Category Archives: 21st Century

2002: Monty Allen Delk, in a Three-Pronged Failure

Posted on by

(Thanks to David Elliot at Abolish the Death Penalty for the guest post -ed.)

Six years ago today the state of Texas executed an FBI agent, a state district judge, the president of Kenya and a war hero who commanded a nuclear-powered submarine during the Civil War. More aptly put, Texas executed a seriously mental ill inmate named Monty Allen Delk who, at varying times, believed he was all of these things.

Delk was convicted and sentenced to death for the murder of Gene “Bubba” Allen of Anderson County in East Texas. Although the state of Texas maintained that Delk was “malingering,” i.e., pretending to be mentally ill to stave off execution, the prison system’s former chief mental health officer stated that Delk suffered from a severe mental illness, one that had become progressive in nature since it was first noticed in 1989 –- years after Delk was tried and convicted.

A close examination of the Delk case reveals yet another significant flaw in the capital punishment system:

The U.S. Supreme Court has ruled that executing severely mentally ill inmates violates the U.S. Constitution.

The court also has held that a death row inmate must be mentally competent in order to drop his appeals.

But the court has not directly addressed the issue of whether a death row inmate must be mentally competent in order to pursue his state and federal habeas appeals. In fact, the Texas Court of Criminal Appeals, and the 5th Circuit Court of Appeals, which has jurisdiction over death penalty cases in Texas, have ruled that prisoner competence during state and federal habeas proceedings is not constitutionally required.

The question is fundamental to due process. Habeas is the first, last and often only avenue of appeal for death row inmates whose sentences have been upheld on direct appeal by the Texas Court of Criminal Appeals. But because Delk was unable to assist his attorney through his habeas appeals, he could not answer simple questions that were key to his case -– questions such as, did he commit the crime? Did he think his trial was fair? Did he think his trial lawyers adequately represented him? Were there circumstances about the crime or about his personal history that mitigated against a death sentence?

The fact that Delk’s execution was allowed to proceed represented a three-pronged failure on the part of Texas’ death penalty system. The first failure must be attributed to the courts, which failed to order a psychiatric evaluation of Delk, despite repeated requests by Delk’s very able attorney, John Wright of Huntsville.

The second failure lies with Texas’ executive clemency system. Because of his mental illness, Delk’s sentence should have been commuted to life in prison. Yet the Board of Pardons and Paroles as well as Texas Gov. Rick Perry did nothing. (It is important to note that four days before Delk’s execution, the Georgia Parole Board, acting in a similar case, commuted death row inmate Alexander Williams sentence to life in prison after pleas from human rights activists. Williams is a chronic paranoid schizophrenic who thinks Sigourney Weaver is God and that little green frogs are in his prison cell, staring at him.)

The third failure rested with the Texas media. While Williams’ case attracted comprehensive media coverage in Georgia and beyond, newspapers in Texas largely failed to investigate Delk’s case. Government -– including the criminal justice system –- works best under the glare of public scrutiny. Absent such scrutiny, abuses occur. In this case, no one outside Texas’ fervent anti-death penalty community took much notice of Delk’s execution.

The good news is Texas’ newspapers are beginning to sit up and take notice. If I am not mistaken, every major Texas newspaper has called either for abolition of the death penalty or for a moratorium on executions. The issue of capital punishment has advanced from the margins to the mainstream. In today’s climate, one wonders whether Texas officials could get away with executing a person as severely mentally ill as Delk.

Ultimately, the Supreme Court will have to directly confront the issue of whether a death-sentenced prisoner need be mentally competent during his habeas appeals. Until that happens, we simply will have to ask ourselves a key question:

Is executing someone who is so severely mentally ill he does not know who he is not the very definition of an insane act?

On this day..

2004: Cameron Willingham, for an accidental fire?

Posted on by

(Thanks to David Elliot at Abolish the Death Penalty for the guest post -ed.)

Update: Heartbreaking New Yorker article shreds the state’s case.

Polling data reveals interesting things about U.S. public opinion and the death penalty. If you ask an open-ended question about the death penalty –- for example, “Do you feel the death penalty is appropriate for certain egregious crimes?” –- then you usually see somewhere around a 65 to 35 percent split in favor. On the other hand, if you ask which is preferred – the death penalty or life in prison without parole, the results tend to be closer to 50-50.

Upon occasion, another question is asked: Do you feel an innocent person has been put to death in the U.S.? The results are pretty emphatic: Americans don’t trust their government to get it right, and they do believe innocent people have been executed, by a ratio of about three to one.

So the question fairly arises: Have innocent people been executed in the U.S. in what we sometimes refer to as the “modern era,” i.e., since executions were allowed to resume in 1976?

Enter Cameron Todd Willingham.

On Feb. 17, 2004, Cameron Todd Willingham was strapped to a gurney in a Texas death chamber as he declared his innocence for the last time. Minutes later, he was executed by lethal injection. In December of the same year, the Chicago Tribune uncovered secrets behind the Willingham case, addressing questions left unanswered and raising doubts left unacknowledged.

The Fatal Fire

Cameron Todd Willingham with one of his purported victims — his daughter, Amber.

On Dec. 23, 1991, Willingham was at home with his three daughters. His wife, Stacy, left their home in the morning to pay the bills and shop for Christmas gifts at a Salvation Army store. The family had been struggling that year; Todd, as everyone called him, had recently been laid off, and Stacy was supporting the family with her wages from a bar. The Willinghams were two months behind on rent, and they had even stopped paying some bills in order to save money for Christmas.

Willingham recalled waking up briefly as his wife was leaving the home around 9 a.m. When he heard their one-year-old twins, Karmon and Kameron, crying, he woke up to feed them and went back to sleep. About an hour later, his two-year-old daughter Amber woke him with her cries, and the house was already full of smoke. Willingham remembers not being able to see “anything but black” toward the front of the house.

The circuits were popping throughout the home as Willingham frantically went to his daughters’ bedroom. At this point, his hair caught on fire, and he was able to see little more than the glowing of the ceiling. Willingham called out for his children and felt along the floor and bed for them, but he could not find them. This is when debris began falling from the ceiling, causing him to burn his shoulder. He fled the home through the front door.

After fleeing his house, he asked his neighbors to call the fire department and screamed to them, “My babies is in there and I can’t get them out.” A neighbor, Mary Barbee, then asked other neighbors to place the call because her own telephone was disconnected. Willingham reported that, while this was happening, he tried to re-enter his home, but it was too hot. Then, he knocked out two bedroom windows with a pool cue, but could not get into the bedroom.

Buvin Smith arrived on the scene after hearing the neighbor’s call over a radio scanner. Smith remembered restraining Willingham from going onto the porch, and heard him yelling that his “babies were in the house” and noticed that he was “acting real hysterical.”

A Circumstantial Case

Almost immediately, Willingham became a suspect. According to the Chicago Tribune, prosecutors often are able to rely on circumstantial evidence in cases when a child dies and the parent survives. In this case, the prosecution convinced the jury that Willingham killed his children because they interfered with his beer-drinking, dart-throwing lifestyle. The jury believed it.

Neighbors told investigators that they did not believe Willingham tried hard enough to save his children. In fact, Barbee said that she saw Willingham standing by the fence as heavy smoke came out of the windows. Also, she told investigators that Willingham seemed more concerned with moving his car away from the burning house as the windows blew out than with saving his children.

Willingham’s wounds were treated shortly after the fire. Firefighters did not think that his burns were severe enough had he indeed searched for his daughters in the manner he described. His shoulder, back, and hair were burned, but his bare feet were not burned at the bottom.

Police stated that, the day after the fire, Willingham complained about not being able to find a dartboard in the wreckage of his home. Others mentioned hearing loud music and laughter in the following days as the couple attempted to salvage their belongings.

A police chaplain grew suspicious that Willingham’s hysterics during the fire were not genuine. The chaplain, George Monaghan, noted that Willingham seemed “too distraught.”

In addition to these evaluations of Willingham’s behavior, fire investigators reported over 20 indicators of arson. These include the “crazed glass,” or the web-like cracks in the glass. Until more recent research was completed, arson specialists believed this to be a clear indication that an accelerant had been used in the fire. The fire experts also noted that the fire had reached a stage known as flashover, when a fire reaches such a high temperature that an explosion results. This further supported their reasoning that an accelerant had been used.

Willingham was charged with murder on Jan. 8, 1992, just two weeks after the fire. In August of the same year, his trial began, after Willingham turned down a deal from the prosecution and insisted that he was innocent. During the trial prosecutors presented inmate Johnny E. Webb as a witness. He testified that Willingham confessed at the county jail to killing his children in order to cover up the fact that his wife, Stacy, had been physically abusing them. Webb, a recovering drug addict, was taking psychiatric medication to relieve post-traumatic stress syndrome. The prosecution also presented as witnesses the neighbors who claimed that Willingham should have done more. Fire investigators Doug Fogg and Manuel Vasquez also testified at Willingham’s trial. Both of these investigators testified in court that the fire was caused by arson.

Both of these investigators testified to assumptions about fire that have been scientifically proven to be wrong.

Forensic Evidence Reconsidered

When the Chicago Tribune investigated the case, several experts reviewed documents, trial testimony, and video documentation of the fire scene and concluded that the original investigation was terribly flawed. Gerald Hurst, a Cambridge University-educated chemist, and John Lentini, John DeHaan, both private consultants specializing in fire investigation, along with Louisiana fire chief Kendall Ryland, examined the materials. They suggest that this fire may have been simply accidental.

After the Chicago Tribune investigation, Lentini worked with the Innocence Project to assemble an independent, peer-review panel of arson experts. The five-member panel –- with a combined 138 years in high-level fire investigation experience –- issued a 44-page report (.pdf) on the case.

They determined that “each and every one” of the forensic interpretations made by the state’s experts at Willingham’s trial was not scientifically valid. For example, the original investigators determined that an accelerant was used because wood cannot burn hot enough to melt aluminum. In fact, according to these leading experts, it can.

The 1991 investigators also claimed that the brown rings on the Willingham’s front porch indicated accelerant usage. Experts called this “baseless speculation,” explaining that fire-hose water often leaves brown rings on surfaces after evaporation.

Was it Known Before the Execution?

This information didn’t only come to light recently. Shortly before Willingham was executed, Hurst reviewed the case and issued a report that dismissed every single indicator of arson Fogg and Vasquez had originally cited. What was done with this report? Texas judges and Gov. Rick Perry turned it aside, confident of Willingham’s guilt.

Jury members are less confident now. One jury member asked, “Did anybody know about this prior to his execution? Now I will have to live with this for the rest of my life. Maybe this man was innocent.”

In fact, a similar debunking of arson forensics by the same expert resulted in another Texas death row inmate’s exoneration and release — just seven months after Willingham was put to death.

Have innocent people been executed in the U.S.? Indeed they have. You can read more about other cases at www.InnocentAndExecuted.org

Update: After a 2009 New Yorker expose made Cameron Todd Willingham a byword for wrongful executions, our guest author’s former shop, the National Coalition to Abolish the Death Penalty, took a cue from Justice Antonin Scalia‘s scornful dismissal of the prospect.

There has not been “a single case—not one—in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops.”

On this day..

2007: Iwuchukwu Amara Tochi, “the burden thus shifted to him”

Posted on by

(Thanks to Tim Goodwin at Asia Death Penalty for the guest post -ed.)

On this day one year ago, a promising young Nigerian soccer player was taken from his cell in Singapore’s Changi Prison. It was dawn on a Friday morning, execution time in a country that has come to be known for its uncompromising use of the death penalty.

Tochi, and his football kit. (Source)

Iwuchukwu Amara Tochi, 21, and his co-accused Okele Nelson Malachy, 35, were hanged one after the other in the prison’s death chamber. Tochi’s lawyers had been informed he would die that morning, but it had not been announced that Malachy would also hang.

Later that day the Central Narcotics Bureau (CNB), Singapore’s “primary drug enforcement agency”, issued a 138 word statement. With the terse formality that is common to statements by Singapore’s criminal justice authorities, it noted:

The appeals of both Tochi and Malachy to the Court of Appeal and to the President for clemency have been turned down. Their sentences were carried out this morning at Changi Prison.

Tochi was arrested at Changi Airport on 28 November 2004, in possession of 100 capsules of diamorphine, or 727.02g of high grade heroin, which the CNB claimed was worth “about $1.5 million”. He said in a later interview [.doc] that he had arrived in the country expecting to be met by an African man named Mr Marshall. He did not have enough money to clear immigration, and an airport hotel called the police when he attempted to take a room. Malachy was identified as his contact after flying in from Indonesia, although he strenuously denied any connection with the drugs.

Tochi claimed he was carrying the package for a man named Mr Smith, who had befriended him at Sunday services at St Andrew’s Church in Islamabad, Pakistan. He had become stranded in Pakistan while attempting to travel to Dubai, where he hoped to play soccer professionally. As a boy, he represented Nigeria in soccer tournaments, travelling to Senegal when he was 14 to play in a West African youth Championship.

According to Tochi, Mr Smith asked him to take a package of herbs to a sick friend in Singapore, saying he could then apply to play for Singapore soccer clubs. He agreed, and was given a ticket and $200 in cash.

Many sites on the web have quoted the trial judge’s acknowledgement that there was no proof that Tochi knew he was carrying heroin:

There was no direct evidence that he knew the capsules contained diamorphine. There was nothing to suggest that Smith had told him they contained diamorphine, or that he had found that out on his own.

The trial judge was clearly doubtful of Tochi’s knowledge. Nevertheless, he found the defendant had “wilfully turned a blind eye on the contents of the capsules because he was tempted” by what police claimed was an offer of US$2000 in payment.

But the prosecution didn’t have to prove Tochi knew; it was up to him to prove that he didn’t know what was in the capsules. If he couldn’t prove his ignorance of that fact — a challenging philosophical notion in itself — then the law would presume he knew, and therefore convict him of drug trafficking. Under section 18(2) of Singapore’s Misuse of Drugs Act:

Any person who is proved or presumed to have had a controlled drug in his possession shall, until the contrary is proved, be presumed to have known the nature of that drug.

The Misuse of Drugs Act reverses many principles that are taken as central to a fair trial, including the burden of proof and the idea that a court should consider the facts of the case before deciding a penalty.

Amnesty International reports that the Act contains a series of presumptions that:

shift the burden of proof from the prosecution to the accused. This conflicts with the universally guaranteed right to be presumed innocent until proven guilty. Amnesty International is gravely concerned that such presumptions erode the right to a fair trial, increasing the risk that an innocent person may be executed…

The Act applies a mandatory death penalty for a wide range of drug offences, including for importing more than 15 grams of diamorphine or pure heroin.

Possession of relatively small amounts of drugs — by the standards of many countries — is classed as “trafficking” in that drug. Trafficking in that drug carries a mandatory death penalty. Courts have no power to consider the individual circumstances of the case.

Famously described as “Disneyland with the death penalty” by novelist William Gibson, Singapore brings together a record of social order and strict political control, and an unwavering use of the death penalty, particularly for drug-related offences. (Such as a similar recent case profiled here -ed.)

No surprises then that Tochi was convicted of drug trafficking and sentenced to death in December 2005. His appeal was rejected in March 2006, with the judge pausing only to note that the accused had to prove he didn’t know what was in the bag:

Under s 18(2) of the Act, the first appellant was presumed to know the nature of the drugs in his possession. The burden thus shifted to him to persuade the court on a balance of probabilities that he did not know that he was carrying drugs or that what he was carrying were drugs.

The appeal court judge acknowledged Tochi’s claim that he didn’t know, but agreed that he hadn’t proven his ignorance.

Seven months before Tochi’s execution, his brother Uzonna told a reporter from IPS News he had not told their parents that their son, who once supported the family, was now on death row.

“My poor parents will die if they hear that a child who has worked so hard to sustain them is facing a death sentence,” he said.

Tochi was hanged in the face of widespread international protest: legal efforts and a presidential appeal in Nigeria, urgent global appeals from Amnesty International activists, intervention from a United Nations human rights expert, and discreet but unequivocal opposition from a small group of human rights activists within Singapore itself.

Reflecting the colonial origins of the country’s modern death penalty, Tochi was “hanged by the neck till he [was] dead”, in the words of Singapore’s Criminal Procedure Code. The same British legal phrase was taken with the empire to, among other countries, the United States, India, Pakistan, Brunei and Malaysia.

Mr Smith has not been found.

On this day..

2005: Nguyen Van Van

Posted on by

On this date in 2005, Nguyen Van Van, the onetime coach of Vietnam’s national taekwondo team, was shot for murder in Ho Chi Minh City.

The wire story does not appear to be available in a current archive but was secondhandedly cited here and here. Here’s how it ran:

Martial arts master executed

From correspondents in Hanoi
January 14, 2005

A FORMER coach of the Vietnamese national tae kwon do team was executed by firing squad in Vietnam for murder, a court official said today. Nguyen Van Van was put to death today at Long Binh execution ground in the southern Ho Chi Minh City, an official from the city People’s Court said.

A municipal appeal court handed down in June 2004 the death sentence to Van, who was only sentenced to life imprisonment at his first trial in March of the same year, for murdering a man in an ambush on December 19, 1996.

The incident took place at a cafe after one of Van’s sons got involved in a brawl with a customer. Accompanied by family members, Van stormed into the cafe where he injured the cafe owner and stabbed to death his brother-in-law, Le Hong Quan.

On this day..

2007: 23 Shia hostages

Posted on by

On this date in 2007, during Iraq’s sectarian civil war, Sunni gunmen avenged the execution of Saddam Hussein by hanging 23 Shia hostages in Baghdad’s Haifa Street.

It was but one instance of retaliatory violence ensuing upon the former dictator’s hanging Dec. 30, with scores killed around the country — many in a similar fashion.

London’s Telegraph reports:

The residents of the city’s Haifa Street will long remember the events of Sunday morning. As shop owners raised their shutters and stall holders set out their stock, three minibuses roared to a halt.

Gunmen jumped out and pulled blindfolded prisoners on to the street. Ropes were tied to lampposts and electricity poles. Those hostages who resisted were shot. Others who were still alive had nooses tied around their necks and were then suspended in mid air to choke to death.

All were left hanging, and the victims received little sympathy from those who witnessed the events.

“We watched as all these blindfolded men were hung up and some were shot in the head,” Imad Atwan, a supermarket worker said.

“Altogether there were 23 bodies. We are all Sunni people here so we supported the gunmen. Some of them are the guards of our neighbourhood.”

…

The discoveries were not limited to Haifa Street. People murdered in the same way had been found in Al Doura district and Amriya, in western Baghdad.

The interior ministry estimates that 200 Iraqis were taken hostage after Saddam was sentenced to death.

On this day..

2002: Sani Yakubu

Posted on by

On this date in 2002, a young murderer from the northern Nigerian state of Katsina became the first person executed under that country’s controversial introduction of sharia law two years before.

Yakubu was convicted of stabbing to death a woman and her children, and according to the BBC was initially to be stabbed to death using the same knife. The sentence was moderated to hanging, perhaps to avoid inflaming sectarian sensibilities.

The introduction in 2000 of sharia in several northern majority-Muslim states of the oil-rich nation has pitted those states against majority-Christian territories to the south in a complex duel of identity politics under the klieg lighting of international human rights pressure.

Yakubu went from a guilty plea to death within three months, apparently because he failed to pursue any form of appeal, which might well have availed him: Nigeria’s federal government has pledged to stay sharia executions. Yakubu is in fact believed to not only be the first Nigerian executed under sharia — but also the last.

(It should be noted that just last month, Amnesty International charged Nigeria with carrying out executions in secret over a period of years. Although there was no explicit sharia connection documented in that expose, such behavior counsels caution with any assertion about recent death penalty activities in Nigeria.)

On this day..

2002: ‘Ali bin Hittan bin Sa’id, Muhammad bin Suleyman bin Muhammad, and Muhammad bin Khalil bin ‘Abdullah

Posted on by

On this date in 2002, three homosexual men were beheaded with a sword in the resort city of Abha, Saudi Arabia.

The Saudi Interior Ministry announced that the men had “committed acts of sodomy, married each other, seduced young men and attacked those who rebuked them” — suggesting, despite the allusion to molestation, that homosexuality might have been the primary basis for their execution.

The incident created a ripple of worldwide attention and some pungent speculation, but the particulars remain shadowy — not unlike the ambiguous position of gays in Saudi Arabia even in the face of draconian sodomy laws.

On this day..

2006: Saddam Hussein

Posted on by

One year ago today, Saddam Hussein was hanged in “the hell that is Iraq” — his riposte to the mob scene at his gallows, transmitted worldwide by way of illicit footage shot with a cell phone.

Caution: This video contains graphic footage. You knew that already.

How it was then:

Who could follow in his footsteps?

On this day..

2006: Angel Diaz

Posted on by

On this date one year ago, Angel Diaz suffered lethal injection for the 1979 murder of a topless bar manager.

And “suffered” was the word. The procedure was botched, and Diaz took 34 minutes — and a second dose of the lethal three-drug cocktail — before dying, with chemical burns left on both arms.

The incident provoked an immediate media storm and a moratorium on executions in Florida pending the perversity of public servants molding killing procedure by committee. As a result, Diaz remains the last person executed in Florida, and 2007 will be the first year since 1982 that the Sunshine State puts nobody to death.

The debacle in Florida has been a microcosm for the nation. Lethal injection as an execution protocol was by this time last year already facing growing scrutiny. It was immediately apparent that Diaz’s execution could spell serious trouble for the American death penalty’s legal machinery.

And indeed that machinery has now ground to a halt, if only a temporary one. Facing judicial confusion, the Supreme Court is weighing a potential landmark case on the constitutionality of lethal injection, with actual executions — at least involuntary ones — under a de facto moratorium for months yet to come.

That same disquiet is setting down legislative as well as judicial milestones: New Jersey is poised to has this very day become the first American state to abolish the death penalty since 1965.

On this day..

2001: Lois Nadean Smith

Posted on by

On this date in 2001, Lois Nadean Smith was executed by lethal injection in Oklahoma for the murder of her son’s ex-girlfriend.

By the standards of the 1,099 executions in the “modern” death penalty in America — those since the 1972 Furman v. Georgia Supreme Court decision — very little especially distinguished Smith‘s case.

Sentenced some 19 years before her death, she had committed a single horrifying and rather tawdry kidnapping and murder. Her guilt was in no question, although she stood trial along with her son — who received a life sentence — and would later argue on appeal that their lawyer had pursued a defense intentionally shifting blame onto her in order to save him.

As a woman, though, Smith was inherently an oddity. This date completed a remarkable year in which Oklahoma, having not put any woman to death since 1903, emptied its women’s death row with three such executions.

Including those three, only eleven women have been executed in the United States since Furman — or, indeed, since the Kennedy administration. There had been no calendar year in which three women were executed in the entire country since 1953 … and no single state had executed three women in one year since Virginia when the women in question were property.*

According to the Death Penalty Information Center:

Death sentences and actual executions for female offenders are also rare in comparison to such events for male offenders. In fact, women are more likely to be dropped out of the system the further the capital punishment system progresses. Following in summary outline form are the data indicating this screening out effect:

  • women account for about 1 in 10 (10%) murder arrests;
  • women account for only 1 in 50 (2.1%) death sentences imposed at the trial level;
  • women account for only 1 in 70 (1.4%) persons presently on death row; and
  • women account for only 1 in 90 (1.1%) persons actually executed in the modern era.**

At the end of a chain of improbabilities, Smith apparently met her death with composure. “To the families, I want to say I’m sorry for the pain and loss I’ve caused you,” she said from the gurney. “I ask that you forgive me. You must forgive to be forgiven.”

* See charts of female executions through 1962 and since 1900, both courtesy of the comprehensive Espy file of all executions in American history.

** This calculation appears to be slightly dated, with women currently accounting almost exactly 1 in 100 persons actually executed. The last 117 American prisoners executed have all been men.

(All stats are as of publication date in December 2007)

On this day..