The execution of David Eugene Johnston that was scheduled for today in was stayed last week by the Florida Supreme Court:

“Having reviewed the record in this case, including prior proceedings, we reverse the summary denial of Johnston’s newly discovered evidence claim relating to mental retardation and temporarily relinquish jurisdiction to the circuit court for thirty days for an evidentiary hearing to be held on the issue of whether newly discovered evidence indicates that Johnston is mentally retarded pursuant to Atkins v. Virginia, 536 U.S. 304 (2002), section 921.137, Florida Statutes (2009), and Cherry v. State, 959 So. 2d 702 (Fla. 2007). The Court reserves ruling on the issues raised in this appeal until jurisdiction returns to this Court after the relinquishment. ”
http://www.floridasupremecourt.org/pub_info/summaries/briefs/10/10-356/Filed_03-04-2010_Stay_Order.pdf

And in news from Texas:

“A Houston judge on Thursday granted a pretrial motion declaring the death penalty unconstitutional, saying he believes innocent people have been executed.
“Based on the moratorium (on the death penalty) in Illinois, the Innocence Project and more than 200 people being exonerated nationwide, it can only be concluded that innocent people have been executed,” state District Judge Kevin Fine said. “It’s safe to assume we execute innocent people.”

“Fine said trial level judges are gatekeepers of society’s standard for decency and fairness.

“Are you willing to have your brother, your father, your mother be the sacrificial lamb, to be the innocent person executed so that we can have a death penalty so that we can execute those who are deserving of the death penalty?” he said. “I don’t think society’s mindset is that way now.”

The motion was one of many submitted by defense attorneys Bob Loper and Casey Keirnan arguing Texas’ death penalty was unconstitutional for their client, John Edward Green Jr.

Loper said he and Keirnan were pleased by Fine’s ruling, which will be appealed and almost certainly reversed…..”
http://www.chron.com/disp/story.mpl/metropolitan/6897252.html

Louise Ritchie,

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Times Topics: Capital Punishment

Last fall, the American Law Institute, which created the intellectual framework for the modern capital justice system almost 50 years ago, pronounced its project a failure and walked away from it.

There were other important death penalty developments last year: the number of death sentences continued to fall, Ohio switched to a single chemical for lethal injections and New Mexico repealed its death penalty entirely. But not one of them was as significant as the institute’s move, which represents a tectonic shift in legal theory.

“The A.L.I. is important on a lot of topics,” said Franklin E. Zimring, a law professor at the University of California, Berkeley. “They were absolutely singular on this topic” — capital punishment — “because they were the only intellectually respectable support for the death penalty system in the United States.”

The institute is made up of about 4,000 judges, lawyers and law professors. It synthesizes and shapes the law in restatements and model codes that provide structure and coherence in a federal legal system that might otherwise consist of 50 different approaches to everything.

In 1962, as part of the Model Penal Code, the institute created the modern framework for the death penalty, one the Supreme Court largely adopted when it reinstituted capital punishment in Gregg v. Georgia in 1976. Several justices cited the standards the institute had developed as a model to be emulated by the states.

The institute’s recent decision to abandon the field was a compromise. Some members had asked the institute to take a stand against the death penalty as such. That effort failed.

Instead, the institute voted in October to disavow the structure it had created “in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.”

That last sentence contains some pretty dense lawyer talk, but it can be untangled. What the institute was saying is that the capital justice system in the United States is irretrievably broken.

A study commissioned by the institute said that decades of experience had proved that the system could not reconcile the twin goals of individualized decisions about who should be executed and systemic fairness. It added that capital punishment was plagued by racial disparities; was enormously expensive even as many defense lawyers were underpaid and some were incompetent; risked executing innocent people; and was undermined by the politics that come with judicial elections.

Roger S. Clark, who teaches at the Rutgers School of Law in Camden, N.J., and was one of the leaders of the movement to have the institute condemn the death penalty outright, said he was satisfied with the compromise. “Capital punishment is going to be around for a while,” Professor Clark said. “What this does is pull the plug on the whole intellectual underpinnings for it.”

The framework the institute developed in 1962 was an effort to make the death penalty less arbitrary. It proposed limiting capital crimes to murder and narrowing the categories of people eligible for the punishment. Most important, it gave juries a framework to decide whom to put to death, asking them to balance aggravating factors against mitigating ones.

The move to combat arbitrariness without giving up sensitivity to individual circumstances is known as “guided discretion,” which sounds good until you notice that it is a phrase at war with itself.

The Supreme Court’s capital justice jurisprudence since 1976 has only complicated things. Justice Harry A. Blackmun conceded in 1987 that “there perhaps is an inherent tension between the discretion accorded capital sentencing juries and the guidance for use of that discretion that is constitutionally required.”

That was an understatement, Justice Antonin Scalia said in 1990. “To acknowledge that ‘there perhaps is an inherent tension,’ ” he wrote, “is rather like saying that there was perhaps an inherent tension between the Allies and the Axis powers in World War II.”

Justice Scalia solved the problem by vowing never to throw out a death sentence on the ground that the sentencer’s discretion had been unconstitutionally restricted.

In 1994, Justice Blackmun came around to the view that “guided discretion” amounted to “irreconcilable constitutional commands.” But he drew a different conclusion than Justice Scalia had from the same premise, saying that “the death penalty cannot be administered in accord with our Constitution.” He said he would no longer “tinker with the machinery of death.” The institute came to essentially the same conclusion.

Some supporters of the death penalty said they welcomed the institute’s move. Capital sentencing “is so micromanaged by Supreme Court precedents that a model statute really serves very little function,” Kent Scheidegger of the Criminal Justice Legal Foundation wrote in a blog posting. “We are perfectly O.K. with dumping it.”

Mr. Scheidegger expressed satisfaction that an effort to have the institute come out against the death penalty as such was defeated.

But opponents of the death penalty said the institute’s move represented a turning point.

“It’s very bad news for the continued legitimacy of the death penalty,” Professor Zimring said. “But it’s the kind of bad news that has many more implications for the long term than for next week or the next term of the Supreme Court.”

Samuel Gross, a law professor at the University of Michigan, said he recalled reading Model Penal Code as a first-year law student in 1970. “The death penalty was an abstract issue of little interest to me or my fellow students,” Professor Gross said. But he remembered being impressed by the institute’s work, saying, “I thought in passing that smarter people than I had done a sensible job of figuring out this tricky problem.”

Things will look different come September, Professor Gross said.

“Law students who take first-year criminal law from 2010 on,” he said, “will learn that this same group of smart lawyers and judges — the ones whose work they read every day — has said that the death penalty in the United States is a moral and practical failure.”

On July 9, 2009, the Florida Supreme Court ruled unanimously that Herman Lindsey be acquitted and released from Death Row.  The court said that “the state failed to produce any evidence in this case placing Lindsey at the scene of the crime at the time of the murder,” and that the evidence presented was “equally consistent with a reasonable hypothesis of innocence.”

From the Death Penalty Information Center, “According to DPIC’s Innocence List, Lindsey is the 135th person to be exonerated from death row since the death penalty was reinstated and the fifth person exonerated from death row in 2009.  Lindsey is the 23rd exoneration in Florida — the state that leads the country in death row exonerations.”

“DPIC’s Innocence List consists of former death row inmates who have been acqu itted of all charges related to the crime that placed them on death row; had all charges dismissed by the prosecution; or been granted complete pardon based on evidence of innocence.”

Shine the light,

Mark

Sent by:

Mark Elliott
Executive Director
Floridians for Alternatives to the Death Penalty, FADP.org

2840 W. Bay Drive, #118
Belleair Bluffs, FL 33770
727-215-9646

The U.S. Supreme Court is meeting today on lifting the stay of
execution for Mark Schwab.  Insiders say that if the stay is lifted, a
new execution date may be announced as early as Monday.

—-Mark

Mark Elliott
Executive Director
Floridians for Alternatives to the Death Penalty, FADP.org

There was one bright spot in today’s decision. Although Justice John Paul Stevens voted with the majority concerning the legality of the lethal injection procedure, he declared that in his opinion, the death penalty is unconstitutional. “I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents ‘the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the state (is) patently excessive and cruel and unusual punishment violative of the Eighth Amendment.’”

As an organization, TCADP has “enjoyed” more than a year with no executions. We have had the opportunity to present informative and sometimes challenging programs on the death penalty and we may have even influenced a few people along the way. Now we must, once again, begin to prepare for the vigils and memorials that will be scheduled. Attorney General McCollum and Governor Crist have already declared that Florida is ready to move ahead with the execution of Mark Schwab.

TCADP is planning a panel discussion on eyewitness mis-identification for later this month and our annual meeting will be schedule in May. We will keep you posted as things develop.

Sheila Meehan

Chair, TCADP

Supreme Court Allows Lethal Injection for Exection

The Supreme Court Wednesday rejected a challenge to the
lethal three-drug cocktail used in most U.S. executions
during the past 30 years.

Read More:
http://www.nytimes.com/?emc=na

Thursday, Jan. 03, 2008
Death Penalty Walking
By David Von Drehle

On Jan. 7, the Supreme Court will hear oral arguments in a pair of Kentucky lawsuits challenging the lethal three-drug cocktail used in most U.S. executions. The gist of the cases is that the drug combination is unnecessarily complicated, using three chemicals when one would do, and that when this procedure is administered by undertrained prison officials, there’s an unconstitutional risk that something will go wrong. Instead of going to a quiet death, an inmate could experience terrifying paralysis followed by excruciating pain.
In a perfect world, perhaps, the government wouldn’t wait 30 years and several hundred executions to determine whether an execution method makes sense. But the world of capital punishment has never been that sort of place. This weighty moral issue, expressive of some of our society’s deeply held values, involves a lot of winging it. In 1990, for instance, a sponge used in the headpiece of Florida’s electric chair wore out. There’s no factory or parts catalog for execution devices, so the prison sent a guy to pick up a sponge at the store. Problem was, he bought a synthetic sponge instead of a genuine sea sponge, and when Jesse Tafero was strapped in, his head caught fire. Florida officials diagnosed the problem afterward by testing a similar sponge in a toaster.

To read the entire article: http://www.time.com/time/magazine/article/0,9171,1699855,00.html