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November 20, 2013

Missouri mass murderer gets two last-minute execution stays from two federal judges... UPDATE: stays reversed, execution completed

As reported in this new Reuters article, "[t]wo federal judges granted a serial killer stays of execution on Tuesday hours before he was to be put to death, allowing him to challenge Missouri's new lethal drug protocol and his mental competence, and the state immediately appealed the rulings."  Here is more:

Joseph Paul Franklin, an avowed white supremacist, was convicted and sentenced to death for killing one man and wounding two outside a St. Louis-area synagogue in 1977.  He was scheduled to be executed early on Wednesday at a Missouri prison.

Franklin, 63, has been linked to the deaths of at least 18 other people.  He was convicted of killing eight in the late 1970s and 1980s in racially motivated attacks around the country. The victims included two African-American men in Utah, two African-American teenagers in Ohio and an interracial couple in Wisconsin.

Franklin also has admitted to shooting Hustler magazine publisher Larry Flynt in 1978, paralyzing him. Flynt has argued that Franklin should serve life in prison and not be executed.

In October, Missouri changed its official protocols to allow for a compounded pentobarbital, a short-acting barbiturate, to be used in a lethal dose.  The state also said it would make the compounding pharmacy mixing the drug a member of its official "execution team," which could allow the pharmacy's identity to be kept secret.

In granting the stay, U.S. District Judge Nanette Laughrey noted that Missouri had issued three different protocols in the three months preceding Franklin's execution date and as recently as five days before.  "Franklin has been afforded no time to research the risk of pain associated with the department's new protocol, the quality of the pentobarbital provided, and the record of the source of the pentobarbital," Laughrey wrote in the stay order entered in federal court in Jefferson City, Missouri....

In the second case, U.S. District Judge Carol Jackson in St. Louis ordered Franklin's execution stayed, concluding that a delay was required to permit a meaningful review of his claim that he is mentally incompetent and cannot be executed.

The Missouri Attorney General's office asked the U.S. Court of Appeals for the Eighth Circuit to lift the stays.

Missouri Governor Jay Nixon denied Franklin clemency on Monday.  Franklin is one of 21 plaintiffs challenging the constitutionality of the execution protocol issued by the Missouri Department of Corrections.

UPDATE: As the commentors to this post noted before I got back on-line, Franklin was executed by Missouri after the Eighth Circuit reversed both the stays he received. Here is an AP report on the execution:

Joseph Paul Franklin, a white supremacist who targeted blacks and Jews in a cross-country killing spree from 1977 to 1980, was put to death Wednesday in Missouri, the state's first execution in nearly three years.

Franklin, 63, was executed at the state prison in Bonne Terre for killing Gerald Gordon in a sniper shooting at a suburban St. Louis synagogue in 1977. Franklin was convicted of seven other murders and claimed responsibility for up to 20, but the Missouri case was the only one that brought a death sentence.

Mike O'Connell, a spokesman for the Missouri Department of Corrections, said Franklin was pronounced dead at 6:17 a.m. The execution began more than six hours later than intended, and it took just 10 minutes....

Franklin's lawyer had launched three separate appeals: One claiming his life should be spared because he was mentally ill; one claiming faulty jury instruction when he was given the death penalty; and one raising concerns about Missouri's first-ever use of the single drug pentobarbital for the execution.

But his fate was sealed early Wednesday when the U.S. Supreme Court upheld a federal appeals court ruling that overturned two stays granted Tuesday evening by district court judges in Missouri. The rulings lifting the stay were issued without comment.

November 20, 2013 at 01:19 AM | Permalink

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From NBC News:

"The Supreme Court on Wednesday denied a stay of execution for Joseph Paul Franklin, a white supremacist who targeted blacks and Jews in a cross-country killing spree from 1977 to 1980 and the man who shot Hustler publisher Larry Flynt.

The decision was handed down early in the morning and reported by The Associated Press. It came hours after a federal appeals court overturned two stays and ruled that the state of Missouri could execute Franklin for a deadly sniper attack outside a St. Louis synagogue in 1977..."

http://tinyurl.com/slp112013

Posted by: C | Nov 20, 2013 7:19:53 AM

So sad to hear that the execution was carried out this morning. Couldn't have happened to a nicer guy.

Posted by: Res ipsa | Nov 20, 2013 8:59:56 AM

Res ipsa --

Just so. Where have you been?

Posted by: Bill Otis | Nov 20, 2013 9:28:25 AM

A person who "worked on his prosecution" agreed with one of his victims (see OP) and opposed his execution.

http://prawfsblawg.blogs.com/prawfsblawg/2013/11/joseph-paul-franklin-does-not-deserve-to-die.html#comments


Posted by: Joe | Nov 20, 2013 11:38:29 AM

Bill--

Think of me like Santa Claus--I'm always watching to see who's been a good boy or girl...just not always in the fray.

In reality, I've been intermittently checking in, but not nearly as much as I'd like. I've missed quite a few weeks of posts unfortunately.

Posted by: Res ipsa | Nov 20, 2013 12:14:23 PM

The 8th circuit made quick work of the dreadful and embarassing stays. Judges Laughrey and Jackson cant even cite LEGAL arguments for issuing a stay. The supreme court has spoken on death penalty and use of the drugs. The bar for an appeal is VERY high...the court has to be certain that the State did not follow supreme court precedent. 11th hour claims are NOT sufficient to disolve 20 years of state and federal court rulings. These judges issued EMOTIONAL decisions not factual ones.
"The district court entered the stay of execution without referring to any legal standard. The district court did not apply. The district court did not apply the standard Congress enacted that requires federal courts to give deference to state court decisions". REVERSED.

Posted by: deano | Nov 20, 2013 12:19:37 PM

:: Joe:: joseph-paul-franklin-does-not-deserve-to-die.html#comments

/ “But. For all of Franklin's evil and dangerousness, his execution is unjust. Admittedly, I oppose capital punishment generally,
but even if I didn't, his case would still be problematic. Franklin was made a monster by brutally abusive parents." \

There you have it. Thanks for those irrefutable gems, Joe.

I haven’t heard more meaningful or persuasive words since convicted Ohio serial killer Anthony Sowell stated during the penalty phase of his murder trial:
"This is not typical of me."

[or perchance when Obama said if you like your plan… I didn’t set a red line…I found out when you did... et al]

[Sowell was found guilty of 82 counts, including killing 11 women and attempting to kill 3 others who survived.]


Posted by: Adamakis | Nov 20, 2013 1:10:32 PM

I would add the part where the person who worked on the prosecution said "The man's brains are scrambled." The comment noted how despicable and all the person was -- which can be said about many criminals -- but we don't execute most of these people for various reasons. The former prosecutor (I assume he was, since he notes he worked on the prosecution) believes this one is such a case. He doesn't "love" the guy, as some ridicule those against the death penalty (in general or as applied), but thinks is unjust in this case particularly.

Anyway, the orders from the Supreme Court noted Scalia didn't take part. Anyone know why?

Posted by: Joe | Nov 20, 2013 1:26:47 PM

Joe --

Lots of people "work on a prosecution," particularly in a DP case, who are not prosecutors or even lawyers -- paralegals, clerks, interns, secretaries, investigators, victim/witness coordinators, document custodians, and more.

In addition, you can bet that if the person to whom you are referring were in fact a prosecutor, he would have said so.

Finally, I don't get your point here. A person generally opposed to the DP is easy pickins to find a reason in any particular case to hang his hat on.

Do you think the world is a better or a worse place without Mr. Franklin in it?

Posted by: Bill Otis | Nov 20, 2013 1:37:50 PM

As to deano, the OP cites the district judges' reasons and they seem to be based on facts and legal concerns, even if they were found to be inadequate by the court of appeals. Use of caps and adjectives like "dreadful" doesn't change this.

Posted by: Joe | Nov 20, 2013 1:45:57 PM

Bill Otis isn't clear what my "point" is. I don't know specifically what he is concerned about there.

My comment was that someone involved in the prosecution argued -- without denying the person is despicable and deserves to be locked up -- that the death penalty is unwarranted here in particular. One reason cited was a mental competency concern, which Bill Otis didn't include in his excerpt. What more is one to add here?

Bill Otis also wonders if the world is a 'better or worse' place without him in it. What is the point of that? We only execute a very small number of people. We don't execute everyone using a test like that. Not that I think he's saying this, to avoid confusion, but that can't be the test -- let's say two guards watched as an inmate killed him. If I thought this wrong, would the reply be "do you think the world is a better or worse place without Mr. Franklin in it?"

I do think the world is a better place without the death penalty, particularly in those cases where there is some reasonable chance the person executed is mentally incompetent.

As to the "easy pickins" deal, Prof. Chin singled this case out for some reason -- perhaps because he was somehow involved or for whatever reason. He doesn't normally comment on pending executions on that blog. It is true that if one is inclined against the death penalty, you are more likely to find problems with specific ones. Then again, so few cases actually lead to execution that even those generally supportive can "hang his hat" on one that he or she (as it might be) finds problematic.

Finally, Prof. Chin argues the case is specifically egregious. There are levels of wrong. Take federalist. He recently noted Sotomayor's dissent in a recent case was less shoddy than some of her efforts (using his general low opinion of her work). Shades of wrong, you see.

I do want to flag one thing -- looking at his c.v. & re-reading the account, Prof. Chin was not a prosecutor on the case. I should be clear when referencing former prosecutors who are against the death penalty, such as Prof. Berman's friend Mark Osler.

Posted by: Joe | Nov 20, 2013 2:16:30 PM

|| “I would add the part where the person who worked on the prosecution said "The man's brains are scrambled." ||

PROF. CHIN {truly}: “The man's brains are scrambled. He is blind in one eye, and my recollection from the file is that his
parents did it in a beating that got out of hand. Whether as a question of punishment, protection of the public, or both, he should
never again see the street. But a person this badly damaged cannot be held responsible in the same way as people who freely choose to do wrong.”

So professor of bunk, is it that a one-eyed man “cannot be held [equally] responsible”, or that a survivor of childhood abuse cannot?
Franklin could not decide to murder person- after- person in pursuit of a Nazi agenda “in the same way people who freely choose”, do so?

• The close-minded anti-death penalty advocate’s perpetual problem: ever-grasping at baseless excuses: more excuses than a pathological liar.
• There is also this liberal problem: mental “”illness“” is insanely malleable, as is "badly damaged".

Apparently to the deep-set Chin, the multi-murderer Franklin need not even be clinically insane; he merely need be abused.

Nonetheless, do not greatly doubt that duplicitous [or double?] Chin, whilst ‘working on the prosecution’, would hesitate to claim
mental “”illness“” on behalf of any whom he finds to be facing capital charges, for when he states “Admittedly, I oppose capital punishment generally”,
does he not mean exhaustively, unyieldingly, and mindlessly?

Posted by: Adamakis | Nov 20, 2013 4:59:51 PM

This guy makes a good case for the death penalty. I do not like the drug poison thing. Firing squad with the Governor up there with a rifle. Victims' relatives should get to be in the squad too if they wish. If he has kids, they should be made to watch if they are under 18. His mom should be required to be there and dad too because they brought him into the world and should see him out. The defense that one is not competent should be contained in whether one is ready for a trial not ready to be killed.

Posted by: Liberty1st | Nov 20, 2013 7:59:45 PM

This man was like a natural disaster, and as deadly. The entire responsibility lies with the lawyer profession. It kept him alive to kill after age 14.

Posted by: Supremacy Claus | Nov 20, 2013 8:05:29 PM

First off, Joe, you'll have to explain why Apprendi logically dictates or even provides support for Sotomayor's position. Bottom line--Apprendi only talks in terms of prerequisites to eligibility for a particular sentence. That the prerequisites are important doesn't change their nature as prerequisites. Pointing to Apprendi and saying that "the jury is important" is sloganeering, not argument. Sotomayor can get away with it because, at the end of the day, it's really all about her vote. Joe, you don't have that luxury. In here, logic in the end will out.

As for this whole Franklin brouhaha, the bottom line is that Joe and all the others who are upset about his passing, because, insert foot stomp, the death penalty is just what unenlightened meanies do, are completely un-upset about the obvious flouting of the law by the District Court judges. The Clinton judge Laughrey's opinion manifestly is contrary to Baze and Brewer v. Landrigan. Her pique about the State not handing over information doesn't give her the right to stay the execution. Baze presupposes a showing before intrusive discovery can take place. As for the other learned judge (a Bush 41 appointee--I wonder if she was part of a deal), she didn't follow the law when it comes to a stay. I guess it's ok with Joe and all the others when lawless federal judges try to thwart a clearly constitutional punishment.

Posted by: federalist | Nov 20, 2013 10:44:00 PM

"the OP cites the district judges' reasons and they seem to be based on facts and legal concerns"

Oh, really Joe? Perhaps you can point to the analyses that these learned judges performed and show us how they comport with the law?

Posted by: federalist | Nov 20, 2013 11:08:46 PM

well I have no problem with the death penalty taking place if deserved!. I did love this statement bill!

"Bill Otis also wonders if the world is a 'better or worse' place without him in it."

You do realize that if we went by this standard to get rid of people! We'd be missing MOST of the govt! and a hell of a lot of the media!

Posted by: rodsmith | Nov 20, 2013 11:50:13 PM

In granting the stay, U.S. District Judge Nanette Laughrey noted that Missouri had issued three different protocols in the three months preceding Franklin's execution date and as recently as five days before. "Franklin has been afforded no time to research the risk of pain associated with the department's new protocol, the quality of the pentobarbital provided, and the record of the source of the pentobarbital," Laughrey wrote in the stay order entered in federal court in Jefferson City, Missouri....

In the second case, U.S. District Judge Carol Jackson in St. Louis ordered Franklin's execution stayed, concluding that a delay was required to permit a meaningful review of his claim that he is mentally incompetent and cannot be executed."

This sounds not merely 'emotional' but actually based on certain legal concerns. If someone has a link so I can read the full orders of the district judges (or tell me why Scalia recused himself), I'd appreciate it. The appeals court disagreeing with them isn't conclusive. After all, federalist doesn't think mere 7-2 USSC rulings that think something obvious is enough. Sometimes, there is simply an honest difference of opinion on what the law requires. We don't have to constantly emotionalize the whole thing.

Anyway, Sotomayor explained how state law here requires a certain "factual finding" that warranted the d.p. and the jury during their fact-finding didn't find it. The judge, in part with more facts that the jury didn't see, inflicted a higher charge than the jury found appropriate. If, unlike Breyer, we support that line of cases, her case on this point is to me fairly reasonable. YMMV.

Posted by: Joe | Nov 21, 2013 11:31:00 AM

Joe thinks he's sprung a little trap. Federalist scoffs at 7-2 Supreme Court cases, but then (allegedly) points to the rough treatment of the District Judges at the appellate level to prove that the judges are wrong.

First of all, I believe that the 7-2 decision that Joe is referring to is the Maples case. In that situation the Supreme Court decided that the fumbled hand-off between lawyers was "abandonment" for purposes of deeming the procedural default waived. I pointed out that previously, the use of the term "abandonment" had been expressly limited to conduct possessing a degree of wilfullness and that the stretching of the term was intellectually dishonest. No one, as I recall, in here decided to take me up on that assessment. So what? Pointing out a Supreme Court trompe l'oeil doesn't preclude me from pointing out that the District Judges dropped the ball.

Where you go seriously wrong, Joe, is that you will search in vain for me to make the argument that because the District Courts were reversed they were necessarily wrong. What I have asked (and I notice you don't respond at all) is that you show how these learned judges applied the correct analysis (which does come from the Supreme Court, whether the Supreme Court is metaphysically right or wrong). You obviously cannot because they did not. With respect to lethal injection, the learned District Judge apparently ignored the fact that discovery doesn't happen based on non-specific complaints that a compounding facility doesn't get a lot of scrutiny. Maybe that should be the law, but it isn't, and the learned District Judge doesn't even acknowledge it--which she is supposed to do. As for the learned judge who stayed the execution based on claims of mental competence, where was the analysis of the last minute nature of the stay--an issue specifically discussed in Panetti. Basically, Joe, you served up a weak defense of these two, and when called on it, you try to wriggle out by mischaracterizing my posts and lamely offering that they had legal concerns. Defend their analysis if you can.

As for Sotomayor, try as you might, you can't get around the fact that she's sloganeering. Apprendi requires the jury to find the facts that are a condition precedent to a particular maximum judicial sentencing. It says nothing about the requirement that once a jury has answered a question in an advisory capacity that its advice is somehow inviolate. In other words, if the legislature wants to give the jury a role in addition to what's constitutionally required, then Apprendi doesn't really say a whole lot about that.

Posted by: federalist | Nov 21, 2013 10:36:41 PM

I can't wait to see Joe's response. Should be fun.

Posted by: federalist | Nov 21, 2013 11:58:56 PM

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