I can see the T-Shirts now, David.

"Don't let the door...slam on me"

The web page selling the shirts could be accompanied by a skewed version of Elton John's "Don't let the sun go down on me".

Kind of sounds like that guy who said, "Don't tase me, bro."

They do have a T-shirt online that says "Don't Tase me, Bro" but part of the proceeds are going to the "Jenna 6" defense fund.

Here is langauge from the recent 5th Circuit denial of a stay in a capital case. Sounds a lot like what happened in the Richard case. So, why isn't the media criticizing the defense lawyer for his dilatory tactics?

Berry v. Epps:

Well-established fifth circuit precedent is clear: death-sentenced inmates may not wait until execution is imminent before filing an action to enjoin a State's method of carrying it out. See, e.g., Harris v. Johnson, 376 F.3d 414, 416-17 (5th Cir. 2004). Such claims are dilatory and should be dismissed. See Smith v. Johnson, 440 F.3d 262, 263 (5th Cir. 2006). In Harris, our court stated: "[T]he mere fact that an inmate states a cognizable � 1983 claim does not warrant the entry of a stay as a matter of right . . . [a] court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief."

We do not decide whether Harris properly states a claim under � 1983, because even if he does, he is not entitled to the equitable relief he seeks. Harris has been on death row for eighteen years, yet has chosen only this moment, with his execution imminent, to challenge a procedure for lethal injection that the state has used for an even longer period of time. . . . Harris cannot excuse his delaying until the eleventh hour on the ground that he was unaware of the state's intention to execute him by injecting the three chemicals he now challenges.

Harris, 376 F.3d at 416-17 (emphasis added) (alteration in original) (citations omitted) (quoting Nelson v. Campbell, 541 U.S. 637, 649 (2004)).

A similar analysis is applicable to the claim at hand. Berry was convicted of murder 19 years ago and resentenced to death over 15 years ago. His conviction and sentence became final upon the 7 October 2002 denial of certiorari by the United States Supreme Court. Only now, mere days before his scheduled execution, does Berry first challenge the execution protocol used in Mississippi. Our precedent requires the dismissal of "eleventh hour" dilatory claims such as Berry's. See, e.g., Brown v. Livingston, 457 F.3d 390 (5th Cir.), cert. denied, 127 S.Ct. 10 (2006); Reese v. Livingston, 453 F.3d 289 (5th Cir. 2006); Smith v. Johnson, 440 F.3d 262 (5th Cir. 2006); White v. Johnson, 429 F.3d 572 (5th Cir. 2005); Harris, 376 F.3d at 414. Notwithstanding such precedent, Berry relies heavily on the Supreme Court's grant of certiorari in Baze, 2007 WL 2075334 (challenging the constitutionality of lethal injection), and the recent stays of execution ordered and affirmed by that Court and others. Regardless, this court has repeatedly explained: fifth circuit precedent "remains binding until the Supreme Court provides contrary guidance". Neville v. Johnson, 440 F.3d 221, 222 (5th Cir. 2006).

Apparently, Mr. Dow will not be accepting any responsibility for his dilatory filing. He provides NO EXPLANATION for waiting years to complain about the form of execution:

The Last Lethal Injection?
By David R. Dow
Thursday, November 1, 2007; A21

The Supreme Court's decision Tuesday to prevent the state of Mississippi from executing Earl Berry strengthened the court's de facto moratorium on the death penalty. In the past three weeks, the justices have also halted executions in Virginia and Texas. Executions are unlikely to be carried out until the court decides whether the lethal injection protocol used in nearly every state with the death penalty (the exception is Nebraska, which still uses the electric chair) violates the Eighth Amendment by causing the inmate to experience torture while being executed.

The moratorium began to take shape when the court announced Sept. 25 that it would review a Kentucky case, Baze v. Rees, and address the constitutionality of the three-step protocol of lethal injections. Perversely, though, the justices refused to intervene in a Texas case that came before them that evening. As a result, Michael Richard was executed about 8:20 that night. I was one of several lawyers representing Richard. We had not planned on raising a lethal-injection challenge in his case. Instead, we had pinned our hopes of saving Richard's life on the fact that he was mentally retarded.

Five years ago, the high court ruled that states cannot execute people who are mentally retarded. Richard had an IQ of 64 -- below the 70-point cutoff for mental retardation. Richard had not presented this claim in federal court because his court-appointed lawyer neglected to present the evidence of Richard's IQ to the federal judge. When the lawyer notified the U.S. Court of Appeals for the 5th Circuit that he had Parkinson's disease and needed to withdraw, the court denied him permission to do so. On the day of his scheduled execution, Richard had two petitions pending at the Supreme Court: They asked the court to conclude that the 5th Circuit hadn't given him a fair chance to present his evidence of mental retardation and that, even if it had, the state still could not execute a retarded man.

But the high court's decision that morning to hear the Kentucky case created another option.

Richard's lawyers, all volunteers, decided to write a new appeal for consideration in state court, raising the claim about lethal injections. It is well known now that Sharon Keller, the chief judge of the Texas Court of Criminal Appeals, refused to allow us to file the pleadings at 5:30 p.m., when we finished preparing them. (The Texas court, unlike the Supreme Court, does not accept electronic filings, and a series of computer crashes in our office in Houston delayed our preparation of 10 hard copies of the 100-page petition and thus our ability to deliver them on time to the court in Austin.) We pleaded with the court at least three times to stay open, but Keller would not make an exception to the policy that the clerk's office closes at 5. Keller has correctly been criticized, even vilified, for this decision. But the focus on Keller should not absolve the others who share responsibility for this preventable travesty.

The Texas attorney general's office, for example, knew of our intentions that day. Officials there also knew about the delay. Attorney General Greg Abbott could have advised the warden not to proceed with Richard's execution, but he elected not to. Gov. Rick Perry (R) knew what was happening but did not act. The district attorney's office was aware of the development in the Kentucky case and that we had attempted to file an additional pleading citing that development, yet that office also declined to act.

Finally, there is the Supreme Court. For half a decade lawyers have been trying to get the high court to review the constitutionality of the prevalent protocol for lethal injections. The justices knew what they had done that morning in the Kentucky case. They also knew -- because we told them in a last-minute pleading -- that the state court had closed its door on us.

Yet the justices did nothing. They allowed the execution to proceed. Judge Keller's decision, effectively consigning Michael Richard to death, was reprehensible. But it was also typical of the arbitrariness and brazen disregard for legal principle that characterizes most death penalty cases. Since the Supreme Court set this moratorium in motion with its announcement in September, nearly all of the more than 3,000 death row inmates in America have had their lives extended -- all, that is, except one.

David R. Dow is the Distinguished University Professor at the University of Houston Law Center. He works with the nonprofit Texas Defender Service and has represented more than 75 death row inmates. He is writing a book on the virtues of judicial activism.

At Richard's first trial, his attorneys told the jury that he scored 62 on an IQ test. Richard's IQ and possible mental retardation were not mentioned in his second trial. After the U.S. Supreme Court ruled in June 2002 that executing mentally retarded prisoners is unconstitutional, a hearing was held on Richard's mental retardation claim. A psychologist for the state, George Denkowski, reviewed Richard's IQ tests and determined him to be retarded. However, Harris Country officials succeeded in obtaining a new hearing in December 2006. Prosecutor Lynn Hardaway supplied evidence showing that Richard's activities in prison - including writing letters and playing chess - showed that he was not retarded, and that he had never been diagnosed as retarded during his childhood. Denkowski then changed his evaluation, stating that a low IQ test was not conclusive by itself. The courts ruled that Richard's claim of mental retardation was not proven, and rejected his appeals.



From:

http://www.clarkprosecutor.org/html/death/US/richard1099.htm

I notice that Mr. Dow does not mention that he waited another six days (until nearly closing time on October 1st) to file the exact same lethal injection claim in the Chi case, which had been scheduled for October 3rd.

Mr. Dow well knows that the claim, if filed in a timely manner, would be denied and leave him with nothing to complain about.

DA decides to hold off on some death penalty cases
County will wait until Supreme Court rules on punishment's constitutionality


By MIKE TOLSON and ALLAN TURNER
Copyright 2007 Houston Chronicle

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The Harris County District Attorney's Office said Wednesday it will place some of its capital cases on hold until the U.S. Supreme Court rules on the constitutionality of the lethal injection process next year.

It made little sense to pursue execution dates when those who already have them are receiving stays, District Attorney Chuck Rosenthal said.

"Since we don't know when the Supreme Court will rule, we thought we'd wait until they decided and then set them all," Rosenthal said.

The decision will affect only defendants who have been convicted of capital murder and sentenced to death, and whose appeals are nearing an end.

Roe Wilson, an assistant DA who handles appellate matters in capital cases, also said she will ask that an upcoming execution date for a man convicted of murdering an Humble woman and her 2-year-old son be withdrawn.

Derrick Sonnier, 40, is scheduled to die Feb. 26 for the 1991 rape and murder of Melody Flowers and the stabbing death of her son, Patrick. Sonnier attacked the pair after Flowers rejected his sexual advances, authorities said.

Dave Atwood, founder of the Texas Coalition to Abolish the Death Penalty, said the respite from executions was welcome, albeit likely short-lived.

"For people like myself, when there is any sort of break in this relentless execution machine, it's a good thing," Atwood said. "But I would be surprised if that subject matter caused this machinery to grind to a halt. I'm happy that they have (stopped asking for dates) because it might help with this image problem we have of pursuing the death penalty at all costs. But it only reflects that they just understand that the Supreme Court is not going to allow executions."

The high court agreed in September to hear the appeal of a Kentucky inmate who argued that the lethal injection method of execution violates the constitutional ban on cruel and unusual punishment. Such appeals have argued that the chemical cocktail used in most states could cause excruciating pain while masking the condemned prisoner's ability to express it.

That court's acceptance of the case has resulted in a de facto temporary ban on executions across the United States. On Tuesday, Supreme Court justices stepped in again, staying the execution of Mississippi killer Earl Berry just minutes before he was to die.

The only exception was 48-year-old Michael Wayne Richard of Houston, who went to his death just hours after the court said it would consider the Kentucky case. His lawyers contend they were unable to get courts to properly consider their last-minute appeal in light of the day's developments.

Adding to the uncertainty, a California judge Wednesday tossed out the state's lethal injection method, saying prison officials failed to treat the procedure as a new state regulation, which mandates public comment among other requirements.

Two executions are scheduled in Texas for early 2008, but neither is likely to go forward.

In Central Texas, Bell County District Attorney Henry Garza said he asked a judge to cancel a Jan. 24 date for Bobby Woods.

"It just seemed to me that the writing was very apparent," Garza said. "Now we'll let them rule, and we can come back in and act accordingly."

Karl Chamberlain of Dallas has a Feb. 21 date. A spokeswoman for Dallas County District Attorney Craig Watkins said the office will ask to withdraw the date if the Supreme Court has not ruled by then. The Kentucky case has not been set for oral arguments yet, so a decision by that date is unlikely.

In Texas, dates for executions are set by trial judges, typically at the request of local prosecutors. Wilson said her office waited to see how appeals courts responded to the Supreme Court's willingness to review the Kentucky case before deciding how to deal with execution dates.

When Richard's case proved to be an exception, it became clear there was little reason to pursue them, she said.

If the law is unchanged by the Supreme Court decision, executions could resume within a few months.

Twenty-six of the nation's 42 executions this year have taken place in Texas. No other state has had more than three. Harris County leads the nation in sentencing killers to death and seeing those sentences carried out.

The Associated Press contributed to this report.

mike.tolson@chron.com

allan.turner@chron.com

Some rephrasing would provide a more perspective. Let's start with: "relentless murdering convicts."

JAS

Isn't the "relentless" pursuit of justice a good thing? The word I object to is calling the process a "machine." Machines are far more efficient. A machine would carry out it's instruction to execute immediately. A machine would not care about due process or human rights, it would simply do what it was designed to do, not wait years or decades for defendants to exhaust every frivolous appellate argument they can make before carrying out its function. The family and friends of victims of murder who wait all those years to see justice done might wish the process was more machinistic.

Lethal injection constitutional, Florida Supreme Court says

By DAVID ROYSE
Associated Press

TALLAHASSEE, Fla. Florida's Supreme Court today upheld the state's lethal injection procedures as constitutional, possibly clearing the way for an execution scheduled for this month.

Ruling in separate appeals filed by two death-row inmates, the justices said Florida's execution methods did not amount to cruel and unusual punishment.

Lethal injection procedures are under review by the U.S. Supreme Court. The high court has allowed only one execution to be carried out since it agreed in September to hear a case from Kentucky that raises a similar challenge.

The state court did not rule specifically on a request for a stay of execution for Mark Dean Schwab, one of the two condemned inmates who challenged the procedure. Schwab is scheduled to be executed Nov. 15 if the stay isn't granted.

Schwab was convicted in the rape and murder of 11-year-old Junny Rios-Martinez.

"At this time, there is nothing prohibiting Schwab's execution from taking place as scheduled," said Sandi Copes, a spokeswoman for Attorney General Bill McCollum.

Schwab's attorney did not immediately respond to a request for comment.

In today's ruling, the state Supreme Court pointed to safeguards that were put in place after a December execution.

In that execution, it took 34 minutes twice as long as usual for convicted killer Angel Diaz to die. A subsequent probe found that the execution, not the underlying procedure, was the problem: Needles had been pushed all the way through Diaz's veins, reducing the effectiveness of the drugs.

The state Department of Corrections made changes, such as improving staffing and training for executions. Death penalty opponents argue the procedures remain insufficient to prevent inmates from suffering painful deaths.

The court rejected Schwab's appeal the same day it dismissed an appeal by condemned inmate Ian Deco Lightbourne. In Lightbourne's case, the Supreme Court said the way the Department of Corrections administers lethal injection is legal.

Suzanne Keffer, an attorney for Lightbourne, said the court didn't hear from state officials on whether the people charged with executing prisoners can do it correctly.

"We don't know what the qualifications of the people involved are. We don't know if the executioners are the same people who botched the Diaz execution," Keffer said. [Botched? Is Diaz still alive?]

Keffer said Lightbourne's lawyers were deciding whether to appeal to the U.S. Supreme Court.

Schwab argued in his appeal that the chemical procedure can cause excruciating pain, the same argument in the case before the U.S. Supreme Court. Schwab also had argued that newly discovered evidence would show he suffers from a brain impairment, a claim the state Supreme Court rejected.

A spokeswoman for the state Department of Corrections said today that the agency stands ready to carry out an execution if the courts don't intervene. [And if Mr. Dow's computer doesn't develop new problems.]

A date hasn't been set for Lightbourne's execution. Lightbourne was convicted in the 1981 killing of Nancy O'Farrell after breaking into her Marion County home.

Contrary to the wailing and gnashing of teeth you hear from abolitionist-types, this sort of polling information shows where the average Texan falls on this issue:

12. The U.S. Supreme Court will rule next year on whether administering the death penalty via lethal injection constitutes "cruel and unusual" punishment. Should Texas halt all death penalty executions until the Supreme Court reaches a decision?

27% Yes

63% No

10% Not sure

Game, set, match?

(source: FOX TV/Rasmussen Texas Poll)

[This message was edited by Shannon Edmonds on 11-07-07 at .]

quote:

---

27% Yes

---

Probably California transplants + RTC.

This issue was part of a Public Forum debate during the McNeil/Lehrer News Hour. You can find a transcript here:

Insider Forum

I was directed here by SCOTUSblog.

With at least 10,000 computer geeks and dozens of electrical engineering and computer science Phds at the University of Houston, why could no one make a printer work? While every minor failing of a prosecutor gets given the most evil spin, no one dares ask this question? If we failed to timely provide Brady material due to "computor problems" I am sure the Defender Service would say, "oh sure, totally reasonable, we withdraw our complaint."

I bet the good professor would always accept "computor problems" as a perfectly good excuse for late work.

Or perhaps I am too harsh.

Two days after Richard was executed, Dow filed the last minute writ in the Turner execution scheduled out of Dallas County. Dow sent a local lawyer here to do the filing in the trial court.

Dow was contacted by phone from the judge's chambers to see if he was going to file a copy of his writ into the CCA, as they usually do to save time. He was not willing to do so, which shocked me and everybody else in the room. So, I (the Big Bad Prosecutor) babysat the fax transmission of his writ to the CCA.

So I think it is a good question to ask whether Dow's computer problems in Richard are sincere and what, exactly, are his motives when it comes to this stuff? If it would help stay Turner's execution by taking a paper copy to the CCA (through local counsel, as he had done here in Dallas), why not do it? Could it be his ego took priority?

The following week, the Chi attorneys (one of whom was Mr. Dow) waited until after 4:30 on Monday to file his subsequent writ. This late filing left the clerk's office scrambling on how to get this writ to Austin since they are only authorized to send matters by regular U.S. mail. The clerk's office eventually had to fax the entire 100+ page writ and exhibits to Austin.

The Chi writ was not filed until two days before his scheduled execution even though the attorneys for both sides had been contacted the previous Tuesday on whether the parties were going to file any further writs.

[This message was edited by SWC on 11-08-07 at .]

A lawyer has filed a federal lawsuit against Judge Keller asking for an undetermeind amount of damages for the "widow" of the executed murderer. The proposed legal reasoning: the sole reason for the murderer's death is Judge Keller not allowing a late filing.

I wonder if the attorney representing the woman is the same or connected with the attorneys who didn't file on time?

Stop looking for reasonable legal arguments in these developments. The anti-death penalty crowd has stumbled on an issue that the media is willing to use against the death penalty. All logic and reason has left the room, at least until the SCOTUS rules that lethal injection is constitutional. And, then, the wailing will resume.

Maybe Judge Keller will use a cross claim to pull the appellant attorney and his computer support staff into the civil suit on some theory of contributory negligence by proxy. They then, in turn, file a counter claim against appellant's estate claiming appellant's tortuous (and murderous) behavior is the root cause. Is it circular logic or logically circular?


The only person the widow should blame is her late husband.