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Justice Gorsuch and the Death Penalty

Justice Neil Grouch being sworn in as the 113th Supreme Court Justice

How will the United States’ newest Supreme Court Justice affect new and ongoing death penalty cases? This is a good question, and one in which we have little information. However, what we do know does not bode well for capital murder defendents seeking relief from the highest court in the land.

The evening that Donald Trump announced Justice Neil Gorsuch’s nomination to the Supreme Court, inauspiciously, a man was lying on a gurney being executed by the State of Missouri. Frustratingly, during Justice Gorsuch’s confirmation hearing, the subject of the death penalty was rarely discussed. This could be because of lack of interest among those on the Senate Judiciary Committee, or due to the lack of high profile death penalty cases  on which Gorsuch has ruled.

There are, however, indicators of how Gorsuch will respond to death penalty cases brought before the Court. Many people believe he will follow in the footsteps of his predecessor, Justice Antonin Scalia, who died in February of 2016. Gorsuch describes himself as a “textualist” or “originalist” who believes strongly in legal precedent. Scalia held the same views. According to the NAACP LDF “Report on the Civil Rights Record of Neil Gorsuch”, Gorsuch “…reveals a consistent opposition to granting relief in capital punishment cases.” The LDF describes the various ways Justice Gorsuch impedes access to justice, and states, “Winning federal habeas relief from any judge is a challenge. Winning federal habeas relief from Judge Gorsuch is a near impossibility.”

During his confirmation hearing, Senator Dick Durbin asked Gorsuch, “Have you ever written an opinion finding that a defendant’s Sixth Amendment right to effective assistance of counsel was violated?” Gorsuch answered affirmatively. In fact, he rarely, if ever, has. To be fair, Merrick Garland, President Obama’s nominee to the Supreme Court, also, according to the ACLU, strictly applied the AEDPA (Antiterrorism and Effective Death Penalty Act) and rarely granted relief to defendants claiming ineffective assistance of counsel.

Clayton Lockett was scheduled to be executed by the State of Oklahoma in April, 2014. After approximately 16 attempts to insert a needle into Lockett’s veins, a doctor managed to finally insert one in his femoral artery near his groin, causing blood to spurt outward. When the first drug of three, the sedative Midazolam, was injected, the needle became dislodged from Mr. Lockett’s artery, causing that drug and those that followed to flow into his tissue. It took 43 minutes for Lockett to die after groaning, speaking, raising up and writhing in pain. In a civil suit filed by Lockett’s family stating that he had a right to be free from cruel and unusual punishment, Justice Gorsuch as part of a panel opinion, called the brutal last few minutes of Clayton Lockett’s life an “innocent misadventure” and an “isolated mishap”.  Using these terms to describe the horrific and tortuous death of another person is revealing.

Clearly, those that oppose the death penalty had no friend in Justice Antonin Scalia. Unfortunately, his replacement will likely be just as unsympathetic to those looking to him for relief.

NH House resoundingly says NO to death penalty expansion

House rejects HB 351, death penalty expansion bill, by 305-46 vote

Concord, NH – March 8, 2017

Today the NH House voted 305-46 to uphold the Criminal Justice Committee’s ITL (inexpedient to legislate) recommendation on HB 351, a bill to expand the death penalty by making “a person who knowingly causes the death of a child guilty of capital murder.”

Barbara Keshen, chair of the NH Coalition to Abolish the Death Penalty (NHCADP), said, “We’re pleased that the NH House overwhelming agreed with the Criminal Justice Committee’s bipartisan recommendation to stop further expansion of NH’s death penalty statute.” Keshen was a state prosector and public defense attorney who handled over 100 murder cases. Representative Richard O’Leary, former Deputy Chief and 33-year veteran of Manchester Police Department, spoke in favor of the committee’s recommendation, citing no evidence for the deterrent value of the death penalty, and saying “it would not make our communities safer.” Representative Shannon Chandley, in her point-of-order questions, noted that the House had voted in favor of death penalty repeal in two recent sessions.

New Hampshire has only one person on death row and has not executed anyone since 1939.

Mike Farrell Inspires NH Abolitionists

The event was videotaped by Herb Moyer. Mike Farrell’s remarks begin at about the 30-minute mark.

Over 100 people showed up at Concord’s Audubon Center on Friday, March 3rd, 2017 to hear actor and death penalty activist Mike Farrell speak about his several decades of work in the areas of human rights and criminal justice reform. The event was organized by the NH Coalition to Abolish the Death Penalty and a number of state sponsors.*

Mr. Farrell spoke in no uncertain terms about his perspective on the death penalty, calling it “brutalizing” for the culture that engages in such practice:

There is a sickness in the land, and it is the product of an unconscious process of brutalization set in motion by the degrading of human life, the rationalization and institutionalization of the taking of human life. It is corrupting the moral fabric of this nation and its people.

Mr. Farrell talked stridently about the many abuses and shortcomings of the US criminal justice system, calling it “stinking, maggot-infested mess” that is covered by “the death penalty as ‘the lid on the garbage can.’”

Referring often to the framers of the US Constitution and their guarantee of the right to “life, liberty, and the pursuit of happiness” — and in light of the once-accepted institutions of slavery and white-landowning-men-only voting rights — Farrell quoted Benjamin Franklin in making the argument that rethinking the death penalty is in order:

For when you assemble a Number of Men to have the Advantage of their joint wisdom, you inevitably assemble with those Men all their Prejudices, their Passions, their Errors of Opinion, their local Interests, and their selfish Views.

Mr. Farrell finished his remarks with this:

Please consider four simple hypotheses: One – no matter how deeply it may have been buried, there is intrinsic value in every human being; Two – no one is only the worst thing she or he has ever done; Three – no matter the horror of the circumstance presented, there is always a reason for human behavior; and Four – state killing lowers the entire community to the level of its least member at his or her worst moment.

You can read Mike Farrell’s comments in their entirety here: Mike Farrell’s NH Talk 3.3.17 (PDF).

During the event, representatives of several New Hampshire newspapers were recipients the Coalition’s Governor Badger Award for their conspicuous editorializing in favor of death penalty repeal over the years. These were:

The award was named for NH Governor William Badger, who in 1834 gave a speech before the NH Legislature announcing his intention to end the death penalty.


Legislative Solutions
Robert Moser
Samdperil and Welsh, PLLC
Rep. Susan Almy
ACLU of New Hampshire
Green and Utter, P.A.
Gregory Smith, Esq.
Bill Glahn, Esq.
Mark Rouvalis, Esq.
Sherry and Gary Young


The NHCADP Board of Directors

House Criminal Justice Committee Rejects HB 351

House Criminal Justice Committee rejects HB 351, death penalty expansion bill, by 17-3 vote

Concord, NH – February 22, 2017

Today the NH House Criminal Justice and Public Safety Committee voted 17-3 to recommend an ITL (inexpedient to legislate) motion on HB 351, a bill to expand the death penalty by making “a person who knowingly causes the death of a child guilty of capital murder.” The bill was sponsored by Rep. Werner Horn (R, Merrimack-2) and had the backing of the Republican Leadership. HB 351 will now proceed to the full House for consideration sometime in the next few weeks.

Barbara Keshen, chair of the NH Coalition to Abolish the Death Penalty (NHCADP), said, “We’re pleased that the Criminal Justice Committee decided to halt further expansion of NH’s death penalty statute.” During Keshen’s public testimony on the bill, she said, “the death of any child is heartbreaking, but most child murders I saw [while a state prosecutor and defense attorney] were the result of overwhelmed or mentally unstable parents.” Keshen went on to say that “making the killing of a child a capital offense would have done nothing to prevent or deter those terrible tragedies.” She also shared the story of a near-wrongful conviction that could have sent an innocent person to death row in NH.

Devon Chaffee, Executive Director of ACLU-NH, said, “An overwhelming, bipartisan majority of the Committee rightly recommended that House should reject HB 351-FN.  The bill proposes a broad expansion of the death penalty in New Hampshire that is not only unnecessary, it would be exorbitantly expensive and risk wrongful executions in highly emotional cases.”

During the public hearing on HB 351 on February 7, death row exoneree Sabrina Butler Porter shared her story of spending almost 3 years on death row in Mississippi after her wrongful conviction in the death of her 9-month-old son. Porter told the committee that her case was overturned on appeal “when my new attorney also showed that my son died from a hereditary kidney condition.” Porter later told her story on NH Senator Kevin Avard’s (R, District 12) “Speak Up” cable show on Access Nashua, which can be found on YouTube.

New Hampshire has only one person on death row and has not executed anyone since 1939.

Report on HB 351 Hearing (w/ audio)

Concerns Voiced over HB 351, a Death Penalty Expansion Bill

Concord, NH – February 7, 2017
Today in the NH House Criminal Justice and Public Safety Committee, witnesses testified on HB 351, a bill to expand the death penalty by making “a person who knowingly causes the death of a child guilty of capital murder.” (More information about the bill here.)

Among those speaking on the bill were: Greg Smith, former NH Attorney General; Sabrina Butler Porter, who was convicted and sentenced to death for the death of her 9-month-old son, and later exonerated; Robert Dunham of the national Death Penalty Information Center (DPIC), and Barbara Keshen, former prosecutor with the state of NH and the chair of the NH Coalition to Abolish the Death Penalty.

According to Dunham, an attorney and a nationally recognized expert on the death penalty, parents and others are often convicted of murdering children when in fact no crime has occurred at all. “In these heartbreaking cases,” Dunham told the committee, “parents who tragically lost their children to sickness or accident are then wrongfully convicted and sentenced to death based on faulty evidence and/or prosecutorial misconduct.” Dunham also spoke about how HB 351 would represent one of the broadest expansions of capital punishment in the US during a time when capital prosecutions and executions are at a 40-year low. (DPIC does not take a position on the death penalty per se, but offers information and statistics on its use across the US.)

Barbara Keshen argued that many child death cases she encountered as a prosecutor were related to mentally incompetent or overwhelmed parents. “In one case that I handled the mother who killed her son was found not guilty by reason of insanity and was sent to the Secure Psychiatric Unit,” said Keshen. “In a second case the father, who killed his two children, later killed himself in jail. Making the killing of a child a capital offense would have done nothing to prevent or deter those terrible tragedies.”

Death Row Exoneree Sabrina Butler Porter shared her story of having found her son unconscious and desperately trying CPR until he could be attended to by hospital staff. The prosecution claimed the resulting bruises were the cause of the death, and Butler described how the police forced a confession under extreme duress, leading to a death sentence. “My new attorney got a new trial and showed that my son died from a hereditary kidney condition. There was no murder at all.” In all, Butler spent 2 years and 9 months on death row.

Three people, including the bill sponsor, spoke in favor of the bill, while eight spoke against. The Criminal Justice Committee will discuss the bill in executive session sometime in the next few weeks.

Fighting back another Expansion Bill in NH

The Coalition is working to fight back an attempt to expand the death penalty in New Hampshire yet again. HB 351-FN specifically makes “a person who knowingly causes the death of a child guilty of capital murder.” It is being sponsored by: Werner Horn, Jeanine Notter, James Spillane, Ryan Smith, and Francis Gauthier. Here is the full text of the bill:

The bill will be heard in the Criminal Justice and Public Safety Committee (click here for a list of committee members). The hearing date is Tuesday, February 7 at 2pm in LOB 204 (more information here).

Last year, NH pro-death penalty forces tried to expand executions to those guilty of acts of terrorism. With help from our members, we were able to secure an “inexpedient to legislate” vote from the Criminal Justice committee on the (de)merits of the bill and ultimately defeated the bill. We see this new attempt as a cynical ploy to expand the death penalty at any cost.

HB 351-FN is a solution in search of a problem

Child murders are very low in New Hampshire and our state has a good record of appropriately prosecuting them. In the most recent case of a child death last year in NH, the mother was clearly mentally and emotionally unequipped to deal with the demands of a special needs child. Rather than executing such individuals, we should provide better and more timely social and mental health services to parents in distress.

HB 351-FN would be extremely expensive

The Department of Justice has stated that “death penalty cases are more expensive to investigate and litigate than non-death penalty homicide cases.” The state of New Hampshire has already spent more than $5 million over the last 10 years for the prosecution, defense and other non-counsel services of a single death penalty case (Michael Addison).

HB 351-FN increases the likelihood of wrongful convictions and the execution of innocent parents

Parents and others are often convicted of murdering children when in fact no crime has occurred at all. In these heartbreaking cases, parents who tragically lost their children to sickness or accident are then wrongfully convicted and sentenced to death based on faulty evidence and/or prosecutorial misconduct.

Cases covered by HB 351-FN are particularly vulnerable to faulty evidence and prosecutorial misconduct.

Any time a child dies it is highly emotional. Child deaths bring great public and political pressure to attribute blame and solve the crime, and this is precisely when the criminal justice system has the most chance of getting it wrong. This is why child murder cases are often riddled with conclusions based on junk science, suggestive interrogation leading to false witness testimony, wrongful witness identification, and prosecutorial misconduct.

There are numerous examples where inadequately trained medical examiners wrongfully attribute a death of a child from natural or accidental causes as homicide. One of the most common attributions for child death leading to murder prosecutions is Shaken Baby Syndrome, but recent scientific and forensic advances are casting doubt on such once-firm conclusions.[1]

Download PDF: Fact Sheet on HB 351 (Death Penalty Expansion). This includes a small sampling of people who were put on death row — and one who was executed — wrongfully.

Added 1.31.17: Death Penalty Expansion bill main sponsor Rep. Werner Horn speaks to NHPR (transcript).

[1] Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting it Right (University of Michigan Law School)

Kirk Bloodsworth Visit & Documentary

Click on individual images to view larger versions.

Kirk’s visit in September was dynamic and impactful. Many activists and students came out to Portsmouth Public Library, Plymouth State University, and Southern NH University to watch his movie and to engage in lively question-and-answer sessions. Kirk talked about the state of our criminal justice system, the problems with eyewitness identification, bad legal defense, prosecutorial bias, junk science being used to convict the innocent, and many other related issues.

Kirk’s overall message was, “You can’t climb over the execution of the innocent to get to the satisfaction of killing those who kill others.” Few can speak about this with such authenticity and authority as Kirk does. Kirk also spoke about his work with Witness to Innocence and efforts underway in other states such as Nebraska (overturning legislative repeal via referendum) and California (two opposite ballot initiatives).

At the SNHU event we were fortunate also to have present a friend of Kirk’s and fellow DNA exoneree, Dennis Maher, who spent 19 years in prison before being released from a life sentence in Massachusetts for rapes he did not commit. Dennis’s story was no less powerful. You can read more about him here:

Coverage of Kirk’s visit included the following: