Jeffrey Landrigan, a 50-year-old Native American man, is due to be executed in Arizona, USA, at 10am on 26 October. Thirteen federal judges have argued that he should have had a hearing into his claim that he was inadequately represented at his 1990 trial. In 2007, the trial judge said that she would not have passed a death sentence if she had heard the mitigating evidence.
Chester Dyer was found dead in his flat in Phoenix on 15 December 1989. Jeffrey Landrigan was charged with the murder. He could not afford a lawyer, so the court appointed one to represent him – an attorney who had never worked on a death penalty case before. Jeffrey Landrigan rejected the prosecutor's offer of a 20-year prison term in return for a guilty plea to second-degree murder. The jury convicted him of first-degree murder. For the sentencing phase of the 1990 trial, the defense lawyer had prepared only two witnesses to testify. One was Jeffrey Landrigan's biological mother (who had abandoned him when he was six months old) and one was his former wife. However, Jeffrey Landrigan refused to allow either to testify. The judge sentenced him to death, although she found that he had not acted with premeditation.
The lawyer had not presented, or sought to present, any expert testimony on Jeffrey Landrigan's background. In 1998, a neuropsychologist concluded that a combination of inherited factors, prenatal exposure to drugs and alcohol, early parental rejection and troubled relationships with his adoptive family had "severely impaired" Jeffrey Landrigan's ability to function in society. In 1999, a federal District Court judge refused to hold an evidentiary hearing into the claim that the trial lawyer had been constitutionally ineffective by failing to investigate and present mitigating evidence of Jeffrey Landrigan's background of deprivation and abuse. In 2005, by nine votes to two, the US Court of Appeals for the Ninth Circuit concluded that the District Judge had abused her discretion by denying such a hearing. The majority concluded there was a reasonable probability that if the trial judge had heard the mitigating evidence that had been presented on appeal she would not have passed a death sentence (which the trial judge has herself since said). Even the two judges who voted against ordering the District Court to hold an evidentiary hearing agreed that the trial lawyer's preparation for the sentencing "fell below" professional standards.
In 2007, by five votes to four, the US Supreme Court overturned the Ninth Circuit's ruling, on the grounds that Jeffrey Landrigan would not have allowed his lawyer to present any mitigating evidence that he might have uncovered. The four dissenting Justices accused their colleagues of "pure guesswork".
BACKGROUND INFORMATION
According to the evidence raised on appeal, Jeffrey Landrigan's biological parents abused drugs and alcohol, and his teenage mother did so when pregnant with him. She abandoned him when he was six months old. His father was imprisoned around this time, and by the time of Jeffrey Landrigan's trial, he was on death row in Arkansas. The child was later adopted. His adoptive mother was also an alcoholic, and subjected him to emotional and physical abuse, including on one occasion hitting him so hard with a frying pan that it dented it. The boy began abusing drugs and alcohol from an early age. In 1998, a neuropsychologist concluded that a combination of inherited, prenatal, and early developmental factors had severely impaired Jeffrey Landrigan's ability to "function in a society that expects individuals to operate in an organized and adaptive manner, taking into account actions and consequences of their behavior and their impact on society and its individual members". In the 2007 Supreme Court ruling, the four dissenting Justices noted, among other things, the trial lawyer's failure to complete a mental health evaluation of his client, "which we now know would have uncovered a serious organic brain disorder" and his failure to "consult an expert to explore the effects of [Landrigan's] birth mother's drinking and drug use during pregnancy". Also in 2007, the now retired trial judge concluded that had she heard the mitigating evidence, "especially the evidence of Mr Landrigan's organic brain damage, the impact of fetal alcohol syndrome on his behavior, his genetic predispositions and the apparent abandonment by his birth mother", she would not have passed a death sentence. She emphasized that the neuropsychologist's 1998 report would have left her with "no choice" but to find that the mitigating circumstances were "sufficient to call for leniency".
At the trial, the state argued that Jeffrey Landrigan and Chester Dyer had engaged in a violent struggle after having sex. The prosecution argued that these were the only two people present in the apartment on the night of the murder. DNA testing since the trial has revealed that semen and blood from the crime scene were from two people, but excluded Jeffrey Landrigan as the source of either of the two DNA profiles. This would suggest that the state's theory of the crime presented to the jury was wrong.
Like most other US death penalty states, Arizona uses three drugs for executions by lethal injection – pancuronium bromide, potassium chloride, and sodium thiopental. There is currently a nationwide shortage of sodium thiopental, resulting in delays in executions in at least two states, Kentucky and Oklahoma. The pharmaceutical company Hospira is the sole manufacturer and distributor of sodium thiopental in the USA and it will reportedly not be able to make more of the drug available until March 2011 (in March 2010, Hospira wrote to the Ohio authorities to state its position that the company's products are meant to "improve or save lives" and that it does "not support the use of any of our products in capital punishment procedures").
Authorities in California recently revealed that they had obtained the drug with an expiry date of 2014, indicating that it cannot be a product of Hospira, whose last batch of sodium thiopental had expiry dates of 2011. On 8 October 2010, the Director of the Arizona Department of Corrections (ADC) informed a state court that "the Department has lawfully obtained the necessary chemicals under its current written protocol – sodium thiopental, pancuronium bromide, and potassium chloride – in sufficient quantity for an execution". Citing the recent developments in California among other things, Jeffrey Landrigan's lawyers are seeking to have the state reveal the source of the sodium thiopental, including ensuring that it has not unknowingly obtained "counterfeit or non-viable" drugs, from inside or outside the USA, which could result in an unconstitutional execution. The state has responded that "individuals or entities providing the necessary chemicals to ADC are performing ancillary functions in the execution procedure", and this information is "confidential". The litigation is continuing.
Amnesty International opposes the death penalty unconditionally in all cases. The USA has carried out 1,230 executions since it resumed judicial killing in 1977, 42 of them this year (see also http://www.amnesty.org/en/library/info/AMR51/095/2010/en).
RECOMMENDED ACTION: Please send appeals to arrive as quickly as possible:
- Acknowledging the seriousness of the crime for which Jeffrey Landrigan was sentenced to death;
- Expressing concern at the failure of Jeffrey Landrigan's trial lawyer to investigate available mitigating evidence;
- Noting that since 2005, 13 federal judges have argued that there should be a federal evidentiary hearing into the claim that his legal representation was constitutionally deficient and that this had altered the outcome of the trial;
- Noting that the trial judge herself has said she would not have passed a death sentence if she had heard the mitigating evidence that has been presented on appeal;
- Calling on the governor to grant clemency and commute Jeffrey Landrigan's death sentence.
APPEALS TO:
The Honorable Jan Brewer
Governor of Arizona
1700 West Washington
Phoenix, AZ 85007
Fax: 1 602 542 1381
Salutation: Dear Governor
PLEASE SEND APPEALS IMMEDIATELY.
Motion may force Arizona to reveal source of execution drugs
A state prosecutor and defense attorneys for a murderer scheduled for execution next week will argue before the Arizona Supreme Court Wed as to whether the state has to reveal its source of the drugs needed for execution.
The Arizona Republic has learned that one or more of the drugs may have been imported, raising questions as to their legality under federal drug laws.
One of them, sodium thiopental, a barbiturate used mostly as an anesthetic, is in short supply nationwide. Other states have had to postpone executions because of its unavailability.
Defense attorneys fear the state's newly found supply is imported. Thiopental is a controlled substance, and therefore subject to regulation by federal authorities. The federal Food and Drug Administration does not "have a mechanism for importing that drug." And a spokeswoman for the American Society of Health-System Pharmacists, which tracks drug shortages, told The Republic "any import to alleviate a shortage would have to come from an FDA-approved source."
The attorneys want the execution postponed until those questions are cleared up.
Assistant Arizona Attorney General Kent Cattani told The Republic last month that the state was possibly looking for the drug in other countries.
Without giving details, the Arizona Department of Corrections announced Sept. 30 that it had lawfully obtained all of the necessary drugs.
Last week, The Republic reported that a supply obtained by California on that same day could not have been produced by the drug's sole U.S. manufacturer because of its expiration date.
After that story was published, the Federal Public Defender's Office in Phoenix, which represents condemned killer Jeffrey Landrigan, who is scheduled for execution Oct. 26, received information that the drug had been obtained by an Valley import company.
"It's possible the drugs may have been obtained from a foreign source," said Dale Baich of the Federal Public Defender's Office. "A message was left with our office stating that a person heard an employee of a local customs broker disclose that the company imported the drugs that will be used for Landrigan's execution."
The owner of that company told The Republic he knew nothing about it and that all of his business dealings were confidential.
"We don't do much with the FDA," he said, "It's a nightmare."
Public records requests about that company made to the Department of Corrections and the Arizona Department of Administration, which would pay for the drug, were met with refusals to release information, citing confidentiality under an Arizona law concerning the identity of executioners.
The topic of execution was never mentioned in either of the newspaper's requests.
Arizona Revised Statute 13-757 says, "The identity of executioners and other persons who participate or perform ancillary functions in an execution and any information contained in records that would identify those persons is confidential and is not subject to disclosure."
The Corrections Department also referred to an Oct. 8 affidavit by its director, Charles Ryan, saying the agency "has lawfully obtained the necessary chemicals."
Cattani said that his position will not change in Wednesday's hearing before the high court.
"We are going to argue that under the statute, the information remains confidential," he said. "We think the department has lawfully obtained the drug."
Source: Arizona Republic, October 20, 2010
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