Grid 360: The state of America's death penalty

South Carolina may soon carry out the United States’ first executions by firing squad in more than a decade. State officials have said that they plan to execute Richard Moore and Brad Sigmon using guns, the first such use of a firing squad since Ronnie Gardner was shot to death by the state of Utah on June 18, 2010, reported Grid.

Last week, nine days before Moore was to be executed, South Carolina’s Supreme Court put the execution on hold, but there’s no way of knowing how long that will last. Days later, the court also put Sigmon’s execution — scheduled for May — on hold. Although the court did not explain its reasoning, both men have an ongoing challenge to the state’s execution protocol, including its planned use of a firing squad.

How did we get here?

More than 45 years after the Supreme Court allowed executions to resume in the United States after a four-year hiatus, America is in a monthlong period in which five states planned to carry out six executions — the most in several years.

The situation offers a window into changing attitudes toward the death penalty and the complex brew of factors that have made these executions harder to carry out but also harder to challenge in courts. And the individual stories behind some of these current cases serve as a reminder of the well-documented racial bias in the way death sentences are handed down.

The death penalty’s popularity with the public has diminished in recent decades, and the overall number of new death sentences and executions has dropped significantly,

That’s due in part to the increased difficulty of carrying out lethal injection executions after death penalty opponents made it substantially harder for states to obtain the necessary drugs. States responded in part by adopting untried drug combinations. A series of botched executions followed — including the longest execution in U.S. history, when Arizona spent nearly two hours trying to kill Joseph Wood by using 15 doses of its execution drugs on the man before he died.

During that same time, the Supreme Court has made it more difficult to challenge any method of execution, setting a high bar for a method to be disallowed and by requiring challengers to identify an alternative method of execution.

Robert Dunham, the executive director of the Death Penalty Information Center, a nonpartisan organization that maintains a comprehensive database of U.S. executions, told Grid that part of the current influx of execution dates is a result of most states halting executions during the first year of the pandemic, before a covid vaccine was available.

This past week, Texas carried out its first execution of the year when it executed 78-year-old Carl Buntion. Tennessee also had planned an execution for last week, but it was called off with an announcement that highlighted two key elements of the modern death penalty: secrecy and errors. Hours before the state was slated to execute Oscar Franklin Smith by lethal injection, Gov. Bill Lee (R), citing “an oversight in preparation for lethal injection,” announced a reprieve. The execution will not happen before June, but state officials have not yet said anything more about what led to the last-minute reprieve.

Texas had a second execution scheduled for April, that of Melissa Lucio, but the state’s Court of Criminal Appeals on Monday announced a stay of execution as a trial court considers several claims Lucio has raised. These include that she is actually innocent in the 2007 death of her 2-year-old.

“While a whole bunch of states seem to want to restart … executions, they’ve been pretty bad at it,” Dunham said, describing the Tennessee developments and a series of moves by South Carolina that have led to repeated stays from the state’s Supreme Court. These include claiming, without providing evidence, that the state has been unable to obtain lethal injection drugs.

States that want to go forward with executions are returning to older methods due to the difficulty in obtaining lethal injection drugs.

Tennessee added the electric chair as a backup option to lethal injection in a 2014 bill. After a nearly 10-year break that coincided with that change and subsequent challenges to the changes, five of the seven people to have been executed in the state were electrocuted to death.

And now, South Carolina has added the firing squad into the mix.

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Cole: The Alito opinion would be like Plessy overturning Brown v. Board of Education

David Cole, national legal director of the American Civil Liberties Union and a professor at Georgetown University Law Center, wrote in the Washington Post.

In his leaked draft opinion for the Supreme Court overturning Roe v. Wade, Justice Samuel A. Alito Jr. points to Brown v. Board of Education, one of the Court’s most celebrated decisions, as support for his reasoning. Brown, after all, overturned Plessy v. Ferguson’s “separate but equal” doctrine, and marked the beginning of the end of the Jim Crow era.

But the difference between Brown and what the court appears poised to do in Dobbs v. Jackson Women’s Health Organization could not be more basic. In Brown, the court extended fundamental rights, as it has done in virtually all its decisions overturning constitutional precedents. A decision overturning Roe, by contrast, would eliminate the constitutional right to abortion altogether. The proper analogy is not Brown overruling Plessy, but a decision reviving Plessy, reversing Brown, and relegating Black people to enforced segregation after nearly 70 years of equal protection.

The doctrine of stare decisis acknowledges the importance of respecting settled expectations — and especially of not taking away rights that people have come to rely on. It holds that, absent extraordinary circumstances, the court must abide by its prior decisions, even and especially when the court’s roster changes. It’s what ensures that constitutional law is a rule of law, not a rule of nine individual jurists.

Of course, rights change over time, and modifications are inevitable as the court applies settled rules to new circumstances. Rights often expand or contract at the edges of constitutional law.

But outright reversals of precedent are few and far between, and reversals that deprive people entirely of constitutional rights are rarer still. Alito cites about 30 decisions in which the court overturned prior precedents, but fails to note that virtually every one involved expanding rights.

Just imagine, for example, if the court were to overrule Loving v. Virginia and announce that interracial couples no longer have a right to marry, or reverse Gideon v. Wainwright and deprive indigent criminal defendants of a lawyer. Yet, as Solicitor General Elizabeth B. Prelogar told the Supreme Court when it heard oral arguments in Dobbs, reversing Roe “would be telling the women of America that … the ability to control their bodies and perhaps the most important decision they can make about whether to bring a child into this world is not part of their protected liberty.”

Americans today enjoy rights to speech, to vote, to choose who they live with and marry, to exercise religion, to hold property, to privacy, and to equal protection that are far more generous than those recognized at the framing of the Constitution. While the court has whittled away at some of these rights, none of those prior decisions comes close to the tectonic shift that reversing Roe v. Wade would cause.

Alito cites West Coast Hotel v. Parrish, a 1937 decision that reversed course on a line of decisions ruling that business owners’ “liberty of contract” invalidated federal and state laws protecting workers and consumers. Parrish took away some rights of business owners, but its real effect was to expand rights protections for millions of Americans subject to exploitation by powerful corporations.

Overturning Roe would strip from every American woman one of the most important rights she enjoys — controlling how and when she has a child. It is a right that 1 in 4 American women has exercised by obtaining an abortion, and that virtually all women have relied on to plan their lives, families and careers. It would also depart radically from U.S. public opinion; poll after poll shows that Americans overwhelmingly oppose overruling Roe.

If the court follows through on its apparent intent, pending antiabortion laws in many states will take immediate effect and the consequences will be dire. People throughout the country will be hurt, none more so than those who already face challenges in accessing abortion because of low income, geographical isolation or difficult family situations. To compare that result with Brown v. Board of Education is an insult to Americans’ intelligence.

What is to be done? History teaches that the American people, not nine justices, ultimately determine our collective constitutional fate. If all those who care about this fundamental right stand up, organize, and vote, we can and will win back the right that the court stands poised to revoke. Civil rights activists did not take Plessy sitting down; nor should anyone treat Dobbs as the last word.

If the court overturns Roe, it should expect that the fallout, like the decision, will be unprecedented.

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Federal Court denies absolute immunity to prosecutor who fabricated evidence

 A Louisiana prosecutor and a detective lost their bids for absolute immune from a former murder defendant’s lawsuit alleging that they intimidated a juvenile witness to adopt a narrative about the crime they conjured from whole cloth, reported Bloomberg.

The prosecutor was acting as an investigator, rather than an advocate, and thus isn’t entitled to absolute prosecutorial immunity, Judge James L. Dennis said Tuesday. Police officers also aren’t “entitled to the absolute immunity reserved for a prosecutor,” the court said.

The 1998 murder of a pizza delivery driver in Livingston Parish, La., was a cold case until a jail-house informant implicated Michael Wearry. Although Wearry had an alibi, district attorney Scott Perrilloux and detective Marlon Foster allegedly intimidated a juvenile facing prosecution on other charges into testifying that he saw Wearry near the crime scene.

Wearry was convicted for the murder and sentenced to death, but the U.S. Supreme Court overturned the conviction, and the juvenile recanted his testimony. When Wearry sued Perrilloux and Foster for violating his civil rights by fabricating evidence, they both claimed absolute immunity.

Absolute immunity applies only when a prosecutor is performing advocatory functions, such as organizing, evaluating, and presenting evidence, the U.S. Court of Appeals for the Fifth Circuit said. The doctrine doesn’t apply to investigatory functions, such as gathering or acquiring evidence, it said.

Perrilloux and Foster detained and coerced the juvenile into testifying to a narrative that had no basis in any evidence gathered in the case, the court said. Fabricating evidence is evidence creation, which is not part of the advocate’s role, but a corruption of the investigator’s function of searching for clues and corroboration, it said.

Foster argued that since he and Perrilloux were accused of the same fabricating acts, Perrilloux entitlement to absolute immunity should apply to him, too. Not only has the Supreme Court rejected that exact argument, Perrilloux isn’t immune from Wearry’s suit, the court said.

Judge Carolyn Dineen King joined the opinion.

In a dubitante opinion questioning the continued validity of absolute prosecutorial immunity, Judge James C. Ho said “governing precedent requires us to grant prosecutorial immunity in this case.”

The Roderick & Solange MacArthur Justice Center represented Wearry. The Moody Law Firm represented Perrilloux. Breazeale, Sachse & Wilson LLP represented Foster.

The case is Wearry v. Foster, 2022 BL 153489, 5th Cir., No. 20-30406, 5/3/22.

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Missouri executes man who killed elderly couple during robbery

 The 5th Execution of 2022

A Missouri man who killed a couple during a robbery at their rural home more than a quarter of a century ago was put to death on May 3, 2022, becoming just the fifth person executed in the United States this year, reported NBC News.

Carman Deck, 56, died by injection at the state prison in Bonne Terre. He was pronounced dead at 6:10 p.m. His fate was sealed a day earlier when neither the U.S. Supreme Court nor Republican Gov. Mike Parson stepped in to halt the execution. Deck’s death sentence was overturned three times before for procedural issues.

Deck mouthed a few inaudible words as the 5 grams of pentobarbital were administered, then puffed out a couple of breaths before all movement stopped, the process lasting just a few seconds.

“My hope is that one day the world will find peace and that we all will learn to be kind and loving to one another,” Deck said in a written final statement. “We all are a part of this journey through life, connected in every way. Please give love, show love, BE LOVE!”

Parson, in a statement, said the couple killed, James and Zelma Long, “were innocent victims of Carman Deck’s heinous violence. Tonight, justice was served.”

Four other people have been executed in the U.S. in 2022 — Donald Anthony Grant and Gilbert Ray Postelle in Oklahoma, Matthew Reeves in Alabama and Carl Wayne Buntion last month in Texas. Eleven people were executed in the U.S. last year, the fewest since 1988.

Court records show that Deck, of the St. Louis area, was a friend of the grandson of the Longs, who lived in De Soto, about 45 miles southwest of St. Louis. He knew the couple, in their late 60s, kept a safe in their home.

In July 1996, Deck and his sister stopped at the home under the guise of asking directions. Deck wasn’t surprised the couple let them in.

“They’re country folks,” Deck told a detective, according to court records. “They always do.”

Once inside, Deck pulled a gun from his waistband. At Deck’s command, Zelma Long opened the safe and removed jewelry, then got $200 from her purse and more money hidden in a canister.

Deck ordered the couple to lie on their stomachs on their bed. Court records said Deck stood there for 10 minutes deciding what to do, then shot James Long twice in the head before doing the same thing to Zelma Long.

Prosecutors said Deck later gave a full account of the killings in oral, written and audiotaped statements. He was sentenced to death in 1998, but the Missouri Supreme Court tossed the sentence due to errors by Deck’s trial lawyer.

The U.S. Supreme Court threw out his second sentence in 2005, citing the prejudice caused by Deck being shackled in front of the sentencing jury.

He was sentenced to death for a third time in 2008. Nine years later, U.S. District Judge Catherine Perry determined that “substantial” evidence arguing against the death penalty in Deck’s first two penalty phases was unavailable for the third because witnesses had died, couldn’t be found or declined to cooperate.

In October 2020, a three-judge panel of the 8th U.S. Circuit Court of Appeals restored the death penalty, ruling that Deck should have raised his concern first in state court, not federal court. Appeals of that ruling were unsuccessful.

The clemency petition on behalf of Deck cited abuse he suffered as a child, including beatings that left welts and sexual abuse. It said he and his siblings often were left alone without food. Deck’s attorney, Elizabeth Unger Carlyle, said in a statement that Deck also was raped while in prison for theft at age 19.

“This experience transformed him from a non-violent thief into the person who committed two terrible murders,” Carlyle said. She called his execution “unjust and immoral.”

The number of executions in the U.S. has declined significantly since peaking at 98 in 1998. The drop has coincided with declining support, falling from a high of 80 percent in 1994 to 54 percent in 2021 according to Gallup polls. Since the mid-1990s, opposition has risen from under 20 percent to around 45 percent.

Use of the death penalty has become concentrated mostly in a few Southern and Plains states. Last year, Texas executed three inmates, Oklahoma executed two, and one each were put to death in Alabama, Mississippi and Missouri. Three federal inmates were executed in January 2021, toward the end of President Donald Trump’s administration.

On Monday, Tennessee Gov. Bill Lee paused executions in his state for the rest of the year to enable a review of lethal injection procedures after a testing oversight forced the state to call off the execution of Oscar Smith an hour before he was to die on April 21.

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Mangino discusses Alabama prison escape with Nancy Grace

Listen to my interview with Nancy Grace and Lauderdale County Sheriff Rick Singleton, Dr. Bethany Marshall, Percey Pitzer and D'Quan Lee as we discuss an Alabama accused murderer's escape from jail with the help of jail guard Vicky White.

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Mangino Discusses Depp/Heard Trial on Court TV

 Watch as I discuss the Depp/Heard defamation trial on Court TV with Judge Ashley Willcott. 

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Antisemitism growing rapidly in the Untied States

The Anti-Defamation League recently released a report showing that in 2021, there were more antisemitic incidents in America than in any other year since the group started keeping track over 40 years ago. “We’ve never seen data like this before, ever,” Jonathan Greenblatt, national director of the A.D.L., told Michelle Goldberg of the New York Times.

The rapid growth of Jew hatred isn’t limited to the United States. According to a new report from the Center for the Study of Contemporary European Jewry at Tel Aviv University, antisemitic incidents were up last year in such countries as Australia, Britain, Canada, France and Germany. Comparisons to 2020 might be misleading, because pandemic lockdowns likely reduced the numbers of antisemitic assaults and in-person harassment. But in several countries, including the United States, there were more antisemitic incidents in 2021 than in the prepandemic year 2019.

As the Tel Aviv University report pointed out, there are countless conferences, training programs and legislative proposals devoted to fighting antisemitism. “There is no shortage of organizations dedicated to the cause, which gained the commitment of world leaders,” it said. “The data presented in this report suggest that, despite all these efforts, something has gone terribly wrong.”

Something has obviously gone wrong. The question is, what?

Conservatives might be tempted to blame strident anti-Zionism, and that’s part of the story. Both the A.D.L. and researchers in Tel Aviv use a definition of antisemitism that can conflate it with anti-Zionism, concepts I think should be kept separate. It’s clearly antisemitic, however, when Israel’s enemies blame all Jews for the country’s treatment of the Palestinians. According to the A.D.L. report, of 2,717 antisemitic incidents in the United States last year, 345 involved references to Israel and Zionism. The examples detailed in the report aren’t ambiguous; they include Palestinian supporters pushing a man in a yarmulke into a glass window and yelling, “Die, Zionist!”

It’s a mistake to associate all of these 345 incidents with the left; 68 were “propaganda efforts by white supremacist groups to foment anti-Israel and antisemitic beliefs.” More broadly, right-wing extremism was behind 484 of all antisemitic incidents in the U.S. last year, 18 percent of the total.

The radicalization of the Republican Party has helped white nationalism flourish. Antisemitism started increasing in 2015, when Donald Trump came on the political scene and electrified the far right, then spiked during his administration. Trump is now gone, but the Republican Party has grown more hospitable than ever to cranks and zealots. Two Republican members of Congress, Marjorie Taylor Greene and Paul Gosar, spoke at a white nationalist conference this year.

The antisemitism of the QAnon conspiracy theory — always latent in its fantasies of elite blood-drinking cabals — has also become much more open. As the A.D.L. has reported, one of the most popular QAnon influencers, GhostEzra, “is an open Nazi who praises Hitler, admires the Third Reich and decries the supposedly treacherous nature of Jews.”

But for a huge number of antisemitic episodes, the political motive, if there is one, is illegible. According to Greenblatt, more than 80 percent of the incidents documented in the A.D.L. report “cannot be attributed to any specific extremist group or movement.” Much of the threat to Jews in America seems to come less from a distinct, particular ideology than from the broader cultural breakdown that’s leading to an increase in all manner of antisocial behavior, including shootings, airplane altercations, reckless driving and fights in school.

In 1899, Émile Durkheim, one of the fathers of modern sociology, wrote a short essay called “Antisemitism and Social Crisis.” It was an attempt by Durkheim, a French Jew, to grapple with the explosion of antisemitism accompanying the conviction of Alfred Dreyfus, a French artillery officer falsely accused of treason. Durkheim described how Jews were blamed for defeats in the Franco-Prussian War of 1870 and how a burst of antisemitism in 1848 followed an economic crisis the previous year. Similarly, he wrote, “our current antisemitism is the consequence and the superficial symptom of a state of social malaise.”

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