Nebraska carries out first execution in twenty-one years

The 16th Execution of 2018

Nebraska carried out its first execution in more than two decades on August 14, 2018 with a drug combination never tried before, including the first use of the powerful opioid fentanyl in a lethal injection, reported The Associated Press.

Carey Dean Moore, 60, was pronounced dead at 10:47 a.m. Moore had been sentenced to death for killing two cab drivers in Omaha in 1979. He was the first inmate to be lethally injected in Nebraska, which last carried out an execution in 1997, using the electric chair.

Witnesses said that there appeared to be no complications in the execution process, which also was the first time a state used four drugs in combination. Moore remained mostly still throughout the execution but breathed heavily and gradually red and then purple as the drugs were administered.

Media witnesses including The Associated Press saw Moore take short, gasping breaths that became deeper and more labored. His chest heaved several times before it went still. His eyelids briefly cracked open.

At one point while on the gurney, Moore turned his head and mouthed several words to his family, including “I love you.” No members of the victims’ families witnessed the execution.

The Department of Correctional Services said the first lethal injection drug was administered at 10:24 a.m. Moore was declared dead at 10:47 a.m.

In his final written statement , Moore admitted: “I am guilty.” But he said there are others on Nebraska’s death row who he believes are innocent and he said they should be released.

“How might you feel if your loved one was innocent and on death row?” Moore asked.

The execution drew only about a dozen death penalty supporters and protesters who stood in the rain outside the Nebraska State Penitentiary in Lincoln. Death penalty opponents planned to gather outside the Nebraska Capitol at 5 p.m. for their own rally.

The light turnout stood in contrast to the 1994 execution of Harold Lamont Otey, when more than 1,000 people created a raucous, party-like atmosphere. Otey was executed shortly after midnight in the electric chair, and some in the crowd sang the song “Na Na Hey Hey Kiss Him Goodbye” after it was announced. Later executions were scheduled at 10 a.m.cribe to The Morning Email.

Top of Form

Bottom of Form

Moore’s execution comes a little more than three years after Nebraska lawmakers abolished the death penalty, only to have it reinstated the following year through a citizen ballot drive partially financed by Republican Gov. Pete Ricketts. The governor, a wealthy former businessman, has said he was fulfilling the wishes of voters in the conservative state.

The Nebraska drug protocol called for an initial IV dose of diazepam, commonly known as Valium, to render the inmate unconscious, followed by the powerful synthetic opioid fentanyl, then cisatracurium besylate to induce paralysis and stop the inmate from breathing and potassium chloride to stop the heart.

Diazepam and cisatracurium also had never been used in executions before.

According to prosecutors, Moore was 21 when he fatally shot Reuel Van Ness during a robbery with his younger brother, and used the money to buy drugs and pornography. Moore fatally shot Maynard Helgeland by himself five days later, saying he wanted to prove he could take a man’s life by himself. Moore was arrested a week later. He was charged and convicted of first-degree murder, while his 14-year-old brother was convicted of second-degree murder.

In his statement, Moore also apologized to his brother for dragging him into the robbery and murder.

“I should (have) led him in the right way to go instead of bringing him down, way down,” Moore said.

Moore had faced execution dates set by the Nebraska Supreme Court seven times since he was convicted, but each was delayed because of legal challenges and questions over whether previous lethal injection drugs were purchased legally. For some relatives of Moore’s victims, that was far too long — and they hope his name and crimes will finally vanish from headlines.

To read more CLICK HERE

DOJ fights efforts to expand 'Brady Rule'

The Justice Department is taking on the Tennessee Supreme Court’s Board of Professional Responsibility over the Brady Rule--the responsibility of the prosecution to turn over evidence to the defense, reported The Marshall Project.

It’s the kind of little-noticed move the department makes all the time but could have a lasting impact on the criminal justice system.

The department’s grievance is with an opinion published by the Tennessee Supreme Court’s Board of Professional Responsibility earlier this year announcing that prosecutors have a higher ethical obligation to divulge certain kinds of evidence than what’s legally required of them under the Constitution. That may seem like a nitpicky distinction. But in June, the department’s three U.S. attorneys in Tennessee penned a scathing 10-page letter demanding to appear before the board — a hearing that has now been scheduled for September.

“The DOJ can’t stand it when states try to use ethics to restrain their prosecutors’ conduct,” said Jennifer E. Laurin, a law professor at the University of Texas and an expert on discovery, who noted that federal prosecutors have been complaining about discovery rules since long before the Trump administration.

The Tennessee case revolves around what any prosecutor in the state, local or federal, should do with evidence that could prove a defendant’s innocence. The U.S. Supreme Court has ruled in the famous Brady v. Maryland and other decisions that district attorneys are duty-bound to disclose this evidence only when it’s “material” to a case — in other words, when it would probably change the outcome.

The Justice Department believes that guidepost is enough.

But over the past decade, lawyer ethics panels in at least a dozen states, now including Tennessee, have said it’s a vague and impotent standard. Prosecutors, these agencies say, are left to define “materiality” however they see fit, judging for themselves whether a piece of evidence might be useful to the defense or not.

Typically, prosecutors also don’t turn over evidence until trial. Yet estimates are that more than 95 percent of criminal cases are decided long before then, during plea bargaining.

To read more CLICK HERE

The 'circuitous and chaotic' path to Nebraska's upcoming execution

Nebraska intends to carry-out an execution tomorrow morning. It will be the first execution in Nebraska in more than 20 years.

The recent history of the death penalty in Nebraska has been circuitous and chaotic, reflecting the deep divisions over the punishment that mark the U.S. as a whole. reported The Marshall Project.

Though many have been sentenced to death in the state, only three people have been executed there since the 1950s, all in an electric chair. In 2008, the state supreme court declared electrocutions to be “cruel and unusual punishment.” Nebraska’s legislature responded by changing the method to lethal injection, making it the last state in the U.S. to adopt this method.

But nobody was executed, and then in May 2015 the legislature voted to repeal the death penalty altogether. It surprised many to see a largely conservative state make this move, but many Republican legislators said they were swayed by the punishment’s high financial cost. Governor Pete Ricketts did not agree, and he vetoed the repeal. The legislature managed to override his veto, but only by a single vote.

Anti-death penalty activists celebrated, but the story still wasn’t over. Grassroots pro-capital punishment activists campaign began to collect signatures — at car insurance agencies, farm equipment dealers, and other storefronts — for a petition to revive the death penalty through a public vote. Gov. Ricketts donated to the campaign, and it prevailed. In November 2016, Nebraska voters decided to bring back executions.

And still nobody was executed. Finally, in 2018, the state began preparing to carry out its first ever lethal injection. Carey Dean Moore, the state’s longest serving death row inmate, had decided he would no longer fight his appeals. Nebraska officials had struggled to find lethal injection drugs, and they announced a never-before-used four-drug combination featuring the opioid fentanyl.

To read more CLICK HERE

Murder clearance rate at lowest point ever

The national murder clearance rate—the percent of cases that end with an arrest or identification of a suspect who can’t be apprehended—fell to 59.4 percent in 2016, the lowest it’s been since the FBI has tracked the issue, reports The Crime Report. “If we don’t address it, the issue is just going to get worse,” said Jim Adcock, a former coroner who started the Mid-South Cold Case Initiative to help police departments looking to bolster their cold case units. Chicago, which cleared only 26 percent of homicides in 2016, is just one among many cities struggling to solve gun crimes. The problem has been exacerbated by politics, fear, a no-snitching philosophy mentality pervasive in some enclaves, diminished resources for law enforcement and discontent with policing in minority communities. Gangs fueling much of the violence have become less hierarchical. They have also become more perplexing for investigators to understand, said Peter Scharf, a Louisiana State University criminologist, reported the The USA Today.

In cities like Baltimore, Chicago and New Orleans—which cleared under 28 percent of its homicide cases in 2016—the fracturing of gangs has added a difficult dimension for detectives. “It’s a national disaster,” said Scharf. “With every one of these weekends where you see multiple killed and even more wounded and few arrested, the gangs become more emboldened and the witnesses weaker in their conviction to step up.” Memphis, where Adcock is based, saw its homicide clearance fall to 38 percent in 2016. Cities like Boston have made headway. Between 2007 and 2011, the city solved 47.1 percent of homicides. After focusing on the issue, police improved the clearance rate to 56.9 percent. The department increased the amount of evidence analyzed by the crime lab and interviewed more witnesses promptly at crime scenes, say Anthony Braga, a Northeastern University criminologist, and Desiree Dusseault, deputy police chief of staff.

To read more CLICK HERE

GateHouse: Impeachment madness

Matthew T. Mangino

GateHouse Media

August 10, 2018

The high drama of impeachment is being wielded as a political tool on a state and federal level.

West Virginia’s House Judiciary Committee has adopted articles of impeachment against the state’s entire Supreme Court of Appeals, accusing the judges of a range of crimes.

 “It’s a coup,” said Delegate Barbara Evans Fleischauer, a Democrat who is the judiciary committee’s minority chair. Fleischauer told NPR that she sees the timing of the impeachment as a ploy to allow GOP Gov. Jim Justice to appoint the majority of the justices on the state’s highest court. Any new justices would then serve until the next election in two years’ time.

A dozen GOP Pennsylvania lawmakers filed articles to impeach against four Democratic state Supreme Court justices who ruled the state’s congressional map was unconstitutionally gerrymandered and replaced it with a new one.

House Republicans in Congress have filed articles of impeachment against Deputy Attorney General Rod Rosenstein, who is overseeing Robert Mueller’s investigation of Russian collusion in the 2016 election.

California Congressman Devin Nunes, speaking at a recent Republican dinner, said Rosenstein hasn’t been impeached because of the midterm elections saying that Republicans could be the only force stopping President Donald Trump from being impeached.

Articles of Impeachment have been filed against President Donald Trump. He is accused of obstruction of justice related to the firing of FBI director James Comey, undermining the independence of the federal judiciary, accepting emoluments from a foreign government and other charges. In January the House tabled the Articles of Impeachment against Trump.

Is political acrimony the only criteria for impeachment?

When Gerald Ford was minority leader in the U.S. House of Representatives, he sought to impeach liberal Supreme Court Justice William O. Douglas. When asked what an impeachable offense was he said “whatever a majority of the House of Representatives considers it to be at a given moment in history.”

The Constitution allows for the impeachment and removal of an official of the government. Specifically, Article 2, Section 4 states that the “President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

There is no controlling authority on how lawmakers choose to interpret that standard, which makes it as much a question of political will as of legal analysis, according to the New York Times.

Although impeachment is often threatened, it is seldom used. There have been nine federal impeachments in the last 100 years. Four of those impeachments ended without a conviction including President Bill Clinton in 1999.

Politics and impeachment are not new.

In 1802, three justices of the Pennsylvania Supreme Court were impeached by the House, essentially for political reasons, but not convicted in the Senate.

In 1803, Vice President Aaron Burr presided over the impeachment trial of Supreme Court Justice Samuel Chase. Burr was under indictment himself for the killing of Alexander Hamilton. The impeachment was really a bitter fight between the Adam’s Federalists and the Jefferson Republicans. Chase was acquitted and Burr was later charged with treason.

Burr’s victim, Hamilton, presciently warned in “Federalist Paper No. 65” that a trial in the Senate of a public official cannot escape the influences of politics, “In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”

The more things change the more they stay the same. Don’t fret — America is not on the verge of a political apocalypse. Today’s politics may seem a bit extreme, but at least the vice-president hasn’t shot any members of the president’s cabinet.

— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

To visit the column CLICK HERE

Tennessee executes killer of 7-year-old girl

The 15th Execution of 2018

Death row inmate Billy Ray Irick died at 7:48 p.m. CDT Thursday after Tennessee prison officials administered a lethal dose of toxic chemicals, reported The Tennessean. 

His execution, the first in Tennessee since 2009, comes after his 1986 conviction in Knox County for the rape and murder of 7-year-old Paula Dyer. 

Witnesses to the execution included members of Paula's family, Knox County Sheriff Jimmy "J.J." Jones, Tennessee Deputy Attorney General Scott Sutherland, Irick's attorney Gene Shiles and seven members of the media.

Irick is the 133rd person put to death by Tennessee since 1916. Before Irick, all but six executions occurred before 1961.

Moments before officials began administering the fatal doses, Irick, held down by straps over his chest and arms, muttered his final words: "I just want to say I'm really sorry. And that ... that's it."

The execution began later than scheduled. The blinds to the execution room lifted at 7:26 p.m., 16 minutes later than expected.

Irick, with nearly shoulder-length hair, a scraggly beard and dressed in a white prison jumpsuit and black socks, was coughing, choking and gasping for air. His face turned dark purple as the lethal drugs took over.

"I never thought for one moment that it would come to this," Shiles said inside the prison before the execution began. "I never did."

Witnesses entered the execution viewing chamber at 6:43 p.m., where prison officials turned out the lights until the blinds to the glass were lifted.

"I’m here first and foremost for the victim Paula Dyer and for the citizens of Knox County, the same citizens that convicted him and sentenced him to death," Jones said. "I wanted to hear some more from him. You’re always looking for that explanation.”

'He knew what he was doing': Looking back on Paula Dyer's last day on Earth

Shiles and Sutherland left the viewing room at 7:12 p.m., presumably to go into the execution chamber and observe Irick's IV being administered.

When the two men returned to the observation room around 7:25 p.m., Shiles told witnesses that he kissed Irick and touched him.

Moments later, after the blinds lifted and Irick made his statement, the administration of a combination of powerful and deadly drugs commenced.

Family members of Paula watched in a separate room off the execution chamber that was visible to other witnesses, including the media witnesses. One man leaned up close to the glass and bit his nail. A woman had her face pressed almost to the window.

First the executioner injected Irick with midazolam, a drug intended to render Irick unconscious. 

After Riverbend Warden Tony Mays determined Irick was unconscious, the executioner injected vecuronium bromide and potassium chloride, drugs intended to stop Irick's lungs and heart. 
To read more CLICK HERE

'We don't really have a criminal justice system . . . '

Glenn Harlan Reynolds, Opinion columnist for the USA Today wrote:

The truth is, we don’t really have a criminal justice system. Mostly, what we have is a plea-bargain system. Police arrest people, prosecutors charge them with crimes, and then a deal is struck. When the police search and arrest you, you have a lot of constitutional due process rights, but they’re mostly enforceable only if you go to trial. If you go to trial, you have a lot of constitutional due process rights there. But the prosecutor’s decision to charge you with a crime (and what to charge you with), which is key to the plea bargain deal, is subject to virtually no constitutional protections at all.

Once charged with a crime, defendants are in a tough position. First, they must bear the costs of a defense, assuming they are not indigent. Second, even if they consider themselves entirely innocent, they will face strong pressure to accept a plea bargain — pressure made worse by the modern tendency of prosecutors to overcharge with extensive "kitchen sink" indictments: Prosecutors count on the fact that when a defendant faces dozens of felony charges, the prospect that a jury might go along with even one of them will be enough to make a plea deal look attractive.

Because the vast majority of cases result in plea bargains, not trials, all the constitutional due process rights make little difference. The result is something that, except in rare cases where the crime is high-profile or the defendant is rich, doesn’t look much like what’s taught in civics classes. It looks more like a conveyor belt to prison, because that’s basically what it is.

To read more CLICK HERE