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Federal appeals court lifts lower court opinion blocking federal executions

The 2-1 ruling is a win for the Department of Justice, but the appeals court noted that there are still other issues that need resolution, suggesting that the executions will remain on hold while litigation continues.

The case comes after the Trump administration announced last July that it would reinstate the federal death penalty after a nearly two-decade lapse, and the two judges in the majority — Gregory Katsas and Neomi Rao — were both appointed by President Donald Trump.

Attorney General William Barr’s move to reinstate the federal death penalty underscored the stark law and order philosophy of the Trump administration. At the time, he directed the head of the Bureau of Prisons to execute five inmates he said represented the “worst criminals.”

The Bureau of Prisons adopted a new lethal injection protocol consisting of a single drug, pentobarbital.

The federal inmates involved in the appeal are Daniel Lewis Lee, who killed a family of three, including an 8-year-old girl; Wesley Ira Purkey, who raped and murdered a 16-year-old girl; Alfred Bourgeois, who tortured and killed his own 2-year-old daughter; and Dustin Lee Honken, who shot and killed five people, including two young girls.

A district judge blocked the executions from going forward, holding that the protocol conflicts with the Federal Death Penalty Act, which requires adherence to a state’s method of execution. US District Judge Tanya S. Chutkan of the District of Columbia Circuit put the executions on hold, ruling that a delay would not hurt the government, particularly because it has waited several years to announce a new protocol.

Chutkan said the public interest is not served by “executing individuals before they have had the opportunity to avail themselves of legitimate procedures to challenge the legality of their executions.”

Lawyers for the inmates argued that the government is trying to push the issue forward even though it took eight years to create a new execution protocol.

“From the moment it announced the protocol on July 25, 2019, the government has rushed the process in order to carry out executions without meaningful judicial review of the legality and constitutionality of the new execution procedures,” said Cate Stetson, a lawyer for the inmates.

In the opinion, the appeals court nodded to the timeline.

“We do share the government’s concern about further delay from multiple rounds of litigation,” the court held, “But the government did not seek immediate resolution of all the plaintiffs’ claims, including the constitutional claims and the claim that the protocol and addendum are arbitrary and capricious under the APA,” the court said and emphasized that “several claims” are pending at the lower court level.

“The one thing all the judges agree on is that there are other significant factual and legal issues that the district court still needs to resolve,” said Robert Dunham of the Death Penalty Information Center.

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New York coronavirus: Nearly 20% of the NYPD’s uniformed workforce is out sick

NYPD Auxiliary Police Officer Ramon Roman died on Sunday from coronavirus-related complications, according to a daily coronavirus report from the NYPD.

Nearly 20% of its uniformed workforce is out sick.

The city is a hotspot for the virus, with more than 68,000 cases and 2,700 fatalities. The city’s hospitals have been struggling to maintain the space, personnel and equipment to treat the growing number of patients.

On Monday, 6,974 uniformed members of the NYPD were out sick, accounting for 19.3% of the Department’s uniformed workforce, according to the report. That number has jumped from 12% on March 28.

Currently, 1,935 uniformed members and 293 civilian members tested positive for the coronavirus, the NYPD said.

These states have implemented stay-at-home orders. Here's what that means for you
NYPD Commissioner Dermot Shea previously said that while they were not close to implementing 12-hour shifts, they would do so if necessary.

Some recovered officers returned to work Friday, a law enforcement source told CNN, which delays the necessity to implement 12-hour shifts on the department.

“Now we’re getting the first wave back,” said the official. “By next week, we could be getting hundreds back.”

The NYPD said it is cracking down on social and religious gatherings.

Over the weekend, police used sirens and played social distancing messages over their PA system in Borough Park to break up a large gathering for a funeral in the Hasidic Jewish community that did not follow social distancing guidelines, according to CNN affiliate WPIX.

In a 24-hour period, officers visited 2,419 supermarkets, 6,959 bars and restaurants, 1,238 public places and 3,288 personal care facilities.

Nobody was arrested or issued summonses in relation to the visits, the NYPD said.

CNN’s Laura Ly and Mark Morales contributed to this report.

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Mayors take lead in states where governors fight stringent stay-at-home orders

After Gov. Henry McMaster defended his decision to abstain from taking the statewide step, Benjamin — along with the city’s council — implemented a city-wide stay at home order in late March, telling CNN at the time that while he would “relish a statewide action by the governor,” the “lack aggressive action” by McMaster made it clear that the city had to “step up.”

McMaster, days after defending South Carolina as a “unique” place where a stay-at-home order is not needed, ended up issuing a statewide order on Monday that required South Carolinians to stay home unless they are working, visiting family, getting exercise or shopping for needed goods.

“This is a stay-at-home order. You call it what you like,” he said when pressed by a reporter.

A total of seven states — all led by Republicans — have resisted calls to issue strict stay-at-home orders, with most arguing that more rural, sparsely populated states do not need stringent orders comparable to those being implemented in New York and California. Some Republican governors, like those in Texas, Georgia and Florida, fought off persistent calls for days before they issued statewide orders.

The dynamics in these states — with city and county officials from Utah to Mississippi to South Carolina taking more aggressive steps earlier — has highlighted a gaping divide that splits largely play out along party lines: At the state level, Republicans control the executive office, while metro areas are run by Democrats

Some mayors, like Benjamin, have been blamed politics for the hesitance, accusing the statewide leaders of not wanting to go beyond their Republican standard bearer, President Donald Trump, who has worried about the impact sweeping orders could have on businesses.

McMaster is being “deferential to the president,” Benjamin told CNN before the governor issued the order, causing the mayor to be “at a loss as to why any public official would not do everything in their power to try and save those lives. The governor should be doing more.”

Benjamin, after McMaster’s order on Monday, said people are “still unsure as to why it took him so long to act when the data has been crystal clear and dozens of South Carolinians have now been lost.”

“But we welcome the governor to the fight,” Benjamin said. “We’ve been waiting on him.”

From Utah to Mississippi

McMaster is far from alone in resisting calls from local leaders.

Republican Utah Gov. Gary Herbert has fought off calls for a statewide order, despite leaders from Salt Lake County, the state’s largest, explicitly calling on the governor to make the move.

“Every county in the state relies on metropolitan hospitals for critical care needs,” said Salt Lake City Mayor Erin Mendenhall, a Democrat. “A statewide order is necessary to slow the spread everywhere, so we don’t overwhelm our hospitals.”

Mendenhall highlighted nationwide concerns that hospitals across the country could be overrun, especially in rural areas where hospital capacity is lower.

While McMaster and Herbert are still holding out on statewide orders, other Republican governors, like Greg Abbott in Texas, Brian Kemp in Georgia and Tate Reeves in Mississippi, spent days fighting off a statewide order before they shifted.

The most notable was Florida Gov. Ron DeSantis, who spent weeks fighting off calls for more sweeping action in the face of spring breakers partying on the state’s beaches and some of the largest cities in the state pleading for more statewide action. He only decided to move when Trump, whom the governor is close with, struck a more somber tone during a press conference on March 31.

“It is a very serious situation,” DeSantis said of the virus the next day. “When you see the President up there and his demeanor the last couple of days, that’s not necessarily how he always is.”

The conflict has most notably played out in states where the urban-rural divide is starker.

Chokwe Lumumba, the Democratic mayor of Jackson, Mississippi, ordered sweeping closures in his city of 166,000 last week, at the same time that Reeves was actively dismissing calls for a statewide order.

“What’s best for Oxford and what’s best for Tishomingo aren’t exactly the same,” Reeves said in an interview with Mississippi Today in late March, naming a college town of 23,000 and a tiny town of under 400 in Northern Mississippi. He added that he believes some of the pushback against his orders were politically driven even as he allows cities to go beyond his measures.

But days after that interview, Reeves shifted his position and issued a statewide order, saying that this “is a somber time, for our country and our state” and that his health experts finally advised him it was time for a shelter in place.

“They told me we are now at the point in Mississippi’s cycle where such drastic restrictions are required,” he said in a statement.

Lumumba, however, sees politics, lamenting that many Republican “politicians nationwide have staked their political futures on being in line with” the President.

“We are in a highly politically charged environment and we were prior to the virus spreading as it has globally,” Lumumba told CNN in an interview. “And I think that some individuals have found it difficult to break from that partisan rhetoric and really recognize that this virus cares very little for your political ideology.”

But the divides between governor and mayors have gone beyond partisan lines

In Oklahoma, for example, the Republican mayor of Oklahoma City, David Holt, issued a citywide stay at home order in mid-March, weeks before the state’s Republican governor, Kevin Stitt, issued a statewide order on April 2.

Stitt’s order has been confusing, with some reading it as a fully enforced stay at home order and others seeing it as a more lenient measure, in part because the governor has avoided calling it a stay at home order and instead uses the term “safer at home.”

Holt said Stitt “clearly avoided” some of the more direct terminology that other states have used to describe their orders, like “shelter in place,” which is what the mayor has been calling his own order.

“One thing I have learned from this is no one reads the proclamations,” Holt said in an interview. “You can labor over the legal language, but what matters more is what you say, the messaging.”

He added: “We have found in Oklahoma City that the shelter in place language is more powerful and more effective. … There are 10 people who have read my proclamation and they are me and my staff.”

‘The cities that have taken the lead here’

Arguably the clearest example of the state vs. local divide is in Texas, where a majority of the state’s residents were under stay at home orders from their cities and counties long before Abbott took action.

Abbott had long taken a more measured approach to fighting the virus and avoided rhetoric like that of Republican Texas Lt. Gov. Dan Patrick, who suggested older Americans would be willing to die of coronavirus as a way to keep the economy moving. But eventually the governor, after dismissing calls for more action, issued a statewide order on March 31.

Even still, Abbott’s slower response — especially in a state with major metropolitan areas — led to conflict with some Texas mayors.

“The governor took the position that the cities and counties are all different and he didn’t want to issue something” overly broad, Austin Mayor Steve Adler told CNN before Abbott’s statewide order. “It really has been the cities that have taken the lead here.”

Adler, along with Travis County Judge Sarah Eckhardt, issued a stay-at-home order on March 24.

Before Abbott issued his order, city and county leaders Texas, including in Dallas, Austin, Houston, San Antonio and El Paso, all issued versions of the orders for residents of their areas.

Adler, like others, blames the political positioning as the reason Republican state leaders have been resistant to issue broad statewide orders.

“Too many times we see the President’s tenor and own political priorities being reflected in our state leadership and other states,” Adler concluded. “The President’s politics have a significant impact and influence on what we see happening at state levels.”

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New York request to treat coronavirus patients on Navy hospital ship approved by Trump

Cuomo had told reporters earlier Monday that he was “going to call the President this afternoon and ask him to shift the (USNS) Comfort from non-Covid to Covid.”

Trump, speaking at a White House news briefing Monday afternoon, said he “was informed that Gov. Cuomo has already told you and announced he called me up a little while ago and asked whether or not it would be possible to use the ship with respect to fighting the virus.”

“We hadn’t had that in mind at all, but we’re going to let him do it,” Trump remarked.

“It’s set for Covid,” Trump said of the Comfort. The President also confirmed that the ship has been approved to treat New Jersey patients.

The US Navy hospital ship had originally been designated as a space for non-coronavirus patients to alleviate the pressure from New York hospitals, though Trump signaled this weekend that the ship could be used for coronavirus patients if needed.

“That was not supposed to be for the virus at all and under circumstances, it looks like more and more we’ll be using it for that,” he told reporters at the White House Sunday. “The ship is ready and if we need it for the virus, we’ll use it for that.”

The move comes as New York City’s hospitals have been overwhelmed with coronavirus cases and are struggling to respond to patients streaming in. A shortage of personal protective equipment has also placed medical workers at risk of contracting the virus.

As a result — even before Trump’s announcement Monday — Joint Staff Surgeon Air Force Brig. Gen. Paul Friedrichs, the top medical doctor for the military, said the USNS Comfort had already treated coronavirus patients, stating, “Our commitment has been that if a patient comes to us, we would take care of them.”

“Have we had patients who ultimately were determined to have coronavirus on the hospital ships? Yes,” Friedrichs said. “And we’re taking care of them, just like we’re taking care of all the other patients going forward.”

A defense official tells CNN that the Comfort has treated fewer than five coronavirus patients and the Pentagon has said that Comfort has treated a total of 41 patients.

“Having the Comfort here is a very, very important thing for New York City in terms of the number of patients served, but also an extraordinary morale boost when we needed it,” New York City Mayor Bill de Blasio told CNN Friday. “I don’t have a doubt in my mind, the Comfort will be filled up soon.”

CNN’s Nicky Robertson contributed to this report.

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Supreme Court decision to allow Wisconsin vote during pandemic ‘boggles the mind,’ Ginsburg says

All that changed when the court issued its first order related to the pandemic after a long day of ricocheting legal briefs concerning Wisconsin’s pending primary. Instead of a quiet compromise in the age of coronavirus, the court split 5-4 along ideological lines, in a stinging loss for Democrats and a signal that between now and November the Supreme Court’s path may not be smooth as the pandemic continues to cripple sectors of the country and voting disputes multiply.

The majority opinion was unsigned, but Justice Ruth Bader Ginsburg penned a fiery dissent for the liberals, saying at one point the reasoning of her conservative colleagues “boggles” the mind.

At issue Monday was a request to the justices to review a lower court ruling that extended Wisconsin’s absentee voting deadlines in part because requests for absentee ballots were exploding and voters expressed fears of contamination and spreading the virus if they had to vote in person.

Republicans asked the justices to put that ruling on hold, while Democrats said they feared a ruling against them would disenfranchise voters and risk public health.

Wisconsin primary set to go ahead Tuesday after courts block attempts to delay voting due to coronavirus

In an unsigned opinion, the Court’s five conservatives saw the case as a “narrow” dispute on a “technical question.” They stressed court precedent that discourages the changing of election rules so close to an election.

“This court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election,” they wrote. They noted the lower court had given the Democratic plaintiffs more than they had even asked for.

“Even in an ordinary election,” the majority reasoned, voters requesting absentee ballots at the deadline will usually receive their ballots on the day before or day of the election. For the majority, the Democrats “put forward no probative evidence in the District Court that these voters here would be in a substantially different position from late-requesting voters in other Wisconsin elections.”

It was that line of thinking that fired up the 87-year-old Ginsburg, who has been practicing social distancing but continuing her workout routine at the high court even if the building is closed to the public. Joined by her liberal colleagues, she blasted not only the majority’s reasoning, but the way her colleagues framed the dispute.

“The court’s suggestion that the current situation is not ‘substantially different’ from an ‘ordinary election’ boggles the mind,” she wrote.

Unlike the majority, Ginsburg focused on the virus and the fact that the state had 1,500 confirmed cases and 24 deaths “with evidence of increasing community spread.” Because gathering at polling places now poses “dire health risks,” an unprecedented number of Wisconsin voters were turning to absentee voting.

“While I do not doubt the good faith of my colleagues, the Court’s order, I fear, will result in massive disenfranchisement,” she wrote.

How coronavirus is deepening American inequality

While the majority cited Supreme Court precedent meant to stop voter confusion, Ginsburg wrote about an unprecedented global health crisis. She said that the concerns raised by the court and advanced by the Republican National Committee “pale in comparison to the risk that tens of thousands of voters will be disenfranchised.”

And although she didn’t talk about other potential cases — for instance the move by several conservative states to restrict abortion during the pandemic in order to preserve medical supplies — she ended her opinion with a possible look forward. The case was about constitutional rights “and in this most extraordinary time, the health of the Nation.”

Her closing differed in every way from the majority, hinting of more similar disputes to come.

“The court should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID-19 are appropriate” the majority opinion said. “That point cannot be stressed enough.”

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Tom Dempsey, NFL kicker who set a record for the longest field goal, dies of coronavirus

“Tom’s life spoke directly to the power of the human spirit and exemplified his resolute determination to not allow setbacks to impede following his dreams and aspirations,” said Gayle Benson, owner of the New Orleans Saints, where Dempsey began his career.

“He exemplified the same fight and fortitude in recent years as he battled valiantly against illnesses but never wavered and kept his trademark sense of humor,” she said in a statement.

Following a March 25 diagnosis, Dempsey initially fought the virus “promisingly,” but his condition worsened in the last week, daughter Ashley told the newspapers that form

Because Lambeth House residents were quarantined, his family was not able to visit with him before he passed, but Ashley Dempsey was able to speak to him via video chat, she told the news outlet.

“We didn’t want him to think we had abandoned him,” she told the papers. “We wanted him to know we still loved him — always.”

Dempsey was born in Milwaukee and attended high school and college in Southern California.

He was born without toes on his right foot and with no fingers on his right hand. To compensate, he wore a custom, flat-front kicking shoe that ended where his toes were supposed to begin.

At a time when NFL kickers were increasingly moving to soccer-style field goals and extra points — booting the ball with the laces of their shoes — Dempsey was a relic, preferring the old-school, straight-ahead style (which, for other kickers, meant kicking with their toes) that had dominated the early days of football.

On November 8, 1970, Dempsey’s basement-dwelling Saints were losing 17-16 to the playoff-bound Detroit Lions at home in Tulane Stadium. With only seconds left, safety Joe Scarpati took the snap and Dempsey booted a 63-yarder, shattering Bert Rechichar’s record of 56 yards, which had stood for 17 years.

Some claimed his specially designed $200 shoe gave Dempsey an unfair advantage, but he shrugged off the critics, according to “Game of My Life Detroit Lions: Memorable Stories of Lions Football.”

“How about you try kicking a 63-yard field goal to win it with two seconds left and you’re wearing a square shoe — oh, yeah and no toes either,” he told reporters, according to the book.

In 1974, the NFL moved to discourage long kicks like Dempsey’s by moving the goal posts 10 yards, to the back of the end zone, and giving opposing teams the ball at the spot of the kick after a missed field goal.

A few years later, the league mandated that kickers’ shoes “must have a kicking surface that conforms to that of a normal kicking shoe.”

Dempsey shrugged off critics who said his flat shoe gave him an unfair advantage.
Dempsey’s shoe now sits in Canton, Ohio, site of the Pro Football Hall of Fame, which hails the modified cleat as a memento from 50 great NFL moments, along with the bench Green Bay Packers coach Vince Lombardi used in his final game and the shoes the Dallas Cowboys’ Tony Dorsett wore when he ran for the first 99-yard touchdown.

Dempsey’s record was tied numerous times — first by Jason Elam in 1998, Sebastian Janikowski in 2011 and David Akers in 2012 — but Dempsey’s defenders point out that two of the three kicks came in Denver, where the balls fly farther in thinner air.

In 2013, more than 43 years after Dempsey’s historic kick, Matt Prater, who played for — you guessed it, the Denver Broncos — broke the record with a 64-yarder. The record still stands.

When Carolina Panthers kicker Graham Gano booted a 63-yarder in 2018 to tie Dempsey’s record for the longest game-winning field goal (giving the Panthers a 33-31 win over the New York Giants), Gano honored Dempsey the next day.

In a tweet, Gano said he’d always wanted to win a game in record fashion as Dempsey had done, and that one of the “coolest gifts” he’d ever received was a kicking tee signed by Dempsey.

“Honored to be able to put the ball from yesterday’s kick onto the tee that he signed,” Gano tweeted, including a photo of the ball resting atop the orange tee.

After two seasons with the Saints, including his All-Pro rookie year, Dempsey went on to play for the Philadelphia Eagles, Los Angeles Rams, Houston Oilers and Buffalo Bills before retiring in 1979.

He was diagnosed with dementia in 2012.

Dempsey is survived by Ashley and her siblings, Toby Dempsey and Meghan Dempsey Crosby, according to He also had three grandchildren, the paper said.

CNN’s Alta Spells and Wayne Sterling contributed to this report.

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ACLU suing for release of inmates at Louisiana facility where five prisoners have died

The low-security prison located 100 miles outside of Baton Rouge has become the epicenter of the viral pandemic in the nation’s federal prison system since the first inmate in US custody died there last month. As of Sunday, 22 current inmates had tested positive for the virus — the most confirmed cases out of all 122 federal prisons.

The Bureau of Prisons has taken extreme measures to stem the spread of the virus behind bars, and Attorney General William Barr, who oversees the federal prison system, has singled out Oakdale as a facility where prison leadership should expedite early release programs to protect certain vulnerable inmates. But inmates and officials there say conditions remain unsafe.

Inmates named in the ACLU’s class-action lawsuit described having no access to hot water and soap, and a row of six showers shared by 125 people.

One inmate, a 35-year-old with “compromised lungs due to childhood asthma,” said that he sleeps in a room that holds 72 prisoners in such close proximity that he can touch his neighbors while lying in his own bed.

“We share the department’s goal of stopping COVID-19 in its tracks, but are deeply concerned that relief is coming too slowly. We must act now to avoid the worst-case scenario here,” Somil Trivedi, senior staff attorney at the ACLU’s Criminal Law Reform Project, said in a statement.

A Bureau of Prisons spokeswoman told CNN she could not comment on pending litigation.

On Friday, Barr told the Bureau of Prisons chief in a memo to maximize the use of early release programs at the Louisiana prison and a handful of other hard-hit facilities for certain eligible inmates, citing the “significant levels of infections.”

Three other inmates have died at a prison in Lisbon, Ohio, and 138 inmates, as well as 59 Bureau of Prisons employees, had confirmed cases of the virus on Sunday.

In their lawsuit, which was filed in Louisiana federal court, the ACLU asked a judge to step in and order the immediate release of inmates who fell under the class-action status, saying that Barr’s memo did not clearly define the group of inmates eligible for early release and lacked a concrete timeline.

Meanwhile, Ohio Governor Mike DeWine said Monday that he was deploying up to 26 medical staff from the state’s National Guard to assist at FCI Elkton, the federal facility in Lisbon where three inmates died last week after contracting coronavirus.

DeWine, a Republican, said that an Ohio National Guard official he’d dispatched to survey the prison over the weekend had reported back that its medical staffing was operating at 50 percent.

“The guard came back to me as well as our health department came back and said ‘there is no doubt that this prison needs help,'” DeWine said.

The federal prison system, which houses about 150,000 inmates across the country, moved to a state of near lockdown last week as the pandemic worsened. Inmates are currently being confined to their cells with limited exceptions for education and access to showers and phones.

Before that, the Bureau of Prisons had instituted a two-week quarantine for all inmates new to a facility, and placed a ban on most outside visitors.

On Monday, Barr directed federal prosecutors to consider refraining from holding certain people awaiting trial in detention, in a move that will likely further reduce the population of inmates vulnerable to the virus behind bars.

Barr expands early release for inmates at prisons hard hit by coronavirus

“Even with the extensive precautions we are currently taking, each time a new person is added to a jail, it presents at least some risk to the personnel who operate that facility and to the people incarcerated therein,” Barr wrote in a memo.

People arrested for federal crimes are typically housed in local or federal jails as their cases play out in court unless they are freed under conditions of a bail agreement.

In the memo Monday, Barr told prosecutors to expand bail opportunities for defendants who don’t pose a threat to the public, pose little risk of flight, and who are “clearly vulnerable to Covid-19 under CDC Guidelines.”

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