The prosecutor who successfully sought a death sentence for Daniel Cook in Arizona way back in 1988 now says he “would not have sought the death penalty in this case” if he had known about Cook’s history of severe child abuse and serious mental disorders.
Those factors were not known to the prosecutor, or anyone else, until 2010 (22 years after the trial), primarily because Cook’s appointed lawyer, according to the prosecutor, was “at the low end of the competency scale for the handling of the defense of a standard felony” and “appeared neither capable nor willing to put forth the effort necessary to represent a defendant charged with a capital offense.” The lawyer in question was bi-polar and drinking heavily at the time of the trial.
Cook was to have been executed yesterday (April 5) but the U.S. Supreme Court issued a stay to give themselves more time to decide whether or not to take up Cook’s claim of ineffective counsel. If the high Court does not take the case, the stay would be lifted and new death date could be set.
Last October, Jeffrey Landrigan was executed in Arizona amid a lot of hoopla about the origins and efficacy of Arizona’s batch execution drugs (which it was later learned came from a supplier operating out of a driving school in the U.K.) But in that case, as here, the controversy over the drugs used to kill overshadowed the fact that someone closely involved in issuing the death sentence (in Landrigan’s case the trial judge) vehemently opposed the execution. The trial judge in that case told Arizona’s Board of Executive Clemency that Landrigan’s death sentence “is not appropriate and never has been.”
Then, as now, incompetent defense lawyering kept important information about Landrigan’s severe mental impairment from being presented to the court. The U.S. Supreme Court in that case ruled that this new information would not have made a difference, but the judge’s statements proved conclusively that they were wrong.
Hopefully this time the U.S. Supreme Court will make the right decision.
“The death penalty in this case is not appropriate and never has been.”
That’s what former judge Cheryl Hendrix told Arizona’s Board of Executive Clemency in support of Jeffrey Landrigan’s effort to have his death sentence commuted. What’s important about judge Hendrix is that she is the one who sentenced him to death. New information that Landrigan’s lawyer failed to present at the trial convinced her that the death sentence she issued had been wrong.
Unfortunately, the US Supreme Court, by a 5-4 vote, had already ruled that this new information would NOT have made a difference. That turned out to be flat wrong, but an erroneous Supreme Court ruling that still trumps everything else. The Arizona Board split 2-2 vote, but that, and Governor Jan Brewer, was enough to keep the execution process rolling.
Landrigan’s attorneys also attempted to shine a light on the secretive practices of Arizona’s execution team (which now apparently includes an un-named British pharmaceutical company). Had they been successful, this would have been a great public service. Why should a public agency with the power to kill people be allowed to operate in the dark?
But that effort was not successful, thanks to another 5-4 US Supreme Court vote. The non-FDA approved drugs acquired from Great Britain appeared to work as the executioners wanted, and, late last night, Arizona carried out a death sentence that “is not appropriate and never has been.”
Arizona’s Attorney General Terry Goddard has reportedly confirmed that his state’s stash of non-FDA approved sodium thiopental came from Great Britain. The state continues to try to kill Jeffrey Landrigan with this drug, and continues to try to keep details of their supplier a secret, using a law that shields the Arizona’s execution team from public scrutiny. So an as yet unnamed British pharmaceutical company is now a member of Arizona’s execution team.
As our allies in Europe are dragged into this sordid execution mess, Arizona soldiers on with its attempt to carry out this execution (in defiance of the Inter-American Commission on Human Rights). The full 9th Circuit Court of Appeals and the US Supreme Court are likely to weigh in later today.
But whatever the outcome, two important points are worth mentioning. First, many people are now ashamed to be associated with the death penalty, and that includes those charged with carrying it out. Though ostensibly for the purpose of protecting execution team members from harassment by death penalty opponents (who rarely do anything more than deliver petitions and sternly worded letters), the real purpose of the Arizona law (and similar laws in others states, and an even more extreme effort in Texas), is to drive capital punishment into the shadows. The death penalty is not as popular as it used to be, because people are realizing that it involves things like states acquiring non-approved pharmaceuticals in shady and secretive ways and then using those drugs to kill people. Of course such efforts to hide these ugly realities only draw more attention to them.
It also bears mentioning that the judge who passed the death sentence on Jeffrey Landrigan now says she was wrong. When the US Supreme Court rejected Landrigan’s bid for a hearing on his lawyer’s failure to present important mitigating evidence, Clarence Thomas, writing for the majority, asserted that the mitigating evidence would have made no difference. The judge who was actually there has said the exact opposite – that the mitigating evidence would have made all the difference.
Even our highest courts don’t always get things right, especially when they try to predict the future. All supporters of fairness in our justice system, whether opposing capital punishment or not, should be disturbed by the slipshod way this case has been handled, and by the ongoing collateral damage our death penalty continues to do.
Secretly trafficking and then openly using unapproved drugs is now A-OK. That’s the message sent out yesterday by the Arizona Supreme Court, which allowed state officials to conceal their source for sodium thiopental (we know only that it’s NOT Hospira, the one FDA-approved supplier), and to continue with plans to execute Jeffrey Landrigan on October 26.
It is already well known that the death penalty compromises the integrity of the medical profession. Doctors, nurses, and EMTs are all bound by an oath to “do no harm” but all are involved, in a variety of ways, in the deliberate killing of prisoners. Now, it appears that our zeal for capital punishment is undermining the integrity of efforts to control and regulate powerful drugs.
Normally, if you acquired a controlled substance from a non-FDA approved source and announced your intention to use it for a non-FDA approved purpose, you would expect some sort of legal trouble. But, apparently, as long as that non-FDA approved purpose is putting someone to death, the normal rules don’t apply. Instead, you get to keep the source of your drug supply a secret, and you get to use those drugs however you want.
As for Jeffrey Landrigan, some DNA testing litigation in his case continues, and there is a clemency hearing on Friday. Landrigan’s case is sadly typical, in that his trial lawyer failed miserably to present mitigating evidence, and in that no federal appeals court has cared enough to hold a hearing on that issue. It is a bit unusual in that the judge who sentenced him to death now says she would not have done so, had she been aware of information that lawyer failed to present.
So while it appears the Arizona officials can kill Jeffrey Landrigan with a drug it got from God knows where, there is still a chance to convince them that they shouldn’t.
Arizona today admitted that it acquired the execution drug sodium thiopental from a non-FDA approved source, but continues to seek to execute Jeffrey Landrigan on October 26. The state refuses to say how they scored their new stash of the drug, citing a state law guaranteeing secrecy for executioners. The state also continues to claim that they got the drug lawfully, though this is difficult to reconcile with the admission that it was obtained from a source other than Hospira Inc., its only FDA-sanctioned provider.
There are plenty of other problems with Arizona’s plans to kill Jeffrey Landrigan, including that his trial attorney, who had never handled a death penalty case before, failed to introduce important mitigating evidence. Since the trial, much of that evidence has come to light, so much in fact that the judge who sentenced him to death now says that she would have “no choice” but to find that the mitigating circumstances were “sufficient to call for leniency”.
But no appeals court has ever held a hearing to examine Mr. Landrigan’s claim of inadequate counsel, and an execution has been scheduled anyway.
So, to sum up: Don’t Ask about the failures of Jeffrey Landrigan’s lawyer, and Don’t Tell anyone about the secret drug purchases of Arizona’s executioners.
At least for now. Litigation continues, as does an appeal for clemency.