USA: Sonia Sotomayor Faults Alabama Death Penalty Law

Supreme Court Justice Sonia Sotomayor is calling attention to an Alabama law that allows judges to impose death sentences after juries have voted to send defendants to prison for life.

Sotomayor and Justice Stephen Breyer were the only two justices who voted Monday to hear an appeal from a death row inmate who was convicted of killing a Montgomery, Ala., police officer. Sotomayor took the unusual step of issuing a dissent from the court's order rejecting the appeal of defendant Mario Woodward.

The justice said that Alabama trial judges are elected in partisan proceedings and appear to have "succumbed to electoral pressures."

The jury voted 8-4 to send Woodward to prison for life. The trial judge sentenced him to death instead.

Source: Associated Press, November 18, 2013

U.S. Supreme Court allows police to take DNA from criminal suspects

WASHINGTON -- The police may take a DNA sample from people arrested for serious crimes, the Supreme Court ruled Monday in a major victory for law enforcement and crime victims.

The 5-4 decision is likely to make the taking of DNA samples as common as taking fingerprints or a photograph when people are arrested.

More than half of the states now require a DNA mouth swab when persons are charged with a serious crime, and many of the others were awaiting a Supreme Court ruling on the constitutionality of the practice.

The FBI’s national database has more than 11 million DNA samples on file, and that number is likely to grow sharply in the years ahead.

The high court said DNA has an “unparalleled ability both to exonerate the wrongly convicted and to identify the guilty,” and that taking a mouth swab from an arrestee was not an “unreasonable search.”

“When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment,” said Justice Anthony M. Kennedy for the court. Chief Justice John Roberts and Justices Clarence Thomas, Stephen G. Breyer and Samuel A. Alito were included in the majority.

The decision in the case of Maryland vs. King upheld the rape conviction of Alonzo King. When he was arrested for an alleged assault, his DNA sample identified him as the perpetrator of an unsolved rape.

Justice Antonin Scalia spoke for the dissenters, saying the 4th Amendment did not permit searching persons for other crimes they may have committed. Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan agreed with him.

Source: Los Angeles Times, June 3, 2013

Texas urged to overturn a racially-tinged death penalty

Lawyers for an inmate whose execution was halted at the last minute urged a Texas court Wednesday to overturn his death penalty on the grounds that it was the result of racial discrimination.

Duane Buck, 49, was condemned to die for the 1995 murder of his girlfriend and one of her friends.

Neither Buck's attorney nor prosecutors dispute his conviction for the double-murder, but they have argued that racial considerations factored into the sentencing phase of his trial.

The Supreme Court intervened just hours before Buck's execution on September 15, 2011, with justices Sonia Sotomayor and Elena Kagan arguing that the case needed to be reviewed because "our criminal justice system should not tolerate (a death sentence) marred by racial overtones."

Buck's attorneys urged the Texas court in a brief filed Wednesday to vacate Buck's sentence and give him a new trial as a result of the "long history of racial discrimination" in the administration of criminal justice in Harris County, Texas.

"This case is very simple: no death sentence can be supported by an appeal to racial prejudice," defense attorney Kate Black said.

They cited a study which concluded that from 1992 to 1999 -- the period during which Buck was tried and sentenced -- prosecutors in Harris County were "over three times more likely to seek the death penalty against African American defendants, than against similarly-situated white defendants."

The study also found that juries in Harris County were more than twice as likely to impose death sentences on African American defendants than on whites.

The study also found evidence that race played a role in Buck's particular case.

During the 1997 sentencing, psychologist Walter Quijano had testified that Buck was not likely to be dangerous because he had no previous violent record, but said blacks pose a greater risk of "future dangerousness" than whites.

Former Texas attorney general John Cornyn, now a Republican US senator, concluded that there had been an "improper injection of race in the sentencing hearing in Mr Buck's case."

Cornyn has pushed for new sentencing hearings for seven defendants whose cases had been tainted by Quijano's testimony. Buck is the only one who had not yet received one, his lawyers said.

"Texas should honor the promise that was made by the highest legal officer in the state, then-Attorney General John Cornyn, and grant Mr. Buck a new, fair sentencing not tainted by racial discrimination," Texas State Senator Rodney Ellis, whose district includes parts of Harris County, said in a statement.

Source: Agence France-Presse, March 15, 2013

U.S. broke international law by executing Mexican national, says U.N.

(CNN) -- The United States breached international law by executing a Mexican national without having granted him consular access, the U.N. High Commissioner for Human Rights said Friday.

Navi Pillay, in a statement, said she deeply regrets the execution of Humberto Leal Garcia, after a 5-4 decision by the U.S. Supreme Court denied him a stay of execution Thursday night.

"The execution of Mr. Leal Garcia places the U.S. in breach of international law," said Pillay, who is on an official mission in Mexico. "What the state of Texas has done in this case is imputable in law to the U.S. and engages the United States' international responsibility."

Pillay said Leal was not granted consular access, which -- as a foreign national -- was his right under Article 36 of the Vienna Convention on Consular Relations.

The denial of access raises concerns about whether Leal got a fair trial, Pillay said.

Leal, who was convicted for the 1994 rape and murder of a 16-year-old girl, was executed Thursday evening by lethal injection in Texas.

Federal officials, including the Obama administration, had tried to persuade Texas Gov. Rick Perry to delay the execution. "The secretary herself is quite disappointed in the outcome in this case," said State Department spokeswoman Victoria Neuland about Secretary of State Hillary Clinton.

"The U.S. government sought a stay of Leal's execution in order to give the Congress time to act on the Consular Notification Compliance Act, which would have provided Leal the judicial review required by international law."

Neuland said the case underscores the importance of the act's passage. "If we don't protect the rights of non-Americans in the United States, we seriously risk reciprocal lack of access to our own citizens overseas," she said.

"I am sorry for everything I have done," Leal said at the Huntsville facility before he was executed. "I have hurt a lot of people. Let this be final and be done. I take the full blame for this."

Leal then shouted "Viva Mexico," followed by "I'm ready warden, let's get the show on the road."

Mexico condemned the execution, saying it violated an International Court of Justice ruling ordering the United States to review capital convictions of Mexican nationals.

The U.S. Supreme Court earlier denied a stay of execution by 5-4, despite pleas from the Obama administration and the Mexican government to delay the execution.

In an unsigned opinion by the majority, the court refused to delay the execution until Congress could pass pending legislation giving federal courts the authority to hear similar claims from foreign inmates.

"We decline to follow the United States' suggestion of granting a stay to allow Leal to bring a claim based on hypothetical legislation when it cannot even bring itself to say that his attempt to overturn his conviction has any prospect of success," said the majority.

In their dissent, the four justices, led by Stephen Breyer, urged that Leal's execution be delayed. "It is difficult to see how the state's interest in the immediate execution of an individual convicted of capital murder 16 years ago can outweigh the considerations that support additional delay, perhaps only until the end of the summer," said Breyer, who was supported by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.

Sandra Babcock, lead appellate attorney, said, "It is shameful that Mr. Leal will pay the price for our inaction. The need for congressional action to restore our reputation and protect our citizens is more urgent than ever."

"This case was not just about one Mexican national on death row in Texas," Babcock said in a statement. "The execution of Mr. Leal violates the United States' treaty commitments, threatens the nation's foreign policy interests, and undermines the safety of all Americans abroad."

The state's Board of Pardons and Parole ruled that Leal did not deserve to have his death sentence commuted to life in prison without parole.

The victim's mother, Rachel Terry, had called for the execution to go ahead as planned.

"A technicality doesn't give anyone a right to come to this country and rape, torture and murder anyone, in this case my daughter," she told CNN affiliate KSAT in San Antonio. "It's been difficult for myself and her family members," she added. "She certainly was taken away from us at a very young age. We just want closure."

Leal's lawyers argued the consulate access violation was more than a technicality. Babcock told CNN that Mexican officials would have ensured Leal would have had the most competent trial defense possible had they been able to speak with him immediately after he was arrested.

"I think in most of these cases it was not a deliberate thing," Babcock said. "Local police lack training" on the Vienna Convention, she added, referring to the international agreement that mandates consular access.

Leal's backers say he had learning disabilities and brain damage and had been sexually abused by his parish priest. They say those factors should have been considered at his sentencing.

The Mexican government had filed a supporting appeal with the high court in Washington, asking the justices to block Leal's execution.

And on Friday, the Obama administration asked Texas to delay the execution.

"This case implicates United States foreign policy interests of the highest order," including protecting U.S. citizens abroad and promoting good relations with other countries, Solicitor General Donald Verrilli Jr. said.

Congress has also weighed in. Sen. Patrick Leahy, D-Vermont, chairman of the Judiciary Committee, introduced a bill in June to grant federal courts the power to review such appeals.

"This case is not an isolated instance; the issue of consular notification remains a serious diplomatic and legal concern," Leahy said Thursday.

In Texas, Perry's office countered that a federal appeals court had already given Leal the judicial scrutiny the Obama administration and the United Nations were seeking.

"If you commit the most heinous of crimes in Texas, you can expect to face the ultimate penalty under our laws," Katherine Cesinger, spokeswoman for the governor, told CNN. "Congress has had the opportunity to consider and pass legislation for the federal courts' review of such cases since 2008, and has not done so each time a bill was filed."

Ted Cruz, the state's former solicitor general who argued the 2008 Supreme Court case for Texas, said Leal waited too long to raise these issues.

"The question is not should a foreign national have the right to contact their consulate," Cruz told CNN. "The question is, years later, after they have been tried, after they have been convicted, after it has been clear like Humberto Leal that they are a vicious child rapist and murderer, should you come in and set aside that conviction. You can't come back years later and try and set aside your trial with some additional claim you wish you had raised."

Cruz is running for the U.S. Senate as a Republican candidate.

Source: CNN, July 8, 2011

Related articles:

Death Penalty News: Texas executes Humberto Leal

Jul 08, 2011

The Government of Mexico strongly condemns today's execution of Mexican national Humberto Leal García, in Huntsville, Texas, in clear violation of the International Court of Justice (ICJ) Avena ruling of 2004 (Mexico vs. ...

http://deathpenaltynews.blogspot.com/

Death Penalty News: U.S. Supreme Court refuses to stay Humberto ...

Jul 08, 2011

By a 5-4 vote along ideological lines, the Supreme Court has just refused to stay the execution of convicted killer Humberto Leal Garcia, a Mexican convicted of the rape and murder of a 16-year-old girl in 1994. ...

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Death Penalty News: White House seeks delay of Mexican Humberto ...

Jul 07, 2011

Humberto Leal, 38, is awaiting a ruling by the U.S. Supreme Court on whether to block his lethal injection in Huntsville. He was sentenced to die for the 1994 rape and murder of 16-year-old Adria Sauceda of San Antonio....

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Death Penalty News: Texas death-row inmate Humberto Leal gets more ...

Jun 11, 2011

Humberto Leal Garcia Jr., 38, was convicted of raping a 16-year-old girl and then bludgeoning her to death with a 35-pound piece of asphalt in 1994. He is scheduled to be executed by lethal injection on July 7. ...

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Arizona executes Jeffrey Landrigan; Execution drug was obtained from Great Britain

(CNN) -- The state of Arizona executed convicted killer Jeffrey Landrigan (left) late Tuesday after the U.S. Supreme Court cleared the way for the lethal injection, a corrections official said.

The execution was carried out at 10:26 p.m. (12:26 a.m. ET), said Barrett Marson, a spokesman for the Arizona Department of Corrections.

"I'd like to say 'thank you' to my family for being here and all of my friends," were Landrigan's final words, according to Marson. He concluded with "Boomer Sooner," a cheer often used by University of Oklahoma fans.

Landrigan's last meal consisted of steak, fried okra, french fries, strawberry ice cream and a Dr. Pepper, Marson said.

The way for the execution was cleared after a majority of Supreme Court justices moved to vacate a federal judge's order that had temporarily stopped the execution scheduled for earlier in the day.

In a 5-4 decision, the court overturned two lower court rulings.

Earlier Tuesday, the 9th U.S. Circuit Court of Appeals had sided with U.S. District Court Judge Roslyn Silver, who blocked Landrigan's execution 18 hours before it was set to happen at noon MT Tuesday (2 p.m. ET).

Landrigan's attorneys filed a civil rights complaint last Thursday alleging the planned execution violated his constitutional rights to be free from cruel and unusual punishment and to due process. On Monday, Silver issued the temporary stay after concluding that the state did not provide Landrigan's side enough information to make its case sufficiently about the safety and legality of substances that would have been used to kill him.

But the U.S. Supreme Court ruling vacated the lower court order, saying "there is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe." (See related article below)

Judge Silver wrote that she "was left to speculate" that the drug was harmful, but in a statement the Supreme Court, citing a different 1993 ruling, concluded in a one-page order that sentiment should not equate to the fact it was "sure or likely to cause serious illness or needless suffering."

"There was no showing that the drug was unlawfully obtained, nor was there an offer of proof to that effect," the Supreme Court ruling said.

The decision to vacate the order was supported by Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas. Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor sided with Silver and would not have vacated the ruling.

In 1989, Landrigan escaped from an Oklahoma prison, where he was serving time for second-degree murder. He was convicted of strangling Chester Dean Dyer in Arizona a year later during an armed burglary, and a trial judge sentenced him to death.

Source: CNN.com, October 27, 2010

Arizona goes overseas for lethal injection drug

FLORENCE, Ariz. – Facing a nationwide shortage of a lethal injection drug, Arizona has taken an unusual step that other death penalty states may soon follow: get their supplies from another country.

Such a move, experts say, raises questions about the effectiveness of the drug. But it also may further complicate executions in the 35 states that allow them, as inmates challenge the use of drugs not approved by federal inspectors for use in the U.S.

Arizona said Tuesday that it got its sodium thiopental from Great Britain, the first time a state has acknowledged obtaining the drug from outside the United States since the shortage began slowing executions in the spring.

"This drug came from a reputable place," Chief Deputy Attorney General Tim Nelson said. "There's all sorts of wild speculation that it came from a third-world country, and that's not accurate."

Nelson said the state revealed the drug's origins to let the public know that its supply is trustworthy and to dispel rumors. However, he did not name the company that manufactured it.

Without assurances of the drug's quality, many questions will be raised, including its effectiveness and how it should be handled, and would serve as a basis for lawsuits, said Deborah Denno, a law professor at Fordham University.

"The impact could be huge," Denno said. "The source of the thiopental is critical."

Tuesday night, Arizona executed Jeffrey Landrigan for a 1989 murder in the state's first execution since 2007. Landrigan died by injection at a state prison in Florence at 10:26 p.m. after a stay issued by a federal judge was lifted by the U.S. Supreme Court.

Landrigan's lawyers had argued he could be suffocated painfully if the sodium thiopental doesn't render him unconscious. In lethal injections, sodium thiopental makes an inmate unconscious before a second drug paralyzes him and a third drug stops his heart.

Hospira Inc. of Lake Forest, Ill., the sole U.S. manufacturer of the drug, has blamed the shortage on unspecified problems with its raw-material suppliers and said new batches will not be available until January at the earliest.

There are no FDA-approved overseas manufacturers of the drug.

The limited supply has also directly affected executions in California, Kentucky and Oklahoma, and may affect executions in Missouri, which says its supply of sodium thiopental expires in January.

California officials say they acquired a dosage of 12 grams in September with a 2014 expiration date. But there was some dispute about the source. Hospira said its remaining supplies expire next year and California could only have obtained it elsewhere.

The state prison system would not address the discrepancy. "The state obtained the sodium thiopental lawfully from within the United States," Terry Thornton, a corrections spokeswoman told The Associated Press.

Ohio, which spends about $350 for the drug for each execution, ran out of the amount prescribed by state procedures just three days before a May 13 execution. The state obtained enough in time but won't say where.

A few weeks ago, Kentucky's governor held off signing death warrants setting execution dates for two inmates because the state is almost out of sodium thiopental. The state's lone dose expired Oct. 1.

Officials say they have tried unsuccessfully to get the drug from other states, and have gotten calls from states looking for it.

In August, an Oklahoma judge delayed the execution of Jeffrey Matthews when the state tried to switch anesthetics after running out of its regular supply in August. Matthews was convicted of killing his 77-year-old great-uncle during a 1994 robbery.

Oklahoma finally found enough sodium thiopental from another state, but the court-ordered delay continues.

The controversy could end if Hospira resumes making the drug next year as indicated, or states could switch to another drug.

At least 15 states, including Arizona, Florida, Missouri, Texas and Tennessee, might be able to switch drugs without a new law or administrative process, death penalty expert Megan McCracken said.

In Arizona, officials at the state prison waited for the high court's decision for much of the day. The execution had been set for 10 a.m. Tuesday, but a ruling by a federal judge in Phoenix that had been upheld by an appeals court panel put the execution on hold until the evening.

The delay, prosecutors say, is one reason the public has lost some faith in the criminal justice system.

"We're 20 years in and we're not arguing over guilt or innocence," said interim Maricopa County Attorney Rick Romley, whose office prosecuted Landrigan in the 1989 killing of Chester Dyer during a robbery. "We have lawyers fighting lawyers."

In recent years, lethal injections have run into high-profile problems, including botched executions.

Ohio and Washington have switched from a three-drug method to a single, powerful dose of sodium thiopental. The change helps avoid litigation over pain that inmates could suffer from the second and third drugs if they haven't been knocked out.

The switch doesn't affect the drug's administration, which has led to a number of fumbled executions, including a September 2009 procedure in Ohio in which the governor stopped an execution after two hours when officials couldn't find a usable vein.

The issue will come down to whether an overseas version of sodium thiopental would be equivalent to what the FDA has approved here, said Ty Alper, associate director of the death penalty clinic at the University of California-Berkeley.

"It really opens the door to Eighth Amendment challenges that go to the heart of whether executions work the way they're supposed to," he said, referring to the amendment about prohibiting cruel and unusual punishment.

Source: AP, October 27, 2010

Arizona executes inmate after federal judge lifts stay

In only the 2nd Arizona execution since 2000, convicted killer Jeffrey Landrigan died by lethal injection late Tuesday after the U.S. Supreme Court removed the last legal barrier.

His death came shortly after a curtain opened into the execution room at 10:14 p.m. Tuesday. The condemned man looked quizzically at roughly 27 people gathered to witness the event. He smiled to friends and family, his lip curling slightly under his reddish mustache.

When asked for any last words, he said in a strong voice with a heavy Oklahoma accent: "Well, I'd like to say thank you to my family for being here and all my friends, and Boomer Sooner," a reference to the University of Oklahoma Sooners.

He looked around and smiled again. Then, as the 1st drug -- sodium thiopental -- took effect, he slowly closed his eyes. A medical technician entered to check that he was fully sedated. Then the execution continued.

Death was pronounced at 10:26 p.m. and the curtain closed.

Landrigan had been on Arizona's death row for 20 years for the 1989 murder of Chester Dean Dyer in Phoenix.

Landrigan's execution at the Arizona State Prison Complex in Florence moved relatively quickly after the U.S. Supreme Court lifted a temporary restraining order that had been imposed Monday by a U.S. District Court judge in Phoenix and affirmed by the 9th U.S. Circuit Court of Appeals.

The court imposed the order as it tried to force Arizona to disclose where and how it had obtained its supply of sodium thiopental, 1 of 3 drugs used in Arizona executions. Attorneys had been battling for days over the issue.

The high court, in a terse 1-page order issued after 7 p.m. Tuesday, agreed by a 5-4 decision with Arizona prosecutors that there was no reason to force disclosure.

"There was no showing that the drug was unlawfully obtained, nor was there an offer of proof to that effect," the court order said.

Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented, voting to keep the stay in place.

Justices Anthony Kennedy, Clarence Thomas, Samuel Alito, Antonin Scalia and John Roberts were in the majority, lifting the stay.

Going into Landrigan's final weekend, intensive legal maneuvering by his defense team had sought re-examination of DNA evidence obtained in the case, as well as disclosure of how the state legally obtained its thiopental. Simultaneous arguments were raised in both state and federal courts.

Thiopental is a barbiturate that renders the condemned person unconscious so he or she cannot feel suffocation or pain induced by the 2nd and 3rd drugs administered during execution.

The sole U.S. manufacturer and only apparent supplier of thiopental approved by the U.S. Food and Drug Administration has temporarily ceased production of the drug. Landrigan's attorneys wanted assurances that Arizona's thiopental had been lawfully obtained and would be effective, so as not to constitute cruel and unusual punishment.

The state resisted disclosing the information, citing a state law concealing the identities of executioners and all people with "ancillary" functions needed to carry out the execution. However, Attorney General Terry Goddard revealed to an Arizona Republic reporter late Monday that the drug had come from Britain.

On Tuesday, the Arizona Supreme Court rejected a stay based on the DNA matter, leaving only the federal stay in place. When an appellate panel late Tuesday afternoon agreed to leave the federal restraining order in place until Arizona disclosed more about its thiopental supply, Goddard immediately appealed to the U.S. Supreme Court.

Within several hours, the high court lifted the stay, noting: "There is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe. The district court granted the restraining order because it was left to speculate as to the risk of harm. . . . But speculation cannot substitute for evidence that the use of the drug is 'sure or very likely to cause serious illness and needless suffering.'"

That sent the Arizona Department of Corrections into motion to carry out the execution. The department had been poised all day, since Landrigan's execution originally had been scheduled for 10 a.m. Tuesday. Landrigan had already eaten what everyone thought would be his last meal Monday night.

Landrigan's execution is the 1st in Arizona since May 2007, when Robert Comer was put to death for shooting a Florida man at a campground near Apache Lake in 1987.

Comer was the 1st person executed in Arizona since 2000 because the U.S. Supreme Court, in a decision that centered on another Arizona murderer, changed the way that death penalties are imposed in the U.S. Until that decision, judges in Arizona and some other states determined whether a convicted murderer was sentenced to death or to life in prison. Now juries do the sentencing.

Landrigan was supposed to be executed Nov. 1, 2007, but another case in the U.S. Supreme Court, this time regarding the constitutionality of execution by lethal injection, put his execution on hold.

That case was decided in 2008, and Arizona had overhauled its own lethal injection protocol by 2009, clearing the way to resume executions.

With Landrigan's execution, there are 133 people on Arizona's death row.

Meanwhile, there are 79 capital cases awaiting trial in Maricopa County, 3 in trial, and 7 in which defendants have been found guilty of first-degree murder but have not yet been sentenced.

Landrigan becomes the 1st condemned inmate to be put to death this year in Arizonad and the24th overall since the state resumed capital punishment in 1992.

Landrigan becomes the 44th condemned inmate to be put to death this year in the USA and the 1232nd overall since the nation resumed executions on January 17, 1977.

Sources: Arizona Republic & Rick Halperin, October 27, 2010


The British company making a business out of killing

The company supplying sodium thiopental for the execution of Jeffrey Landrigan should be named and shamed

There are plenty of Americans who think that Jeffrey Landrigan should have been executed at 10am local time today, but it seems that Arizona has run out of a legal supply of sodium thiopental, one of the drugs used for lethal injections in 34 states. Today, blogs are full of offers by volunteers who would like to take the task upon themselves – whether with a gun ("There's no shortage of lead"), a baseball bat or their own cocktail of poisonous liquids.

However, yesterday federal judge Roslyn Silver stayed the execution. There is only one legal source of sodium thiopental in the United States, which is the pharmaceutical company Hospira. The drug is only the first step in a three-stage process but, according to the supreme court, "[i]t is uncontested that, failing a proper dose of sodium thiopental that would render [a] prisoner unconscious, there is a substantial ... risk of suffocation ... and pain from the injection" of the two subsequent drugs. Hospira recently refused to play any further role in capital punishment, insisting that the company is in the business of saving lives, rather than taking them.

Landrigan is severely brain damaged, probably as a result of his biological mother's drug abuse during his pregnancy. Once out of the womb, he was handed to an alcoholic adoptive mother who would pass out each day after drinking a bottle of vodka. Notwithstanding this, the supreme court ruled – by the narrowest of margins, five to four – that such evidence would have made no difference to the sentencing judge. Justice Clarence Thomas wrote that "the poor quality of Landrigan's alleged mitigating evidence prevented him from making 'a colorable claim'" that the trial judge would have spared his life.

How wrong human beings can be. More recently, another judge – this time, the one who originally decided that Landrigan should die – has sworn out an affidavit saying that she would never have imposed a death sentence had she known about his mental defects.

Yet many still believe he should be put to death. Seemingly among their number is an anonymous British corporation. Yesterday, Arizona attorney general Terry Goddard, when asked for the identity of the supplier, conceded that the drug was imported from Britain, but refused to name the company.

Judge Silver found it "perplexing" that Goddard would insist on secrecy for the source of Jeffrey Landrigan's execution drugs. Hers was a judicious choice of words, and one might scrabble for something harsher. One question that immediately springs to mind is whether it is criminal for the British corporation to profit from such a killing: while the language is loose, EU Council Regulation 1236/2005 takes a step along this path, making it illegal to "trade in certain goods which could be used for capital punishment, torture, or other cruel, inhuman or degrading treatment ..."

The morality of it all is a separate issue, and Hospira's judgment was correct. When the veil of secrecy is inevitably sundered, this British corporation should be reminded that the medical profession boasts of a Hippocratic oath, not a hypocritical one.

Source: The Guardian, October 27, 2010

Busy agenda faces reconfigured US Supreme Court

The US Supreme Court returns to work Monday, completed by 2 judges appointed by President Barack Obama, facing a busy docket crammed with issues such as the death penalty and freedom of expression.

But despite Obama's new appointments -- Sonia Sotomayor who joined the bench at the start of the 2009 session and Elena Kagan who ceremonially took her seat for the 1st time on Friday -- the make-up of the nation's highest court is for many experts one of the most conservative ever.

The court, whose 9 justice are appointed for life, rules on the most pressing moral and social issues facing the United States.

And Kagan's arrival is unlikely to alter the delicate balance of the court, currently divided between four liberal judges, four conservatives and Anthony Kennedy, named by Republican president Ronald Reagan in 1988, who votes with either side.

"3 of the most conservative justices in history are in the Court today," said Susan Bloch, a professor at Georgetown University.

There were already some shock decisions in the last session: the lifting of complex finance laws to allow businesses to make unlimited electoral campaign donations; banning any moves to prohibit guns and overturning some of the legal arsenal used to fight corruption.

And there will be some thorny issues once again before the courts in the coming months.

There will be the case brought by Albert Snyder, incensed that anti-gay groups were allowed to demonstrate at the funeral of his son, Matthew, a lance corporal killed in Iraq in 2006.

Matthew was not gay, but members of the Westboro Baptist Church used the occasion to push their message against homosexuality.

Snyder is now taking his lawsuit claiming emotional distress to the top bench, after an appeals court ruled the group had the right to protest under the First Amendment guaranteeing freedom of expression.

Also in the court's docket is a case brought by California Governor Arnold Schwarzenegger calling for violent video games to be banned.

And the death penalty -- a staple issue before the court -- will also be reexamined in the case of convicted murderer Henry Skinner who says DNA tests would prove his innocence.

Last year, in a highly unusual reversal the Supreme Court ordered a new hearing into potentially exonerating evidence for high-profile death row inmate Troy Davis.

A controversial law adopted in Arizona on employing illegal immigrants will also go before the 9 justices, along with questions on whether victims have the right to claim damages and compensation from pharmaceutical companies.

This year's panel will meet for the first time in 35 years without John Paul Stevens who retired earlier this year when he reached the age of 90.

Though he was appointed by Republican president Gerald Ford, Stevens became one of the most charismatic, liberal figures on the bench during his long tenure.

But even if some of Stevens's "views changed with time," this did not counter the fact that "the Court moved to the right," Bloch said.

Now Stephen Breyer, appointed by president Bill Clinton in 1994, is generally viewed as the leader of the liberal wing of the bench.

"I am dissenting more now than I was, say, 5 years ago -- a lot more," he told The New Yorker recently, referring to two Bush-era appointments which turned the court further to the right.

One factor though may stymie progress on a number of cases -- Kagan served as Obama's solicitor general before her appointment and as such prepared the government's position on a number of the cases before the court this session.

She has recused herself from 21 of the 39 cases set to be heard this fall, opening the possibility of a split four-to-four tied decision. In such cases, the previous ruling by the appeals court will stand.

"Unlike most terms, this term may end with more uncertainty about where the Court stands on a number of important questions depending on the impact on Justice Kagan's reclusals," said Steven Shapiro, legal director of the civil rights group, the ACLU, said.

Source: Agence France-Presse, October 4, 2010

President Obama nominates Solicitor General Elena Kagan as the nation’s 112th justice

WASHINGTON — President Obama has nominated Solicitor General Elena Kagan (left) as the nation’s 112th justice, choosing his own chief advocate before the Supreme Court to join it in ruling on cases critical to his view of the country’s future.

After a monthlong search, Mr. Obama informed Ms. Kagan and his advisers on Sunday of his choice to succeed the retiring Justice John Paul Stevens.

In settling on Ms. Kagan, the president chose a well-regarded 50-year-old lawyer who served as a staff member in all three branches of government and was the first woman to be dean of Harvard Law School. If confirmed, she would be the youngest member and the third woman on the current court, but the first justice in nearly four decades without any prior judicial experience.

That lack of time on the bench may both help and hurt her confirmation prospects, allowing critics to question whether she is truly qualified while denying them a lengthy judicial paper trail filled with ammunition for attacks. As solicitor general, Ms. Kagan has represented the government before the Supreme Court for the past year, but her own views are to a large extent a matter of supposition.

Replacing Justice Stevens with Ms. Kagan presumably would not alter the broad ideological balance on the court, but her relative youth means that she could have an influence on the court for decades to come, underscoring the stakes involved.

Ms. Kagan defended her experience during confirmation hearings as solicitor general last year. “I bring up a lifetime of learning and study of the law, and particularly of the constitutional and administrative law issues that form the core of the court’s docket,” she testified. “I think I bring up some of the communications skills that has made me — I’m just going to say it — a famously excellent teacher.”

Ms. Kagan was one of Mr. Obama’s runners-up last year when he nominated Sonia Sotomayor to the court, and she was always considered the front-runner this year.

Ms. Kagan had several advantages from the beginning that made her the most obvious choice. For one, she works for Mr. Obama, who has been impressed with her intelligence and legal capacity, aides said, and she worked for Vice President Joseph R. Biden Jr. when he was a senator. For another, she is the youngest of the four finalists, meaning she would most likely have the longest tenure as a justice. Read more>>>

Source: The New York Times, May 10, 2010

Kagan’s Notable Statements and Writings

Constitutional Theory

In her testimony during her confirmation for solicitor general, Elena Kagan wrote: “I think a judge should try to the greatest extent possible to separate constitutional interpretation from his or her own values and beliefs. In order to accomplish this result, the judge should look to constitutional text, history, structure and precedent. Relating these views to the position for which I am nominated, I think these kinds of arguments also are most successful in advocacy before the courts in constitutional cases. ... The Constitution generally imposes limitations on government rather than establishes affirmative rights and thus has what might be thought of as a libertarian slant. I fully accept this traditional understanding, and if I am confirmed as solicitor general, I would expect to make arguments consistent with it.”

Judicial Activism

In Ms. Kagan’s written responses to Senate questions during her confirmation for solicitor general, she disagreed with the view that the courts should take the lead in creating a more just society.

Don’t Ask, Don’t Tell

Ms. Kagan opposes the ban on gays serving openly in the military. As dean of Harvard Law School, she barred military recruiters from using the law school’s Office of Career Services. She reversed her decision after the government threatened to enforce the Solomon Amendment, which allows the federal government to withhold money from universities that do not extend the same welcome to military recruiters as they do to other recruiters. In a message to the school, she wrote, “The importance of the military to our society — and the extraordinary service that members of the military provide to all the rest of us — makes this discrimination more, not less, repugnant.” However, during her confirmation for solicitor general, she wrote that because the Supreme Court has upheld the Solomon Amendment, she would “vigorously” defend it against constitutional challenge.

Defining Combatants

During her confirmation hearing for solicitor general, Ms. Kagan agreed with a questioner that someone suspected of helping to finance Al Qaeda should be subject to battlefield law — indefinite detention without a trial — even if he were captured in a place like the Philippines rather than in a physical battle zone.

Presidential Powers

In a 2001 article in The Harvard Law Review that considered the “unitary executive” theory, Ms. Kagan wrote that such presidential control “expanded dramatically during the Clinton presidency,” a development she largely welcomed. But she said Congress, experts and interest groups should also play a role in informing the executive branch’s actions. “I do not espouse the unitarian position,” Ms. Kagan wrote. “President Clinton’s assertion of directive authority over administration, more than President Reagan’s assertion of a general supervisory authority, raises serious constitutional questions.”

The Death Penalty

In Ms. Kagan’s written responses to Senate questions during her confirmation for solicitor general, said she did not believe that international law prevented federal and state governments from broadening the application of the death penalty.

The Second Amendment

In response to questions about District of Columbia v. Heller, which struck down parts of the District of Columbia’s gun control law and ruled that the Second Amendment protects an individual's right to own guns, Ms. Kagan cited the court’s analogy to the First Amendment, writing that it provided “strong although not unlimited protection.”

Abortion

During her confirmation for solicitor general, Ms. Kagan said she would respect laws and precedent regarding abortion rights.

Financing for Faith-Based Groups

During her confirmation hearings, Ms. Kagan denounced a memo she wrote while serving as a clerk for Justice Thurgood Marshall in 1989. That memo suggested that faith-based groups should not receive money for certain activities. Pregnancy care centers, she thought at the time, would not be able to counsel pregnant teenagers without injecting their religious beliefs. At her hearing, she said presuming a religious organization would use money in an impermissible manner was incorrect.

Same-Sex Marriage

As part of her confirmation for Solicitor General, Ms. Kagan was asked whether she would defend the constitutionality of the Defense of Marriage Act, which said that states need not recognize same-sex marriages performed in other states. Ms. Kagan’s said, as solicitor general, she would defend any acts “if there is any reasonable basis to do so.” She noted this was “a low bar for a statute to climb over.”

Source: The New York Times, May 10, 2010

Elena Kagan picked to replace Justice Stevens

Kagan is the former dean of Harvard Law School, worked in the Clinton administration and was a colleague of Obama's at the University of Chicago law school. He chose her to be the government's top appellate lawyer and representative at the Supreme Court, the first woman to hold the job. Republicans complained during her confirmation for that job about her lack of courtroom experience — her first argument at the Supreme Court last September was her first in any court—and that she refused to answer questions on specific constitutional questions and cases. Conservative legal activists denounced her decision to forbid military recruiters on the law school campus because the ban on military service by gays violated the university's antidiscrimination policies. She was confirmed on a 61-31 vote. Read more>>>

Source: The Washington Post, May 10, 2010

Statements of Elena Kagan on the Death Penalty

“I am fully prepared to argue, consistent with Supreme Court precedents, that the death penalty is constitutional.”

"I can say that nothing about my personal views regarding the death penalty (relating either to policy or law) would make it difficult for me to carry out the Solicitor General’s responsibilities in this area." Elena Kagan, SOLICITOR GENERAL CONFIRMATION HEARING, 2009.

Read more here.

Source: Texas Moratorium Network, May 10, 2010

In a first test for court watchers, Sotomayor upholds death sentence

The Supreme Court on Wednesday upheld the death penalty for an Alabama inmate whose attorney declined to present evidence about the man's mental deficiencies to a jury deciding his fate.

The 7 to 2 ruling was notable because it was written by Justice Sonia Sotomayor (pictured), her first full opinion on capital punishment since she joined the court. She said that while the wisdom of the lawyer's decision might be "debatable," it was not unreasonable to think he had made a strategic decision that kept out more damaging evidence about his client.

The ruling came as the court indicated that a long-awaited decision in another case might be at hand. The justices took the unusual step of adding a session Thursday to issue opinions, prompting speculation that it might be ready to announce its much-anticipated ruling about the role of corporate spending in election campaigns.

The death penalty case came in a challenge from Holly Wood, who killed his former girlfriend Ruby Lois Gosha with a shotgun while she was sleeping in her Troy, Ala., home in 1993.

Wood challenged his death sentence on several grounds, including the decision by his inexperienced attorney not to pursue and introduce to the jury a psychologist's report about Wood's diminished mental capacity. Such evidence could be seen as mitigating when considering whether Wood deserved death for his actions.

The Alabama Supreme Court upheld Wood's sentence, but a federal judge agreed with Wood that the lawyer's performance was incompetent. The U.S. Court of Appeals for the 11th Circuit reversed that decision.

The Supreme Court on Wednesday said the appeals court was right. "Even if it is debatable, it is not unreasonable to conclude that . . . counsel made a strategic decision not to inquire further into the information contained in the report about Wood's mental deficiencies and not to present to the jury such information," Sotomayor wrote.

She noted that the report contained information about Wood trying to kill another ex-girlfriend in much the same manner.

She was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, Ruth Bader Ginsburg, Samuel A. Alito Jr. and Stephen G. Breyer.

Justices John Paul Stevens and Anthony M. Kennedy dissented, saying the lawyer's decision was best attributed to "inattention and neglect."

Sotomayor's extensive record as a judge is scant on capital punishment. The pro-death-penalty Criminal Justice Legal Foundation said it was encouraged by Sotomayor's decision to uphold the appeals court ruling.

The case is Wood v. Allen.

Source: Washington Post, January 21, 2010

Sotomayor’s first vote on death penalty

The newest Justice, Sonia Sotomayor, on Monday night cast her first vote in a death penalty case, joining three other members of the Supreme Court in dissent as the Court permitted the execution Tuesday of an Ohio inmate, Jason Getsy, 33. He was scheduled to die in Lucasville, Ohio, at 10 a.m. Tuesday.

The Supreme Court’s order is here. Sotomayor would have granted a stay of execution, along with Justices Stephen G. Breyer, Ruth Bader Ginsburg and John Paul Stevens. Sotomayor’s predecessor, retired Justice David H. Souter, frequently voted to postpone executions.

In the Court’s order, the Justices also denied Getsy’s petition for review, in Getsy v. Strickland (09-5935). There was no indication of dissent from the denial of review of the case itself.

The Ohio Parole Board, by a vote of 5-2, recommended to Gov. Ted Strickland that he commute Getsy’s death sentence to life in prison. The governor, however, refused, saying that the evidence of Getsy’s crime was too strong to warrant clemency. Getsy was sentenced to death for the 1995 murder of a Hubbard, Ohio, woman, Ann Sarafino. He also was convicted of the attempted murder of her son Charles.

Source: scotusblog, August 18, 2009

Sotomayor Confirmed by Senate, 68-31

WASHINGTON — Voting largely along party lines, the Senate on Thursday confirmed Judge Sonia Sotomayor (pictured) as the 111th justice of the Supreme Court. She will be the first Hispanic and the third woman to serve on the court.

Chief Justice John G. Roberts Jr. was expected to administer the oath of office to Judge Sotomayor, 55, in the next few days, with a formal ceremony likely in September. She succeeds Justice David H. Souter, who retired in June.

Democrats celebrated the successful nomination and relatively smooth confirmation process as a bright spot in a summer when they have been buffeted by several challenges, including rocky progress on their attempts to overhaul the nation’s health care system, President Obama’s falling approval ratings, the climbing unemployment rate and other lingering economic problems.

Shortly after the vote, President Obama said he was "deeply gratified" and confident that Judge Sotomayor would become an outstanding justice. The ideals of "justice, equality, opportunity" that guide the high court are the very ones that made the judge’s "uniquely American story" possible in the first place, the president said.

Judge Sotomayor’s confirmation was never in much doubt, given Democrats’ numerical advantage in the Senate. But the final vote — 68 to 31 — represented a partisan divide. No Democrat voted against her, while all but 9 of the chamber’s 40 Republicans did so. Senator Edward M. Kennedy, Democrat of Massachusetts, is ailing and did not vote.

During three days of debate on the Senate floor, Republicans labeled Judge Sotomayor a liberal judicial activist, decrying several of her speeches about diversity and the nature of judgments, as well as her votes in cases involving Second Amendment rights, property rights and a reverse-discrimination claim brought by white firefighters in New Haven.

“Judge Sotomayor is certainly a fine person with an impressive story and a distinguished background,” the Senate minority leader, Mitch McConnell, Republican of Kentucky, said this week. “But a judge must be able to check his or her personal or political agenda at the courtroom door and do justice evenhandedly, as the judicial oath requires. This is the most fundamental test. It is a test that Judge Sotomayor does not pass.”

But Democrats portrayed Judge Sotomayor as a mainstream and qualified judge whose life — rising from a childhood in a Bronx housing project to the Ivy League and now the Supreme Court — is a classic American success story. And they called her judicial record moderate and mainstream.

“Judge Sotomayor’s career and judicial record demonstrates that she has always followed the rule of law,” Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Senate Judiciary Committee, said Thursday. “Attempts at distorting that record by suggesting that her ethnicity or heritage will be the driving force in her decisions as a justice of the Supreme Court are demeaning to women and all communities of color.”

From the moment Mr. Obama chose her in May, many political strategists warned Republicans that opposing the first Latina nominated to the Supreme Court would jeopardize the party in future elections. In the waning days of the debate, some Democrats sought to portray Republican opposition as a grave insult to Latinos.

“Republicans will pay a price for saying ‘no’ to this judge,” Senator Robert Menendez, Democrat of New Jersey, said in Spanish at a news conference Wednesday.

And in July, the National Rifle Association, which historically has stayed out of judicial nomination fights, came out against Justice Sotomayor and said it would include senators’ confirmation vote in its legislative scorecard on gun-rights issues for the 2010 election — a pointed threat to Democrats from conservative-leaning states.

But attempts to appeal to interest-group politics in the confirmation process largely faltered.

The final vote was “a triumph of party unity over some of the interest group politics that you would have expected to play a bigger role,” said Curt Levey, executive director of the conservative Committee for Justice, which opposed Judge Sotomayor’s confirmation.

Many Republicans took pains to emphasize that their vote against Judge Sotomayor did not mean they were anti-Latino. They praised her credentials and her biography, saying they were troubled only by what they said was her judicial philosophy.

Before announcing his opposition to her nomination, Senator John McCain of Arizona, last year’s Republican presidential nominee who has been sympathetic to calls by Latinos and others for reforming the nation’s immigration laws, first described her as an “immensely qualified candidate” with an “inspiring and compelling” life story. And he dwelled on his support for Miguel Estrada, an appeals-court nominee of President George W. Bush whom Democrats blocked from a vote even though “millions of Latinos would have taken great pride in his confirmation,” Mr. McCain said.

Many other Republicans echoed Mr. McCain’s approach in explaining their votes. On Thursday, for example, Senator Orrin G. Hatch, Republican of Utah, spoke at length about the “unfair and disgraceful” treatment of Mr. Estrada, while criticizing Judge Sotomayor’s record.

“I wish President Obama had chosen a Hispanic nominee whom all senators could support,” Mr. Hatch said.

Juan Hernández, who served as Hispanic outreach coordinator for Mr. McCain’s presidential campaign, said most Republicans had not done enough to persuade Hispanics that they were welcome in the party.

“It’s not good enough to give two or three lines about Hispanics and then say, ‘No, I’m not going to vote for Sotomayor,‘ “ he said. “We’re just losing Hispanics left and right. It’s amazing, in the Republican Party — we’re doing it to ourselves.”

But Manuel A. Miranda, chairman of the Third Branch Conference, a coalition of conservatives who opposed the Sotomayor nomination, said Hispanics were ideologically diverse and would understand that Republican opposition to a particular liberal-leaning judge did not mean they were hostile to Hispanics — especially since her confirmation hearing was civil, he said.

“Hispanics are not going to be offended by the opposition because Republicans didn’t torment her,” Mr. Miranda said. “Republicans can take this vote because they treated her well.”

For many Hispanic voters, the symbolism of the first Latina joining the Supreme Court — and the memory of who opposed her — could be all that lingers, said Janet Murguía, president of the National Council of La Raza, an Hispanic advocacy group.

“This is a singularly definitive historic moment,” she said. “So it is a vote, I think, that will matter to the Latino community and will be remembered by the Latino community.”

What also remains to be seen is whether Democratic senators — especially those from conservative-leaning states and those who have received high ratings from the National Rifle Association in the past — will pay a political price for voting to confirm Judge Sotomayor despite the group’s opposition.

Andrew Arulanandam, an N.R.A. spokesman, declined to comment about the vote, but he did say it was too early to know how much weight his group would give to the Sotomayor vote when putting together its scores and endorsements for the 2010 election cycle.

Still, despite the seeming impotence of the gun-rights group’s ability to intervene in the nomination fight, Mr. Miranda said he believed the threat of lower ratings might have had led more Republicans to vote against Judge Sotomayor, noting that many had cited her alleged lack of support for Second Amendment rights in explaining their votes.

“That was a seismic shift,” Mr. Miranda said.

Matthew Dowd, a former political adviser to Mr. Bush who had warned Republicans to be civil, disagreed. He said the Supreme Court confirmation process had simply become increasingly polarized along party lines, regardless of a nominee’s qualifications or the stance of groups like the National Rifle Association.

“My view is that gun rights had nothing to do with it,” he said. “Supreme Court nominations have become dodgeball games, with Democrats lining up on one side and Republicans lining up on our side.”

Source: The New York Times, August 6, 2009

In 98, Hints From Sotomayor on Death Penalty

As a drug kingpin and his bodyguard, both black, faced the 1st death penalty trial in Manhattan since the days of the Rosenbergs, their lawyers argued that the practice of capital punishment was racist.

"We're doing what the death penalty has always done historically, which is target minority people," one of the lawyers said in 1998 as he asked a Federal District Court judge to declare the penalty unconstitutional. That judge was Sonia Sotomayor a Bronx-born woman of Puerto Rican descent who as a young lawyer had leveled much the same attack on capital punishment. And as she listened to the arguments that day, she acknowledged there were many unresolved "tensions" surrounding the death penalty.

But she flatly told the lawyers she had no power to resolve them. "I don't as a judge," she said. "They are not up to me. Ultimately, they are up to Congress and the Supreme Court."

Judge Sotomayor, of course, is now up for a seat on the Supreme Court, and her nomination has sparked questions about her early advocacy and whether that might flavor her performance as a justice.

The 1998 case, the only death penalty matter she appears to have handled on the federal bench, offers some answers. Transcripts provide a revealing look at the judge, acting as an official arbiter on an issue she once addressed strongly and weighing the lives of 2 men.

The case record shows she was curious enough about the defense arguments that she ordered prosecutors to produce data on the race of defendants considered for the death penalty. But it also shows she was tough on defense lawyers, repeatedly challenging their claims that minority defendants were disproportionately singled out.

She even rejected the same kind of statistical argument against capital punishment that she had made years earlier as a lawyer, saying it was not sufficient to prove discrimination.

"We gave her enough ammunition that she could have struck down the death penalty," recalled David A. Ruhnke, a defense lawyer in the case. "Whether it would have stood up in the U.S. Supreme Court, who knows? But we gave her enough room to do it had she wanted to reach out and do it and she didn't."

In the end, Judge Sotomayor never ruled on the merits of the death penalty, even though her remarks made clear that she was unlikely to find it unconstitutional. Some 2 years into the case, she was elevated to the federal appellate bench in New York, and the case was handed to another judge, who declined to strike down the law. Both defendants pleaded guilty and avoided execution.

But Judge Sotomayor conducted three lively pretrial hearings that explored the death penalty. In more than 100 pages of transcripts, she emerges as deeply engaged, vocal and demanding, scrutinizing both sides and sometimes floating provocative ideas.

At one point, pressed by defense lawyers to resolve the death penalty's inequities, she advised them to be careful what they wished for.

"As my law clerk said to me the other day, what is the remedy? Should we just have more people sentenced to capital punishment? That's as effective a remedy as having fewer people sentenced to capital punishment if we find that we need to remedy some overall societal inequity."

Judge Sotomayor, who turns 55 on Thursday, has spoken very little publicly about the death penalty during her long career, which included about 5 years as an assistant district attorney in Manhattan. But conservatives who oppose her nomination have seized on a 1981 internal memo signed by her and 2 other directors of the Puerto Rican Legal Defense and Education Fund recommending that the organization oppose restoration of the death penalty in New York State.

The memo said capital punishment was "associated with evident racism in our society" and cited statistics to show that "the number of minorities and the poor executed or awaiting execution is out of proportion to their numbers in the population."

Seventeen years later, she heard a similar argument on behalf of two defendants charged with multiple murders: Clarence Heatley, who led a multimillion-dollar crack-cocaine operation based in the Bronx, and his bodyguard, John Cuff, a former New York City housing police officer.

In 1997, Mary Jo White, the United States attorney in Manhattan, received authorization from Attorney General Janet Reno to seek the death penalty against both men. Congress had reinstituted the federal death penalty in recent years, and Ms. White's office had considered a dozen other cases before settling on Mr. Heatley's and Mr. Cuff's.

Before the men could be tried, however, Judge Sotomayor had to consider their lawyers' challenge to the law. They presented data showing that since 1988, the federal government had authorized 119 capital cases, with 79 % involving minority defendants. Of the 16 men who had been sentenced to death, 13 were members of minorities.

But the judge agreed with prosecutors that the numbers alone did not prove discrimination in this case. The high percentage of minority defendants, she said, "tells me nothing about the pool from which that number comes from." She said the defense had to offer more "some actual proof of discrimination besides statistical evidence, because it can be manipulated."

The defense had, indeed, tried to get more evidence, asking the judge to order the government to produce information on federal defendants across the country who had been considered for capital punishment, and on how each decision had been reached.

Judge Sotomayor balked. "The only way that we can end up with your getting anything that would be admissible," she said, "is if we literally redid all of the deliberative processes in every single case that was eligible for the death penalty."

Ultimately, she agreed to order data on the racial and ethnic composition of the pool of defendants.

"I would like to see the numbers myself," she said. "I do agree with you that the death population in the federal system is so disparately different from the general population that one look more should be done, at least an initial inquiry."

The judge also seemed open to the idea of allowing the defense, during a possible future sentencing hearing, to tell the jury that other murderers had been spared the death penalty.

She said: "You can very well see a potential argument by the defense that says, If Joe Blow, who kills his wife, 10 children, his mother, and didn't get the death penalty, why should my client? Why shouldn't society put to death murderers of more heinous crimes? These are drug dealers killing drug dealers."

Judge Sotomayor was not shy about asserting a personal opinion. She allowed that in the past five years, she had noticed "a sea change" in Manhattan federal prosecutors' handling of the death penalty an apparent reference to an increase in cases considered for capital punishment and new policies on how such decisions were made. But she dismissed the defense's claim that racial bias was the cause.

"It may be based on politics," she said, "since it's the only explanation that could justify the sea change. But I have no basis to believe, in what you presented me with or otherwise, that it's based on race."

Whatever her own feelings on capital punishment, the judge showed a willingness to understand and apply the death penalty law, even if the result could be 2 executions. When the prosecutor, Andrew S. Dember, seemed to ask for too much legal leeway on 1 point, she cautioned that his approach could lead to a reversal of any verdict.

"Remember 2 things," she told him. "A conviction is important. Surviving conviction is more important."

She also had a pointed word for the defense: Do not expect the Supreme Court to abolish capital punishment anytime soon.

Mr. Ruhnke, the defense lawyer, had suggested that in 50 years there might not be a death penalty. He asserted that the Supreme Court almost struck down capital punishment in a 1987 case involving racial disparities. The author of the 5-to-4 ruling, Justice Lewis F. Powell Jr., later said he regretted his vote.

"It was that close to being no death penalty," Mr. Ruhnke said.

Judge Sotomayor suggested that the Supreme Court of 1998 was even less likely to overturn the penalty than the court had been in 1987.

"Unfortunately for your client, regardless of what the makeup of the decision-making will be 50 years from now, in the short run," she said, the death penalty "will still be here."

Source: New York Times, June 25, 2009

Conservative Group Criticizes Sotomayor on Death Penalty Memo

A conservative group is criticizing Supreme Court nominee Sonia Sotomayor for signing a 1981 memo that opposed the death penalty and said "capital punishment is associated with evident racism in our society."

The Manassas, Va.-based Judicial Confirmation Network today said the document, written when Sotomayor was on the board of the Puerto Rican Legal Defense and Education Fund, offers a window into her thinking on the divisive issue of capital punishment.

The memo "provides an important data point to flesh out the picture of her that is emerging from her other writings, speeches and judicial opinions: a hard-left liberal judicial activist," Wendy E. Long, the networks counsel, wrote in a letter to the Senate Judiciary Committee.

Sotomayor was 1 of 3 board members of the Puerto Rican advocacy group to sign the memo, which recommended that the full board take a position opposing the restoration of the death penalty in New York State. Sotomayor served on the board from 1980 until she became a federal judge in New York in 1992.

"The death penalty is final; it eliminates all possibility of the reform of the offender," the memo said, adding that capital punishment is disproportionally applied to minorities and the poor and is not an effective deterrent to crime.

Cesar Perales, president of the legal defense fund, now called LatinoJustice PRLDEF, said Sotomayor's critics are taking the memo out of context. He said it is a "fair reading" of the document to conclude that Sotomayor was anti-death penalty at the time, but he said the authors were only "recapitulating" arguments against capital punishment made by religious and civic groups.

Perales said the driving force behind the document was Joseph P. Fitzpatrick, a fellow board member and Jesuit priest who also signed it and is now deceased. He could not specify Sotomayors precise role.

The Supreme Court on which Sotomayor may serve has been increasingly divided over the death penalty in recent years. The justices last year upheld lethal injection, a method of execution used by nearly all states, but they have clashed over decisions rejecting the death penalty for child rapists and juveniles.

A White House spokeswoman did not return emails seeking comment.

Source: Washington Post, June 6, 2009