Moments before his death warrant expired at midnight U.S. Central Time, after a last meal consisting only of communion, Ledell Lee was executed by the U.S. state of Arkansas.
Lee spent 24 years awaiting execution for the bludgeon murder of Debra Reese on February 9, 1993, but he was done to death in a rush that left unanswered some of the most fundamental questions in the case.
Trial is the forum designated for contesting this question, of course. At Lee’s, he was represented by an unwilling defense team that repeatedly sought its own removal from the case, citing an “intolerable conflict” with their client, a conflict that paled in comparison to that of the judge, who was having an affair with a prosecuting attorney. (Multiple separate rape cases were pending against Lee at the same time, and those same conflicting attorneys were removed from those cases.)
A quarter-century on death row suggests claims litigated to the point of exhaustion, but this is not how the death penalty game is played in America. The art of execution lies in expediting a conviction and then fighting hammer and tong to maintain that verdict as a fait accompli against any attempt on appeal to litigate issues that the jury never heard. Mostly, the clocks runs for years on useless waiting or epicycles of procedural do-overs that never reach the most salient topics. The Innocence Project reports that outright exonerees (not limited to condemned prisoners) serve an average of 14 years before winning release on their various evidentiary trump cards. (Arkansas’s most famous death row exoneree,* Damien Echols, waited 17 years.)
By the time one reaches the end of the glacial death penalty process, the very refusal of the law to probe the questions it never bothered asking will have become the fault of a prisoner’s own dilatory appeals, leading — in this instance — to victim’s kin at Lee’s clemency hearing “asking you and begging you to please let us have some closure.”
In the name of closure, end-state cases must also insist on renouncing one of the potential benefits of all that time-wasting, the perspective of passing years. DNA tests that were not available when Lee stood trial for his life — and the discredited “forensic evidence” of matching hair samples was invoked against him — could have been used to examine blood spots on Lee’s shoes.** Because the prisoner maintained his innocence in the case from the time he was arrested until the very end, one of his late appeals vainly implored Arkansas to test that DNA sample. There are many cases, death penalty and otherwise, meeting this description, and most U.S. jurisdictions compulsively resist any calls to revisit testable tissue in the light of emerging DNA science as so many affronts to the majesty of law.
So what has everyone been up to while not testing DNA all those years? The Fair Punishment Project report on Lee’s post-conviction road makes depressing reading.
Lee’s first state post-conviction attorney had substance abuse problems that left him “impaired to the point of unavailability on one or more days of the Rule 37 hearing.” The Arkansas Supreme Court noted several examples of his lawyer’s “troubling behavior,” including “being unable to locate the witness room;” “repeatedly being unable to understand questions posed by the trial court or objections raised by the prosecution;” “not being familiar with his own witnesses;” and “rambling incoherently, repeatedly interjecting ‘blah, blah, blah,’ into his statements.” Unsurprisingly, Ledell lost his state-post conviction petition. Eventually, the Arkansas Supreme Court recognized that Lee received grossly inadequate representation and withdrew its opinion, giving him new counsel.
Unfortunately, his new counsel were not much better. First, they missed the filing deadline for the appeal. Then, the Arkansas Supreme Court twice, sua sponte, ordered the attorneys to submit a new brief because their filings failed to comply with Court rules — the second time, the Court referred the attorneys to the Committee on Professional Conduct. The attorneys also appear to have refused to accept their client’s phone calls and ignored his letters.
At one point, Ledell received a glimmer of hope when the Arkansas court appointed the Arkansas Federal Defender to his case. They tried to litigate a claim that Ledell is intellectually disabled. In response, the state argued that Ledell — with all of his competent representation — had procedurally defaulted this claim by not raising it before.† But before the parties could complete litigation on the claim, the Federal Defender was removed due to a conflict.
In 2016, Ledell’s local habeas attorney moved to withdraw from the case because she was retiring. She made clear that in ten years, she had done little work on the case. “I have no file on [Ledell],” she stated, despite having argued at least one of Ledell’s appeals before the Eighth Circuit. “I have no working relationship with [Ledell]. I have not seen [him] for several years. I have no relationship with [his] present counsel and have not had any working relationship with them for some time.”
In June of 2016, one of Lee’s federal habeas lawyers, Gary Brotherton, voluntarily surrendered his legal license “to prevent possible harm to clients” because he was suffering from bipolar disorder with psychotic features and anxiety. One month later, the Missouri Supreme Court suspended him from the practice of law. So, just seven months ago, in the eleventh hour of his case, Ledell received yet another lawyer on his case.
All in all, a shambolic proceedings crowned by the indignity of Arkansas’s cramming Lee into a raft of eight proposed executions — many of them now stumbling on late appeals — slated together for the last days of April for the tawdry expedient of using up the state’s lethal injection drugs before their imminent expiry. It’s a very not normal situation, and yet, it is also all too normal.
Ledell Lee was the first person executed by Arkansas since 2005.
* As we’ve previously noted, Arkansas forced Echols to make an Alford plea as the price of his release, allowing it to claim on a technicality that it had not wrongfully imprisoned an innocent man for two decades.
** The crime scene was a bloodbath, so the supposition is that the murderer would certainly have imbrued his clothes with Reese’s blood.
† Reese’s alleged intellectual disability ought to have been raised by his unwilling defenders at the trial’s mitigation stage; it appears they barely investigated it.
We stop. We are afraid. We don’t want to move an inch. Danger is a paralyzing force. In the face of certain death, Robert Ladd looked danger in the eye and shrugged. If we place our trust in God, we too can have such confidence.
Staring down whatever danger you face, I invite you to pray the last words of Robert Ladd:
(Ladd also wrote two letters to Gawker concerning his case and the mental disability that was at issue in his final appeals: 1 | 2)
On this date in 2014, Ohio very clumsily executed Dennis McGuire for raping and stabbing to death an eight-months pregnant woman in 1989.
For no reason better than chance, McGuire‘s was the execution scheduled to arrive when Ohio bowed to the growing scarcity of lethal injection drugs by innovating a new kill-cocktail comprising midazolam, a sedative, and hydromorphone, a painkiller.
McGuire’s attorneys fought this procedure on the plausible (quite plausible, as we will see) grounds that using an execution as a vehicle for nonconsensual human medical experimentation was liable to end badly.
It did. A Dayton Daily News staff reporter who attended the execution gave the disturbint account
Prison officials say the drugs — a combination never before used in an execution — were delivered at 10:28 a.m.
His daughter cried uncontrollably.
McGuire waved with his wrist, his body strapped down to the table. Then he suddenly yelled out “I love you. I love you,” before his head lay back, his eyes rolled back in his head and he appeared to fall asleep at 10:29 a.m.
Minutes went by without McGuire moving, his family cried as the priest patted them on the back and attempted to console them.
“Oh my god,” his daughter [Amber McGuire] said.
“Don’t watch,” [wife] Missie McGuire said.
At 10:35 a.m. I first noticed McGuire convulse, then gasp. He snorted for air — a sound like a violent snore, a guttural inhale — and then sat still. Then gasped again. Sometimes his mouth just opened soundlessly. At 10:39 a.m. he snorted so loud his daughter covered her ears.
His family cried. “How could this go on for so long?” one of them asked. There was some discussion with the priest that accompanied them saying they thought it would only take five minutes.
(Here’s another (more heavily editorializing) eyewitness account of the event, by McGuire’s priest.)
Predictably, more lawsuits followed, cases that are still working their way through the courts. Just two weeks ago as of this writing, a federal suit filed on behalf of Ohio’s other death row inmates brought a member of Dennis McGuire’s execution team to the stand. Behind an anonymizing cardboard screen, “Team Member No. 10″ characterized the McGuire execution as unlike any of the others he had worked, and said that he “was wondering what was going on” as the prisoner heaved and choked his way to death.
Texas today conducted the first U.S. execution of 2017 with the lethal injection of droll drug murderer Christopher Wilkins.
Wilkins wouldn’t quite qualify for our “volunteers” tag and he fired away at his available appeals all the way to the end. But he also went out of his way not to throw up any barriers, legal or psychological, against putting him into the death penalty system. It has been well said that wretches hang that jurymen may dine, but in Wilkins’s case he mouthed friendly reassurances to teary-eyed jurors who had just condemned him to die.
“You’ve got a job to do. You tell the judge ‘get a rope’ or not,” he had said to them during his sentencing hearing, when a few well-chosen syllables might have made his life worth keeping in their eyes. “Look, it is no big deal. It is no big deal.”
There is — was — a disarming want of pretense in the man, “candid to a degree you don’t see” in the rueful words of his defense attorney. He chatted in that hearing openly about his white supremacist tattoos — just prison swag from his recent stint in the federal pen, he said — and his short temper — explicitly discouraging jurors from cutting him state-of-mind slack for his drug habit — and his dim future course in life. Would he ever change?, prosecutors asked him. “I believe it’s a little late,” the 39-year-old answered, justly.
Wilkins had shot Willie Freeman and Mike Silva dead after Freeman tricked him into buying “crack cocaine” that turned out just to be gravel. He’d continued using with Freeman for some weeks after this offense, but Freeman pissed him off by laughing to his face about the con. (Silva just happened to be with them at the time.) As he warned: a short fuse. It transpired that he had also murdered someone in a dispute over a pay phone.
“I know they are bad decisions,” the too-incisive Mr. Wilkins said, again to his jury. “I make them anyway.”
Out on probation for an armed robbery conviction, this avatar of the classic middle name robbed a convenience store at gunpoint, then shot and killed a deputy who pursued him.
Georgia somehow didn’t have a state public defender system until 2003, a system presenting to the counties who were supposed to appoint indigent defense counsel on a local and ad hoc basis a fine opportunity for callous graft dovetailing the interests of the prosecutor’s office in winning its cases with court’s interest in pinching its pennies.
Accordingly, Baldwin County stuck Holsey with a man to test appellate courts’ standards for minimal representation, an alcoholic attorney named Andy Prince* who was rock-bottoming during the trial to the gobsmacking reported tune of a quart of vodka every night. Prince was disbarred shortly after Holsey’s conviction for robbing another client of $100,000.
According to a tragic Mother Jones profile, Prince, who was white, also happened to get in a dispute around this same time with a black neighbor and hurled some racist invective, which doesn’t seem ideal when your day job consists of trying to keep a black defendant off death row.
The late Prince — he died in 2011 — told an appeals court in 2006 that he “shouldn’t have been representing anyone,” but appeals courts, which must generally find that such “shoulds” clearly “would” have changed the trial outcome, have much less scope to act on the determination.
It’s a massive systemic cheat still in widespread use, albeit not always in such egregious fashion: use some underhanded means to get a death sentence on the books, then argue to every higher court that the deficiency can’t be proven certainly decisive vis-a-vis what might have happened in a fair fight. Do you know Holsey wouldn’t have received a death sentence? He did shoot a cop in the course of committing a violent felony, after all.
There are many general reasons why a robust defense might mitigate a sentence, but the specific reason of interest in Holsey’s case — a reason not litigated by Prince, an omission that likewise foreclosed appeals avenues — was that Holsey was severely mentally disabled.
With a testing IQ around 70, just at the border of the conventional definition for so-called “mental retardation,” Holsey had at the minimum a very strong card for the mitigation phase of the trial — if not an outright bar to execution.** Prince failed to play that card … and as of this date in 2014, American jurisprudence and the state of Georgia determined themselves content to leave it permanently face-down.
* The Guardian article cited in this post calls him Andy Price. As all other media citations I find call him Prince, I’m going with that — but as it’s likely that everyone is copying from the last story instead of doing original reportage, I’m not completely confident that it isn’t Price after all.
** Georgia was actually among the first states to bar the execution of mentally disabled prisoners — although paradoxically its early standard thereafter became one of the nation’s weakest as other states implemented their own over the years. The Supreme Court theoretically bars executing the mentally disabled, but as it has enforced no coherent standard the executing states themselves generally get to decide who qualifies.
Four years ago today, Chinese lawyer Han Bing revealed a shocking execution further to China’s shadowy trade in harvested organs, with a post on the microblogging service Weibo.
The Epoch Times translates this post — which was widely shared, but deleted within days — thus:
This morning witnessed a horrifying practice of execution. The Supreme Court this week contacted the Provincial High Court to re-examine a determined death penalty case. However, the Intermediate People’s Court had the prisoner promptly executed without notifying the relatives for a last farewell visit. The reason for the prompt execution was that the death penalty prisoner had ‘willingly’ signed an organ donation release. To ensure the quality of the organs, the execution was carried out at the hospital. These judges and doctors without conscience turn a hospital into a place of execution and a market for organ trading!
If there has been any subsequent public explication of the details about this event — the identity of the prisoner, the particulars of the transplant — I have not been able to locate it.
China today carried out the controversial execution of Jia Jinglong, a peasant who found a nail gun was his only avenue of redress.
Jia’s village home in the northern Hebei province was demolished three years ago at the order of a local Communist chief who subsequently balked the family of compensation. (They got a small apartment in a high-rise.)
Rapacious developers backed by the power of the state expropriating dwelling-places in an environment of weak legal protections make for one of the most deeply felt abuses in boomtime China, and it goes without saying that it’s a racket where the wealthy and powerful dip their beaks and the other 99% shift as they can and nurse futile grudges. According to the Associated Press, Jia’s village near the city of Shijiazhuang “is overwhelmed by a cacophony of drilling, pounding and jack-hammering coming from construction sites. More than a dozen cranes could be seen in the distance, adjacent to high-rise apartment towers still being built.” As if to add a literary flourish to the injury, Jia also lost the girl in the end as his fiancee, now deprived the prospective roof over her head, promptly called off the wedding.
“What he has experienced is what many are going through or will be going through,” Jia’s sister Jia Jingyuan told reporters. “Because my brother is part of this society’s underclass, he represents the lives of many ordinary people.”
That’s because Jia Jinglong didn’t allow his grudge to remain futile: he used a nail gun to murder the local party chief who wrecked his house and life. It is hardly the only time that a desperate common person has lashed back at the cruelties of state capitalism with the pleasurable self-destruction of personal violence.
While premeditated homicide with a power tool is surely your basic capital case in any jurisdiction keen on the death penalty, the story behind it brought most of China to Jia’s defense; even some state media editorialized for abating the sentence. That wasn’t only in a spirit of vicariously joining the man’s revenge: the severity of the law towards an ordinary citizen charged with slaying an official raised an obvious equal-treatment grievance when contrasted with the likes of the wife of disgraced party boss Bo Xilai, who had a British businessman assassinated but still dodged execution.
(In fairness to the People’s Republic, China has executed powerfulofficials and plutocrats in various other recent high-profile cases.)
Thanks to Twitter friends including @jewssf and @luimnea for tipping me this story.
Jeffrey Landrigan was executed in Arizona for murder on this date in 2010 — via an imprt drug that made his case a recent landmark in the ongoing U.S. tussle over lethal injection.
Landrigan broke out of jail in 1989 where he was serving a second-degree murder sentence and did a first-degree murder in the course of an armed robbery.
By the time this mundanely terrifying killer was ready to face his punishment, U.S. states were beginning to feel the pinch from anti-death penalty activists’ campaign to shut off the supply of a key drug in the lethal injection protocol — sodium thiopental.
Since the very first lethal injections, sodium thiopental has stood as the first of the standard three-drug cocktail: sodium thiopental to induce unconsciousness, pancurnium bromide to inflict muscle paralysis, and potassium chloride to stop the “patient’s” heart.
Sodium thiopental owed this juridical responsibility to its place as the Brand X medical anaesthetic thirty or forty years ago. But in the time since, that medical role has been overtaken by propofol, leaving sodium thiopental ever less frequently manufactured — and exposing a potential vulnerability in the executioner’s supply chain. Death penalty abolitionists targeted that weak point with effect, especially once the last U.S. manufacturer of sodium thiopental, pharma giant Hospira, got out of the game.
Sodium thiopental expires, so states that intend to conduct lethal injection executions couldn’t really stockpile. Instead, they have two options:
Find a new source for sodium thiopental; or,
Find a new lethal injection procedure
In the past few years, those laboratories of democracy known as state legislatures have experimented promiscuously with re-jiggering the lethal injection to account for the inhospitable thiopental climate with the upshot that there no longer remains one standard lethal injection protocol, but multiple mutations innovated and cribbed state by state — and each mutation is liable to change again without warning in response to the next setback.
This ongoing drama has played out throughout the 2010s, but it so happened that Landrigan’s long road to death reached its end about where the scarce thiopental story began.
In Arizona’s case at the comparatively early date of 2010 — back when Hospira had already suspended domestic thiopental manufacture — the gap was filled by requisitioning the drug from an overseas supplier.
Easy enough, one might suppose: C11H17N2NaO2S is C11H17N2NaO2S no matter its brand label.
But it turns out that the production and the import of medical drugs are regulated by the Food and Drug Administration, and neither Arizona nor the fly-by-night British pharmaceutical maker it contracted had bothered satisfying the paperwork requirements. Landrigan’s appellate lawyers fastened on this failure, arguing that the state’s calculated ignorance of its drug’s purity was inviting a painful botch.
Landrigan’s story and the larger lethal injection crisis into which it fits was the subject of the very first episode of the popular podcast More Perfect — whose beat is the U.S. Supreme Court.
That institution had a low moment in this drama interceding at the 11th hour to okay Landrigan’s execution after a Kafkaesque legal shell game in which Arizona repeatedly ignored lower courts’ orders to supply documentation about its proposed execution drug, then argued — and won the argument! — that the prisoner’s lawyers were only speculating that the drug might be impure or harmful and couldn’t prove any problem. Try that one out on your customs officer the next time you get pinched carrying contraband at the border. A Ninth Circuit Court judge punished bad faith with a stay of execution, but the high court reversed that stay on a 5-4 vote this very October 26, allowing Landrigan’s execution hours later.
“The state flatly stonewalled the lower courts by defying orders to produce information, and then was rewarded at the Supreme Court by winning its case on the basis that the defendant had not put forward enough evidence,” Hofstra law professor Eric Freedman lamented to the New York Times. “That is an outcome which turns simple justice upside-down and a victory that the state should be ashamed to have obtained.” It’s a line that mirrors the critique exasperated death penalty advocates have leveled against their foes for suing to block “cruel and unusual” executions on the back of drug supply kinks that they themselves engineered.
The messy resolution of Landrigan’s own case was very far from a solution to the underlying dilemma. In the years since, European manufacturers have themselves been squeezed out of the lethal injection supply chain by anti-death penalty pressure, while the states’ various adaptations have worked themselves out in a mess of litigation and human experimentation. It’s a story still being written — into the very flesh, sometimes, of men like Jeffrey Landrigan.
Vietnam on this date in 2013 made its first-ever use of lethal injection for the execution of Nguyen Anh Tuan. Anh Tuan robbed and murdered a woman in 2009.
The new execution method was scheduled to take effect July 1, 2011, fully replacing the firing squad, but had a delayed rollout.
As in its country of birth, America, the needle-and-gurney contraption was afflicted by by shortages of the killing drugs. The European Union’s unwillingness to permit import for use in capital punishment eventually led Vietnam to arrange for local production instead.
We have in these pages actually already encountered one of Ertman and Pena’s slayers in these pages: Jose Medellin, who was executed in 2008. That case was notable for the litigation resulting from Texas’s failure to comply with the Vienna Convention by notifying the Mexican consulate of Medellin’s arrest — and the Medellin post focuses on that issue. This post turns instead to the crime itself.
On June 24, 1993, Ertman and Pena — 14- and 16-year-old Waltrip High School students desperate to beat curfew — took a late-night shortcut along a railroad skirting the White Oak Bayou.
At a railroad trestle in T.C. Jester Park, just moments from home, they encountered our man Derrick O’Brien, Jose Medellin, and four other young men toasting a gang initiation. The six fell on the vulnerable girls and raped both, then strangled them with shoelaces.
Even for a city as large as Houston, it was a shattering crime that still haunts the lost girls’ friends and neighbors.
Memorial to Ertman and Pena in T.C. Jester Park. (cc) image by Pepper Hastings.
Politically, it thrust gangs to the front of the agenda for Houston pols. The girls’ kin* also fought successfully to adjust Texas Department of Criminal Justice procedure in order to permit victims’ family members to witness executions, an innovation that is now widely used throughout the U.S.
O’Brien, barely 18 when he took part in the murder, turned up in the crowd gawking at the crime scene when it was first discovered, and some video footage chances to catch him smiling and laughing. He would eventually be the first person put to death for the Ertman-Pena murder.