Florida’s Unconstitutional Death Penalty

Florida Death Chamber

As the death penalty becomes rarer and more concentrated in a few parts of the country, the states that continue to employ it are resorting to more desperate schemes to kill people.

In January, for the third time in as many months, Missouri executed an inmate whose appeals were still pending. (A federal appellate judge wrote that he was “alarmed” by the state’s conduct.) Meanwhile, several states are refusing to disclose where they are buying the execution drugs they use, which come from unregulated compounding pharmacies.

And while the Supreme Court categorically banned the execution of people with intellectual disabilities as unconstitutional in 2002, some states continue to defy that principle by interpreting the court’s words as narrowly as possible. In that case, Atkins v. Virginia, the court said reduced mental capacity made a defendant less culpable, but left it to states to enforce the ruling.

On Monday, the court heard oral arguments in a case challenging Florida’s attempt to get around the 2002 decision by requiring intellectual disability to be proved by an I.Q. score of 70 or less, even though the test includes a margin of error of five points.

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Source: The New York Times, Editorial Board, March 3, 2014

Singapore: Drug offender on death row re-sentenced to life imprisonment

Dinesh Pillai Raja Retnam is the third person to escape the gallows under the revised Misuse of Drugs Act, but the first to have his death penalty lifted on grounds of mental disability.

On Monday the High Court found that Dinesh Pillai had only played the role of a courier.

The 31-year-old is also deemed to be suffering from an "abnormality of mind" which "substantially impaired his mental responsibility for his acts".

He was assessed to be suffering from major depressive disorder of moderate severity at and around the time of the offence.

A medical examination also suggested some degree of damage to his brain.

The Attorney-General's Chambers said that the High Court's finding is "consistent with Parliament's intent in ensuring this exception operates in a measured and narrowly defined way", which extends latitude for consideration in cases like Dinesh Pillai's, without undermining the government's zero-tolerance policy towards drugs.

Source: Channel News Asia, March 3, 2014

Texas executes Suzanne Basso

Suzanne Basso

Capital murder defendant Suzanne Basso was executed in Huntsville, Texas Wednesday for the brutal 1998 slaying of a mentally disabled man, becoming only the 14th woman to be put to death since 1976. By comparison, almost 1,400 men have been put to death.

She was pronounced dead at 6:26 pm, 11 minutes after the lethal dose of pentobarbital was administered.

Before being put to death, Basso told a warden who stood near her, "No sir," when asked to make a final statement.

She appeared to be holding back tears, then smiled at 2 friends watching through a window. She mouthed a brief word to them and nodded.

As the lethal dose of pentobarbital took effect, Basso, dressed in a white prison uniform, began to snore. Her deep snoring became less audible and eventually stopped.

Basso was convicted in 1999 of leading a group of thugs in torturing and killing Louis 'Buddy' Musso, 59, so they could cash his life insurance policy.

Basso's lawyer argued that the 59-year-old woman was not mentally competent enough to face execution because she suffered from delusions, and that the state statute governing competency was unconstitutionally flawed. He also challenged the legality of a medical examiner's testimony.

Her lawyer said a degenerative disease left her paralyzed, but Basso, who uses a wheelchair, blamed her paralysis on a jail beating years ago. At a competency hearing two months ago, she testified from a hospital bed wheeled into a Houston courtroom and talked about a snake smuggled into a prison hospital in an attempt to kill her.

At her trial, Basso was portrayed as the ringleader of a group of people who fatally tortured Musso in 1998 to steal his money.

Musso, who had the intellect of a 7-year-old child but cared for himself, had met either Basso or her son at a church carnival in New Jersey. He left there to move in with her in Jacinto City, just east of Houston.

‘She lured him to Texas with the idea they'd get married,’ Barnett said.

Evidence showed that she already was married, made herself the beneficiary of insurance policies purchased for Musso and took over his Social Security benefits.

Five others, including Basso's son, also were convicted for Musso's death. Prosecutors sought the death penalty only for Basso. Her accomplices are serving prison terms ranging from 20 years to life.

Court documents detailed extensive abuse Musso endured days before his body was found in a ditch by a jogger.

He'd been bathed in a solution of bleach and pine cleaner and scrubbed with a wire brush. An autopsy showed he had at least 17 cuts to his head; 28 cuts and cigarette burns on his back; bruises all over his body; a skull fracture; a fractured bone in his neck; 14 broken ribs and two dislocated vertebrae.

Basso became a suspect after reporting Musso missing in an apparent attempt to distance herself from his slaying once his body was discovered. She confessed to driving Musso's mutilated body to a nearby ditch, where it was discovered a few days later.

Basso becomes the 2nd condemned inmate to be put to death this year in Texas and the 510th overall since the state resumed capital punishment on December 7, 1982. Basso becomes the 271st condemned inmate to be put to death in Texas since Rick Perry became governor in 2001.

Basso becomes the 7th condemned inmate to be put to death this year in the USA and the 1366th overall since the nation resumed executions on January 17, 1977.

Sources: Daily Mail, Rick Halperin, AP, Feb. 5, 2014

Texas: 2 courts won't block woman's execution

Suzanne Basso

A federal judge has joined Texas' top criminal court in refusing to stop this week's scheduled execution of a woman condemned for the torture slaying of a mentally impaired man more than 15 years ago outside Houston.

U.S. District Judge Sim Lake on Monday turned down an appeal from 59-year-old Suzanne Basso hours after Texas Court of Criminal Appeals rejected a similar appeal. She's set for lethal injection Wednesday evening in Huntsville.

Basso's attorney contends she is mentally incompetent for execution for the slaying of 59-year-old Louis "Buddy" Musso.

Additional appeals to delay her punishment are likely headed into the federal appeals courts.

Basso would be the 14th woman executed in the U.S. and the 5th in Texas since the Supreme Court in 1976 allowed capital punishment to resume.

The Texas Court of Criminal Appeals Monday rejected an appeal from 59-year-old Suzanne Basso. She's set for lethal injection Wednesday evening in Huntsville.

Basso's attorney asked the court to reverse a ruling last month that Basso is competent to be executed for the slaying of 59-year-old Louis "Buddy" Musso at a home in Jacinto City, just east of Houston.

Source: Associated Press, Feb 3, 2014

Skirting the Constitution: Texas rules Basso competent for execution

Texas Death Chamber

If the state of Texas goes through with the planned execution on Feb. 5 of Suzanne Basso, it will be executing a delusional woman with scant understanding of why she's to be put to death, attorney Winston Cochran Jr. argues in a request for sentence commutation filed this month with the Texas Board of Pardons and Paroles.

Indeed, Cochran argues that evidence of Basso's mental health issues was never provided to the jurors who sentenced her to die in 1999 - because no mitigation investigation was ever done and no mitigation evidence was provided to jurors. "Executing Basso would bring discredit upon the Texas judicial system by demonstrating that constitutional protections necessary in death penalty cases are not protected," he wrote in the BPP filing.

Given the BPP's history, it is not a stretch to imagine that Basso will be denied clemency or a reprieve in order to allow Cochran to pursue additional appeals - since 2007, the BPP has recommended clemency just 4 times out of the 129 death cases it has considered.

Basso was condemned for the gruesome beating death in 1998 of Louis "Buddy" Musso. According to the state, Basso lured Musso, a 59-year-old intellectually disabled man, to Texas from New Jersey by promising to marry him and then, with 5 other people - including her son - abused Musso, beatings that left his body covered in bruises from head to toe, before he was finally killed by a series of brutal blows to the head, as part of a scheme to collect insurance money and Musso's other assets.

Cochran has argued that there is no evidence that Basso was the one who actually killed Musso and that because the jury was not asked to find that she was a party to the crime - a theory under which all actors share culpability - her conviction is invalid. Several courts have denied Basso's appeals, including a district court ruling Jan. 15 in Houston, which found that Basso is competent to be executed.

Basso will be the 8th woman put to death in Texas since the mid-1800s, the 2nd inmate executed this year, and the 510th executed since reinstatement of the death penalty.

Source: Austin Chronicle, Feb. 1, 2014

Philadelphia judge rules convicted killer cannot be executed

PHILADELPHIA, Jan. 14 (UPI) -- A Philadelphia judge vacated the death sentence of a man convicted of killing a police officer, citing restrictions on executing the developmentally disabled.

Common Pleas Judge M. Teresa Sarmina ruled Friday the death penalty cannot be enforced against Edward Bracey, 50, convicted in the 1991 shooting death of police officer Danny Boyle, the Philadelphia inquirer reported Tuesday.

Bracey's sentence was reduced to life without parole. He was convicted of first-degree murder in 1992 and sentenced to death later that year.

Sarmina wrote Bracey, with an IQ of 74, possesses "major deficiencies in adaptive behavior," adding Bracey had established he was "mentally retarded" before his 18th birthday.

The U.S. Supreme Court ruled in 2002 the death penalty is unconstitutional for anyone defined by a state as mentally retarded, a ruling based on "evolving standards of decency" that have found "mentally retarded people are not sufficiently culpable," said Mark Bookman, director of the Atlantic Center for Capital representation.

Source: UPI, January 14, 2014

Aurora theater shooting trial postponed indefinitely

James Holmes

The judge in the Colorado theater shootings case on Thursday indefinitely postponed the trial of James Holmes so attorneys can argue whether he should undergo another psychiatric evaluation.

Holmes' trial had been set to begin in February.

Holmes pleaded not guilty by reason of insanity to charges of killing 12 people and injuring 70 at an Aurora theater in July 2012. Prosecutors are seeking the death penalty, and they want Holmes to undergo further evaluation of his sanity.

District Judge Carlos Samour Jr. scheduled hearings on further testing and other pre-trial issues for Dec. 17 and 18.

The findings of Holmes' 1st mental health evaluation, conducted at a state hospital, have not been publicly disclosed. But the fact that prosecutors want further evaluation suggests that the 1st exam might have found Holmes was insane.

Holmes' attorneys don't dispute that he committed the shootings, but his plea makes psychiatric evaluations - which assess whether Holmes was sane at the time of the shootings - the most important pieces of evidence.

If doctors who evaluated Holmes concluded he was insane, it would be much harder for prosecutors to persuade a jury to convict him of murder and sentence him to death.

If jurors agreed Holmes was insane, he would be committed indefinitely to the state hospital. He could one day be released If doctors there ever concluded Holmes' sanity had been restored, he could one day be released, but that is considered unlikely.

Colorado law defines insanity as the inability to tell right from wrong because of a mental disease or defect. An evaluation by the state mental hospital is mandatory for anyone who pleads insanity. Holmes underwent his last summer.

Source: Associated Press, November 23, 2013

Colorado: Prosecutors seek further Holmes sanity evaluation

Prosecutors in the Colorado theater shooting case want defendant James Holmes to undergo further evaluation of his sanity, according to court records made public Monday - a development that suggests the first examination might have found he was insane.

The findings of the first evaluation have not been publicly disclosed, but longtime Denver defense attorney Dan Recht said it was highly unlikely prosecutors would ask for further examination if the first found Holmes was sane. Recht is not involved in the case.

Holmes pleaded not guilty by reason of insanity to charges of killing 12 people and injuring 70 at a suburban Denver theater in July 2012. Prosecutors are seeking the death penalty.

Colorado law defines insanity as the inability to tell right from wrong because of a mental disease or defect. An evaluation by the state mental hospital is mandatory for anyone who pleads insanity. Holmes underwent his last summer.

If the doctors who conducted the evaluation concluded Holmes was insane, it would be much harder for prosecutors to persuade a jury to convict him of murder and sentence him to death.

If jurors agreed Holmes was insane, he would be committed indefinitely to the state hospital. If doctors there ever concluded Holmes' sanity had been restored, he could one day be released, but that is considered unlikely.

The request by the district attorney's office for a further examination "is a clear indication that the prosecution is unhappy with the state hospital evaluation," Recht said. "It certainly suggests that the opinion of the state hospital psychiatrists is favorable to the Holmes defense of insanity."

Prosecutors would have to show a good reason for the judge to approve their request, Recht said.

Arapahoe County District Judge Carlos A. Samour Jr., who is handling the Holmes case, has not said when he might rule or hold a hearing.

Details of the motion filed Friday seeking a new evaluation were not made public. Only the title - "Motion for Further Examination Pursuant to C.R.S. 16-18-106(1)" - was disclosed.

It refers to the section of the Colorado Revised Statutes governing sanity evaluations.

Prosecutors asked to have the motion kept secret, and Samour agreed. The judge has imposed a gag order on both sides, forbidding them from discussing the case publicly outside the courtroom.

Holmes is charged with multiple counts of murder and attempted murder. His trial is scheduled for next year, with jury selection set to start in February.

Separately, Samour ruled that prosecutors can use evidence that police found in defendant James Holmes' apartment, which authorities said includes homemade bombs and a calendar with the day of the shootings highlighted.

The ruling, also dated Friday, rejected defense arguments that the apartment search was illegal because it began before police had a warrant.

Prosecutors argued the search was permissible because Holmes told them he had explosives at his apartment, and they didn't have time to wait for a warrant because of the potential danger.

They later did get a warrant.

Prosecutors are fighting to use any evidence to undermine Holmes' insanity claim. They could argue that the calendar and the bombs - which law-enforcement officers say were meant to divert first responders from the theater - show the attack was planned and that Holmes understood the shootings were wrong.

Source: Arizona Daily Star, November 19, 2013

Colorado: Defense lawyers say US movie shooter too mentally ill for death penalty

Defense lawyers for James Holmes, who killed 12 people and wounded 58 in a mass shooting at a movie theater last year in Aurora, Colorado, continued their assault on the state's death penalty and said the former student of the University of Colorado (CU) is "too mentally ill for execution, local media reported Saturday.

"If not for his severe and chronic mental illness (Holmes) would not have committed the crime," defense lawyers said on Friday.

Holmes, 25, a former CU Neuroscience Ph.D. candidate, has pleaded "not guilty by reason of insanity" to the July 20 shooting massacre last year.

In a flurry of activity Friday, the court released 20 actions to the public. Most dealt with defense motions challenging the state's existing death penalty laws, including arguments calling the law unconstitutional and its language "arbitrary and vague."

A significant order signed Friday by presiding Judge Carlos A. Samour Jr. was a 44-page ruling that favored the prosecution by justifying the "warrantless search of (Holmes') apartment...under the claim of emergency exception."

This ruling addressed one of several claims by the defense that Holmes' rights were violated in the "chaos" on the night of the shooting.

According to defense motions, police moved quickly and without proper protocol that night, including the search of Holmes' nearby apartment they were told by the suspect was booby-trapped.

Prosecutors cited public safety concerns and the "involvement of explosives" and said obtaining a search warrant that night was "foolhardy" due to "unreasonable delays." The judge agreed.

The results of a state-mandated psychiatric examination of Holmes conducted over the summer in Pueblo has yet to be released, and is considered critical to determining his sanity.

Holmes'lawyers also noted that the prosecution's pursuit of the death penalty, based on the evidence, was "neither wise nor necessary" and could have been avoided by accepting a Holmes' guilty plea in exchange for life imprisonment without parole.

"This case is undeniably tragic and has caused suffering and trauma on a scale that is unprecedented in Colorado," Holmes' defense team wrote.

In December, attorneys in the case will argue about whether crime scene reconstruction evidence can be allowed at trial and about the constitutionality of the death penalty in Colorado.

The trial is set to begin in February.

Source: Global Times, November 17, 2013

Colorado: Aurora movie theater shooter's 1st statements admissible, judge rules

DENVER -- Police officers who arrested James Holmes moments after the Colorado theater shootings will be allowed to tell jurors that when they asked Holmes if he had an accomplice, he replied, "No, it's just me," the judge ruled Friday.

The officers also say Holmes told them he had four guns and that he had left bombs in his apartment that would go off if wires were tripped.

The judge ruled the arresting officers' testimony about Holmes' statements can be used as prosecution evidence, even though police had not read Holmes his Miranda rights advising him he could remain silent.

The judge said officers were allowed to question Holmes without reading him his rights under a public safety exception to the Miranda rule because they needed to know about any accomplices.

The testimony could help prosecutors in their effort to undermine Holmes' claim that he was insane at the time of the July 2012 shootings, which left 12 dead and 70 injured.

Holmes, now 25, pleaded not guilty by reason of insanity to multiple counts of murder and attempted murder. Prosecutors are seeking the death penalty.

Defense lawyers have acknowledged Holmes was the shooter.

Holmes was arrested by some of the first officers to arrive at the theater in the Denver suburb of Aurora. They testified that bleeding victims were still running away screaming as they confronted Holmes, who did not resist.

They said their training taught them that mass killings often have more than one perpetrator, and the fleeing victims made them suspect another shooter might still be inside the theater.

The officers testified they asked Holmes if he had any weapons. Holmes replied "four guns" and added that he had bombs at his apartment, police said. The bombs were defused with no explosions or injuries.

Defense lawyers said the officers' testimony shouldn't be allowed because they had not read Holmes his Miranda rights. The defense also argued Holmes' statements were not voluntary.

Prosecutors argued police did not have to read Holmes his rights because they urgently needed to know if there was another shooter. They also denied Holmes was coerced.

Arapahoe County District Judge Carlos T. Samour Jr. agreed with prosecutors.

Samour has not yet ruled on several other evidence questions. The defense has asked him to bar evidence found in Holmes' apartment and car, statements Holmes made to officers later about the bombs in his apartment, and the contents of Holmes' phone, which included photos of Holmes wearing reddish-orange hair and dark contact lenses and holding guns.

Law enforcement officers have testified at pretrial hearings the photos were taken hours before the attack.

Jury selection for Holmes' trial is expected to begin in February and take several weeks.

Source: AP, November 2, 2013

Death for the Disabled: Should We Kill Freddie Lee Hall?

Like many death row inmates across the country, Florida’s 68-year-old Freddie Lee Hall is mentally disabled. The question is whether he is too disabled to be executed—an issue that now will be decided by the U.S. Supreme Court in what many observers believe is the most important legal challenge to the death penalty in years.

In 1978, Hall was convicted of murdering a pregnant housewife and a deputy sheriff, both gruesome and heartless acts. But in 1992, at one of Hall’s many post-conviction resentencing hearings, a Florida judge found that Hall had been “mentally retarded all his life.”

In a later proceeding (Hall v. State), two state court appellate judges wrote that Hall had an IQ of 60, suffered from organic brain damage, had the short-term memory of a first-grader and was raised under the most “horrific family circumstances imaginable.” Among other forms of abuse and torture suffered at the hands of his mother, relatives and neighbors, Hall was tied up in a burlap sack as a youngster and swung over an open fire, suspended by his hands from a ceiling beam, beaten while naked, made to lie still for hours underneath a bed and repeatedly deprived of food.

Last year, after Hall had exhausted his state-court appeals, the Florida Supreme Court deemed him mentally fit for lethal injection, as during the course of his long incarceration he had registered scores of 80, 73 and 71 on Wechsler WAIS III IQ tests administered at the direction of prison authorities. Under Florida law, any death row inmate scoring above 70 cannot be considered disabled.

In agreeing to review Hall’s case, the U.S. Supreme Court will decide whether Florida’s bright-line IQ cutoff for defining mental disability runs afoul of the high court’s 2002 holding in Atkins v. Virginia. In Atkins, a bitterly contested 6-3 opinion written by since-retired Justice John Paul Stevens, the court held that evolving standards of decency and an emerging national consensus indeed precluded the execution of inmates deemed “mentally retarded,” the term then widely used before it was cleaned up, sanitized and replaced with the label “disabled” by mental health organizations.

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Source: Bill Blum, truthdig, October 24, 2013. Bill Blum is a former judge and death penalty defense attorney. He is a contributing writer for California Lawyer magazine. Contact Twitter: @BlumsLaw

Colorado: 6,000 to be called for Aurora theater shooting jury pool

Suspect James Holmes' death penalty trial is expected to last three months after weeks of jury selection.

Court officials plan to call 6,000 prospective jurors in the monthslong death penalty trial of Aurora movie theater shooting suspect James Holmes.

Holmes has pleaded not guilty by reason of insanity in the face of 12 murder counts from the summer 2012 shooting, and faces execution if jurors convict him and then decide to apply the death penalty.

In a court hearing Monday, Holmes sat stoically in a red jail jumpsuit as the judge, prosecutors and defense attorneys discussed logistics for the upcoming trial. His dark brown hair slicked back on his head, an unshaven Holmes also showed no reaction as officials from the state mental hospital handed over sealed envelopes containing mental health records.

Holmes this summer was examined by state psychiatrists, whose reports are being kept secret except from his defense team and prosecutors. Officials also turned over mental-health records from the University of Colorado, from which he was withdrawing when the shootings occurred.

Prospective jurors will be quizzed extensively about their perspectives on mental illness and the death penalty. "It's no secret that's what this trial is going to be about," Holmes' defense attorney Dan King said during court.

Judge Carlos Samour Jr. said the jury that will decide Holmes' fate will be 12 members - the standard number - with 12 alternates, to ensure an adequate number should any jurors be excused during the trial. Prosecutors on Monday said they expect the case to last at least 3 months, and that's only after likely weeks of jury selection.

Acknowledging the disruption it will cause, Samour said the unusually large pool is necessary to ensure Holmes gets a fair trial: "The last thing we want to do is not have enough prospective jurors."

Prosecutor Karen Pearson argued that unusually extensive questioning of prospective jurors is needed to "ferret ... out" people who want to serve on the jury for personal or publicity reasons.

"There are people who may want to serve on this jury for what may be improper reasons," she said.

Prosecutors and defense attorneys on Monday also argued briefly about the admissibility of records from Match.com and Adult Friend Finder, which are dating websites. Prosecutors on Monday said they learned from the website TMZ that Holmes had made profiles on the 2 sites before the shootings. On one of them, Holmes asked, "will you visit me in prison?" TMZ reported.

Prosecutors say they plan to use that language to show Holmes knew the shootings were wrong, undercutting his insanity plea. Defense attorneys argue Holmes expected some of his information on those sites to be kept private, and that police improperly searched his iPhone to find them.

"When things are done in haste, mistakes are made," said Kristen Nelson, one of Holmes' attorneys.

Samour did not rule on that aspect of the case Monday. Holmes is due back in court Thursday for further proceedings.

Source: The Coloradoan, October 8, 2013

Georgia: Supreme Court won't stop execution for mental incapacity

Warren Lee Hill

The Supreme Court on Monday refused to consider a Georgia prisoner's plea for mercy based on his claim of mental incapacity.

The justices denied a petition to avoid the death penalty from attorneys for Warren Lee Hill, a twice-convicted murderer serving on Georgia's death row, even though medical experts have determined that he is intellectually disabled. The high court ruled a decade ago that people with mental retardation cannot be executed.

A separate appeal of Hill's sentence remains pending in Georgia Supreme Court.

The 52-year-old prisoner's case had galvanized the nation's disability community. The American Association of Intellectual and Developmental Disabilities filed a lengthy brief urging the court to block Hill's execution, citing experts' determinations that he is mildly retarded.

Hill's petition had been pending before Associate Justice Clarence Thomas, who dissented in the court's 2002 Atkins v. Virginia ruling that executions of mentally retarded criminals constituted "cruel and unusual punishment" prohibited by the 8th Amendment.

"We are gravely disappointed that the U.S. Supreme Court has failed to act to ensure the protection for persons with intellectual disability that was promised by the court's 2002 ruling in Atkins v. Virginia," said Brian Kammer, Hill's attorney. "It is tragic that our highest court has failed to enforce its own command that persons with mental retardation are categorically ineligible for the death penalty."

There isn't much dispute about Hill's crimes. He killed his girlfriend in 1986 by shooting her 11 times. He was serving a life sentence when he killed a fellow inmate in 1990 by bludgeoning him with a nail-spiked board. He did not claim an intellectual disability at the time, and he was sentenced to death.

The dispute - and the attention the case has received in the disability community - stems from Hill's mental capabilities. His lawyers say that his IQ is 70, just low enough to qualify as mildly mentally retarded, and that he functions at about a 6th-grade level.

Georgia puts his IQ at 77 and argues he does not qualify for special consideration. When Hill first sought to sidestep the death penalty based on his mental capacity in 1996, the state cited his employment history and military service and produced 3 experts who said he was not mentally retarded.

Georgia's 1st-in-the-nation law banning the execution of people with mental retardation included a provision that has made Hill's execution legal in the eyes of the state. It puts the burden of proof on the defendant to prove "beyond a reasonable doubt" that he is retarded, something no other state does.

State courts ruled that Hill did not prove his case, based on contradictory evaluations from experts. Hill first was set to die a year ago, on July 18, 2012. It was delayed for 5 days, then until February, then until July. Then a county judge delayed his execution again, ruling that a state law that shields the identities of the pharmacies making the lethal drugs for death row inmates may be unconstitutional.

The broader question is whether Hill can be judged mentally retarded. In 2000, state and defense experts differed on that question. Since then, the state's experts who said he was not have changed their minds.

Even so, under a 1996 federal law intended to speed up the lengthy death row appeals process, Hill could not try again to avoid the death penalty in the lower courts. His only option was to go directly to the Supreme Court.

That court last ruled on the issue in Atkins, a decision written by former associate justice John Paul Stevens. "Mentally retarded defendants in the aggregate face a special risk of wrongful execution," Stevens wrote, concluding, "Death is not a suitable punishment for a mentally retarded criminal."

Thomas signed on to the dissents of former chief justice William Rehnquist and Associate Justice Antonin Scalia, the latter arguing that mental retardation "can readily be feigned."

"Whereas the capital defendant who feigns insanity risks commitment to a mental institution until he can be cured (and then tried and executed), the capital defendant who feigns mental retardation risks nothing at all," Scalia wrote.

Georgia officials contended they followed all the rules during Hill's more-than-20-year judicial odyssey. Their brief to the Supreme Court questioned the sudden "non-credible" affidavits of the three experts who changed their minds.

"These experts had the same information in 2000 as they have today," Deputy Attorney General Beth Burton argued in her brief to the Supreme Court. They examined Hill then; they did not re-examine him before switching sides.

However, the judge who dissented from the 11th Circuit Court of Appeals decision allowing the death sentence to stand took the opposite view.

"The state of Georgia will execute a mentally retarded man when it carries out the execution of Warren Lee Hill," Judge Rosemary Barkett wrote. "A congressional act cannot be applied to trump Hill's constitutional right not to be executed."

That was the argument presented by Kammer, executive director of the Georgia Resource Center, a non-profit law firm that provides free representation to indigent prisoners facing death sentences.

"This court is Mr. Hill's last resort," Kammer's brief stated, because the federal district court, federal appeals court, state habeas court, Georgia Supreme Court and Georgia Board of Pardons and Paroles all denied his applications. "In this case, there is no 'fail safe' available to prevent a miscarriage of justice."

Source: USA Today, October 7, 2013

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Colorado court gets sanity report in Aurora theater shooting

Prosecutors and defense lawyers in the Colorado theater shootings are getting their first look at a long-awaited opinion from a state psychiatrist on whether defendant James Holmes was legally insane when he killed 12 people and injured 70.

The report from the state mental hospital is secret, and prosecutors and defense lawyers cannot speak outside court about it because of a gag order. Its contents may be discussed in open court or written about in a motion.

Filed with the court on Friday, the report won't be the final word on Holmes' mental state - that will be up to the jury in Holmes' trial next year.

But it will be a critical piece of evidence as jurors consider whether Holmes should be found not guilty by reason of insanity and committed indefinitely to the state hospital, or convicted of murder and sentenced to life in prison or death by lethal injection.

The report will say whether the psychiatrist who led the evaluation believes Holmes meets Colorado's legal definition of insanity: the inability to tell the difference between right and wrong because of a mental disease or defect.

"It's probably the most important expert witness that we have at this point," said Karen Steinhauser, a former prosecutor who is now in private practice and teaches at the University of Denver. She is not involved in Holmes' case.

Holmes has pleaded not guilty by reason of insanity and is charged with more than 160 counts of murder and attempted murder.

Prosecutors say he spent months buying guns and ammunition before he dressed up in a police-style helmet and clothing and began shooting in a suburban Denver theater in July 2012.

Prosecutors say he also rigged his apartment with home-made bombs designed to divert police from the theater. They didn't explode.

Defense lawyers acknowledge Holmes was the gunman, but they say he was mentally ill and "in the throes of a psychotic episode."

Holmes underwent a mandatory sanity evaluation at the Colorado Mental Health Institute in Pueblo this summer after he entered his insanity plea.

Very few people qualify for the legal definition of insanity, even if they have been diagnosed with mental illness, said Steven Pitt, a forensic psychiatrist in Scottsdale, Ariz.

"The diagnosis itself doesn't give someone a get-out-of-jail card," said Pitt, who isn't working on the Aurora case.

The psychiatrist who led the evaluation could be called to testify. That person has not been publicly identified.

Jurors will have other evidence to consider about Holmes' sanity. Either side can ask for an evaluation by another psychiatrist and call others to testify about Holmes' behavior.

"Anyone who was in a position to observe his mental state, to observe how he was acting, whether he seemed to understand what was going on," Steinhauser said.

If the state psychiatrist's report concludes Holmes was insane, prosecutors are more likely to accept a bargain that would put Holmes in prison for life with no possibility of parole in exchange for a guilty plea, said Dan Recht, an attorney and past president of the Colorado Criminal Defense Bar.

Prosecutors might still convince jurors to convict Holmes, "but most juries would be very loath to have someone executed where there's a significant debate about whether the person was even sane at the time," he said.

Holmes' lawyers said in March that Holmes had offered to plead guilty if prosecutors didn't seek the death penalty, but prosecutors rejected the deal.

In other court documents made public Monday, a judge rejected 3 defense motions contesting the death penalty against Holmes because charges were filed by prosecutors and not handed up by a grand jury.

Defense attorneys also renewed their request for a hearing to challenge the admissibility of a 3-D graphic reconstruction of the theater and bullet trajectories. Holmes defense attorneys want the judge to examine the science behind the FBI's use of a survey instrument and remote sensing technology that uses lasers known as LiDAR before they're admitted into court.

Source: Associated Press, Sept. 10, 2013

USA: Scott Panetti Sane Enough For Execution

At least for now, inmate cleared for death

For the second time in nearly a decade, the 5th U.S. Circuit Court of Appeals has ruled that Scott Panetti, a schizophrenic sent to death row for a 1992 double murder, is sane enough to be executed. Whether that means Panetti is actually closer to a date with the executioner, however, remains to be seen.

Panetti was convicted and sentenced to death for the Sept. 8, 1992 slaying of his in-laws, Joe and Amanda Alvarado, at the couple's home in Fredericksburg. Panetti had been hospitalized in connection with his illness at least 11 times prior to the slaying and was last released just two months before he killed the Alvarados. When he turned himself into police the afternoon of the murders he told investigators that "Sarge," a recurring auditory hallucination, was responsible for the crime. Panetti was heavily medicated when deemed competent to stand trial, but by the time he actually went to court for the crime he was off his meds and insisted on representing himself, a request granted by Kerr County District Judge Stephen Ables. At trial, Panetti wore a purple cowboy suit and subpoenaed hundreds of witnesses, including Jesus Christ and Anne Bancroft. Despite his bizarre and disturbing behavior, he was ultimately convicted in 1995.

Since then, however, Panetti's case has made it's way to the U.S. Supreme Court twice as questions persist about whether he is actually sane enough to be executed.

In 2004, federal District Judge Sam Sparks ruled that although Panetti is clearly seriously mentally ill, it was unlikely to make a difference to the Fifth Circuit, which held that Panetti only need a basic understanding of the relationship between his crime and execution in order to pass the Eighth Amendment ban on cruel and unusual punishments.

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Source: The Austin Chronicle, August 22, 2013

Florida Supreme Court rules death-row inmate Marshall Gore sane for execution

Marshall Gore

TALLAHASSEE -- Rejecting arguments that he should avoid lethal injection because he is insane, the Florida Supreme Court on Tuesday approved the execution of a Death Row inmate convicted of killing two women in 1988 in Miami-Dade and Columbia counties.

Justices unanimously upheld a Bradford County circuit judge’s ruling last month that Marshall Lee Gore can be executed.

"In its order, the circuit court found that Gore is feigning delusional thoughts that his execution was scheduled in order to harvest his organs, a conspiracy theory purportedly involving China, the Illuminati, Satan worshippers, the national debt, and the Governor,’’ the Supreme Court said in eight-page opinion. "In fact, the circuit court determined that ’[t]here is no credible evidence that Gore’s mental state is such that he believes he is being executed for any reason other than the murder of (the Miami-Dade victim).’ ’’

The Supreme Court opinion comes after Gov. Rick Scott set execution dates for Gore on June 24 and July 10 --- both of which were scuttled because of the dispute about his sanity.

Source: Miami Herald, August 13, 2013

Florida executes John Errol Ferguson

John Errol Ferguson

(CBS/AP) STARKE, Fla. - John Errol Ferguson, a mass murderer from Miami-Dade County, was executed by lethal injection at Florida State Prison 6 p.m. ET Monday.

The 65-year-old was convicted of killing eight people in South Florida in two separate incidents in the 1970s..

Ferguson made a brief final statement before 25 witnesses before his execution.

"I just want everyone to know that I am the prince of God and will rise again," he said calmly, according to The Associated Press.

Ferguson chose to eat the same food other prisoners were being served as his final meal: A meat and vegetable patty, white bread, stewed tomatoes, potato salad, carrots and cold tea.

In the first incident, Ferguson gained entry into a Carol City home on July 27, 1977, by posing as a utility employee. He then bound and blindfolded Margaret Wooden, the woman who let him in, and also let two accomplices into the home. In time, seven more people - Henry Clayton, Johnnie Hall, Randolph Holmes, Michael Miller, Charles Stinson, Livingston Stocker and Gilbert Williams - came to the house and were bound and blindfolded.

Ferguson placed a pillow over Wooden's head and shot her, but she survived. The other seven men were shot execution-style in the back of the head. Hall survived a shotgun blast to the head, but the rest of the men died. Both of Ferguson's accomplices were executed in the 1980s.

While under indictment for the Carol City murders, Ferguson murdered two Hialeah teenagers who were on their way to a church meeting in 1978. Posing as a police officer, Ferguson confronted Brian Glenfeldt and Belinda Worley, both 17 years old. Ferguson shot Glenfeldt in the back of the head, the chest and the arm. Ferguson then took Worley into the woods, raped her and shot her in the back of the head. Ferguson also took the teenagers' money and jewelry.

Gov. Rick Scott initially signed Ferguson's death warrant last fall, scheduling him to die Oct. 16, 2012. But appeals at the state and federal level kept the execution from going forward. Ferguson's lawyers have filed numerous appeals in several courts. They contend their client is mentally ill and has suffered from schizophrenia since he was a teen.

Ferguson's lawyers say several psychiatrists have ruled over the years that Ferguson is mentally ill. Most of those evaluations came when Ferguson was in a state mental hospital in the 1970s.

Ferguson is the fifth death row inmate in Florida to be executed since December.

Source: CBS/AP, August 5, 2013

Florida: US groups bid to halt execution of mentally ill man

Medical experts filed a motion to the US Supreme Court on Wednesday calling for the execution of a mentally ill mass-killer in Florida to be halted.

The National Alliance on Mental Illness (NAMI) said in a statement it had requested that the execution of John Ferguson, sentenced to death for the murders of 8 people in the 1970s, be stopped because it violated the constitution.

Ferguson, a paranoid schizophrenic who refers to himself as the "Prince of God," is set to be executed on August 5 at 6:00 pm (2200 GMT) at Raiford prison.

NAMI has joined with 3 other organizations -- NAMI Florida, the Florida Psychiatric Society and the Florida Psychological Association -- to call for Ferguson's death sentence to be stayed.

NAMI said in a statement the execution would violate the constitution if it went ahead because Ferguson could not have a rational understanding of what was happening to him.

"The death penalty is not constitutionally allowable as a punishment for John Ferguson because his delusions prevent him from understanding the nature of what is happening to him," NAMI's national director of policy and legal affairs Ron Honberg said.

"The constitutional principle does not excuse his crimes, but it does point to life without parole as the appropriate sentence."

In a separate filing, the American Bar Association, representing US lawyers, had also requested that the Supreme Court review the case, citing similar concerns about Ferguson's mental health.

"Holding a person accountable is intended to be an affirmation of personal responsibility," the brief said.

"Executing someone who lacks a meaningful understanding of the nature of this awesome punishment and its retributive purpose offends the concept of personal responsibility rather than affirming it."

Ferguson, 65, has spent 35 years on death row. He was found guilty of 6 murders in a drug-related massacre in 1977 and was also convicted of murdering 2 teenagers in 1978.

His execution has been the subject of a long-running legal battle and was already suspended once in September 2012.

Source: Agence France-Presse, July 31, 2013

Georgia Appeals Execution Stay for Man with 70 IQ

Georgia Execution Chamber

Georgia's attorney general asked the State Supreme Court to revoke the current stay of execution for Warren Lee Hill on Friday, July 26.

Judge Gail Tusan had extended the stay of execution for Hill on July 18.

The drug that would have been used to kill him will expire in early August. The source of that drug won him his latest reprieve.

European pharmacies refuse to export pentobarbital the U.S. because it is used to execute people. Georgia passed an unusual law that treats the source of drugs for lethal injections as a state secret. Anonymous, out-of-state compounding pharmacies supply it. After passing the law, Georgia set a date to execute Hill.

Hill's lawyers had asked the court to halt his execution because of the Lethal Injection Secrecy Act. They said he had a right to know if the compounded pentobarbitol would be pure and effective, or if it would cause him to suffer, and violate his Eighth Amendment right to be free of cruel and unusual punishment.

Tusan found that the state's drug secrecy law was unconstitutionally vague.

"The State does not yet know if, and where, it will acquire the next supply of pentobarbital for use in this execution. Thus, the State must secure another execution order from the sentencing court and obtain a new supply of pentobarbital in order to reschedule Hill's execution. Hill is under no threat of immediate execution," wrote State Attorney General Sam Olens in his appeal.

Hill's death warrant has expired. The state would have to start his execution process again, but the Supreme Court is set to reconsider his case on Sept. 30.

Hill is intellectually disabled, and the Supreme Court will consider whether Georgia should allow new evidence about that. He murdered 2 people, but his supporters argue that because of his intellectual limitation, he should have been sentenced to life in prison without the possibility of parole.

According to a statement from Brian Evans, director of Amnesty International USA's Abolish the Death Penalty campaign, "Beyond these important issues, Warren Hill has been determined to be 'mentally retarded' and thus his execution would have been unconstitutional, as the U.S. Supreme Court banned such executions in 2002."

Source: Epoch Times, July 31, 2013

State of Alabama Plans to Execute Mentally Ill Man

Andrew Lackey is a young man on Alabama's death row who has suffered from mental illness his entire life. The Alabama Supreme Court has ordered him to be executed on July 25 even though no state or federal court has completed appellate review in the case to determine whether his trial was fair or his sentence appropriate.

Alabama prison doctors currently are treating Mr. Lackey with multiple psychotropic medications and his mental illness is longstanding. His mother testified at trial that he "lives in Andrew land," that he does not fully understand "what is really going on," and that there has been "something wrong" with him since he was an infant.

Mr. Lackey was sentenced to death in the tragic killing of Charles Newman in 2005, when Mr. Lackey was 22 years old.

Recently, Mr. Lackey has attempted suicide, saying that his "mind has started to break down," and that he was in an "infinite loop where he sees the end as the beginning." After his failed suicide attempt, Mr. Lackey's suffering led him to ask the State of Alabama to execute him.

Despite the extensive evidence of serious mental illness, however, the trial judge refused to order an expert competency evaluation of Mr. Lackey, failed to inquire about which psychotropic medications he is taking and how they affect his mental state, and did not even ask state officials what mental illness they have diagnosed Mr. Lackey as suffering from.

EJI appealed, arguing that the judge should have properly evaluated Mr. Lackey's competency before permitting him to waive his appeals, but the Court of Criminal Appeals found that it was acceptable to allow him to be executed. Even though no state or federal court has completed appellate review in the case to determine whether the trial was fair or the sentence appropriate, the State of Alabama moved to set an execution date, and the Alabama Supreme Court scheduled Mr. Lackey's execution for July 25, 2013.

Source: Equal Justince Initiative, July 19, 2013