In the wake of the botched execution of Romell Broom, and an appellate court's ruling that another scheduled execution, that of Lawrence R. Reynolds Jr., should be postponed indefinitely due to concerns about the state's lethal injection protocols, Ohio Governor Ted Strickland has postponed two more executions.

The state is looking into backup procedures in case the standard execution techniques fail, as they did on Sept. 15, when technicians at the state prison in Lucasville tried for over two hours to maintain an intravenous connection in order to inject Romell Broom with lethal drugs for the abduction, rape and murder of a teenage girl in 1984. A hearing to consider whether Mr. Broom can be executed in conformity with constitutional requirements is scheduled for Nov. 30.

“More research and evaluation of backup or alternative procedures is necessary before one or more can be selected,” Mr. Strickland said in his order.

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The New York Times has an editorial today on the economic toll of the death penalty. Some stats it obtained from the Death Penalty Information Center:

According to the organization, keeping inmates on death row in Florida costs taxpayers $51 million a year more than holding them for life without parole. North Carolina has put 43 people to death since 1976 at $2.16 million per execution. The eventual cost to taxpayers in Maryland for pursuing capital cases between 1978 and 1999 is estimated to be $186 million for five executions.

Perhaps the most extreme example is California, whose death row costs taxpayers $114 million a year beyond the cost of imprisoning convicts for life.

As to how the money could be better used: [More...]

Last week we wrote about the new forensic report establishing that the fire for which Cameron Todd Willingham was executed in Texas was not arson, but accidentally set. Texas now has the dishonor, in addition to being the state that executes the most people, of being the first state we know of that has executed an innocent person.

This week's New Yorker has a must-read article on the case by David Grann.

Barry Scheck, co-director of The Innocence Project, has some thoughts on Grann's article and some suggestions for preventing another wrongful execution in Innocent But Executed. [More...]

We've previously written about Cameron Todd Willingham who was executed in Texas in 2004 for an arson/murder. Evidence was mounting that the fire was not arson, but accidental. See here, here, and here.

Steve Mills of the Chicago Tribune reports today that the forensic report requested by the Texas Forensic Science Commission, which is charged with investigating allegations of forensic error and misconduct, concludes the fire in the Willingham case was accidentally set.

In a withering critique, a nationally known fire scientist has told a state commission on forensics that Texas fire investigators had no basis to rule a deadly house fire was an arson -- a finding that led to the murder conviction and execution of Cameron Todd Willingham.

The finding comes in the first state-sanctioned review of an execution in Texas, home to the country's busiest death chamber. If the commission reaches the same conclusion, it could lead to the first-ever declaration by an official state body that an inmate was wrongly executed.

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The hearing of Texas Judge Sharon Keller on ethical violations stemming from her refusal to allow the courthouse to remain open to accept a last-minute stay pleading for a death row inmate wrapped up yesterday. The New York Times calls her unfit for the bench and says she should resign:

We believe the death penalty is in all cases wrong. But people who support it should still insist that it be carried out only after a prisoner has been given every reasonable chance to make his case. Judge Keller’s callous indifference in a case where the stakes could not have been higher makes her unfit for office.

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John Richard Marek was executed tonight in Florida as Gov. Charlie Christ and his staff monitored events from the Governor's office. 8 needles later, Mr. Marek was dead.

Gov. Christ allowed the AP to observe him for the 50 minutes before the execution, as he sat at his desk, reviewed the case file and had his staff check for any last minute stays with three courts.

6:05, "The needle has been inserted into the inmate's left arm."
- 6:06, "The inmate continues to remain calm."
- 6:09, "The needle has now been inserted in the inmate's right arm."
- 6:11, "The sheet that covers the inmate is now being placed over him."

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Professor Alan Dershowitz, writing in the Daily Beast today calls Justice Antonin Scalia's remarks about the death penalty a betrayal of both the Constitution and the Catholic Church.

The Supreme Court justice’s shocking remarks about capital punishment are not just a distortion of the Constitution, says Alan Dershowitz, they’re also an outrage against his church.

My views on Scalia's remarks are here. To recap, Scalia wrote in his dissent in the Troy Davis case:

“This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.”

Alan makes this analogy: [More...]

Via Left in Alabama, Justice Scalia had this to say about the Troy Davis case, in which he dissented from the majority which ordered Davis get a hearing on his innocence claim. Davis, you may know, has had one of the the most compelling claims of innocence in decades. According to Justice Scalia:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged "actual innocence" is constitutionally cognizable.

Left in Alabama responds:[More...]

The ethics trial of Texas Court of Criminal Appeals Judge Sharon Keller began today in San Antonio. The alleged improprieties stem from her refusal to keep the court open past 5:00 pm so Michael Wayne Richard's lawyers could file their request for a stay of his execution later that night. Richard was executed hours later.

Keller is charged with five counts of judicial misconduct that could end her career. .... A Republican who has served on the court since 1994, Keller is the highest-ranking judge in Texas to be put on trial by the commission.

The last minute filing request by Richards' lawyers was the result of a decision by the Supreme Court that morning to hear the case of Kentucky v. Baze, challenging the three drug cocktail for lethal injections. [More...]

The Supreme Court today ordered a new evidentiary hearing for Troy Davis. The Court directed the District Court in Georgia to “receive testimony and make findings of fact as to whether evidence that could have been obtained at the time of trial clearly establishes [Davis'] innocence.”

ScotusBlog reports here. The court order is here (pdf.) The dissenting opinon by Justices Scalia and Thomas is here (pdf). [More...]

Despite statistical evidence demonstrating that the death penalty is more likely to be imposed when a homicide victim is white, the Supreme Court has been unreceptive to the argument that statistics offer sufficient proof that any particular death sentence is racially discriminatory in violation of a defendant's right to equal protection of the law. Statistical evidence that the defendant's race plays a key role in the imposition of the death penalty due to discriminatory attitudes of prosecutors who seek the death penalty or the judges and jurors who impose it is more ambiguous, but even if it were stronger, Supreme Court precedent would seem to foreclose its use to challenge a death sentence.

North Carolina is poised to adopt a law that would allow statistics to play a meaningful role in race-based challenges to death sentences. The Racial Justice Act (pdf) would permit defendants facing death sentences as well as death row inmates to use "statistical evidence or other evidence" to prove "that race was a significant factor in decisions to seek or impose the sentence of death in the county, the prosecutorial district, or the State at large." A defendant who succeeds in making that showing would (if not yet convicted) not be subject to a death sentence, or (if already sentenced to death) have the sentence converted to a life sentence without parole. [more ...]

Two things I already knew: Sen. Jeff Sessions is a danger as the ranking Republican on the Senate Judiciary Committee and the Senate's Hate Crimes bill is ill-conceived legislation.

Things I now know: It's worse than I thought. The ACLU reports the Senate yesterday approved an Amendment by Jeff Sessions expanding the use of the death penalty for hate crimes. (Why not just life plus cancer as a penalty while he's at it?)

From the ACLU and then an action alert to get this removed.

The U.S. Senate yesterday passed an amendment extending the death penalty for certain hate crimes. The amendment, sponsored by Senator Jeff Sessions (R-AL), was added to the hate crimes amendment to the Defense authorization bill that passed last Thursday. In a letter sent to Senators, the American Civil Liberties Union urged lawmakers to oppose this misguided and wrong expansion of the federal death penalty.