzenegger won a stay of execution on Monday, hours before he was to be executed. The 9th U.S. Circuit Court of Appeals granted a request for an 11-judge panel to rehear the case of Kevin Cooper, convicted in 1983 of hacking four people to death.

.... Cooper was scheduled to be executed at 12:01 a.m. Tuesday at San Quentin Prison after 19 years on death row. Cooper won support from actors who oppose the death penalty including Denzel Washington, Sean Penn and Mike Farrell, and from the Rev. Jesse Jackson and Rubin "Hurricane" Carter. In addition, three of the jurors who convicted Cooper called for a stay of execution so hair and blood evidence can be tested.

We're heartened to see the hard work of activists bear fruit:

About 100 death penalty opponents gathered Sunday near Schwarzenegger's home in Southern California, and hundreds are planning a candlelight vigil outside the prison gates. "This could be one of our biggest protests ever," said Lance Lindsay, executive director of Death Penalty Focus, a group that lobbies against the death penalty. On Saturday, three of Cooper's jurors called for a stay of execution. They said blond hair found in the hands of one of the victims should be tested. The hair had not undergone DNA testing before the 1985 trial. Prosecutors believe the hair was that of the victim, sheared off as she was being hacked to death.

This is great news. For more on Kevin Cooper, check his website, Save Kevin Cooper. You can read Kevin Coopers' provocative essays on death row here.