The Supreme Court Demands Its Pound Of Flesh

"The pound of flesh which I demand of him Is deerely bought, 'tis mine, and I will have it."  -- Shylock, The Merchant of Venice

In the 1970s, without any scientific testing, a state medical examiner from Oklahoma concocted a three-drug cocktail for use in executions.  The first drug, a sedative, causes unconsciousness so the inmate would feel no pain.  The second drug induces muscle paralysis and respiratory arrest, while the third drug stops the heart.  Among the many problems with this protocol is that by using a paralytic agent, there is no way to tell if the barbiturate is working effectively.  In other words, if the inmate is paralyzed it can't be discerned whether he (or she) is truly unconscious or is simply unable to scream out in pain.  This became an even more troubling problem when the drug initially used for sedation became unavailable, leaving states to scramble to find other even more unreliable alternatives. 

Today the Supreme Court heard argument in the case of Glossip v. Gross, to determine whether  the sedative, midazolam -- which was used in the so-called “botched” executions that occurred last year (which I wrote about here), could reliably induce a deep enough state of unconsciousness before the other drugs – which cause intense, severe pain – were injected.  Or as Justice Kagan put it, would the drug's ineffectiveness cause the inmate to feel like “burning alive, from the inside.”

 

What was most ghoulish about today's argument, however, was not the descriptions of executions or the hypothetical questions about burnings at the stake with inadequate anesthesia, but the blood lust of a majority of the Supreme Court.

The conservatives on the Court appeared far less concerned about the excruciating pain caused by the latest untested three-drug cocktail than for those poor state officials who have been forced to devise new methods of execution because death penalty abolitionists have been effective in persuading drug companies that their products shouldn’t be used to kill people.

Justice Alito:  “Is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?”

Justice Scalia:  Other drugs have been made unavailable “by the abolitionists putting pressure on the companies that manufacture them so that the states cannot obtain those other drugs. . . The abolitionists have rendered it impossible to get the 100 percent sure drugs, and you think we should not view that as relevant to the decision that you’re putting before us?”

Justice Roberts: “The case comes to us in a posture where it’s recognized that your client is guilty of a capital offense, it’s recognized that your client is eligible for the death penalty, that that has been duly imposed.  And yet you put us in a position with your argument that he can’t be executed, even though he satisfies all of those requirements.  And you have no suggested alternative that is more humane.”

Justice Kennedy asked counsel for the inmates to answer the question whether the resistance to the death penalty was a factor that the Court should consider in weighing the validity of a given protocol.

 Justice Thomas:  [  ]

 First, Alito and Scalia are wrong that there were ever “100 percent sure drugs” used in the lethal injection process that guaranteed executions were not causing excruciating pain.  Indeed, the problems with the original drug protocol has been the subject of litigation for years and was the basis for the halting of executions in California. 

Second, the notion that the drug shortage is due solely to the pressure put on drug companies by the anti-death penalty movement is not accurate.  It is also in large measure due to the fact that more evolved foreign countries where these drugs are being sought do not sanction the death penalty and have imposed restrictions on exporting drugs for such use. 
 

But this should all be irrelevant to the question before the Court -- whether the use of a particular method of execution creates a risk of pain sufficient to violate the cruel and unusual punishment clause of the Eighth Amendment. 

The answer should be obvious.  And it is becoming obvious to more and more Americans who, as an editorial in the New York Times put it, "are finding that there is no form of state-sponsored killing that can be civilized or humane."  According to the Times, "the search for more ways to kill may be losing steam as public views change. A recent poll by the Pew Research Center found that only 56 percent of Americans approve of capital punishment — the lowest level in four decades. Among Democrats the number is 40 percent."

Particularly in this light, the frustration – indeed, anger – from the Court's majority that states are being forced to use more painful methods because other alternatives are no longer available -- not stemming from any concern about the torturous effects on human beings -- but because what they perceive as a "guerrilla war" is thwarting states in their efforts to execute people, is deeply troubling, even somewhat creepy. 

Evolving Standards Of Decency: Two Steps Forward, One Step Back

"Evolving standards of decency" is a phrase used in Eighth Amendment jurisprudence to analyze whether a given practice is cruel and unusual.  While the Supreme Court has so far refused to find that capital punishment offends "the evolving standards of decency that mark the progress of a maturing society," it feels as if we are getting closer as the death penalty is increasingly seen as too fallible and too costly to remain on the books.

Popular support for the death penalty has fallen significantly.  Six states have repealed it over the last six years, leaving 32 states with the death penalty on their books.  (Nebraska may be next.)  In four other states, most recently Pennsylvania, governors have imposed moratoria on executions, recognizing the inherent problems with their death penalty schemes.  The rate of executions around the country is rapidly declining and imposition of death sentences is at a historic low.  Meanwhile ever more exonerations are uncovering deep flaws in the criminal justice system.  And studies and reports continue to reveal the racist underpinnings of the death penalty.  (Here's the latest on that subject from my friend Marc Bookman.)

Yet some states are going in the other, less evolved, more gruesome direction.  With pharmaceutical companies balking at having their products used in executions, there is a nationwide shortage of the drugs formerly used for lethal injection.  One would hope this would give state officials the plausible excuse to reconsider the efficacy, if not morality, of continuing to kill its citizens.  Alas, some are insisting on finding alternative, even more unsavory solutions (pun intended).  Like diabolical junior chemists, they cobble together their own untested lethal combinations or obtain drugs from unregulated and undisclosed sources and test them on their human subjects.

And so, executions go forward, each one with its own unique set of macabre circumstances that dehumanize executioner and executed alike.  The latest example is Missouri, which just put to death Cecil Clayton, a 74-year old man who suffered from dementia, had an IQ of 71, and was missing a significant part of his brain.  He was the tenth person to be executed this year in the United States (half of whom were people of color, by the way).  In case you're keeping score:  4 in Texas, 2 in Missouri, 2 in Georgia and 1 in Oklahoma.  And for a worldwide perspective, other verifiable executions in 2015 have taken place in Afghanistan, China, Iran, Indonesia, Jordan, Pakistan, Saudi Arabia and Somalia.

Kelly Gissendaner was set to be the first woman executed in Georgia in 70 years, after being denied clemency despite a remarkable transformation that included obtaining a theology degree.  Gissendaner endured hours of anticipatory terror while officials concerned with the "cloudiness" of the lethal drug, weighed whether or not to go forward with the execution anyway.  Doubts over the drug's efficacy finally led to postponement. 

Other states, frustrated with the difficulties in securing lethal drugs, are taking a different route to infamy.  Oklahoma's state house has passed a bill to allow use of a gas chamber (officially, death by "nitrogen hypoxia.")  And Utah's governor just signed a bill to bring back the firing squad (which Oklahoma also authorizes).  Electrocution, hanging and firing squads still remain on the books elsewhere.

Electric chairs and gas chambers were developed to be more humane than hanging, which was the most common method of execution in the U.S. until the end of the 19th Century.  These killing machines, however, proved pretty grisly in their own right, and gave way to lethal injection -- which medical science has belatedly shown is not nearly as painless as believed and, in any event, has become impractical.

The "evolving standards of decency" standard implicitly acknowledges that we are inexorably moving forward; that while we may not be there yet, we are evolving towards a point where the death penalty will become morally unacceptable.  Reverting  back to discarded and disreputable methods of killing seems like a last gasp (pun intended) effort to maintain an unsustainable, barbaric system.  It reeks of desperation and blood lust.

Botched Executions and Devolving Standards of Decency

Another botched execution.  This one in Oklahoma where witnesses described an "agonizing scene" in which over the course of 43 minutes, Clayton Lockett writhed, convulsed and struggled to speak before his heart "essentially exploded."  Earlier this year, on January 16, 2014, Dennis McGuire was executed in Ohio, a fifteen minute exercise in torture during which McGuire gasped and choked  before dying.

The phrase "botched execution" should be removed from the lexicon.  Webster's defines "botch" in relatively innocuous terms such as "bungle," "foul up" and "repair ineptly."  There is nothing innocuous about what the director of the ACLU in Oklahoma described as "human science experiments" -- experiments that can only be described as torture.

These latest horrors stem from the use of untested and unregulated lethal injection drugs, and the secrecy surrounding how and from whom these drugs are obtained.  As detailed in an important New York Times op-ed, presciently titled Secret Drugs, Agonizing Deaths, after an American pharmaceutical firm stopped making thiopental, the anesthetic used for executions, and federal courts barred the importation of the drug from overseas, states began substituting pentobarbital.  But with the Danish manufacturer of pentobarbital refusing to allow the drug to be used for executions, states started obtaining it from compounding pharmacies, "which mix small batches of drugs to order, and whose products are not approved by the F.D.A."  Other states, like Ohio and Oklahoma, are going with other untried drugs, such as midazolam.  

The grisly results, not at all surprising given the lack of oversight and appalling lack of scientific or medical review, are morally repulsive.
 
The "feckless" justices on the Supreme Court, as The Atlantic's Andrew Cohen, describes them, long ago should have "stop[ped] the madness caused by the current generation of lethal-injection secrecy" and "establish[ed] standards that would require states like Oklahoma to share basic information about the drugs used to kill prisoners."  And lower court state and federal judges should have demanded more through review of the issues raised by the use of new, untested lethal drug combinations.

But, the execution protocol is just the last of the many levels in the capital punishment process -- the machinery of death, as Justice Harry Blackmun put it -- in which the inevitability of human error and human frailties cause unfairness, unreliability and cruelty.  Police, trial lawyers, prosecutors, judges, jurors, appellate lawyers, appellate judges and executioners are all capable of bias and discrimination, errors in judgment and honest mistakes.  So many variables lead to so many instances of wrongful conviction, arbitrary and unjust sentence and ultimately, agonizing scenes of torture.

 "Evolving standards of decency" is a phrase used in Eighth Amendment jurisprudence to analyze whether a given practice is cruel and unusual.  The Supreme Court has so far refused to find that capital punishment offends "the evolving standards of decency that mark the progress of a maturing society."  Meanwhile, the high court continues to allow execution after execution to go forward, more concerned with finality and swift punishment than justice and decency.  Indeed, Andrew Cohen notes, just  few months ago, Justice Scalia, during oral argument in Hall v. Florida, lamented the slow pace of executions in this country.

The notion of "evolving standards of decency" has always struck me as optimistic; as an acknowledgment that, while we may not be there yet, some day our society will evolve to the point where the death penalty will be unacceptable.  Unfortunately, with state officials still clamoring for vengeance and the Supreme Court as the arbiter of our evolution, we still have a long way to go.

R.I.P. Samuel Lopez

On June 27, 2012, Arizona executed Samuel Lopez for the rape and murder of 59-year-old Estefana "Essie" Holmes.

Lopez's attorneys argued that his trial lawyers provided constitutionally ineffective assistance by failing to present any evidence of Lopez's  horrific childhood, which would have been critical to the jury's determination of whether he should be sentenced to life or death.  The jury never learned, for example, that Lopez's childhood was filled with poverty, neglect, abuse and periods of homelessness during which he often had to sleep in cemeteries. Lopez dropped out of school in the ninth grade and became addicted to sniffing paint.

Lopez was originally scheduled to be executed on May 16, 2012, but received a temporary stay of execution because of serious issues with regard to the fairness of the clemency process.  On May 7, 2012, defense attorney, Assistant Federal Public Defender Kelley Henry, walked out of the clemency hearing claiming the Arizona Board of Executive Clemency did not have the authority to hear the case.  Henry contended that Arizona Governor Jan Brewer violated several state statues when she appointed three new members to the five member clemency board.  Violations included that the new members had not completed training required by state statute, that their interviews violated open meeting laws by taking place behind closed doors, and that one new member is a lobbyist for a police association that advocates the death penalty. 

The Arizona Supreme Court ordered a temporary stay so that the board members could complete a mandatory four-week training course but then another stay was sought on the grounds that Governor Brewer had appointed "political cronies" to the board, making a fair hearing impossible.  That stay was rejected.  Clemency was denied on June 22nd.

This is the 23rd execution in the United States in 2012, the fourth in Arizona.

R.I.P. Gary Simmons

Roman Colosseum lit to protest an execution

On June 20, 2012, Mississippi executed Gary Simmons for the murder of Jeffrey Wolfe in 1996. 

Simmons and an accomplice, Timothy Milano, were both convicted of killing Wolfe after an argument over the collection of a drug debt.  Authorities concluded that it was Milano who shot and killed Wolfe but it was Simmons, a butcher, who subsequently dismembered the body and raped Wolfe's girlfriend. Simmons was sentenced to death for the murder and two life terms on charges of kidnapping and raping the woman. Milano was sentenced to life for capital murder and 30 years for kidnapping.

Appeals to allow Simmons' current counsel to pursue claims based on ineffective assistance of prior counsel and mental illness were rejected.  A petition to the United States Supreme Court stated that "post-conviction counsel did not arrange for Mr. Simmons to undergo any mental health evaluations and it appears that counsel completely overlooked raising any claims regarding Mr. Simmons' addiction, posttraumatic stress disorder and brain dysfunction even though a cursory investigation would have raised a number of red flags."

This was the 22nd execution in the United States this year and the sixth in Mississippi (the third this month).

R.I.P. Jan Brawner

Roman Colosseum lit to protest an execution

On June 12, 2012, Mississippi executed Jan Brawner for the murders of his 3-year-old daughter Paige, his ex-wife, Barbara Craft, and her parents, Carl and Jane Craft, in 2001.

Brawner testified at his trial that "I don't feel I deserve to live."  He refused to allow any mitigating evidence at the sentencing phase which would have informed the jury about the his childhood, background and mental state.  It was subsequently argued that his trial lawyer acted unreasonably in failing to develop and present such evidence.

The Mississippi Supreme Court voted 4-4 to deny rehearing.  A tie meant that the prior decision to allow the execution to go forward stood.  A tie-breaking vote wasn't cast because the ninth justice, Ann Lamar, who was district attorney at the time of the murders, didn't vote.

This was the 21st execution in the United States in 2012, the fifth in Mississippi.

R.I.P. Richard Leavitt

Roman Colosseum lit to protest an execution

On June 12, 2012, Idaho executed Richard Leavitt for the murder of Danette Elg in 1985.

In a lawsuit brought by the media, a federal appeals court ruled that witnesses would be entitled to view the entire lethal injection process.  Leavitt's execution was subsequently described as a "silent, clinical procedure."

This was the 20th execution in the United States this year, the first in Idaho.

R.I.P. Henry Curtis Jackson

Roman Colosseum lit to protest an execution

On June 5, 2012, Mississippi executed Henry Curtis Jackson, who killed his two nieces and two nephews, Shunterica Jackson, Dominique Jackson, Antonio Jackson and Andrew Kuyoro, Jr.

Jackson killed the children (ages 2 to 5) in 1990 when he went to his mother’s home to try to steal a safe.  He also stabbed his sister, Regina Jackson, five times. Regina survived.  She was the mother of the two girls who were killed.  The boys who were killed were the sons of her sister Glenda.   

Governor Phil Bryant denied clemency despite pleas for mercy from Regina Jackson, her sister Glenda and Glenda's husband, Andrew Kuyoro.  Regina asked for her brother's life to be spared because she “just can’t take any more killing.”  She told the Governor, "as a mother who lost two babies, all I'm asking is that you not make me go through the killing of my brother."  The Kuyoros had written that "we are the victims in this case, and we are begging you not to let Curtis be killed. You can keep him in Parchman forever, but please don't put our family through this horrible execution."

This was the nineteenth execution in the United States this year, and the fourth in Mississippi.

R.I.P. Michael Selsor

Roman Colosseum lit to protest an execution

Oklahoma executed Michael Selsor on May 1, 2012, for the 1975 murder of Clayton Chandler during a robbery of a convenience store.  Selsor's accomplice is serving a life sentence.
  
What is particularly unusual about this case is that Selsor's original death sentence was reduced to life when the Oklahoma death penalty law was found unconstitutional by the United States Supreme Court in 1976.  However, Selsor continued to challenge his conviction, which was eventually overturned by a federal appeals court in 1996, and a new trial was ordered.  Selsor was convicted of first-degree murder at his retrial and sentenced to death.
 
This is the 18th execution in the United States this year, and the third in Oklahoma.

R.I.P. Beunka Adams

Roman Colosseum lit to protest an execution

On April 26, 2012, Texas executed Beunka Adams for the murder of Kenneth Vandever during a convenience store robbery.  Two women working at the store were shot but survived.  Adams was 19 at the time.  His accomplice, Richard Cobb, who was 18, was sentenced to death after a separate trial.

Legal challenges included a claim that Adams' trial counsel unreasonably failed to present evidence of Cobb's confession to shooting Vandever.  A federal district court had issued a stay of execution to consider claims that his trial and appellate lawyers provided ineffective assistance with regard to several issues.  The stay was lifted  by the federal appellate court and the Supreme Court refused to intervene.

This is the 17th execution in the United States this year, and the fifth in Texas.

R.I.P. Thomas Kemp

Roman Colosseum lit to protest an execution

On April 25, 2012, Arizona executed Thomas Kemp for the kidnapping and murder of Hector Soto Juarez in 1992.

Several states are changing their lethal injection protocol from a 3-drug "cocktail" to use of one drug -- pentobarbital -- due to the shortage of one of the three drugs as well as concerns that the combination, which includes a paralytic, may mask excruciating pain.  Arizona has gone to the one-drug procedure without adequate testing or analysis, and there are serious issues surrounding this method, which will be revisited after Kemp's execution, in which he began to "shake violently" when injected with pentobarbital.

This is the 16th execution in the United States this year, and the third in Arizona.

R.I.P. Shannon Johnson

Roman Colosseum lit to protest an execution

On April 20, 2012, Delaware executed Shannon Johnson for the murder of Cameron Hamlin in 2006.  Johnson was permitted to waive his appeals, and thus was executed without full review of the fairness of his trial or the reliability of his death sentence.   

A district court judge had stayed the execution to consider arguments by the Federal Public Defender that Johnson was mentally incompetent to waive his appeals and that his sister should be allowed to argue the issue on his behalf.  Federal public defenders also argued that there was overwhelming evidence that Johnson suffered from an intellectual disability making him ineligible to be executed.  The court of appeals lifted the stay and Johnson was executed minutes before a 3:00 a.m. deadline. 

This was the 15th execution in the United States in 2012 and the first in Delaware.

R.I.P. Mark Wiles

Roman Colosseum lit to protest an execution

Ohio executed Mark Wiles on April 18, 2012, for the stabbing death of Mark Klima.

In requesting clemency, Wiles' defense team argued he should be spared because he confessed to the crime, showed remorse and maintained a good record in prison.  They further argued that the parole board had been inconsistent in prior decisions, and that Wiles was not "the worst of the worst." Clemency was also supported by a report that Wiles had suffered a head injury 12 days before the slaying, and that the injury was to the part of the brain that regulates impulse control.

In his final statement, Wiles said, "since this needs to be happening, truly I pray that my dying brings some solace and closure to the Klima family and their loved ones."

This is the 14th execution in the United States in 2012, the first in Ohio.

R.I.P. David Alan Gore

Roman Colosseum lit to protest an execution

On April 12, 2012, Florida executed David Alan Gore for the rape-murder of 17-year-old Lynn Elliott in 1983. Gore confessed to committing murders of three other girls and two women, for which he received life sentences.

The courts refused to grant a stay in order to consider claims of ineffective assistance of Gore's trial attorney and his post-conviction counsel.  The trial attorney representing Gore in his 1992 resentencing hearing (Gore's original death sentence was reversed), who has since been disbarred, failed to present evidence of Gore's alcohol, drug abuse and mental health problems or inform the jury of the unlikelihood that Gore would ever be released if he received a life sentence.

Gore's post-conviction counsel attempted to prove that trial counsel, Robert Udell, provided incompetent representation but when Udell claimed he wasn't lead counsel and it was another lawyer named Jerome Nickerson who was at fault, appellate counsel unreasonably failed to locate Nickerson. 

In a final statement, Gore apologized to Elliot's parents, saying he was "truly sorry for my part in the death of your daughter."  He said he had become a different person after becoming a Christian, and prayed for Mr. and Mrs. Elliot that they could find peace, concluding:  "I just want to say I have had a tremendous amount of remorse and pray you and your family can forgive me. God bless all of ya’ll."

This is the thirteenth execution in the United States in 2012, the second in Florida.

R.I.P. Jesse Hernandez

Roman Colosseum lit to protest an execution

On March 28, 2012, Texas executed Jesse Hernandez for the beating death of 10-month old Karlos Borjas in 2001.

Hernandez' current lawyers tried to establish that his trial lawyers and initial post-conviction lawyers were grossly ineffective -- unfortunately a far from unique claim in Texas. 

Neither trial counsel nor habeas counsel developed evidence which would have supported a claim that Hernandez did not directly cause the child's death.  Hernandez did not dispute that he beat Karlos, who was taken to the hospital, placed in a medically-induced coma and died after taken off life support.  New evidence based on expert review of the medical records suggests, however, that the hospital gave the child a lethal dose of the drug pentobarbital and that he was removed from life support prematurely.   Because the claim of trial counsel's unreasonable failure to obtain this evidence was not raised in the first instance by post-conviction counsel, current counsel has been precluded from having the evidence heard.

This is the 12th execution in the United States in 2012, the fourth in Texas.

R.I.P. William "Jerry" Mitchell

Roman Colosseum lit to protest an execution

Mississippi executed William Mitchell on March 22, 2012, for the murder of Patty Milliken. 

Mississippi is notorious for appointing unqualified attorneys to represent capital defendants at trial and on appeal, and for failing to provide them with adequate funding.  Mitchell's case was no different.  His long history of mental illness was not investigated by either his trial lawyer or his post-conviction lawyer.   At no time  did his counsel try to establish his "intellectual disability" despite the availability of such evidence.  The Mississippi state courts subsequently rejected requests for a hearing -- or even funding for an expert -- to prove that he indeed suffered from an "intellectual disability."

This is the eleventh execution in the United States in 2012, the third in Mississippi, and the second in Mississippi this week.

R.I.P. Larry Puckett

Roman Colosseum lit to protest an execution

Mississippi executed Larry Puckett on March 20, 2012, for the murder of Rhonda Hatten Griffis in 1995.  Puckett, who was 18 at the time, admitted to being at the victim's home to burglarize it but insisted that it was Griffis' husband, for whom he was formerly employed, who committed the murder.

In the most recent legal challenge, Puckett's lawyers argued that the execution should be blocked because prosecutors kept African Americans off the jury and Puckett's former lawyers unreasonably failed to challenge his conviction on this ground.

Over five thousand people signed an online petition in support of  Puckett, and many gathered at the state Capitol on Monday to protest Puckett's execution and the execution of William Mitchell, which is scheduled for March 22nd. 

Jim Craig of the Louisiana Capital Assistance Center, criticized Mississippi's legal system, which makes it impossible to fairly apply the death penalty:  "Even though these cases have been going on for a long time, they really have not had their day in court. Neither of these two men have had their day in court. And it is time for people to stand up and say so and demand real justice according to law."

This is the tenth execution in the United States in 2012, the second in Mississippi.

R.I.P. Timothy Stemple

Roman Colosseum lit to protest an execution

On March 15, 2012, Oklahoma executed Timothy Stemple for the 1996 murder of his wife Trisha Stemple.  According to the prosecution's case, Stemple was having an extramarital affair and engaged the 16-year old cousin of his girlfriend to assist him with the crime.  The teenage accomplice, Terry Hunt, testified against him in exchange for a life sentence.  Stemple consistently maintained his innocence.

Stemple's family unsuccessfully sought to have new evidence that undermines Hunt's account of the attack presented in court.  Hunt had testified that he hit the victim twice with a baseball bat and that Stemple hit her 20-30 times, and then ran over her with a pickup truck.  The brutality of the crime was critical in obtaining a death sentence.  However, the findings of a forensic expert consulted by Stemple's family support the theory that the victim died from an auto-pedestrian collision, not from blunt force trauma to the head -- that she was struck with a vehicle and run over, but not beaten.  Another expert, a forensic animation specialist who reconstructed the crime, agrees with the forensic expert's conclusions.

The Pardon and Parole Board denied the plea for clemency, and Governor Mary Fallin denied a request for a stay to allow the forensic testimony to be heard in court.

The New York Times reported that the Innocence Project also urged the Governor to stay the execution and called for additional DNA testing to be done. "Human blood was found on the plastic that was on the bat," and according to the prosecution it was "too deteriorated to determine whose it was."  The Times said that Stemple's "family hoped advances in DNA testing could help exonerate him."

This is the ninth execution in the United States in 2012, the second in Oklahoma. 

R.I.P. Robert Towery

Roman Colosseum lit to protest an execution

Arizona executed Robert Towery on March 8, 2012, for the 1991 killing of 69-year-old philanthropist Mark Jones.  Towery's accomplice, Randy Allen Barker, testified against Towery in exchange for a deal in which he was released from prison after serving ten years.

Claims rejected in recent days by the courts included the disparity in sentences for the two perpetrators.  Towery also contended that the trial court failed to consider in mitigation of sentence Towery's difficult and abusive childhood and his longtime drug addiction.

The execution was delayed over an hour because a proper vein could not be found in Towery's arm to inject the lethal chemicals.  Eventually a catheter was inserted into the femoral artery.

At his clemency hearing, evidence was heard of the horrific childhood Towery had suffered and his severe addiction to methamphetamine.  Towery said he could not recall the facts of the crime and could not understand why he took the victim's life.  The plea for clemency was rejected.

Before he was put to death, Towery wept and apologized to Jones' family and to his own: "I would like to apologize to Mark's family and friends for what I did to them. I would like to apologize to my family.  So many times in my life I went left when I should have gone right and I went right when I should have gone left. It was mistake after mistake."

This is the eighth execution in the United States in 2012, the second in Arizona.

R.I.P. Keith Thurmond

Roman Colosseum lit to protest an execution

Texas executed Keith Thurmond on March 7, 2012, for the murder of his estranged wife, Sharon Anne Thurmond, and her boyfriend, Guy Fernandez in 2001.

Thurmond's trial lawyer failed to investigate Thurmond's background, which would have informed the jury deciding his fate of  substantial physical and emotional abuse inflicted upon the Thurmond, his siblings and his mother by his alcoholic and mentally unstable father.  Thurmond did not have better luck with his post-conviction lawyers.

His state appellate lawyer filed a bare bones appeal and his next court-appointed lawyer blew the federal filing deadline, blaming it on a broken filing machine at the court.  The federal appellate court first denied Thurmond's federal claims because of untimeliness, but later reversed this ruling.  However, another claim, that Thurmond's post-conviction lawyers were "grossly deficient" in their investigation of Thurmond's background was rejected.  A similar issue -- involving the right to effective assistance of state post-conviction counsel -- is currently pending in the United States Supreme Court in a case out of Arizona.  The Court, however, denied a request to halt the execution at least until the issue in the Arizona case was resolved.

Read more here: http://www.star-telegram.com/2012/03/07/3791632/texas-man-to-die-for-killing-wife.html#storylink=cpy

This is the seventh execution in the United States in 2012, the third in Texas.