In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

Alabama executes Robert Bryant Melson

Robert Melson
Robert Melson
Robert Bryant Melson executed for 1994 triple slaying

Tonight Alabama death row inmate Robert Bryant Melson was executed by lethal injection for the 1994 slayings of 3 fast food restaurant workers in Gadsden. It was the 2nd execution for Alabama in 2 weeks.

The execution of Melson -- convicted of numerous counts of capital murder, attempted murder, and robbery in the shooting at Popeye's -- was delayed by federal and state appeal courts on his requests for a stay. 

The execution was set for 6 p.m. at Holman Correctional Facility in Atmore, but did not begin until 9:55 p.m.

Commissioner Jeff Dunn made a statement at the media center following the execution. He read a statement from Tamika Collins' family, part of which said, "[Melson] feels that he should not suffer a little pain... what does he think those three people felt?... I see no feeling for anyone but himself."

A cousin of Tamika Collins also wrote a statement. It said, "The day has finally arrived... it does not change the acts he so violently carried out." The cousin, whose name was not given, also said of Collins' late father, "This was a day he waited for."

Collins mother and two sisters witnessed the execution.

No family members of Melson were present.

Dunn said he was not aware of any other executions planned, but the Department of Corrections has supplies of the lethal drugs if necessary.

Melson was officially pronounced dead at 10:27 p.m. When asked if he had any last words, Melson shook his head "no." His hands were shaking before the execution began at approximately 9:59 p.m.

For approximately 7 minutes, Melson appeared to have slightly labored breathing. His breathing then slowed, and he did not respond to a consciousness check by a corrections officer before the 2nd 2 drugs in the 3-drug execution method-- which stop the heart and breathing-- were administered.

Alabama Attorney General Steve Marshall released the following statement Thursday night after Melson's execution: "Robert Melson's decades-long avoidance of justice is over. For 23 years, the families of the three young people whose lives he took, as well as a survivor, have waited for closure and healing. That process can finally begin tonight."

Melson becomes the 2nd condemned inmate to be put to death this year in Alabama and the 60th overall since the state resumed capital punishment in 1983.

Melson becomes the 13th condemned inmate to be put to death this year in the USA and the 1455th overall since the nation resumed executions on January 17, 1977.

Sources: al.com, Rick Halperin, June 8, 2017

Temporary stay granted for death row inmate Robert Melson

The U.S. Supreme Court has temporarily halted the death of an Alabama inmate as it reviews his request to block his execution over questions regarding a sedative’s effectiveness.

Justices issued the temporary stay Thursday evening about 15 minutes before 46-year-old Robert Bryant Melson was scheduled to be executed by lethal injection.

Melson was convicted of killing three people during a 1994 robbery of a fast food restaurant.

Melson’s attorneys argued that Alabama plans to use an ineffective sedative that will not render Melson unconscious before other drugs stop his lungs and heart. They cited the December execution in which an Alabama man coughed and heaved for 13 minutes.

His attorneys argued the execution showed “the horrific results of using midazolam in a way it was never intended as an anesthetic.”

The Alabama attorney general’s office had asked for the execution to proceed arguing the U.S. Supreme Court has upheld midazolam’s use and allowed other executions to proceed using it. Alabama has executed three inmates using midazolam.

Source: Associated Press, June 8, 2017

There are more Robert Melsons than Tommy Arthurs

On May 26, minutes after midnight, Tommy Arthur was put to death by lethal injection. "His case," Gov. Kaye Ivey said, "was reviewed thoroughly at every level of both our state and federal courts, and the appellate process has ensured that the rights of the accused were protected."

Later the same day, Ivey signed into law the "Fair Justice Act," a law intended to speed up the death penalty appeals process.

Proponents of this law claim that death penalty appeals take too long, frustrating the interests of justice and prolonging the agony of victims' families. Arthur's case, which spanned more than 3 decades and involved, among other things, 2 retrials and 7 execution dates set aside at the last minute by dramatic claims of newly discovered evidence and questions about the constitutionality of Alabama's death penalty scheme and execution protocol, was often cited as a case in point.

Yet despite everything, questions remained even up to the moment of Arthur's death. His execution was immediately preceded by a strongly-worded dissent from U.S. Supreme Court Justice Sonya Sotomayor, who contended that Alabama's refusal to allow his lawyer to bring a phone with her into the viewing room so that she could alert the court to irregularities in the execution meant that "when Thomas Arthur enters the execution chamber ... he will leave his constitutional rights at the door."

Arthur was lucky to have his constitutional rights honored that long. Robert Melson, an Alabama death row prisoner who is set to be executed on June 8, has not been so fortunate. While Arthur's post-conviction lawyers did battle on his behalf for years and stuck with him to the end, Melson's lawyers abandoned him long ago. Despite strenuous efforts by his current attorneys and a moment of hope in 2011, when the U.S. Supreme Court remanded his case for a hearing on the question of whether his previous attorneys' negligent behavior was irresponsible enough to merit an exception to the strict rules governing deadlines for post-conviction appeals, Melson, if he is executed on June 8, will go to his death without ever having had a hearing on the merits of his post-conviction case.

The difference between Arthur's trajectory and Melson's comes down to luck. While Arthur was blessed in post-conviction with a team of committed, competent, creative, and tenacious lawyers from a deep-pocketed and generous New York law firm - and helped also by the multitude of prosecutorial and judicial missteps that necessitated 2 retrials -- Melson was cursed when the out-of-state lawyer who took his case, and the inexperienced local counsel, turned out to be well-meaning but incompetent bumblers who doomed his case by missing a crucial deadline.

There are serious questions about the integrity of Melson's conviction. Arrested for being in the wrong place at the wrong time and for having skin the same color as the alleged shooter's, his death sentence rests on a pair of shoes that were a size and a half too small for him, 2 pebbles, a seed, and the self-serving statement of an intellectually disabled and emotionally disturbed teenager who has since recanted. No physical evidence at the scene connects Mr. Melson to this crime. Yet because his post-conviction counsel abandoned him, he has never had a chance to air evidence of his innocence in court.

Alabama is almost alone among death penalty states in declining to provide death-sentenced prisoners with attorneys to help them challenge their convictions during the state post-conviction phase, known as Rule 32. Except on the rarest of occasions, Rule 32 is the only opportunity most inmates have to put on evidence that innocence or other factors mean they are deserving of new trials. Alabama inmates must rely on the kindness of strangers to take their cases - and, as Melson's and many other cases prove (including that of Ron Smith, who was executed in December 2016 and whose Rule 32 lawyer also abandoned him) - kindness is not enough.

In a recent letter to his lawyer, Melson wrote, "I don't know much, I didn't even finish high school. But this I do know, I am scared and I need someone to see me, hear me! PLEASE."

The courts saw and heard Tommy Arthur. He was executed anyway, and questions remained, but at least he was lucky enough to have attorneys who fought for him every step of the way. Though Melson now has lawyers who have begged the courts to make an exception and allow him to put on evidence about the flaws in his conviction, the courts have ruled that they came too late in the day. Only the governor can save him now - and in living memory, only one Alabama governor has granted clemency to a death-sentenced prisoner.

The argument for the Fair Justice Act, like many arguments about the death penalty, is premised on the idea that some people somehow get too much justice. But there are many more Robert Melsons than Tommy Arthurs. In its rush to exact vengeance, the state must not neglect its duty to see and hear them all.

Source: Montgomery Advertiser, Jake Watson, June 7, 2017. The author is a Huntsville-based solo practitioner who represents clients in state and federal court. He has been honored by the Alabama Criminal Defense Lawyers Association for his work on capital cases, and serves as a board member of the Alabama Post-Conviction Relief Project (alapcrp.org).

Robert Melson attorney: Something 'was not right' with execution

ATMORE, Ala. (AP) —The Latest on the execution of an Alabama inmate.

A lawyer for an Alabama inmate put to death by lethal injection Thursday says she is concerned his trembling limbs and labored breathing were an indication something "was not right" with the procedure.

Christine Freeman, the executive director of the Federal Defenders Program in Montgomery, said Friday that Robert Melson's arms shook against restraints at the start of the procedures in a manner not seen in other executions.

Melson's attorneys had unsuccessfully asked the appellate courts to block the execution, arguing there were unanswered questions about the effectiveness of the sedative midazolam that Alabama uses at the start of the execution. 

State attorneys argued there is no evidence that inmates had suffered pain using midazolam.

Melson's hands and arms shook at the start of the procedure at 9:59 p.m. His breathing appeared to become quickly labored, with his chest moving up and down, before slowing until it was no longer perceptible by 10:09 p.m. The execution took 32 minutes from the time the death warrant was read until Melson was pronounced dead at 10:27 p.m. CDT.

Corrections Commissioner Jeff Dunn said Thursday that Melson's execution went according to protocol.

Source: The Associated Press, June 9, 2017

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