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Oklahoma’s Botched Execution

This is a developing story. Check back for updates.

An Oklahoma inmate’s execution failed tonight after the delivery of the lethal injection drugs was botched and the inmate suffered a massive heart attack on the gurney.

Clayton Lockett, 38, was slated to be the first of two executions tonight in Oklahoma, in what was going to be the state’s first double execution since 1937 (more background on the crime and lead-up to the executions here). However, as reporters waited for confirmation of a time of death almost an hour after the injection was scheduled to proceed, it became clear that something had gone wrong.

Finally reporters were told that the execution had been halted about 20 minutes after the first drug was injected, when Lockett was still moving and mumbling on the gurney.

According to Associated Press reporter Bailey Elise McBride, whose Twitter feed is a blow-by-blow account of what the media was told following the procedure, “Lockett began breathing heavily, writhing on the gurney, clenching his teeth and straining to lift his head off the pillow.”

“It was extremely difficult to watch,” Lockett’s attorney, David Autry, told the AP

More from McBride’s AP account:

“There was some concern at that time that the drugs were not having that (desired) effect, and the doctor observed the line at that time and determined the line had blown,” Patton said at a news conference afterward, referring to Lockett’s vein rupturing.

After that, an official who was inside the death chamber lowered the blinds, preventing those in the viewing room from seeing what was happening.

Patton then made a series of phone calls before calling a halt to the execution.

KFOR in Oklahoma provided a timeline (which Andrew Cohen tidied up for his take for The Atlantic):

6:23 PM – Prison officials raise the blinds. Execution begins.

6:28 PM – Inmate shivering, sheet shaking.  Breathing deep.

6:29 PM – Inmate blinking and gritting his teeth.  Adjusts his head.

6:30 PM – Prison officials check to see if inmate is unconscious.  Doctor says, “He’s not unconscious.”  Inmate says “I’m not.”  Female prison official says, “Mr. Lockett is not unconscious.”

6:32 PM – Inmate’s breathing is normal, mouth open, eyes shut. For a second time, prison officials check to see if inmate is unconscious.

6:33 PM – Doctor says, “He is unconscious.” Prison official says “Mr. Lockett is unconscious.”

6:34 PM – Inmate’s mouth twitches.  No sign of breathing.

6:35 PM – Mouth movement.

6:36 PM – Inmate’s head moves from side to side, then lifts his head off the bed.

6:37 PM – Inmate lifts his head and feet slightly off the bed.  Inmate tries to say something, mumbles while moving body.

6:38 pm – More movement by the inmate. At this point the inmate is breathing heavily and appears to be struggling.

6:39 PM – Inmate tries to talk. Says “man” and appears to be trying to get up. Doctor checks on inmate. Female prison official says, “We are going to lower the blinds temporarily.” Prison phone rings. Director of Prisons Robert Patton answers the phone and leaves the room—taking three state officials with him.

Minutes later—the director of prisons comes back into the room and tells the eyewitnesses that there has been a vein failure. He says, “The chemical did not make it into the vein of the prisoner. Under my authority, we are issuing a stay of execution.”

Charles Warner, originally set to be the second execution of the night at 8 p.m., has had his execution postponed for 14 days while an investigation is conducted.

This sort of prolonged, failed execution is exactly what attorneys for both men were afraid of when they filed appeals asserting their client’s constitutional right to know the source of the drugs being used to execute them. The claims led to a heated back and forth over the past two weeks, exposing tensions in the state’s leadership.

Warner’s attorney, Madeline Cohen, released a statement following the failed execution:

“After weeks of Oklahoma refusing to disclose basic information about the drugs for tonight’s lethal injection procedures, tonight, Clayton Lockett was tortured to death.

‘Without question, we must get complete answers about what went wrong. There must be an independent investigation conducted by a third-party entity, not the Department of Corrections. We also need an autopsy by an independent pathologist and full transparency about the results of its findings. Additionally, the state must disclose complete information about the drugs, including their purity, efficacy, source and the results of any testing. Until much more is known about tonight’s failed experiment of an execution, no execution can be permitted in Oklahoma.”

Related Reading:

A Breakdown of Tonight’s Double Execution in Oklahoma

Man Dies of Heart Attack After Botched Execution

Oklahoma Postpones Execution After First Is Botched

What Happens to the Death Penalty When Lethal Injection Isn’t Quick and Painless?

How Oklahoma’s Botched Execution Affects the Death-Penalty Debate

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A Breakdown of Tonight’s Double Execution in Oklahoma

This is a developing story. Check back for updates. For the most current updates, see this blog’s Twitter feed.

UPDATE: The execution of Clayton Lockett has been ‘botched’ according to his attorney and the execution of Charles Warner has been stayed. For the latest, see “Oklahoma’s Botched Execution

After weeks of legal wrangling and confusion in the courts, the way has been cleared for the Oklahoma Corrections Department to execute not one, but two men tonight, in what will be the first double execution in 14 years and and the first in Oklahoma since 1937. The last time two inmates were put to death in the same state in the same day was in Texas in 2000.

Thirty-eight-year-old Clayton Lockett was convicted in the shooting death of Stephanie Neiman in 1999. According to the Tulsa World, “Lockett shot Neiman twice with a shotgun before having an accomplice, Shawn Mathis, bury her alive.” Forty-six-year-old Charles Warner “was convicted in the 1997 death of his roommate’s 11-month-old daughter,” according to NBC News.

The state slated Lockett for execution at 6 p.m. central time, followed by Warner two hours later at 8 p.m. Lockett made a last meal request but it was denied because it exceeded the $15 dollar price limit. The warden offered him a steak dinner from Western Sizzlin instead, but Lockett declined.

The unusual double execution, as well as the heated legal scuffling, has provoked concern and criticism both locally and nationwide. Accordingly, a group of protestors rallied outside the Governor’s mansion at the time of the first execution.

Photo by Oklahoma Coalition to Abolish the Death Penalty.

The issue in the legal back and forth was not the inmates’ innocence, but rather over the secrecy surrounding the source of the drugs that would be used to execute them. Lawyers for both men argued that they had a right to know the manufacturer of the chemicals that will be used in their injections.

The drugs used in lethal injections have become the latest front in the fight against executions and the death penalty. Most execution drugs are made in Europe, and many European drug makers don’t like the idea of their products being used in executions. Others have had to face criticism from groups such as Reprieve, which actively seeks out information on who makes the drugs and makes that information public. This has caused many European drug makers to cease producing the drugs and/or refuse to sell them to prisons. So prisons and corrections departments are increasingly searching for new sources for the chemicals, or resort to compounding pharmacies, which according to The Guardian are less well regulated than traditional drug manufacturers. Corrections departments have also begun to create policies to protect the anonymity of the drug makers, presumably so the company won’t face the same public outcry the European companies faced.

(For a breakdown of the specific drugs at issue in Oklahoma, Mother Jones reporter Stephanie Mencimer has an excellent review here.)

These changes have caused concern among defense attorneys, who argue that without knowing the source of the drugs, there is a greater possibility that the chemicals are contaminated or expired, which would cause unnecessary suffering, which is unconstitutional under the eighth amendment.  Charges like this have been filed in other states, such as Texas and Missouri (those claims were all rejected) but in Oklahoma, they provoked a whole new level of controversy, exposing “long-running tension among Oklahoma’s three branches of government,” according to Associated Press reporter Sean Murphy.

Andrew Cohen breaks down why things are so tense the best, so I’ll defer to him:

Things got complicated because there are two high courts in Oklahoma — one that focuses on “criminal” matters and one that focuses on “civil” matters. The criminal court, the Oklahoma Court of Criminal Appeals, said it had no jurisdiction to look at the injection secrecy matter. The civil court, the Oklahoma Supreme Court, said that the Court of Criminal Appeals did have jurisdiction.

There was open conflict between the courts. The state Supreme Court criticized the Court of Criminal Appeals for not accepting the appeal and for not halting the executions. The criminal appeals court criticized the state Supreme Court for intruding upon what its judges considered the purely “criminal” matter of execution protocols.

The open warfare within the state judiciary — unseemly, in particular, in the context of capital cases — surely contributed to the chaos that came next.

Here’s my attempt at reconstructing a timeline of the back and forth. It gets a little weird, so try to keep up and if you spot any errors, shout them out in the comments.

  • March: Oklahoma County District Judge Patricia Parrish rules that the secrecy of the drug source violates the inmates’ rights under the state constitution.
  • Friday, April 18: The state appeals that ruling to the Oklahoma Supreme Court, saying the ruling is “an ‘overbroad interpretation’ of the right to access,” according to The Guardian.
  • The Oklahoma Supreme Court said they do not have the authority to stay the executions, and transferred the matter to the Oklahoma Court of Criminal Appeals.
  • The Oklahoma Court of Criminal Appeals disagreed, saying THEY don’t have the authority to stay the executions, because the inmates challenged the execution procedures in civil court, not criminal. Their ruling also called out the state supreme court, as detailed by Jurist columnist Adam R. Banner: “As if it were not enough to defy the Oklahoma Supreme Court’s supposed ‘final’ determination of jurisdiction, the Court of Criminal Appeals held that the Supreme Court did ‘not have the power to supersede a statute and manufacture jurisdiction.’ “
  • Monday, April 21: The State Supreme Court decides they now must say something, and after a 5-4 vote, issues a stay for Clayton Lockett, who was originally set for execution on April 22. “The ‘rule of necessity’ now demands that we step forward,” the Court’s opinion says. “We can deny jurisdiction, or we can leave the appellants with no access to the courts for resolution of their ‘grave’ constitutional claims….As uncomfortable as this matter makes us, we refuse to violate our oaths of office and to leave the appellants with no access to the courts, their constitutionally guaranteed measure.” The stay also puts Charles Warner’s execution on hold.
  • Monday, April 21: From Andrew Cohen: “Just hours after the Oklahoma Supreme Court halted the executions, the Republican governor of the state, Mary Fallin, proclaimed that the executive branch would not honor the judicial stay preventing the executions. The Supreme Court’s ‘attempted stay of execution is outside the constitutional authority of that body,’ she declared, so ‘I cannot give effect to the order by that honorable court.’ “
  • Tuesday, April 22: From Andrew Cohen: Republican state lawmaker Rep. Mike Christian, introduced impeachment proceedings against the five state Supreme Court justices who had voted for the stays of execution.
  • Tuesday, April 22: From the Associated Press: “In a development reflecting the rising tension between the executive and judicial branches of state government, Gov. Mary Fallin granted a one-week stay of execution to Lockett on Tuesday afternoon, saying the Oklahoma Supreme Court overstepped its authority when it issued a separate stay. Fallin issued an executive order delaying Lockett’s execution until April 29. Fallin claims in her order that the stay issued by the state’s high court is ‘outside the constitutional authority of that body.’ “
  • Wednesday, April 23: The State Supreme Court reject the lower court’s decision that preventing Lockett and Warner from knowing the source of the drugs used in their lethal injections will violate their constitutional rights, clearing the way for the executions to proceed.

Warner’s attorney, Madeline Cohen, released a statement today in advance of her client’s execution, writing “tonight, in a climate of secrecy and political posturing, Oklahoma intends to kill two death row prisoners using an experimental new drug protocol, including a paralytic, making it impossible to know whether the executions will comport with the Eighth Amendment’s ban on cruel and unusual suffering. Because the issue of secrecy in lethal injection has not been substantively addressed by the courts, Clayton Lockett and Charles Warner will be executed without basic information about the experimental combination of drugs used in their deaths.”

Related Reading: 

3 Letters to the Editor on Tonight’s Double Execution

Tension Grows Among Oklahoma Courts, Legislature

Oklahoma to Proceed With Lethal Injection Amid Confusion Within Courts

Death Row Inmates Won’t Be Told the Source of the Drugs Used to Kill Them


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Stay of Execution Lifted for Marshall Gore

This is a developing story. Check back for updates.

UPDATE: A new execution date has been set for Marshall Gore. He is now set for execution on July 10, 2013 at 6 p.m. 

According to Miami Herald reporter David Ovalle, the stay of execution for Marshall Gore, whose execution was halted Monday night, has been lifted and a new date will soon be set. (Update: here’s a link to the Herald story that’s now published.)

Gore, who received two death sentences for the 1988 killings of Susan Roark and Robyn Novick, was only an hour away from execution when a federal appeals court temporarily stayed the lethal injection.

The U.S. 11th Circuit Court of Appeals stopped the execution in order to hear arguments from Gore’s attorneys that he is insane, and therefore ineligible for execution. However, the court wanted to move quickly so they could come to a decision before the death warrant, signed in May, could expire.

Oral arguments were held today and Gore’s appeal was subsequently denied. Because the warrant is still active, a new execution date will likely be set quite soon.

Related Reading: 

Federal Court Halts Execution of Miami Killer Marshall Lee Gore

Execution of Marshall Lee Gore Set to Move Forward As Planned

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Florida’s Timely Justice Act Challenged in State Supreme Court

Attorneys for a group of Florida’s death row inmates have filed a challenge to the newly passed Timely Justice Act, which would speed executions in Florida. (Yours truly has not yet been able to blog about the law at this point, but you can find a wealth of articles about it, like this one from Slate and this one from The Miami Herald.)

The Palm Beach Post has an article detailing the challenge which I’ve pasted below. You can also read the original here as well as an Associated Press story on the suit here.

By Dara Kam

Palm Beach Post Capital Bureau

TALLAHASSEE — Attorneys representing Death Row inmates have filed a challenge to a law aimed at speeding up executions, saying the “Timely Justice Act” is an unconstitutional power grab by the Legislature and violates convicts’ constitutional rights to due process and equal protection.

The lawsuit filed Wednesday with the Florida Supreme Court is led by two lawyers — Neal Dupree, capital collateral regional counsel south; and Bill Jennings, capital collateral regional counsel middle. They lead the state agencies that represent Death Row inmates in postconviction proceedings in their respective Florida districts.

Dozens of lawyers and more than 150 inmates awaiting execution joined the suit against Attorney General Pam Bondi and the state of Florida.

The suit was filed less than two weeks after Gov. Rick Scott signed the measure into law. “We will defend it,” Scott spokeswoman Jackie Schutz said in an email.

Scott’s office has launched a public-relations campaign disputing reports that the new law abbreviates judicial rights, insisting instead that the law “makes technical amendments to current law and provides clarity and transparency to legal proceedings.”

Florida has 405 inmates on Death Row. The average length of time between conviction and execution is more than two decades.

The new law, which takes effect July 1, requires the Florida Supreme Court to certify to the governor when a Death Row inmate’s appeals have been exhausted. The governor will have 30 days to sign a death warrant once the capital clemency process is complete.

The law also creates time limits for production of public records in postconviction cases and imposes penalties on defense lawyers deemed ineffective.

Dupree and Jennings asked the Florida Supreme Court to issue an emergency injunction blocking the law, warning it will create a “flood of death warrants that will inundate the courts” and diminish the court’s review of capital cases. They also requested that the court hear oral arguments in the case.

If the law is not halted, “the process will have the unconstitutional and irreversible result of individuals being executed under a legislatively determined judicial procedure in which violations of their constitutional rights go unresolved,” the lawyers wrote in an 89-page filing. “Further, Florida history shows that diminished process can have tragic and irreversible consequences.”

The request for an injunction also includes a lengthy examination of efforts by the Supreme Court, the Legislature and previous governors to come up a more expedited yet fair death penalty procedure.

That process “cannot and should not be displaced by a lawmaking process based on political, rather than constitutional and equitable, concerns,” wrote Dupree and Jennings, joined by Martin McClain, who has represented numerous Death Row inmates, including some who have been exonerated.

The lawyers rely on many of the same arguments used by the Supreme Court when it struck down the 2000 Death Penalty Reform Act, the Legislature’s last attempt to speed up executions. The 200 law imposed time limits on appeals and created a two-tiered system for direct appeals and collateral proceedings.

In much the same way, the new law imposes time lines for appeals, thereby taking away the court’s power to establish its own rules, the lawyers argued.

Among the top concerns with the new law are limits on appeals that can be made once a warrant is signed. Only 19 of the 75 prisoners executed in Florida since the death penalty was reinstated in 1976 were put to death after their first warrant, the lawyers wrote.

According to Scott’s office, 13 Death Row inmates would fit the criteria under the new law to have a death warrant signed.

The lawsuit is a rehashing of the “same spurious arguments that have turned our death penalty into a mockery in Florida,” said state Sen. Joe Negron, R-Stuart, the bill’s sponsor.

“Their stated role is to not have anyone executed on their watch. They oppose the death penalty in every case and use all legal filings necessary to delay the inevitable. And that’s exactly what this legislation was designed to put a stop to,” he said.

Negron said he is confident the court will uphold the law.

But lawyers for the condemned argued in the brief that the new process lacks an understanding of the complexities of the process and imposes restrictions on federal appeals.

The Legislature “has made profoundly critical decisions determining what judicial vehicles are available to capital defendants prior to the State taking the ultimate punitive act of terminating their lives, yet it seems the Legislature does not have an understanding of those vehicles and their names. Unless, that is, we must presume that the Legislature intended to cut off U.S. Supreme Court review of Florida death cases, which would present concerns of federalism, constitutionality and fairness beyond those addressed herein,” the lawyers wrote.



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The Last Words of William Van Poyck

Dear Sis, 
If you are reading this, I have gone the way of the earth, my atonement fulfilled.

William Van Poyck‘s sister has posted his final words, by way of two last letters he wrote her prior to his June 12 execution.

Here’s one from June 3rd, only a little more than a week away from his execution:

Dear Sis~

Ten days ’till departure time. You already know that they killed my neighbor, Elmer, 5 days ago. Then they moved me into his cell. After they execute someone they move the rest of us down one cell, working our way to cell#1, the launching pad to the gurney next door.  This is a bad luck cell; very few of us get out of here alive!  In two days I’ll go onto Phase II and they’ll move all  my property from my cell, and post a guard in front of my cell 24/7 to record everything I do.  These will be hectic days, freighted with emotion, all the final letters, all the final phone calls, final visits, final goodbyes.  Things have become even more regimented as “established procedures” increasingly take over.  More cell front visits from high ranking administration and DOC officials asking if everything is O.K., forms to fill out (cremation or burial?).  I declined the offer of a “last meal”.  I’m not interested in participating in that time-worn ritual, to feed some reporter’s breathless post-execution account.  Besides, material gratification will be the last thing on my mind as I prepare to cross over to the non-material planes.  Watching Elmer go through his final days really drove home how ritualized this whole process has become; the ritual aspect perhaps brings some numbing comfort – or sense of purpose – to those not really comfortable with this whole killing people scheme.  This is akin to participating in a play where the participants step to a rote cadence, acting out their parts in the script, with nobody pausing to question the underlying premise.  It’s like a Twilight Zone episode where you want to grab someone, shake them hard, and yell “Hey, wake up! Don’t you know what’s going on here?!!!”

My very accelerated appeal is before the Florida Supreme Court; my brief is due today, (Monday), the state’s brief tomorrow and oral arguments are scheduled for Thursday June 6th (D-Day Anniversary).  I expect an immediate ruling, or perhaps on Friday.  By the time you read this you’ll already know the result and since there’s no higher court to go to on this you’ll know if I live or die on June 12th.  I am not optimistic, Sis.  Although I have some substantial, compelling issues, as you know (e.g., my appointed direct appeal attorney who turned out to be a mentally ill, oft-hospitalized, crack head, convicted of cocaine possession and subsequently disbarred whose incompetence sabotaged my appeal) the law provides the courts with countless ways to deny a prisoner any appellate review of even the most meritorious claims.  I won’t turn this into a discourse on legal procedures; but many years of observation has taught me that once a death warrant is signed it’s near impossible to stop the  momentum of that train.  Issues that would normally offer you some relief, absent a warrant, suddenly become “meritless” under the tension of a looming execution date.  Nobody wants to be the one to stop an execution, it’s almost sacrilegious.

So many people are praying and fighting to save my life that I am loathe to express any pessimism, as if that’s a betrayal of those supporting me.  And, there is some hope, at least for a stay of execution.  But honestly my worst fear is a temporary stay of 20, 30 days.  Unless a stay results in my lawyers digging up some new, previously undiscovered substantial claim that will get me a new sentencing hearing, a stay simply postpones the inevitable.  What I don’t want is to be back here in the same position in 30 days, forcing you and all my loved ones to endure another heart-breaking cycle of final goodbyes.  I cannot ask that of them.  I’d rather just go on June 12th and get this over with.          This may be disappointing to those who are trying so hard to extend my life, even for a few days, but there it is.

Time – that surprisingly subjective, abstract concept – is becoming increasingly compressed for me.  I’m staying rooted in the here and now, not dwelling on the past or anxiously peering into the future, but inhabiting each unfolding moment as it arrives in my consciousness (F.Y.I., I highly recommend The Power of Now, by Eckhart Tolle, for anyone facing imminent execution!)  I’m still able to see the beauty of this world, and value the kindness of the many beautiful souls who work tirelessly to make this a better place.  I am calm and very much at peace, Sis, so don’t worry about my welfare down here on death watch.  I will endure this without fear, and with as much grace as I can summon.  Whatever happens, it’s all good, it’s just the way it’s supposed to be.
Much Love,

Bill’s final letter, written on the day of his execution, is much more brief:

Dear Sis,
If you are reading this, I have gone the way of the earth, my atonement fulfilled. When your tears have dried—as they will—and you look up at the sky, allow yourself to smile when you think of me, free at last. Though I have departed my physical vehicle, know that my soul—timeless, boundless and eternal—soars joyfully among the stars.

Despite my many flaws on earth, I was blessed to be loved by so many special souls who saw past my feet of clay and into my heart. Know that in my final hours, it was that love which sustained my spirit and brought me peace. Love, like our souls, is eternal and forever binds us, and in due time it will surely draw us all back together again. Until then, Godspeed to you and all who have loved me!
Light & Love,


Related Reading:

Dispatches From Death Row: William Van Poyck

“I Have 21 Days Left To Live”: Counting Down To An Execution

Florida Executes William Van Poyck

Gov. Scott Signs Death Warrant for Florida Inmate William Van Poyck

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Florida Executes William Van Poyck

This is a developing story. Check back for updates. 

William Van Poyck’s is one of two executions scheduled for tonight. There is another scheduled in Texas, which you can read about here.

Update: The U.S. Supreme Court has denied a stay of execution for Van Poyck, and at this time it appears the execution will proceed as planned.

Update: William Van Poyck has been executed.

The case of William Van Poyck has been a bizarre one lately, filled with criticism, concern and bizarre court rulings. However, it appears the execution, scheduled for 7 p.m. this evening, is moving forward as planned after much legal back and forth, the execution took place as planned at 7 p.m. this evening.

Van Poyck, 58, was convicted in the death of corrections officer Fred Griffis, who was fatally shot in a 1987 escape attempt. Van Poyck and another inmate, Frank Valdez, ambushed two guards in a prison van during transport of another prisoner, James O’Brien, who they were trying to free. Van Poyck has always maintained that Valdez, who was later stomped to death by prison guards, was the shooter. From the Palm Beach Post:

Van Poyck has insisted that Valdes, who he said was hopped up on cocaine and beer, parted from the script he devised and shot Griffis. In unsuccessful appeals, Van Poyck argued that another inmate heard Valdes confess to the killing before Valdes himself was killed by prison guards in 1999. In another appeal, Van Poyck claimed four jurors signed affidavits claiming they wouldn’t have voted to give him the death penalty had the prosecution not said he was the triggerman.

But in Florida you don’t have to be the killer to get the death penalty; just being present at a murder is enough, and the Florida Supreme Court ruled that he would have received the death penalty even if it was proven that he was not the triggerman.

While many of his appeals had asked for a stay based on his claims of not being the shooter, the main sticking point in the recent legal haranguing in the case centered on whether his attorneys were capable of defending him effectively and thoroughly.

When Van Poyck’s death warrant was signed in early May, he had two private attorneys who have been representing him pro bono for years. One was Gerald Bettman, who runs a two-man law office in Jacksonville and has represented Van Poyck since around 1995. The other was Milwaukee-based Jeff Davis, who is not a criminal defense attorney and was out of the country when the warrant was signed. Both men said they were unable to represent Van Poyck effectively, and Bettman filed a motion asking that they be taken off the case, saying he has never had to represent someone during the numerous, and critical, appeals that are filed after a warrant is signed.

“I’ve got to figure all this out and I don’t even know the routes,” he told the Palm Beach Post.

The two asked instead that the court appoint attorneys from the Capital Collateral Commission or a private death penalty attorney to represent Van Poyck.

“Even in the event that (I) desired to represent Van Poyck, the death warrant was issued at a time wherein (I am) unable to provide the necessary time and expense on his behalf without incurring extreme hardship,” Bettman wrote.

But Palm Beach County Judge Barry Cohen, who signed on behalf of Circuit Judge Charles Burton, ruled on May 7 that Bettman had waited too long to file the motion and passed the buck on to the higher court. From the Post:

“This is not an unanticipated event,” Burton said of Gerald Bettman’s claims that he represented Van Poyck as a favor and never imagined he would be forced to handle his appeals under the strict deadlines that are set after a death warrant is signed.

“Before you execute someone you have to appoint a lawyer who is competent,” Bettman replied.

But, Burton said, the matter is out of his hands. “Any beef you have is with the Florida Supreme Court, not me,” he said.

However the Florida Supreme Court also rejected Bettman’s motion to withdraw as counsel. The justices gave no reason, but the ruling was a surprise to some death penalty experts. From the Post:

Other attorneys who specialize in death penalty cases called Bettman’s predicament unprecedented. “It’s shocking to me that they’re going to force an attorney who is unqualified to handle the appeals,” said Martin McClain, one of the state’s top death penalty defense attorneys.

The high court, he said, is ignoring its own rulings. In 1990, it granted a stay of execution for Paul Scott, who is on Death Row for the 1978 bludgeoning death of Boca Raton florist James Alessi. It allowed Scott’s volunteer lawyer to withdraw from the case and agreed a new court-appointed lawyer needed more time to prepare Scott’s appeals.

And then things got even more bizarre.

In a surprising turn of events, the Florida Supreme Court reversed its decision, ruling that Bettman alone shouldn’t have to represent Van Poyck in the post-warrant appeals. Instead, they sent the case back to Judge Burton, and essentially ruled that all 14 lawyers who had ever filed appeals for Van Poyck were still his attorneys. They ordered Burton to review the qualifications of all 14 and decide who was the most qualified to be his counsel.

“I’m a little surprised by the turn of events,” McClain told the Post after learning he could be part of Van Poyck’s defense team. “On one hand, there seems to be a recognition that there’s a problem with the case, but I’m not sure casting a wide net will solve it.”

The article continues:

He [McClain] suspects some of the attorneys, like him, know little about the case. He said he was involved tangentially in a 2007 appeal that was handled primarily by out-of-state lawyers.

The high court’s wide-ranging order violates its own rulings, he said.

In similar cases, it allowed volunteer lawyers such as like Bettman to withdraw after a death warrant was signed. State-funded death penalty lawyers were then appointed to handle the appeals. Lawyers who represented Van Poyck, 58, for free have no obligation to remain on the case, he said.

“They are trying to create an obligation that should offend every defense lawyer in the state. It flies in the face of public policy to encourage pro bono work,” he said. What lawyer, he asked, would volunteer to help out the state by representing a Death Row inmate for free if they are faced with the prospect of handling the flurry of appeals after a death warrant is signed?

McClain has a point. The ruling seems to suggest any attorney who files any appeal for a death row inmate could possibly be pulled back in later to represent them during one of the most critical phases, regardless of experience or familiarity with the case.

But back to the ruling: Judge Burton was ordered to hold a hearing reviewing the 14 attorneys and at the end of the two-hour proceeding on May 13, he appointed not one, but three lawyers to counsel Van Poyck, despite all three of them protesting that they were unable to do so. Burton kept Van Poyck’s original attorneys, Bettman and Davis, on the case, and added the help of  Tallahassee attorney Mark Olive. The three men had a deadline of the following Friday, four days after the ruling, to file motions that could spare their client.

Olive, who is one of the state’s top death penalty attorneys, said he had the legal know-how to serve as counsel, but knew almost nothing about the case and wouldn’t be able to get up to speed in such a short time.

Currently, none of the attorneys’ subsequent appeals have succeeded, but there are still filings that are pending. On Wednesday, June 6, Mark Olive filed a renewed motion for a stay, citing the following issues:

1. A motion for a stay that was filed on May 24 has not been ruled upon

2. Newly discovered evidence of Frank Valdez confessing that Van Poyck’s attorneys need time to investigate

3. A ruling on May 23 in 11th Circuit Public Defender v. State of Florida on defense attorney ethics should prohibit his representing Van Poyck.

No opinions have been released so far on these motions But on Wednesday he U.S. Supreme Court denied a stay of execution and the execution moved forward at 7 p.m. local time at Florida State Prison in Starke. The execution was originally scheduled for 6 p.m. but was delayed to allow Governor Rick Scott enough time to return to Tallahassee from a funeral in Illinois.

According to the Sun Sentinel, Van Poyck was served a breakfast of oatmeal and eggs at 5 a.m., in what was his first warm breakfast in years. All inmates are allowed to request a last meal that’s served at 10 a.m. but Van Poyck declined one. He spent his last day visiting with his sister, four female friends and his spiritual adviser. More from the article:

Van Poyck also refused the normal course of chemicals, which begins with a sedative, Lisa Van Poyck said. She said he would only be given highly concentrated potassium chloride to stop his heart.

“He wants to be clear of mind,” she said. “He wants to be focused on one thing.”

In three hours visiting with friends and family, Van Poyck didn’t say what that one thing would be.

But if she had to guess, his sister said, it would probably be his parents, the idea of love and his favorite color, purple.

Van Poyck was declared dead at 7:24 p.m., 23 minutes after the procedure began.

He was the 77th person executed in Florida since the death penalty was reinstated in 1976. According to the Palm Beach Post, “Van Poyck is the fourth inmate to be executed since December, the most that have been executed in such short order since 2006.”

Related Reading: 

Dispatches From Death Row: William Van Poyck

“I Have 21 Days Left To Live”: Counting Down To An Execution

Lawyers ordered to defend Van Poyck in death-sentence appeal say they lack time, resources

‘They’re going to kill him,’ attorney for condemned killer says as judge refuses to delay execution

Attorneys for death row inmate who killed local prison guard want off the case

Lawyer with little experience can’t withdraw at 11th hour from death-penalty defense, judge says

Attorney told by local judge, state supreme court he must represent death row inmate

High court reverses ruling on Palm Beach County Death Row case lawyers

Van Poyck: FL’s Bizarre Death Penalty Farce Continues

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Tonight’s Execution: Elroy Chester, Texas

This is a developing story. Check back for updates. 

Elroy Chester’s is one of two executions scheduled for tonight. There is another scheduled in Florida, which you can read about here.

Update: Elroy Chester has been executed.

Elroy Chester was executed tonight by lethal injection in Huntsville, Texas, but a hearing scheduled for today could derail the state’s plan to carry out the sentence. Update: The Fifth Circuit has ruled against Chester and the motion to stay his execution has been denied. Barring a stay from a higher court, the execution proceeded as planned.

Chester was convicted of the 1998 killing of local firefighter Willie Ryman during a one-man crime spree in which he racked up more than two dozen crimes, including multiple killings. Chester confessed to killing Ryman when he was arrested for the crime, and pled guilty to capital murder. He was sentenced to death in September 1998.

While there is very little doubt about his guilt, the question in Chester’s case is whether he is mentally competent to be executed. His attorneys have argued that he is mentally retarded (I realize this is not the appropriate term for his condition, however it remains the standard term in matters of criminal liability) and thus ineligible for execution under the 2002 Supreme Court ruling deeming execution of the mentally impaired as “cruel and unusual punishment” and thus unconstitutional.

From Jordan Smith’s piece “Smart Enough to Die” for the Austin Chronicle:

Chester repeatedly scored below 70 on IQ tests – the generally accepted upper limit for mental impairment; spent almost his entire childhood in special education classes; never learned to read, to shop or cook, or to live on his own, or even to distinguish among colors, according to court testimony; and was placed in the Texas Department of Criminal Justice’s Mentally Retarded Offenders Program during his previous stays in the pen. Nonetheless, the courts have repeatedly determined that Chester has not proven he is mentally retarded, and is thus eligible for execution.

At issue is the criteria by which Texas defines mental impairment, which I’ve covered before in my posting on last year’s execution of Marvin Wilson. Rather than the standards laid out in the 2002 Supreme Court case Atkins v. Virginia, Texas uses a set of criteria called the Briseño factors. From The Nation‘s Liliana Segura:

“Named after another Texas death row case, these seven non-clinical measures are meant to show whether a given defendant displays a “level and degree of mental retardation at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty.” As an example, the Briseño court cited the fictitious character of Lennie Small, the mentally impaired migrant worker from John Steinbeck’s novel, Of Mice and Men.

Up until now all Chester’s appeals have been denied, and while experts and the Texas Court of Criminal Appeals agree he is mentally disabled, the courts have ruled under Briseño that he is not disabled enough to be barred from execution. In 2012 the 5th U.S. Circuit Court of Appeals ruled the same way, denying another appeal that Chester was mentally disabled.

But now the judge that wrote that ruling came under fire. From Jordan Smith’s piece “Smart Enough to Die” for the Austin Chronicle:

That ruling was penned by the court’s then-Chief Judge Edith Jones about whom a serious complaint of misconduct was filed by a handful of civil rights groups, with the Fifth Circuit’s current Chief Judge Carl Stewart. The complaint alleges that Jones made a number of racist and biased comments during a lecture on the death penalty she gave at the University of Pennsylvania School of Law in February. In addition to claiming that blacks and Hispanics are more violent than are whites, and that claims of racism and innocence made by death row inmates are mere “red herrings,” Jones also opined that the Supreme Court decision that outlawed execution of the intellectually disabled does the disabled a disservice and represents a “slippery slope” in death penalty jurisprudence…

…During the lecture Jones allegedly singled out Chester’s case (among a handful of others) for derision, even though his execution at that time had not yet been carried out, and his case may yet have come back to the Fifth Circuit, and to her, for review….”She said that Chester claimed to be mentally retarded and had been slow in school but he still managed to go on a burglary spree,” reads the affidavit. “In the context of talking about this case and others involving claims of mental retardation, Judge Jones commented that she believes it may do a disservice to the mentally retarded to exempt them from death sentencing.”

In light of Judge Jones’s comments, Chester’s attorney, Susan Orlansky, filed a motion to stay the execution, arguing the injection should be delayed until either a new panel reviews Chester’s case or the complaint against Jones is resolved.

“The Court should not permit Mr. Chester to be executed amid troubling questions about the actual or apparent partiality of the judge who cast the deciding vote [denying his appeal] and [who] authored the opinion in his case,” she wrote.

Yesterday the Fifth Circuit court agreed and assigned a three judge panel to review the previous appeal, but declined to stay the execution, giving the judges just 24 hours to come to a decision.

The new panel denied the motion to stay the execution, writing that they “perceive no injustice, nor any incorrectness, in the affirmance of the district court’s order denying habeas relief, and we correspondingly decline to exercise our discretion to recall mandate.” (Read the court’s full opinion here.)

According to 12 News, media witnesses were called in to view the execution at 6:21 p.m. local time. Chester was pronounced dead at 7:04 p.m. He was the 499th execution in Texas since the death penalty was reinstated.

A reporter for the Associated Press wrote that in his final words, Chester again confessed to the crimes and asked the victims’ family not to have “hate in your heart for me”:

Elroy Chester, 44, said that he didn’t want relatives of his victims to have “hate in your heart for me.”

Chester said he confessed to killing firefighter Willie Ryman III because “you should know who killed your loved one.”

“Don’t hate me. I’m sorry for taking your loved one,” Chester said. “Elroy Chester wasn’t a bad man, I don’t care what anybody says. A lot of people say I didn’t commit those murders. I really did it.”

The next execution in Texas, which will be the 500th, is scheduled for June 26, when Kimberly McCarthy is slated for lethal injection.

Related Reading:

Chief Judge: New Panel Will Be Assigned to Consider Death Row Appeal

Death Watch: Chester to Die June 12

Appeals Panel Rethinks Killer’s Case After Judge’s Comments

Smart Enough to Die

Execution Watch: Elroy Chester to Die June 12

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Execution of Marshall Lee Gore Set to Move Forward As Planned

It appears the execution of Marshall Lee Gore, slated for lethal injection on June 24, will proceed as scheduled, according to the latest court rulings.

Gore, who was given two death sentences for the 1988 killings of Susan Roark and Robyn Novick, at one point received a temporary stay after his attorneys argued that he was insane and should not be executed.

Gov. Rick Scott rescinded that stay on Saturday, June 1, after a three-doctor commission examined Gore and determined him mentally competent to stand execution.

Then on Thursday, June 6, the Florida Supreme Court denied Gore’s motion for a stay, saying there was no “substantive reason for granting a stay.”

Currently no other appeals have been filed and Gore’s execution is scheduled to move forward as planned.

Related Reading:

Killer Ruled Competent; Execution Moves Forward

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Tonight’s Execution: Elmer Carroll, Florida

This is a developing story. Please check back for updates.

Correction: This story was mistakenly autopublished a day early. Elmer Carroll is scheduled to be executed Wednesday, May 29, not Tuesday, May 28.

Update: Elmer Carroll has been executed.

Tonight Florida carried out the first of three scheduled executions in the next six weeks, with the lethal injection of Elmer Leon Carroll.

According to the case summary, Carroll, 56, was convicted and sentenced to death for the murder of 10-year-old Christine McGowan. From the summary:

“Robert Rank attempted to wake his stepdaughter, Christine McGowan, on the morning of 10/30/90 and, when she did not answer his calls, Rank went to McGowan’s room.  He noticed her door, which was open the night before, was closed.  Upon entering the room, Rank discovered McGowan face down on the bed.  She had blood between her legs and her body was cold to the touch.  Rank then noticed that the front door was slightly open and his construction truck was missing.  Police investigators at the scene determined that McGowan had been raped and strangled to death, and issued a bulletin regarding the stolen construction truck.

Upon hearing a radio bulletin regarding the stolen construction truck, Debbie Hyatt notified police that she remembered seeing the abandoned truck and a man, later identified as Elmer Carroll, walking easterly away from the truck.  As a result of Hyatt’s tip, Carroll was arrested.  When law enforcement officers searched Carroll for weapons, they found a box cutter and the keys to the stolen construction truck.

Information presented at trial revealed that Carroll was a resident of the halfway house located next door to the victim’s home and that Carroll had remarked to other residents about the “cute” girl next door.  DNA evidence recovered from the scene matched Carroll’s saliva, semen and pubic hair.”

According to the Orlando Sentinel, McGowan’s mother and step-father both plan to attend the execution, as well as Orange-Osceola State Attorney Jeff Ashton, one of the two prosecutors on the case.

“Elmer Carroll’s a monster, and he always will be,” Ashton told the Sentinel. “To feel no compassion or pity of any kind for this child, that is the very definition of a monster in my mind.”

Carroll’s attorneys filed an appeal to stop the execution, arguing that:

1) he was mentally ill,

2) that the nature of Florida’s death penalty was unconstitutional under the 8th amendment,

3) that his execution would be unconstitutional under the 8th amendment because of the “inordinate length of time that Mr. Carroll has spend on death row” and

4) that his clemency process was applied in “an arbitrary and capricious manner.”

However, the appeal was denied by the Florida Supreme Court, who affirmed the lower court’s ruling that the claims were without merit on May 15. His attorneys then took the appeal to the U.S. Supreme Court, but on Wednesday the Court denied Carroll’s appeal, in which his lawyers argued that he should have been considered mentally ill at the time of the crime. Carroll was scheduled to die by lethal injection at 6 p.m. ET at Florida State Prison in Starke.

According to the Associated Press, Carroll spend his final hours with two visitors, neither of whom was family. He visited with a Catholic priest and a mitigation specialist.

Carroll’s final meal was served at 10 a.m. and consisted of eggs, bacon, biscuits, a whole sliced tomato, a fruit salad with strawberries, papaya, peaches, pineapple and tropical fruit, an avocado and a can of Carnation milk.

Carroll declined to make a final statement, and the execution began promptly at 6:01 p.m. local time. He was pronounced dead at 6:12 p.m.

Related Reading:

Execution Looms For Felon Who Raped, Killed Girl, 10

Child-Killer Rapist Fails In Appeal, Faces Death May 29

US Supreme Court Denies Stay Of Execution For Florida Man

Killer Has Bacon And Eggs For Last Meal

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Tonight’s Execution: Jefferey Williams, Texas

This is a developing story. Check back for updates.

Correction: This post was supposed to auto-publish today, but was accidentally published yesterday. Williams’ execution is set for tonight. Please pardon the mistake.

Editor’s note: There are inconsistent spellings of Jefferey/Jeffrey’s name in news reports. I’ve gone with the one listed on the Texas Department of Criminal Justice’s site. 

Attorneys are appealing to the U.S. Supreme Court in an attempt to stop tonight’s scheduled execution in Texas.  Update: Jefferey Williams has been executed in Texas.

Jefferey D. Williams was slated to die this evening in Huntsville for the 1999 shooting of Houston police officer Troy Blando. From the Associated Press

Blando was working as a plainclothes officer doing auto theft surveillance when he stopped Williams, who was driving a stolen Lexus. As Blando was putting handcuffs on Williams, he was shot.

Williams’ lawyers argue his punishment should be halted while the high court reviews whether his legal help at his trial and in earlier stages of his appeals was deficient.

When Williams was arrested shortly after the shooting, he was still wearing the officer’s handcuff on one of his wrists.

Williams’ attorneys argued that his earlier trial attorneys were inefficient, missed filing deadlines and failed to present evidence during the sentencing hearing that would have spared him the death penalty.

However, according to the Houston Chronicle, Williams’ other claims of ineffective counsel were unsucccessful. From the Chronicle: 

To date, Williams’ ineffective counsel claims have fizzled. Now, Sheldon hopes a recent U.S. Supreme Court ruling, Martinez v. Ryan, will prompt the courts to take another look.

The ruling allows reconsideration of a rejected ineffective counsel claim if it is “substantial” and if it can be proved that an appeals lawyer’s performance fell below an objective standard of reasonableness. It requires proof that, had legal representation been adequate, the trial’s outcome may have been different.

Williams, 37, was represented in his February 2000 trial by veteran Houston defense lawyer Donald Davis. Months after Williams’ conviction, Davis committed suicide. Williams’ appeals attorney was Jules Laird, a former Harris County assistant district attorney.

Laird on Friday said he filed two petitions on Williams’ behalf, one dealing with constitutional issues of the killer’s initial trial, and a second asserting mental disability claims. “I talked to the family, reviewed the files and did my own investigation,” he said. “… I don’t recall filing late, but if the court says I did, I did.”

Laird said he does not remember whether he raised the issue of ineffective counsel.

Williams last-minute appeals were denied and the execution proceeded as planned. The lethal injection began at 6:10 p.m. local time and Williams was pronounced dead at 6:36 p.m.

According to the Houston Chroniclethere were no witnesses that were related to or friends of either the victim or Williams. The witness chamber was filled instead with police officers.  In his final statement, Williams insulted the police and accused them of getting away with murder.

The Chronicle story also includes a response to Williams’ last statement from Ray Hunt, president of the Houston Police Officers Union.

“The fact that to the end he continued to ridicule police officers shows what a thug he was,” Hunt told reporter Allan Turner outside the chamber. “I have no sympathy for him. I have sympathy for his family, but not for him.”

Williams was the 498th execution in Texas since the death penalty was reinstated.

Related Reading:

Cop Killer Makes Last-Ditch Appeal to Save His Life

Death Watch: New Appeal Argues Ineffective Defense

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