Tuesday, July 14, 2020

Daniel Lee (RIP), Wesley Purkey, Dustin Lee Honken and Keith Nelson: All facing the U.S. federal death penalty thanks to self-styled 'Law and Order' President Donald Trump and his sycophantic hired Gun U.S. Attorney General William Barr: The Federal Death Penalty has the veneer of respectability. But it’s just as flawed as the states’ killing machines. And 'junk science' is one of those flaws: An important commentary by death penalty lawyer Ben Cohen, published by 'The Appeal.'

UPDATE: "Just after publication on July 13, a U.S. district court judge ordered the Department of Justice to delay the executions of Daniel Lee, Wesley Purkey, Dustin Lee Honken, and Keith Nelson until further order of the court. After a U.S. Supreme Court ruling in his case, Lee was executed at approximately 2 a.m. on July 14. 
PUBLISHER'S NOTE: Donald Trump - America's self-styled 'Law and Order' president - has been given another gift by his Attorney General sycophantic (join the crowd)  hired-gun William Barr - his first execution - Daniel Lee. Although Trump may puff up his chest and bask in the unthinking applause of his idiotic base, death penalty lawyer Ben Cohen reminds us that while  the federal death penalty has the veneer of respectability, it is just as flawed as the state's killing machine - and that one of those common flaws is the role played by junk science in their processes.


QUOTE OF THE DAY: "A pervasive myth is that the federal death penalty is ‘the gold standard’ of capital punishment systems,” Lee’s attorney said in a June 29 statement. “This is false. The federal death penalty is arbitrary, racially-biased, and rife with poor lawyering and junk science. Problems unique to the federal death penalty include over-federalization of traditionally state crimes and restricted judicial review.”


COMMENTARY: "The Federal Death Penalty Has The Veneer Of Respectability. But It's Just As Flawed As the States' Killing Machines," by death penalty  lawyer Ben Cohen,  published by 'The Appeal' on July 13, 2020. (Ben Cohen is of counsel at the Promise of Justice Initiative, a New Orleans-based nonprofit that works to create positive change for people in the criminal legal system. Ben has been involved in four cases before the U.S. Supreme Court, including the landmark decision in Kennedy v. Louisiana, foreclosing the expansion of the death penalty to non-homicide offenses, and Ramos v. Louisiana, guaranteeing the right to trial by jury.) I admire Ben Cohen as well  for his successful battle to help free Rodricus Crawford, an innocent young black man  from death row in Louisiana - the subject of many posts on this Blog. Kudos  to 'The Appeal' for publishing this insightful commentary. HL.

SUB-HEADING:  "Bill Barr has scheduled executions for four people in July and August. That's more  federal executions in one month than in the entire modern history of  the death penalty."

GIST: "This week, the federal government will resume executions for the first time in 17 years.  The federal government has set execution dates this week for Daniel Lee, Wesley Purkey and Dustin Lee Honken, and a fourth for Keith Nelson in August. The execution of Daniel Lee, set for today, was stayed on Friday by a federal judge who cited coronavirus-related health concerns by the victim’s family who were supposed to attend.  Lee’s attorneys said that “the trial judge, the lead prosecutor, and the victims’ family all oppose executing Danny Lee and believe a life sentence is appropriate.” Attorney General William Barr appealed the court’s grant of a stay opposing the motion by the victim’s family to intervene, filed because they were selected to attend his execution amidst “an exploding pandemic” and “are in an untenable position because they cannot exercise their rights as witnesses without putting their own lives in danger.”  On Sunday, at Barr’s request, a federal appeals court overturned the stay, allowing Lee’s execution to go forward.   
Purkey’s attorneys say he has schizophrenia, Alzheimer’s disease, and dementia, and can’t comprehend why the federal government plans to execute him. Honken’s death sentence was imposed for murders committed in Iowa, which abolished the death penalty in 1965, and which could have prosecuted him noncapitally in state court.
These cases demonstrate that the federal death penalty is just as troubled as when it is administered in the states. “A pervasive myth is that the federal death penalty is ‘the gold standard’ of capital punishment systems,” Lee’s attorney said in a June 29 statement. “This is false. The federal death penalty is arbitrary, racially-biased, and rife with poor lawyering and junk science. Problems unique to the federal death penalty include over-federalization of traditionally state crimes and restricted judicial review.” 
Indeed, throughout the federal death penalty’s history, profound concerns over its lottery-like features and the troubling specter of racial, ethnic, and geographic disparities abound. Instead of providing a universal standard for death penalty cases, the federal death penalty exhibits all of the flaws of the states’ death penalty systems—under a veneer of Department of Justice respectability.
Since Congress passed the modern federal death penalty in 1988, 82 people have been sentenced to death. Three have been executed, two have received clemency, and one died while on death row. Fourteen people have been removed from the row. There are currently 63 people on federal death row, according to the Federal Death Penalty Resource Center.      
In 2010, I co-authored a study with Rob Smith (Smith is the Executive Director of the Justice Collaborative; The Appeal is an editorially independent project of the Justice Collaborative) called The Racial Geography of the Federal Death Penalty for the Washington Law Review. We found that seven federal districts were responsible for 40 percent of the people on federal death row. We noted how districts like the Western District of Missouri and the Eastern District of Missouri had highly disproportionate death sentencing rates compared to other districts with much larger populations, and many more murders. 
Reviewing these and many other statistics in 2015, U.S Supreme Court Justices Stephen Breyer and Ruth Bader Ginsburg expressed concern over the widespread geographic arbitrariness in the application of the death penalty, and called for the court to consider its constitutionality. They wrote: “Thus, whether one looks at research indicating that irrelevant or improper factors—such as race, gender, local geography, and resources—do significantly determine who receives the death penalty, or whether one looks at research indicating that proper factors—such as ‘egregiousness’—do not determine who receives the death penalty, the legal conclusion must be the same: The research strongly suggests that the death penalty is imposed arbitrarily.”
In the aftermath of botched lethal injections in Oklahoma in 2014, concerns about the execution of innocent people, and the persistence of racism in the application of the death penalty, then-President Barack Obama said he was instructing the Department of Justice to examine the federal protocol for executions. Attorney General Barr said the review was completed last year, but it’s unclear if the results have been publicly disseminated.  
Since we last examined the federal death penalty 10 years ago, geographic and racial arbitrariness appear even more pernicious. While there are 94 federal districts and 11 circuits, only 39 districts have ever returned a federal death sentence. Three districts—including the Western District of Missouri—are together responsible for more than one quarter of death sentences. Just 10 districts are responsible for over half of federal death sentences.   
Although there are 11 federal circuit courts of appeal, 54 of 82 defendants sentenced to death have been from the Fourth, Fifth, and Eighth Circuits.  
This is more true today than ever: All four of the warrants signed for execution are from the Eighth Circuit (two from the Western District of Missouri). And the victims in each case are white.   
There is no hiding from the racist history of the federal death penalty. More than half of the 82 people sentenced to death have been Black or Hispanic; in 48 instances, the case involves white victims.  Indeed, only two white defendants have been sentenced to death for killing a Black person, whereas 13 Black people have been sentenced to death for killing white people. And while it is unclear why  Attorney General Bill Barr selected four white defendants set for execution this summer, had he proceeded chronologically by date of sentence, nearly all of them would have been Black.    
Since the early 1970s, Congress, state legislatures, and the courts have unsuccessfully attempted to revise the administration of the death penalty to ensure that it is reserved for the most culpable people guilty of the most aggravated offenses—and that arbitrary factors like race, bias, and geography play no role.   
But less than 1 percent of the more than 800,000 murders between 1970 and today have been prosecuted federally, and, of those murders, juries have imposed death sentences on just 82 individuals.  The small number of federal death sentences might lead the public to imagine that the federal death penalty is reserved only for mass murderers, serial killers, terrorists, and drug-kingpin-murderers, but that is not the case. Because Congress has expanded the federal death penalty to reach almost any imaginable murder, arbitrariness based upon race of defendant, race of victim, and resourceshas increased.
Of the more than 5,000 eligible cases that have been prosecuted in federal court, seven judges are responsible for more than 30 percent of the death sentences. One judge has sentenced six people to death; another has sentenced five people. Two of the cases under warrant were sentenced to death by the same judge. A single assistant U.S. attorney is responsible for five death sentences across two separate jurisdictions. As well, the quality of defense counsel for people sentenced to death is often poor and constitutionally ineffective: Three defense attorneys in Missouri and Texas are responsible for about 10 percent of the defendants on death row, one of whom is scheduled for execution this month. 
We don’t yet have a national consensus on the death penalty, but it is a geographically narrow, personality-driven punishment. We have a Missouri and Texas federal death penalty or an Eighth and Fifth Circuit death penalty. This is not because there are more federal crimes in those jurisdictions—nearly any offense involving a gun and a robbery or drug deal can be a federal offense—but rather because of a sordid combination of local prosecutorial political expediency or gamesmanship, systemic deficiencies in defense counsel, and judicial indifference or outright antagonism to these systemic deficiencies.   
We don’t really have federal death penalty—just a national disgrace."
The entire commentary can be read at:


Read the post by  Ohio lawyer Jeff Gamso of 'Gamso for the defence' - one of the most persuasive commentators on the death penalty in America (and anywhere else), at the link below: (The post contains a statement from Ruth Friedman, attorney for Daniel Lee who was executed this morning.)

"Daniel Lewis Lee was killed early this morning at the federal prison in Terra Haute, Indiana, by agents of the federal government. It was the first federal execution in 17 years.  

The Supreme Court, by a 5-4 vote declaring that Lee had almost no chance of showing that the method of execution would violate the Eighth Amendment, cheered it on.  It was, the court majority  said, its "responsibility" to ensure that Lee got killed.  And so he did.
The following is a statement from Ruth Friedman, attorney for Daniel Lee who was executed this morning:
It is important for everyone to understand exactly what happened last night to our client, Daniel Lewis Lee. At 2 AM on July 14, while the country was sleeping, the Supreme Court issued a 5-4 decision vacating the injunction that had been in place against the first federal execution in 17 years.  Within minutes, the Department of Justice moved to re-set Danny Lee's execution--for 4 AM, summoning media and witnesses back to the prison in the very middle of the night.  When it was brought to the government's attention that a court stay still remained in place, the DOJ first maintained that that stay presented no legal impediment to executing Danny Lee, but then filed an "emergency" motion to lift the stay.  
Over the four hours it took for this reckless and relentless government to pursue these ends, Daniel Lewis Lee remained strapped to a gurney:  a mere 31 minutes after a court of appeals lifted the last impediment to his execution at the federal government's urging, while multiple motions remained pending, and without notice to counsel, he was executed. 
It is shameful that the government saw fit to carry out this execution during a pandemic.  It is shameful that the government saw fit to carry out this execution when counsel for Danny Lee could not be present with him, and when the judges in his case and even the family of his victims urged against it.  And it is beyond shameful that the government, in the end, carried out this execution in haste, in the middle of the night, while the country was sleeping.  We hope that upon awakening, the country will be as outraged as we are.
 -- Ruth Friedman, attorney for Daniel Lee and Director, Federal Capital Habeas Project--July 14, 2020
Amen." (That's how Jeff Gamso ends his post."

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic"  section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher: The Charles Smith Blog;
FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;