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December 10, 2013

Some final squabbling over some of the final executions slated for 2013

This new Reuters piece, headlined "Oklahoma to execute inmate; Missouri execution stayed," provides a run down of some of the final aspects of some of the final executions scheduled for 2013.  Here are the details:

Oklahoma on Tuesday was scheduled to execute a man convicted of raping and murdering two elderly women in the 1980s, while a federal appeals court panel has stayed a Missouri execution planned for hours later.

Missouri appealed the 2-1 ruling by the Eighth Circuit U.S. Court of Appeals panel to stay the execution of Allen Nicklasson, 41, who was found guilty of killing a stranger who offered him roadside assistance.  Nicklasson has raised claims that his trial and appeals counsel were ineffective.  The full Eighth Circuit was expected to hear arguments and rule Tuesday morning on the state's request to lift the stay of Nicklasson's execution, which is set for early Wednesday at a Missouri prison.

The Missouri Department of Corrections is proceeding with its plans for the execution unless instructed differently by the state attorney general, spokesman Mike O'Connell said. Oklahoma is scheduled to execute Ronald Clinton Lott, 53, by lethal injection at a state prison after 6 p.m. Central Time (0000 GMT) on Tuesday.

If carried out, the executions of Lott and Nicklasson would be the 37th and 38th in the United States this year, according to the Death Penalty Information Center.

Lott was convicted of raping and killing Anna Laura Fowler, 83, in 1986 and Zelma Cutler, 90, in 1987 in their Oklahoma City homes after DNA evidence linked him to the crimes.... Another man, Robert Lee Miller Jr., had originally confessed to the rape and murder of the two women and served 11 years, seven on death row, before DNA evidence led authorities to Lott. Miller was released in 1998.

Lott would be the fifth man executed in Oklahoma in 2013. The state is also scheduled to execute Johnny Dale Black, 48, on December 17 for his conviction in the 1998 stabbing death of Ringling, Oklahoma, horse trainer Bill Pogue.

In the Missouri case, Nicklasson was found guilty of murder for the August 1994 shooting of motorist Richard Drummond, who stopped on a highway to help Nicklasson and two other men whose car had broken down. The men had burglarized a home where they stole guns and ammunition before their vehicle broke down. When Drummond stopped to offer a ride, the men abducted him, took him to a wooded area and shot him in the head, according to court records. One of the men, Dennis Skillicorn, was executed in 2009. The other man, Tim DeGraffenreid, was 17 at the time. He pleaded guilty to second-degree murder and received a reduced sentence.

Nicklasson and Skillicorn were also convicted of killing an Arizona couple while they were on the run after killing Drummond. Nicklasson would be the second person executed in Missouri this year.

Nicklasson had been scheduled to die October 23, but Missouri Governor Jay Nixon halted the execution due to broad criticism over the state's planned use of the drug propofol, widely used as an anesthetic in medical procedures. The case is one of many caught up in a nationwide debate over what drugs can or should be used for executions as capital punishment opponents pressure pharmaceutical companies to cut off supplies of drugs for executions. Missouri in November used pentobarbital, a short-acting barbiturate, mixed by a compounding pharmacy to execute serial killer Joseph Paul Franklin.

Because the executions discussed in this piece are the only ones likely to be carried out this month, it appears very likely that there will be less than 40 executions in the United States in 2013. This is only the second time in nearly two decades in which there were less than two score execution throughout the nation, and the last time (in 2008) no executions had been carried out for the first three months of the year as everyone awaited a result in Baze concerning the constitutionality of lethal injection protocols.

December 10, 2013 at 11:42 AM | Permalink


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|a nationwide debate over what drugs can or should be used for executions //
as capital punishment opponents pressure pharmaceutical companies to cut off supplies of drugs for executions |

The existence of this largely phony “debate” is due to the recognition by foes of the death penalty, that they can dishonestly exploit variances in drug choices
to potently muck-up, delay, and even stop many executions.

They don’t care about suffering due to choice of execution drug; their motive is revealed by their actions above “as [they] pressure” drug companies
“to cut off supplies of drugs for executions”.

Someone disagree.

Posted by: Adamakis | Dec 10, 2013 2:09:22 PM

Anyone interested in another bet?

I frequently offer bets here, but seem to have a lot of trouble getting anyone to take me up. This is similar to the experience I have offering to debate people. Only one -- Doug Berman -- has taken me up. All the other pro-defense types hunker down behind the Internet curtain.

So this is the current offer: If, as seems probable, there are 38 executions this years, my bet is that the DPIC and several major media outlets will beat their chests, in prominent stories to this effect: "EXECUTIONS PLUMMET AGAIN IN 2013 - Death penalty continues to lose support," followed by many column inches quoting many more abolitionists than retentionists on what it all means.

If, on the other hand, by some unexpected turn, there are more executions this year than last (43), the story will be downplayed, with little and muted coverage. (This is what happened in 2005 and 2009, when the number of executions was higher than the year before). To the extent any increase in executions were to get covered at all, it would be in some Atlantic or NYT story to the effect that: "USA CONTINUES TO DEFY WORLD TREND IN EXECUTIONS - Experts Puzzled at Obstinancy; Tea Party Fingered."

Any takers?

Posted by: Bill Otis | Dec 10, 2013 3:23:33 PM

You can twist these numbers a lot of ways. One example is that Arizona and Mississippi had 6 executions each in 2012. Due to the fact that fewer cases are in the "warrant ready" pipeline, Arizona only had 2 this year compared to none in Mississippi.

I read an article the other day stating that Arizona has 4 more cases that have been denied certiorari to the 9th Circuit. The state is having difficulty obtaining the drugs so they have not asked the Arizona Supreme Court for execution dates. When they resolve the problem, I am sure there will be at least 4 executions in 2014.

Posted by: DaveP | Dec 10, 2013 4:32:52 PM

If you kill someone do not call it something else like an execution. The method is getting a bit weeny. If you kill someone just shoot them with rifles-- six bullets to the head in rapid fire. If you kill humans for being bad humans then feel good about and beat your chests. It is ok. Y'all can. It is legal. God does not care. You will not be punished. You can feel good about it. Go to it America.

Posted by: Liberty1st | Dec 10, 2013 5:20:32 PM

I do not have a problem with the execution of Nicklasson for his crimes. I thought that Bill would bet that the execution will go on as scheduled and I would not have bet against it. I also think that propofol is as "merciful" as the previous drug cocktail.

My problem is with the following regarding the OK execution of Lott:

"Another man, Robert Lee Miller Jr., had originally confessed to the rape and murder of the two women and served 11 years, seven on death row, before DNA evidence led authorities to Lott."

Why doesn't anybody comment on how an innocent man (Miller) was found guilty and sent to Death Row? I know how "authorities" can have tunnel vision and frame-up a confession, and thus a conviction. Were the culpable state parties investigated and disciplined for this?

Posted by: albeed | Dec 10, 2013 6:45:55 PM

Miller confessed to the rapes and murders. But, shouldn't the police have asked him specific questions about the crime scenes to determine if he was lying? Only the real murderer would know certain facts.

Posted by: DaveP | Dec 10, 2013 8:33:26 PM

Ugh, another day, another BS stay. There are a lot of things to criticize about this stay, but the most galling one is the fact that the panel didn't even bother to articulate its reasons for the stay (the news reports I read indicate that the court didn't issue an opinion). There is a set standard for issuing a stay, and this case doesn't come remotely close to meeting it. Then, of course, in an exercise of ridiculous deference the en banc court valued comity over the law. I am reminded of Judge Sutton's BS paean to comity in his concurrence in the denial of en banc rehearing in the Mitts case.

Make no mistake--this was the exercise of raw power. Lawless. There is no defense to this nonsense.

The two-judge majority on the panel has earned the white hot hatred of the victims' families and the utter contempt of those of us who believe in the rule of law.

As much as I hate to admit it, the problem doesn't appear to be 'rat judges, although 'rat judges may constituted the majority on the panel. The 8th Circuit is solidly GOP-appointed, and the GOP judges permitted a travesty of justice.

This is yet another example of the irresponsibility of the federal courts when it comes to executions. They should be completely out of this business.

Posted by: federalist | Dec 10, 2013 9:50:51 PM

The majority did not issue an opinion but set up briefing and OA for Mid January. Judge Beam issued an excellent 8 page dissent. It seems the lower court judges are grappling with Martinez issues and are having difficulty agreeing on when a stay is warranted.

Sounds like the Schad case from Arizona?

Posted by: DaveP | Dec 11, 2013 12:02:02 AM

yeah dave, definitely a good dissent. The majority ought to be thoroughly ashamed of itself.

It would be nice if Judge Beam would have had more time. He is absolutely right about the fact that these issues could have been brought much earlier. It may be a mystery to Joe and members of the capital defense bar--but the law is absolutely clear that an intervening change in the law does not mean that a claim shouldn't have been raised earlier. People were free to make Martinez arguments all day long in federal habeas cases before Martinez--if they didn't, too bad. Additionally, even if you were to swallow the argument that Martinez started the Rule 60(b) clock (a very dubious assumption)--Martinez was decided some time ago. So where is the panel majority's analysis of the fact that this claim was brought way late in the game? That's clearly part of the law. Where was the panel majority's assessment of the likelihood of success on the merits? Where was the assessment of the fact that the ripping open of final habeas judgments implicates the most serious of federalism issues?

The fact is that these two "judges" are an absolute disgrace to the bench. They are lawless. They deserve the pitiless criticism, not only for their thumbing their nose at the law (for the benefit of an obviously guilty capital murderer), but for their pathetic inability to explain themselves.

Basically, either these judges are idiots, or they are lawless or both. However you look at it, these hacks don't even deserve law licenses, and the idea of calling them "Your honor" is a sick sick joke. Harsh words--maybe--but there are family members who are being jerked around by two lawless hacks and the rest of the 8th Circuit which apparently believes that comity is more important than justice and "our Federalism." A thoroughly disgusting display. They have earned the white hot hatred of the victims' families and the lawyers who have to litigate in front of these clowns in robes. They have also earned the contempt of anyone who believes in the rule of law.

These judges are capital murderer coddling twits.

And yes, I hope their clerks read this.

Posted by: federalist | Dec 11, 2013 2:01:47 AM

Federalist: Who are the 8th Circuit who are so lame?

Posted by: Liberty1st | Dec 12, 2013 1:47:52 PM

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