Delaware Death Penalty News

[Jeff1857]

WILMINGTON -- A hearing has been set for May 14 on the federal challenge to Delaware's use of lethal injection as a method of execution.

District Judge Sue L. Robinson told attorneys representing Delaware's death row inmates and attorneys for Delaware's Department of Correction to "be prepared to address the specific procedures that have been employed by the Department of Correction for death by lethal injection in light of the Supreme Court's opinion in Blaze v. Rees."

That Supreme Court's decision Wednesday upheld the use of lethal injection as practiced by the state of Kentucky.

The challenge to Kentucky's use of lethal injection virtually was identical to the Delaware challenge. The Federal Defender Association of Philadelphia filed the challenge on behalf of the state's death row inmates in 2006. Robinson then put all Delaware's executions on hold while she considered the case.

The Delaware and Kentucky claims allege the three drug lethal injection sequence could cause unnecessary -- and unconstitutional -- pain and suffering.

Legal experts who reviewed this week's Supreme Court decision said the court apparently reached its conclusion that Kentucky's use of lethal injection was constitutional -- and did not present an unreasonable risk of pain and suffering -- because of its detailed procedures and protocols.

They said that other challenges in other states would likely turn on how their procedures compare to those in Kentucky.

State officials declined to comment on the hearing. The Attorney General's Office declined comment.

Michael Wiseman, the lead attorney for the death row inmates, said there are some differences between the two states that "could open the possibility for a trial on the issues in this case."

"It would appear Delaware protocols lack some of the things required to comply with the Eighth Amendment," he said. The Eighth Amendment is part of the Bill of Rights and prohibits cruel and unusual punishment.

The May hearing will not be in open court. Robinson has set them to take place in her chambers.
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Translation: Delaware procedures have a couple of different words in them than Kentucky so it's illegal.......DENIED.......

[Jeff1857]

DOVER — A Superior Court judge has dismissed a lawsuit filed by a death row inmate challenging Delaware's lethal injection process.


Ax murderer Robert Jackson III argued in his lawsuit that the state's execution policies and procedures were illegally promulgated because the Department of Correction did not allow for public review and comment.

Lawyers for the state argued that the Department of Correction is exempted by statute from having to publicly promulgate its execution policies and procedures for lethal injection.

In a ruling handed down last week, Superior Court Judge Richard Cooch agreed, granting the state's request to dismiss the lawsuit.

Meanwhile, a U.S. District Court judge will meet with attorneys next month to discuss a federal lawsuit filed by Jackson and other inmates claiming that lethal injection is cruel and unusual punishment.

[Jeff1857]

Judge: More hearings needed on Del. death penalty


Delaware will not be resuming executions anytime soon.


This morning in federal court, District Judge Sue L. Robinson told attorneys that she wants to hold an evidentiary hearing -- perhaps as long as 4 days -- later this year to consider Delaware's execution protocols and if they pass constitutional muster.

The U.S. Supreme Court recently ruled in a Kentucky case that the procedures used by that state were sufficient to guard against unnecessary and unconstitutional pain and suffering.

At today's hearing, attorneys representing the state of Delaware argued that Delaware's protocols are virtually identical.

Federal Public Defenders representing Delaware's death row inmates, let by attorney Michael Wiseman, charged they were significantly different.

Robinson said she needed to hear more and turned down a request by Deputy Attorney General Elizabeth McFarlan for summary judgment, citing the Supreme Court ruling in Kentucky. "This is a case of life and death," said Robinson, and not one she was going to dispose of "on a stack of papers."

Robinson said she wanted to see and hear from experts before making a ruling.

The judge then set June 23 for a "pre-trial" hearing, where the date and time of a 4-day bench trial on the issue would be set.
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Seems like they found a liberal judge to prolong this.

[Jeff1857]

A federal judge in Wilmington is scheduled Monday to hold a pre-trial hearing on a lawsuit challenging Delaware's use of lethal injection.

The lawsuit claims the state's lethal injection protocol presents a substantial risk of unnecessary pain to condemned inmates. U.S. District Court Judge Sue Robinson must decide if Delaware's protocol is substantially similar to Kentucky's protocol, which has Supreme Court approval.

Attorneys are expected Monday to discuss specific issues to be addressed and expert witnesses they want to call at the upcoming trial.

Last month, Robinson declined a request from plaintiff's lawyers to allow additional discovery in the case, but she also rejected the state's request for summary judgment.

http://cbs3.com/local/death.penalty.delaware.2.754449.html

[Jeff1857]

Doctors to testify on lethal injections----Each side in death-penalty suit to bring in an anesthesiologist


A federal judge said she was "stunned" on Monday that Delaware has not adopted a U.S. Supreme Court-approved standard for carrying out executions to resolve a lawsuit challenging the state's use of lethal injection.

District Judge Sue L. Robinson said it was clear to her that there are differences between Delaware's execution protocols and those used in Kentucky, which the high court found met constitutional muster earlier this year.

However, Robinson said, she does not believe she is qualified to tell if the differences are significant or not. "It is not a question of law. I need expert testimony."

So she set Sept. 10 to hear from opposing experts in the class-action lawsuit brought by Delaware's death-row inmates. The civil action charges that the state's policies are so flawed -- and rarely followed -- that they violate the constitutional protection against cruel and unusual punishment.

Attorneys representing Delaware responded that the state's execution protocols are equal -- if not more stringent -- than those used in Kentucky. Deputy Attorney General Elizabeth McFarlan also told Robinson on Monday that simply adopting the Kentucky standard would not satisfy the plaintiffs.

Robinson directed that there will be two podiums in the courtroom on Sept. 10 and she will guide the conversation between the experts, both anesthesiologists, who will debate Delaware's execution policies and procedures. The judge will then allow the attorneys from the Philadelphia Federal Community Defender Office, who are representing death-row inmates, and attorneys representing the state to call each doctor to the stand separately to clarify any issues.

Robinson ordered all executions in Delaware to be put on hold shortly after the imate lawsuit was filed in 2006.

At Monday's brief hearing, Robinson highlighted one difference she found troubling -- echoing a concern raised by the plaintiffs -- the issue of who was in charge during executions. "There doesn't seem to be anyone who takes responsibility," she said.

McFarlan disagreed, saying it was clear that the warden is the authority.

McFarlan could not cite exactly where in the state's protocols that was stated because attorneys for Delaware had not brought a copy of the document with them.

Robinson initially said she was not inclined to allow the plaintiffs to call witnesses to testify about past problems with Delaware executions, saying it appeared to be irrelevant. She said she wanted the Sept. 10 hearing to focus on the current -- and as yet untested -- protocols.

However, Robinson appeared to leave the matter open to further consideration after hearing from Federal Community Defender Michael Wiseman, who argued that the evidence would be useful if Robinson ends up finding for the plaintiffs and has to craft some kind of remedy for the violation.

The plaintiffs are arguing that Delaware should drop the 3-drug lethal injection protocol -- which has appeared to cause problems in the past -- and adopt a 1-drug execution method.

The 3-drug method includes an anesthetic, a paralyzing agent and a drug that triggers a heart attack.

The 1-drug method, which is used by animal doctors, would be a single overwhelming dose of a barbiturate to cause death.

[Jeff1857]

Court documents outline lethal injection changes


Under Delaware's new execution procedure, officials will draw a curtain and ensure that a condemned inmate is unconscious before administering lethal drugs, according to court documents unsealed in a class-action lawsuit by death row inmates.

Among other things, the new procedure is meant to make sure the inmate is fully sedated before two lethal chemicals are administered.

Lawyers for the inmates contend among other things that murderer Brian Steckel was put to death in 2005 without the proper anesthesia.

According to court documents unsealed this week, prison officials will now wait 2 minutes after the injection of the sedative sodium thiopental and a saline flush before proceeding with the execution.

During the waiting period, a curtain between the execution chamber and the witness room will be drawn while officials determine whether the inmate is unconscious.

The curtains will then be reopened. If the inmate is unconscious, the lethal chemicals, pancuronium bromide and potassium chloride, will be injected. If not, a backup intravenous line will be used to administer a new dose of anesthesia. The curtains would then be drawn again while officials assess the inmate before continuing with the execution.

The efforts to ensure the inmate is unconscious are part of the Department of Correction's effort to win federal court approval of its execution procedures.

After first asserting that Delaware's procedure was more detailed than a Kentucky protocol upheld in April by the U.S. Supreme Court, officials decided instead to embrace some of Kentucky's methods.

A mediation hearing in the case is scheduled for Oct. 27. A Department of Correction spokesman declined to comment Tuesday, citing the pending litigation.

According to a July court filing, state officials identified 11 differences between Delaware's protocol and Kentucky's. The planned changes include adopting the same sequence and quantities of drugs used in Kentucky, as well as the procedure to ensure that the inmate is fully sedated.

Officials also plan to keep the lights on in the injection room instead of having it darkened, which can increase the risk of error, and to assign one person the sole task of ensuring compliance with the execution protocol and documenting any deviations.

Attorneys for condemned inmates have argued that Delaware's lethal injection protocol is unconstitutional because it presents a substantial risk of unnecessary pain, amounting to cruel and unusual punishment. In previous filings, they have alleged that there have been dosage errors in more than a third of Delaware's lethal injection executions, including the most recent, that of Steckel.

According to the plaintiffs, prison officials noticed that the anesthetic being administered to Steckel began leaking into tissue surrounding the needle in his arm. Although the execution team allegedly switched to a second intravenous line to give Steckel another dose of sodium thiopental, DOC records indicate that Steckel did not receive the second dose, according to the plaintiffs.

The execution of Steckel for the 1994 murder of Sandra Lee Long, who was burned to death in a fire he set after strangling her into unconsciousness and raping and sodomizing her, was so drawn out that Steckel himself wondered aloud why it was taking so long.

Nearly 3 dozen states use lethal injection. Despite the Supreme Court's April decision upholding the procedure, it remains under legal challenge in several states.

(source: Axis of Logic)
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It found the right place this time I hope. 
 

[Jacques]

Jeff... This has made waves to Germany

New execution expiry in Delaware after court documents released this week, is changed the execution expiry in Delaware. The change was obtained, because the prison authority would like to make sure that it also wins an at the moment running, lawsuit carried on at the national level around the execution expiry. An arbitration hearing for this process is attached for 27th of October. Some things were changed in comparison to the old execution expiry. The principal change consists in the fact that in future between the gift of the anaesthetic and the gift other both, deadly drugs a 2-minute time span will lie in which then the to be executed is examined behind close curtains for consciousness.

[Jeff1857]

The Delaware Supreme Court has turned down a challenge to the state's death penalty laws by supporting a lower court ruling that state execution protocols could be kept secret and a public review was not required.


 Attorneys representing Delaware's death row inmates had argued the state waived confidentiality by posting an edited version of the protocol on the Internet last year. They declined comment on the ruling.

A spokesman for the Delaware Attorney General's Office said they were pleased with the ruling.

In a decision written by Justice Carolyn Berger, the Delaware Supreme Court chastised the state for failing to inform the plaintiffs or Superior Court Judge Richard Cooch, that the execution protocols had been publicly posted online, denying Cooch the opportunity to consider all "relevant facts."

Berger wrote that the Supreme Court could have considered the argument -- which was heard in a proceeding before the justices earlier this month -- but declined to do so, and instead affirmed Cooch's incomplete ruling.

This state case, which argued that Delaware's death penalty policies and procedures were illegal because they had not been made available for public review as is required of other state policies, was a secondary effort by attorneys from the Philadelphia Federal Community Defender's Office, along with two local attorneys.

The primary effort is a class-action case in federal court, challenging the state's use of the death penalty head-on, alleging the way Delaware has carried out lethal injections allows for unconstitutional suffering by the inmate.

Because of that case, all executions in Delaware have been on hold since May 2006.

The two sides were recently ordered into mediation in federal court by District Judge Sue L. Robinson to resolve lingering differences after Delaware changed course and adopted an execution standard approved by the U.S. Supreme Court.

However, according to the federal court docket, that effort appears to be stalled.

An attorney for Delaware wrote that after a five-hour mediation session on Monday with Magistrate Judge Mary Pat Thynge, no resolution was reached.

(Source: Delawareonline.com)

[JT]

Who signs death warrants in Delaware?  The Governor or the courts?

It's always great to see little states like Delaware knocking people off every now and again.

[heidi salazar]

Delaware courts: Appeals Court to hear suit on execution procedures

The class-action lawsuit that has been holding up executions in Delaware for more than three years will be headed to the U.S. 3rd Circuit Court of Appeals today.

If the court upholds the April ruling by Delaware District Judge Sue L. Robinson and there is no appeal to the U.S. Supreme Court, executions could soon resume in the state.

However, attorneys from the Federal Community Defender's office in Philadelphia who are representing Delaware's 20 death row inmates and legal observers believe recent developments in Ohio could prompt the court to send the matter back to district court, keeping Delaware's death penalty in limbo.

At issue in the appeal are Delaware's method of execution -- a three-drug mix that has been associated with problems in the past -- the state's history of mistakes in past executions and a lack of a back-up plan if executioners can't find a vein in the condemned to deliver the lethal drugs.

Because Ohio this month successfully executed an inmate using a one-drug method, courts may decide this presents a "feasible and workable" alternative, said Richard Dieter, executive director of the Death Penalty Information Center.

But, he said, just because there is an alternative which supporters claim is more humane and causes fewer problems, does not mean the appeals court will order it to be used. There also has to be evidence that the existing execution system in Delaware has significant flaws.

"Given the precedent of the district court, it is going to be an uphill battle [for the plaintiffs]," Dieter said.

In April, Robinson granted summary judgment in favor of Delaware -- ruling that a new set of rules adopted by the state on how to carry out executions met constitutional standards. But Robinson also maintained the freeze on all executions in Delaware until the appeals process was completed.

In the Delaware case, attorneys for the death row inmates detailed a long list of problems in past Delaware executions including improperly mixed drugs and sloppy record keeping.

http://www.delawareonline.com/article/20091216/NEWS01/912160329/Appeals-Court-to-hear-suit-on-execution-procedures

[heidi salazar]

Appeals court approves Del. execution protocols, lifts stay

WILMINGTON – Delaware's death penalty has been upheld as constitutional by the U.S. 3rd Circuit Court of Appeals, which also has lifted a stay on all executions in the state.

This appears to mean that Delaware can almost immediately resume executions, which have been on hold since 2006 when the lawsuit alleging that the state's method of execution presented an unconstitutionally unnecessary risk of pain and suffering by the condemned.

Attorney General Beau Biden issued a statement saying that executions in Delaware will move forward, and that Superior Court judges can begin to schedule executions as appropriate.

There are 18 inmates on Delaware's death row.

In a 47-page opinion handed down this morning, a three-judge panel of the appeals court ruled that Delaware's newly adopted execution protocols – which have not yet been used – pass constitutional muster.

At the same time, the appeals court warned Delaware about "the worrisome course it appears to have taken at times" under its old execution method.

"The record before us reflects an occasionally blitheness on Delaware's part that, while perhaps not unconstitutional, gives us great pause. We remind Delaware not only of its constitutional obligation … but also of its moral obligation to carry out executions with the degree of seriousness and respect that the state-administered termination of human life demands," wrote Circuit Judge D. Michael Fisher on behalf of the panel.

Both federal public defenders who represented Delaware's death row inmates in the class-action lawsuit and officials with the Delaware Attorney General's office were still reviewing the decision this morning and did not have an immediate comment.

http://www.delawareonline.com/article/20100201/NEWS/100201020/Appeals+court+lifts+stay+on+Del.+executions


Opinion here

[Moh]

Assuming that this is upheld en banc, it would behoove Pennsylvania, which is also in the Third Circuit, to copy Delaware's protocol pretty much word for word to ensure that there won't be any Eighth Amendment delays should Pennsylvania ever actually get to set a real execution date.

[heidi salazar]

Death row inmates seek review

Attorneys hope U.S. Supreme Court will hear lawsuit

The federal lawsuit that delayed all Delaware executions for almost four years could be going to the U.S. Supreme Court.

Attorneys representing Delaware's death-row inmates said Thursday they will be seeking a review from the nation's highest court in the coming weeks.

The announcement comes after the U.S. 3rd Circuit Court of Appeals this week denied a request to review and revisit its Feb. 1 ruling, which allowed executions in Delaware to resume, effectively ending the case at the appeals court level.

With that ruling, the death-row plaintiffs now have 90 days to file a petition with the U.S. Supreme Court.

Attorney General Beau Biden said Thursday that this latest appeal effort is not expected to stop any executions in the state from going forward.

The only reason no executions have been scheduled since the Feb. 1 ruling is because no death-row inmate has completely exhausted his legal options, according to state officials.

Should any capital cases reach the end of their appeals in the next 90 days, "We expect that no state court will be prohibited from setting a date [for execution]," Biden said.

Attorneys for Delaware's 18 death-row inmates, however, have asked the appeals court to delay issuing its "mandate" to Delaware, a move that, if approved by the court, could once again put executions on hold.

The case, which was later turned into a class-action lawsuit on behalf of all Delaware's death-row inmates, was originally filed in May 2006, alleging that the way Delaware carried out lethal injections amounted to unconstitutionally cruel and unusual punishment.

While the case was pending, U.S. District Judge Sue L. Robinson ordered a hold on all state executions.

The U.S. Supreme Court subsequently ruled, in April 2008, that the lethal-injection method used by many states, including Delaware, was not unconstitutionally cruel.

A year later, in March 2009, after hearing additional arguments about how Delaware made mistakes during past executions, Robinson tossed out the lawsuit and ruled that Delaware's execution procedures passed constitutional muster. But Robinson kept the hold on executions in place until the appeals court reviewed the matter.

When the appeals court upheld Robinson's ruling in February, the three-judge panel made clear it was immediately lifting the stay on executions.

http://www.delawareonline.com/apps/pbcs.dll/article?AID=20103260328

[turboprinz]

Death penalty repeal bill squeaks through Senate
Amended death penalty bill passes 11-10
Mar 27, 2013

DOVER — The Senate approved with a narrow 11-10 vote Tuesday a bill repealing Delaware’s death penalty after it decided the 17 inmates now on death row should still face the ultimate punishment.

The vote came after an impassioned three-hour debate over the merits of capital punishment, including pleas from relatives of slain victims who said death was the only just sentence for the crimes that rocked their families.

The bill now goes to the House.

In the Senate, five Democrats and five Republicans voted to preserve the death sentence. Three Republicans — Minority Leader F. Gary Simpson of Milford, Ernie Lopez of Lewes and Catherine Cloutier of Brandywine Hundred — voted for repeal.

The legislation, sponsored by Sen. Karen Peterson, eliminates the death penalty from Delaware’s criminal code, making life in prison without the possibility of probation or parole the maximum penalty for a first-degree murder conviction.

Peterson said she knew the measure would pass by one vote, but the roll call was in flux in recent weeks.

“From day to day, the head count would change,” said Peterson, D-Stanton. “There was a core from the very beginning of 10 people, and the 11th changed from time to time. We knew from the beginning that the count would be 11.”

After weeks of remaining mostly silent on the issue, Attorney General Beau Biden sent two of his top criminal prosecutors to the Senate to declare his opposition to the repeal legislation.

“The attorney general is a supporter of the death penalty in its current form,” said Deputy Attorney General Steven Wood. “He believes the death penalty should be reserved for the worst of the worst.”

Wood argued the death penalty is used sparingly in Delaware, and it is not racially biased or unequally applied, as repeal supporters have alleged.

“In the last five years, there were 213 first-degree murder cases in Delaware,” he said. “We sought the death penalty in about 35 percent of those cases.

“The racial breakdown of our death row is actually slightly better than the racial breakdown for all those arrested and charged with first-degree murder,” Wood added.

Debate on the Senate floor began Tuesday with an amendment to preserve the sentences of 17 men currently on death row in the state. That amendment passed with the support of 19 senators.

In its original form, the bill would have commuted the sentences of the state’s death row inmates to life in prison. But Peterson attached the amendment shortly after she brought it to the Senate floor.

Peterson said she offered the amendment to remove legal confusion about the fate of those already sentenced that could cloud the debate in the House or cause the bill to be struck down later if signed into law.

Testimony on the amended bill was a recounting of many infamous killings in Delaware history and the fates of the murderers.

Senators on both sides of the debate brought forth family members of murdered victims.

Tina Leager’s former husband Kenneth Warren was murdered in their Kenton home in 1996. Killers Ralph Swan and Adam Norcross are currently on Delaware’s death row in that case.

“It’s not fair that they get put to sleep,” Leager said. “But Delaware law provides me an opportunity to make sure they pay for their crimes, and that’s the death penalty.”

Wilmington resident Kristin Froehlich’s brother was murdered in Connecticut in 1995 and prosecutors sought the death penalty, though the killer was later sentenced to life in prison. Putting a murderer to death does little to help a family recover from loss, she said.

“I knew then that the death penalty was a false promise and the legal process was separate from the grieving and healing process I needed to go through,” Froehlich said. “I have grown to despise the word closure because it doesn’t fit with anything I know.”

At the close of debate, Peterson evoked the biblical story of the crucifixion: “We could do what Pontius Pilate did and wash our hands, or we can put an end to it in Delaware.”

http://www.delawareonline.com/article/20130327/NEWS/303260090/Death-penalty-repeal-bill-squeaks-through-Senate?nclick_check=1