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Arizona Lacks Supply of Execution Drugs, "Presently Incapable of Carrying Out" Executions

Tue, 06/28/2016 - 11:01am

In a court filing in the federal lawsuit challenging its execution procedures, Arizona officials have declared that the state does not have the drugs necessary to carry out an execution, and is currently unable to obtain them. The filing states, "the Department’s lack of the drugs and its current inability to obtain these drugs means that the Department is presently incapable of carrying out an execution." Arizona has four separate multi-drug protocols it may use in executions. One involves the use of the anti-anxiety drug, midazolam, to sedate the prisoner before the other drugs are administered. The other three protocols involve the use of either pentobarbital or sodium thiopental. The state used midazolam in the botched execution of Joseph Wood in 2014, which was the last execution conducted in Arizona. The state attempted to import 1,000 vials of sodium thiopental from a supplier in India, but the shipment was seized at Phoenix airport by the Food and Drug Administration, which said the importation of pharmaceuticals without an approved medical purpose violated federal law. In its recent court filing, Arizona announced that it will abandon the use of midazolam and indicated that it has been unable to obtain the other sedatives. After Wood's execution, death row inmates challenged the state's lethal injection protocol, which called for midazolam followed by a paralytic drug, on the grounds that, "midazolam is not reliable as a sedative, which means the paralytic will mask the inmate’s pain." In May, U.S. District Court Judge Neil Wake permitted that claim to move forward, effectively delaying all executions until after the state's supply of midazolam had expired. Dale Baich, an attorney for the Arizona prisoners challenging the protocol, said, "As we have said all along, midazolam is not an appropriate drug for use in executions....Arizona now becomes the second state to abandon the experimental use of this drug in executions. Now, more than ever, we need to ensure that Arizona's execution protocol comports with the constitutional requirements for a humane execution....We need a much more specific, clear plan that has been vetted by the court and is understood by the public." A hearing will be held on June 29.

(C. McDaniels, "There’s A Standoff Between States And The Feds Over Illegal Execution Drugs," BuzzFeed, June 26, 2016; C. Geidner, "Arizona 'Presently Incapable Of Carrying Out An Execution,' State Lawyers Say,” BuzzFeed, June 24, 2016; M. Kiefer, "As another drug becomes unavailable, execution by lethal injection in Arizona remains uncertain," The Arizona Republic, June 24, 2016;  D. Baich, "Attorney Statement in Response to ADC's Announcement About Changes to Its Execution Protocol," June 24, 2016.) See Lethal Injection. Read the joint filing from June 24, 2016. Read the state's notice of change to the lethal injection protocol.

Divided State Court Upholds Arkansas Lethal Injection Protocol and Secrecy Law, Potentially Opening Path to Eight Executions

Fri, 06/24/2016 - 11:32am

A divided Arkansas Supreme Court voted 4-3 on June 23 to uphold the state's lethal injection protocol and secrecy policy. The decision potentially opens the path for the state to move forward with eight executions that had been stayed pending the outcome of this litigation. However, it is unclear whether executions will resume because Arkansas' supply of lethal injection drugs expires on June 30, and the supplier from which it obtained those drugs has indicated that it will no longer sell execution drugs to the state. The Arkansas Department of Corrections has told the Associated Press that its "inventory sheet ... has not changed" since April, when it disclosed that its doses of the paralytic drug, vecuronium bromide, are set to expire. A prison official's affidavit, submitted during the court proceedings, said that the state had contacted at least five additional drug wholesalers or manufacturers, all of whom said they either would not sell the drugs to the state or would not sell them without the makers' permission. Arkansas has not carried out an execution since 2005. The death row prisoners had argued that Arkansas's proposed execution protocol and its secrecy policy, which enables the state to conceal the identities of execution drug suppliers, could result in unconstitutionally cruel and unusual executions. Justice Robin Wynne, who dissented, said he believed the inmates had successfully proved that claim. In a separate dissent, Justice Josephine Linker Hart said she would have ordered the state to disclose the source of the drugs. The majority decision also rejected prisoners' argument that the secrecy law violates a settlement that guaranteed them access to the now-secret information, declaring that the settlement agreement was not a binding contract.

(C. Lauer, "ARKANSAS COURT UPHOLDS EXECUTION PROTOCOL, DRUG SECRECY LAW," Associated Press, June 23, 2016.) See Lethal Injection.

Georgia Approaches Record Number of Executions But Hasn't Imposed Death Sentences in Two Years

Thu, 06/23/2016 - 10:31am

The pace of executions in Georgia is outstripping the pace of death sentences. While the number of executions this year (5) is equal to the single-year record set in 1987 and 2015, no one has been sentenced to death in more than two years, and prosecutors are rarely seeking death sentences. The last death sentence in Georgia came down in March 2014. The number of notices of intent to seek the death penalty has fallen by more than 60% in the last decade, from 34 in 2006 to 13 in 2015. This year, the death penalty is being sought in only one case - the murder of a priest who had protested against capital punishment and signed a document stating his opposition to the death penalty, even in the event he was violently killed. Brian Kammer, head of the Georgia Resource Center, which represents death row inmates in their appeals, said improving the quality of representation has been crucial in bringing about change: “Had such legal teams with adequate resources been available to these recently executed prisoners at the time they were tried originally, I am confident they would be alive today.” Both defense attorneys and prosecutors said the option of life without parole has had a significant impact. Chuck Spahos, head of the Prosecuting Attorneys’ Council of Georgia, said, “It has made an enormous difference. When you start talking about the expense, the years of appeals and the length of the process that goes on and on and having to put victims’ families through that with no closure, the availability of life without parole with a guilty plea has become an attractive option.” Atlanta criminal defense attorney Akil Secret raised questions of fairness, asking, "If a life-without-parole sentence is sufficient for today’s worst crimes, why isn’t it sufficient for those crimes from the past where death was imposed?" 

(B. Rankin, "Georgia executions rise, while death sentences plummet," Atlanta Journal-Constitution, June 18, 2016.) See Arbitrariness and Sentencing.

Cost of Pennsylvania Death Penalty Estimated At $816 Million, Could Reach $1 Billion

Wed, 06/22/2016 - 1:11pm

Pennsylvania's taxpayers have paid an estimated $272 million per execution since the Commonwealth reinstated its death penalty in 1978, according to an investigation by The Reading Eagle. Using data from a 2008 study by the Urban Institute, the Eagle calculated that cost of sentencing 408 people to death was an estimated $816 million higher than the cost of life without parole. The estimate is conservative, the paper says, because it assumes only one capital trial for each defendant and it does not include the cost of cases in which the death penalty was sought but not imposed. The total cost may exceed $1 billion. An earlier investigation had estimated a cost of at least $350 million, based on the 185 inmates who were on death row as of 2014, but additional research into the cases that had already been overturned, or in which inmates died or were executed prior to 2014, revealed a total of 408 people who had been sentenced to death. Pennsylvania has carried out only three executions under its current death penalty statute. State Senator Stewart Greenleaf, a Republican and chairman of the Senate Judiciary Committee, said, "We're scratching for every dollar that we can right now. To continue to spend that kind of money is hard to justify." The Eagle's investigation also uncovered geographic disparities in the application of the death penalty. 60% of all death sentences came from just four counties: Philadelphia, Allegheny, York, and Berks. Death sentencing rates also varied dramatically, with about a third of counties handing down zero death sentences, while three (Columbia, Cumberland, and Northumberland) had 5 or more death sentences per 100 murders. Somerset District Attorney Lisa Lazzari-Strasiser, who has filed one death penalty case in five years as District Attorney, said, "I think our system is broken. It doesn't do justice to any one of the stakeholders, in my opinion, not the taxpayers, the victims or the defendants. It doesn't work."

(N. Brambila, "Executing Justice: Pennsylvania's death penalty system costs $816 million," The Reading Eagle, June 17, 2016; N. Brambila, "Executing Justice: The discretionary nature of the death penalty in Pennsylvania," The Reading Eagle, June 20, 2016.) See Costs and Arbitrariness.

U.S. Supreme Court Orders Reconsideration of Three Cases in Light of Jury Selection Decision

Tue, 06/21/2016 - 3:50pm

The U.S. Supreme Court granted writs of certiorari in three jury discrimination cases on June 20, vacating each of them and directing state courts in Mississippi, Alabama, and Louisiana to reconsider the issue in light of the Court's recent decision in Foster v. Chatman. Two of the petitioners, Curtis Flowers of Mississippi and Christopher Floyd of Alabama, are currently on death row. The third, Jabari Williams, was convicted in Louisiana of second-degree murder. Earlier this year, the Supreme Court granted Timothy Foster a new trial because prosecutors illegally excluded blacks from his jury. Flowers, Floyd, and Williams all raised issues of racial discrimination in jury selection that were rebuffed in the state courts. As in Foster's case, the prosecutor's notes in Floyd reflect race-conscious jury strikes. Floyd's prosecutor marked African American potential jurors with a "B" on its list of jurors to remove, then struck 10 of 11 black prospective jurors. Flowers has been tried six times. His first two convictions were overturned because of prosecutorial misconduct, and his third as a result of racial bias in jury selection. His fourth trial ended in a mistrial and his fifth trial resulted in a hung jury. At his most recent trial, eleven white jurors and one black juror convicted him after just 30 minutes of deliberation. The Equal Justice Initiative, which represents Floyd, released a statement saying, "Racial bias has been a longstanding problem in Alabama, where more than two dozen cases have been reversed after courts found that prosecutors engaged in intentional racial discrimination during jury selection." EJI Executive Director, Bryan Stevenson, said racial bias in jury selection “undermines the integrity of the criminal justice system.” He told the Montgomery Advertiser, "What we’ve found is regardless of the race of the defendant, a lot of prosecutors appear not to trust black people in juries, which is illegal and unconstitutional.”

(Flowers v. Mississippi, No. 14-10486, June 20, 2016; B. Lyman, "U.S. Supreme Court orders review of Alabama murder case," Montgomery Advertiser, June 20, 2016; "U.S. SUPREME COURT REVERSES ANOTHER ALABAMA DEATH PENALTY CASE," Equal Justice Initiative, June 20, 2016; P. Alexander, "For Curtis Flowers, Mississippi Is Still Burning," Rolling Stone, August 7, 2013.) See Race and U.S. Supreme Court.

Daughter of Charleston Shooting Victim Opposes Death Penalty for Accused Killer

Mon, 06/20/2016 - 11:06am

Sharon Risher, whose mother, Ethel Lance (pictured), and cousins, Susie Jackson and Tywanza Sanders, were killed in the racially-motivated shooting at Charleston's Emanuel AME Church one year ago, says she has not foregiven Dylann Roof, the accused perpetrator, but does not think he should be sentenced to death. In an article for Vox, Risher shared her experiences since the shooting, discussing her emotional reactions to her mother's death and her views on gun control, the removal of the Confederate flag from South Carolina's statehouse, and capital punishment. Risher, who is a church chaplain, says that "[t]here is no right way to grieve." Unlike her sister, Nadine Collier, who publicly voiced her forgiveness of Roof just days after the shooting, Risher is "still in the anger stage" of grieving and says she has not forgiven Roof. Still, she does not believe a death sentence is appropriate. "Despite the anger I am still coping with from my mother’s death, I don’t believe in the death penalty, even for the man who killed her. That’s my conviction because of my faith," she said. "I don’t believe as human beings that we should take away someone’s life just because we have the power to do so." A recent poll found that nearly two-thirds of black South Carolinians prefer a sentence of life without parole for Roof if he is convicted.

(S. Risher, "My mom was killed in the Charleston shooting. Executing Dylann Roof won’t bring her back." Vox, June 15, 2016.) See Victims.

Texas Court Stays Execution of Man Convicted by Now Debunked "Shaken Baby" Testimony

Fri, 06/17/2016 - 10:08am

The Texas Court of Criminal Appeals has granted a stay of execution to Robert Roberson (pictured), who had been scheduled to be executed on June 21 for the 2003 death of his two-and-a-half-year-old daughter, Nikki Curtis. The court's June 16 stay order halts Roberson's execution under a recent Texas law permitting court challenges based on new scientific evidence of innocence. Prosecution experts had testified at Roberson's trial that his daughter died of Shaken Baby Syndrome, asserting that the child exhibited symptoms that she must have been shaken or beaten. Roberson said she had fallen out of bed during the night, but that she seemed fine and went back to sleep. Hours later, when he checked on her again, she was blue and could barely breathe. Prosecutors charged him with murder and with sexually assaulting his daughter - although there was no evidence that she had been sexually assaulted. The sexual assault charges were later dropped, but only after the prosecution had discussed them in open court in front of the jury. The court granted Roberson review of four issues: that (1) new scientific evidence establishes that he would not have been convicted; (2) the State's use of "false, misleading, and scientifically invalid testimony” about Shaken Baby Syndrome violated due process; (3) Roberson is "actually innocent of capital murder"; and (4) "the State’s introduction of false forensic science testimony that current science has exposed as false" made his trial fundamentally unfair. "Instead of taking Robert’s explanation about a fall seriously or exploring all possible causes of the injury sustained by a chronically ill child who had been at the doctor’s office with 104.5-degree temperature only two days before," Roberson's lawyer, Gretchen Sween wrote, "a tragedy was hastily deemed a crime and a father, doing the best he could to care for his daughter despite severe cognitive impairments, was branded a murderer." Roberson presented affidavits from four medical experts challenging the accuracy and scientific validity of the State's shaken baby testimony. Forensic pathologist Dr. Harry Bonnell, in an opinion shared by all four defense experts, wrote: "it is impossible to shake a toddler to death without causing serious neck injuries—and Nikki had none." They suggest several alternate theories for Curtis' death, including meningitis caused by an ear infection, a fall like the one Roberson described to investigators, or a congenital condition. Roberson's appeal argues that, "[w]hen the trial record is viewed through the lens of current science and evidence-based medicine, it is clear that he is innocent of capital murder." The court returned the case to the trial court in Anderson County to conduct an evidentiary hearing on Roberson's claims. 

Roberson previously filed an appeal with the U.S. Supreme Court, alleging a conflict of interest by his appeals counsel. The Court declined to hear the case. Texas has carried out six executions in 2016.

(J. Silver, "Court Halts Texas Man's Execution in 'Shaken Baby' Case," Texas Tribune, June 17, 2016; C. Tolan, "Texas is scheduled to execute this man in six days—but four experts say he was convicted based on junk science," Fusion, June 15, 2016.) Read Roberson's motion for stay of execution here and the court's stay order here. See Innocence and Arbitrariness.

Delaware Supreme Court Hears Oral Argument on Constitutionality of Its Death Penalty Statute

Thu, 06/16/2016 - 12:00pm

The Delaware Supreme Court heard oral argument on June 15 in Rauf v. State, a case challenging the constitutionality of the state's death sentencing statute on the grounds that it violates the Sixth Amendment right to trial by jury. The challenge arose in the wake of the U.S. Supreme Court decision in January 2016 in Hurst v. Florida, which struck down Florida's sentencing scheme, saying that "[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough." Delaware, Florida, and Alabama are the only states that permit a judge to make the final sentencing decision in capital cases after receiving a non-unanimous sentencing recommendation from a jury. At the time of Hurst, Florida death penalty jurors were asked to consider and weigh aggravating and mitigating circumstances without reporting which factors they found, and then make a recommendation of sentence. However, the trial judge ultimately determined whether aggravating factors existed that made the defendant eligible for the death penalty and decidede whether to impose a life sentence or the death penalty. After Hurst, the state amended its statute to require the jury to unanimously find aggravating circumstances and vote at least 10-2 for death before the judge could impose a death sentence. The Delaware Supreme Court must decide whether Delaware's system, which requires a jury to unanimously determine whether an aggravating factor exists, but allows a judge to weigh aggravating and mitigating factors, meets constitutional requirements. Santino Ceccotti, a public defender who argued on behalf of Benjamin Rauf, a defendant whose capital case is pending, said the weighing of aggravating and mitigating factors is a fact finding, and therefore should be done by a jury. "The Sixth Amendment requires not a judge, but a jury, to find each fact," he said. Deputy Attorney General Sean Lugg, who argued for the state, conceded that Delaware's weighing process was a fact finding necessary before a death sentence could be imposed, but said the jury fact finding required by Hurst was limited to determining whether the defendant was eligible for the death penalty, not what the ultimate sentence should be. A Florida trial court ruled last week that Florida's new statute violated Hurst because the determination that aggravating circumstances outweigh mitigation is a fact finding that must be made by the jury. An Alabama trial court has also ruled that its judicial sentencing statute violates Hurst. All capital trials in Delaware are on hold while the court considers the case.

(R. Chase, "Delaware court mulls constitutionality of death penalty law," Associated Press, June 15, 2016; C. Anderson, "Delaware Supreme Court hears death penalty arguments," Delaware State News, June 15, 2016.) Read the briefs and watch oral argument in Rauf v. State here. See Sentencing.

As Miranda Decision Turns 50, False Confessions Still Affect Death Penalty

Wed, 06/15/2016 - 12:22pm

On June 13, 1966, the U.S. Supreme Court decided Miranda v. Arizona, granting suspects critical constitutional protections designed to combat abusive police interrogation practices. In commentary for The Marshall Project, Samuel Gross (pictured) and Maurice Possley of the National Registry of Exonerations discuss the interplay between false confessions, the death penalty, and wrongful convictions and describe how Miranda's famous rights to remain silent and to be represented by a lawyer during an interrogation have failed to prevent numerous false confessions and false charges against others. Nearly a quarter of the 1,810 exonerations recorded in the National Registry of Exonerations involve false or fabricated confessions, including 227 (13%) cases in which suspects falsely confessed and 195 (11%) cases in which they falsely implicated someone else. Despite being given their "Miranda warning," many suspects agree to speak with interrogators without a lawyer present and confess to crimes they did not commit, as a result of the mental stress of interrogation, threats of severe punishment if they do not cooperate, deceptive interrogation practices, or because they do not understand what they are doing. 72% of all exonerees with reported mental illness or intellectual disability had falsely confessed. Among them was Earl Washington, a man with an IQ of about 69, who was convicted of a rape and murder after falsely confessing during two days of interrogations, despite the fact that his confession was full of errors about the facts of the crime. He spent 16 years on death row in Virginia before being exonerated by DNA evidence. Gross and Possley explain that "some innocent suspects ... blame others to deflect responsibility and reduce their punishment." They point to the case of Richard Ochoa, who, to avoid the death penalty, falsely implicated his roommate Richard Danziger as the actual killer in a 1988 murder in Austin, Texas, pled guilty to a murder he did not commit, and testified against Danziger at trial. In 2002, both were exonerated by DNA. The authors praise the Miranda decision as an important step in regulating coercive interrogation practices, but say additional reforms are needed. In particular, they recommend that all interrogations, especially in homicide cases, be recorded, as already required in 23 states. They write, "Recording greatly helps us evaluate any claim that a confession was false, and it has taught us how to improve the conduct of interrogations." 

(S. Gross and M. Possley, "For 50 Years, You’ve Had 'The Right to Remain Silent'," The Marshall Project, June 12, 2016.) See Innocence.

For some examples of exonerated individuals who were wrongly convicted and sentenced to death based upon false or fabricated convictions, see Debra Milke (Arizona), Joseph Brown and David Keaton (Florida), Joseph Burrows, Madison Hobley, Stanley Howard, Ronald Jones, Ronald Kitchen, Leroy Orange, and Aaron Patterson (Illinois), Johnny Ross and Damon Thibodeaux (Louisiana), Jeremy Sheets (Nebraska), Leon Brown and Henry McCollum (North Carolina), Ronald Williamson (Oklahoma), and Earl Washington (Virginia) on the DPIC Innocence Cases webpage.

POLL: By 2:1 margin, Black South Carolinians Support Sentencing Church Shooter to Life Without Parole

Tue, 06/14/2016 - 12:48pm

A recent poll conducted by the University of South Carolina reveals deep racial divisions in the state over the death penalty and over the appropriateness of applying it in the case of Dylann Roof, the white defendant who faces state and federal capital charges in the race-based killings of nine black members of Emanuel AME Church in Charleston. According to the poll, 64.9% of African Americans in South Carolina oppose the death penalty, while 69.4% of white South Carolinians say they support it. Blacks were also more than twice as likely to support a sentence of life without parole for the church killings than to support the death penalty. Nearly two-thirds of black South Carolinians (64.7%) said that Roof should be sentenced to life without parole if convicted of the nine killings, while less than a third (30.9%) favored the death penalty. 4.4% said they did not know what sentence should be imposed. The views of white South Carolinians were diametrically opposite, with 64.6% saying they think Roof should be sentenced to death if convicted and 29.9% prefering life without parole. 5.6% of whites said they did not know which sentence should be imposed. Monique Lyle, who conducted the poll, said the results reflect consistent opposition to the death penalty among most black South Carolinians. Kylon Middleton, senior pastor of Mount Zion AME Church in Charleston, said the black community's opposition to capital punishment is tied to racial bias in the criminal justice system, adding, "We have been brutalized in this country, therefore, we can empathize with anyone … who would receive ultimate judgment." A recent study of South Carolina's death penalty found significant racial disparities in death sentences. For example, the study found that although 48% of South Carolina murder victims are black males, those cases account for only 8% of the state's death sentences. Earlier studies also found striking evidence of geographic and racial arbitrariness in South Carolina's application of capital punishment. The new poll also found profound differences in the views of South Carolinians as to how they believed African Americans were treated in the U.S. criminal justice system. 82.3% of blacks say that the justice system is biased against blacks. 59.5% of whites say it treats blacks fairly and 3.9% say it is biased in favor of blacks.

(C. Cope, "Most SC blacks say Dylann Roof should get life without parole," The Herald, June 12, 2016.) See Race and Public Opinion.

Second Florida Trial Court Strikes Down State's Death Penalty Statute

Fri, 06/10/2016 - 11:18am

A second Florida trial court has ruled that the state's new death penalty statute is unconstitutional. On June 9, Hillsborough County Judge Samantha Ward barred prosecutors from seeking death against Michael Edward Keetley, saying that the state's death penalty statute violated the Sixth Amendment to the U.S. Constitution. Judge Ward said that the Florida legislature's changes to the sentencing law after the U.S. Supreme Court had declared the old statute unconstitutional in Hurst v. Florida, created an additional set of constitutional problems. Hurst held that the Florida sentencing statute impermissibly permitted the judge, rather than the jury, to determine whether the prosecution had proven each fact necessary to impose the death penalty. In response to Hurst, the legislature passed a new law that permitted the court to impose a death sentence only if the jury unanimously found at least one aggravating circumstance that would make the defendant eligible for the death penalty and then recommended a death sentence by a vote of at least 10-2 after determining that the aggravating circumstance were sufficiently serious to justify a death sentence and outweighed any mitigating circumstances. Judge Ward said that, under the new sentencing scheme, the jury's weighing of aggravating and mitigating circumstances constituted a fact-finding necessary before a death sentence could be imposed. She wrote, "it defies logic, and the dictates of [the Sixth Amendment], to have the jury find one of the prerequisites unanimously and beyond a reasonable doubt (that at least one aggravating factor exists), but not the other two prerequisites (that sufficient aggravators exist and that they outweigh the mitigating circumstances). Hurst specifically stated '[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.'" Judge Ward is the second Florida judge to find the new statute unconstitutional: one month earlier, on May 9, Miami-Dade Circuit Judge Milton Hirsch also struck down the law, ruling that the portion of the statute permitting the court to impose the death penalty without a unanimous jury vote for death violates the state constitution. 

(State of Florida v. Michael Edward Keetley, Case No. 10-CF-018429, Thirteenth Judicial Circuit Court for Hillsborough County, Florida.) See Sentencing.

U.S. Supreme Court Overturns Pennsylvania Death Penalty Ruling Infected by Judicial Bias

Thu, 06/09/2016 - 11:36am

On June 9, the U.S. Supreme Court held in Williams v. Pennsylvania that Terry Williams' (pictured) due process rights were violated when Pennsylvania's Chief Justice refused to recuse himself from the case. Ronald Castille served as Philadelphia District Attorney before being elected to the Pennsylvania Supreme Court. As District Attorney, he personally approved the decision to pursue the death penalty against the 18-year-old Williams, and then, while running for state Supreme Court, touted his record of having "sent 45 people," including Williams, to death row. Nearly 30 years after Williams was sentenced to death, and within a week of his scheduled execution, the Philadelphia Court of Common Pleas heard evidence that prosecutors had presented false testimony from a witness and withheld evidence that it had given favorable treatment to that witness; suppressed evidence that the victim had sexually abused Williams and other boys; and misrepresented to the jury that the victim had been simply a "kind man" who had offered Williams a ride home. After the court overturned Williams' death sentence, Philadelphia prosecutors appealed to the Pennsylvania Supreme Court, where Castille was serving as Chief Justice. Williams' attorneys filed a motion seeking Castille's recusal, but he denied the motion, refused to refer the question to the full court, and voted with the majority of the court to reverse the lower court ruling and reinstate Williams' death sentence. Castille also authored a concurring opinion saying the lower court had stayed Williams' death sentence "for no valid reason," attacking the judge for having “lost sight of [her] role as a neutral judicial officer,” and denouncing Williams' counsel for having an “obstructionist anti-death penalty agenda” and turning postconviction proceedings “into a circus where [they] are the ringmasters, with their parrots and puppets as a sideshow.” The U.S. Supreme Court, in an opinion by Justice Anthony Kennedy, reversed, saying "[a] constitutionally intolerable probability of bias exists when the same person serves as both accuser and adjudicator in a case." Here, the Court ruled, "Chief Justice Castille’s significant, personal involvement in a critical decision in Williams’s case gave rise to an unacceptable risk of actual bias." It further determined that Castille's participation in the case "affected the ... whole adjudicatory framework" of the appeal, and ordered the Pennsylvania Supreme Court to reconsider the appeal. “Today, Terry Williams comes one step closer to the new, fair sentencing hearing he deserves,” said Shawn Nolan, an attorney for Williams, “We’re optimistic that the Pennsylvania Supreme Court will give this case careful consideration and recognize the injustice of Terry’s death sentence.”

(Williams v. Pennsylvania, No. 15-5040, June 9, 2016; Press Release, "U.S. Supreme Court Finds Former Chief Justice of the Pennsylvania Supreme Court Should Have Recused Himself in Death Penalty Case," June 9, 2016.) See U.S. Supreme Court and Prosecutorial Misconduct.

Former Louisiana Chief Justice Asks Supreme Court to Review Case Presenting "Endemic" Prosecutorial Misconduct

Wed, 06/08/2016 - 12:23pm

Pascal Calogero (pictured), former associate and chief justice of the Louisiana Supreme Court, has called upon the U.S. Supreme Court to review the case of David Brown, a Louisiana death row prisoner who is challenging his sentence on the grounds that prosecutors withheld exculpatory evidence. Brown says prosecutors violated the Supreme Court's ruling in Brady v. Maryland, which requires disclosure of evidence that would be favorable to a defendant, whether relating to his guilt or in reaching a sentencing decision. In Brown's case, prosecutors had known for months that one of his co-defendants had confessed to having committed the killing with the help of a third co-defendant. They nonetheless withheld the confession from the defense, undermining Brown's claim that he was not the killer and that the victim was still alive the last time Brown had seen him. The evidence withheld in Brown's case is strikingly similar to the evidence presented to the Supreme Court in Brady itself—a co-defendant's admission that he, and not the defendant, was the actual killer. Nevertheless, the Louisiana Supreme Court said the withheld evidence would not have been favorable to Brown and ruled that no constitutional violation had occurred. "Brady issues are and have been, for decades, an endemic and persistent problem in Louisiana courts in both capital and noncapital cases," Calogero wrote in an op-ed in The National Law Journal. "The Louisiana Supreme Court had a chance to address this in Brown, but instead, once again, neglected to do so." The Open File, a website devoted to prosecutorial accountability, said that "Louisiana has a uniquely sordid history when it comes to prosecutorial misconduct." The Supreme Court has overturned three Louisiana death penalty cases for withholding exculpatory evidence, including the case of Michael Wearry earlier this year, and police or prosecutorial misconduct has been a factor in all ten Louisiana death-row exonerations to date. In addition, The Open File reported that the state court's rejection of Brown's Brady claim has "perversely ... undercut" the state's process for attorney discipline. Although it is undisputed that the prosecutors knew about and withheld evidence of the co-defendant's confession, the Louisiana Office of Disciplinary Counsel was unable to disclipline the prosecutors involved because the state court had ruled that the confession was not "favorable" evidence and the so the failure to disclose it could not be considered a violation of state ethical rules. The Court is scheduled to conference on June 16 on whether to accept Brown's case for review.

(P. Calogero, "U.S. Supreme Court Should Undo Death-Row Injustice in Louisiana," The National Law Journal, May 30, 2016; Bert, "LA: A Brady SOS from Louisiana to the U.S. Supreme Court," The Open File, June 1, 2016.) Read David Brown's Petition for Writ of Certiori here. See U.S. Supreme Court and Prosecutorial Misconduct. The ten Louisiana death row exonerees whose trials were tainted by misconduct are: Johnny RossCurtis KylesShareef CousinMichael GrahamAlbert BurrellJohn ThompsonDan BrightRyan MatthewsDamon Thibodeaux, and Glenn Ford.

Texas Judge Dismisses Charges Against Former Death Row Inmate

Tue, 06/07/2016 - 10:42am

A judge dismissed murder charges against former Texas death row prisoner Kerry Max Cook on June 6, after prosecutors conceded that his due process rights had been violated by the presentation of false testimony from an alternative suspect. The decision moves Cook one step closer to exoneration, nearly 40 years after he was originally convicted and sentenced to death for the 1977 murder of Linda Jo Edwards. Smith County prosecutors tried Cook three times, twice winning convictions and death sentences. After Smith's second trial ended in a hung jury, prosecutors withheld evidence and misrepresented a deal they had made with a jailhouse informant who falsely testified in the third trial that Cook had confessed to him. An appeals court overturned that conviction and death sentence for what it called “pervasive” and “egregious” prosecutorial misconduct. To avoid a fourth capital trial in 1999, Cook pled no contest to reduced charges and was released from prison. He continued to maintain his innocence. Prosecutors finally agreed to drop the charges against Cook after an alternate suspect in the case, James Mayfield—who had been granted complete immunity from prosecution—admitted that he had lied during Cook's trials. Mayfield, who had an extramarital affair with Edwards, had testified at the trials that he had not had sex with Edwards for weeks before her murder. However, several DNA tests identified semen in Edwards' underwear as Mayfield's, not Cook's. In a deposition in April, Mayfield testified that, in fact, he had sex with Edwards the day before she was killed. That admission also shed new light on the trial testimony of Edwards' roommate, who initially identified Mayfield as the man she saw in the apartment the night of the murder, but later changed her story to implicate Cook. Mark McPeak, who represented Cook during an earlier stage of his case, described his prior trials as "the quintessential railroading." Texas Defender Services executive director Kathryn Kase said: "It is long past time for the state of Texas to admit that it got the wrong man and that it prosecuted the wrong man repeatedly and sought the death penalty against the wrong man repeatedly." Cook continues to pursue a declaration of "actual innocence" that would make him eligible for more than $3 million in compensation from the state of Texas for the two decades he was wrongfully incarcerated on death row. The trial court is expected to rule on that claim later this month and the Texas Court of Criminal Appeals will then review the dismissal of charges.

Because the dismissal of charges is not yet final, Cook has not yet been added to DPIC's Exoneration List. 

(D. Warren, "Charges dropped against man once on death row in Texas," Associated Press, June 6, 2016; B. Grissom, "After nearly 40 years, murder charges dropped against Kerry Max Cook in East Texas case," The Dallas Morning News, June 6, 2016; M. Hall, "Reversal of Fortune," Texas Monthly, June 6, 2016.) See Innocence and Prosecutorial Misconduct.

Supreme Court To Hear Texas Death Penalty Cases Dealing with Racial Bias, Intellectual Disability

Mon, 06/06/2016 - 11:06am

On June 6, the U.S. Supreme Court granted writs of certiorari in two Texas death penalty cases, and will review the constitutionality of those death sentences during its next term. The two cases are Buck v. Stephens, in which Duane Buck was sentenced to death after a psychologist testified at his penalty trial that the fact that Buck is African-American increases the likelihood that he presents a future danger to society; and Moore v. Texas, a challenge to Texas' unscientific test for determining whether a defendant is intellectually disabled and therefore exempt from execution. Texas, through its then-Attorney General John Cornyn, had conceded that seven death row prisoners, including Buck, had been unfairly sentenced to death after juries in their cases had been exposed to expert mental health testimony improperly linking race and future dangerousness. The other defendants whose trials were tainted by such testimony were granted new sentencing hearings, but Buck's case did not reach the courts until Cornyn had become a U.S. Senator, and the new Attorney General (now Governor), Greg Abbott, opposed granting Buck a new sentencing hearing. The Court granted review on one of two issues presented in Bobby James Moore's petition for certiorari, whether a state may reject current medical standards in determining intellectual disability. It initially appeared to have granted review of a second issue as well, whether Moore's "extraordinarily long" confinement on death row violates the Eighth Amendment ban on cruel and unusual punishment. However, in an updated order, the Court clarified that it was limiting its review to only the intellectual dsability question. Moore was sentenced to death more than 35 years ago, and has been diagnosed as intellectually disabled by medical professionals. The Texas Court of Criminal Appeals rejected his intellectual disability claim in 2015 because he failed to meet Texas' “Briseño factors,” a set of unscientific criteria based on the fictional character of Lennie Smalls from the novel "Of Mice and Men." 

The Court also took action in two other capital cases. It vacated the Alabama state court's judgment affirming the death sentence imposed on Ronnie Kirksey and ordered the Court of Criminal Appeals of Alabama to consider the constitutionality of Kirksey's death sentence in light of Hurst v. Florida—the third time ithe Court has directed Alabama to review its death penalty since Hurst was decided in January. The Court also denied Louisiana's petition for writ of certiorari in Cain v. Brumfield, from a federal appeals court decision affirming a district judge's ruling that Kevan Brumfield had intellectual disability and is ineligible for execution. Last Term, the Supreme Court ruled that a federal district court had properly granted Brumfield an evidentiary hearing to determine whether he had intellectual disability, after Louisiana's state courts had denied Brumfield funding to develop evidence of intellectual disability and then rejected his claim of intellectual disability for failure to present sufficient evidence of his disability. 

(C. Geidner, "Supreme Court To Hear Cases Challenging Two Texas Death Sentences," BuzzFeed News, June 6, 2016.) See Race, Intellectual Disability, and U.S. Supreme Court.

Louisiana Executions on Hold Until At Least 2018

Fri, 06/03/2016 - 11:12am

Louisiana will not conduct any executions in 2016 or 2107 as a result of a new court order issued with the consent of the parties in federal proceedings challenging the constitutionality of Louisiana's lethal injection process. At the request of the Louisiana Attorney General, a federal judge has delayed proceedings on the state's lethal injection protocol for an additional 18 months, making January 2018 the earliest date the state could resume executions. Attorney General Jeff Landry asked for the extension because the facts of the case are in a "fluid state" and it would be "a waste of resources and time to litigate this matter at present time." The request marked the third time in two years that the state has asked to delay the trial. In June 2015, after the state's execution drugs had expired, its lawyers told the court that Louisiana lacked the drugs necessary to carry out executions. In February, the Louisiana Department of Corrections indicated that the state still did not have the drugs needed to conduct an execution. Previously, in 2013, the state had considered purchasing execution drugs from a Tulsa, Oklahoma, compounding pharmacy that was not licensed to provide drugs to any pharmacy in Louisiana, making any purchase of drugs from that company by the Louisiana State Penitentiary Pharmacy illegal under state law. That compounding pharmacy, which secretly sold execution drugs to Missouri during the same period, was implicated in nearly 2,000 violations of Oklahoma pharmacy regulations. The state later obtained one of the execution drugs it needed from a hospital in Lake Charles, misrepresenting to the hospital that it needed the drugs for medical purposes. Christopher Sepulvado, one of the two inmates named in the challenge to the constitutionality of Louisiana's execution procedure, was originally scheduled to be executed in 2014. Louisiana's protocol allows for either a one-drug execution using pentobarbital, or a two-drug execution using midazolam and hydromorphone. The state does not have the drugs necessary for either option, according to a spokesperson for the Depatment of Corrections. Louisiana's last execution was in 2010.

(M. Kunzelman, "State asks to rule out next Louisiana execution before 2018," Associated Press, May 31, 2016; D. Hasselle, "Executions in Louisiana on hold until at least January 2018," The Lens, June 1, 2016; D. Hasselle, "State has explored illegally obtaining drug for upcoming execution," The Lens, Jan. 25, 2014.) See Lethal Injection.

 

As Legitimate Market for Execution Drugs Dries Up, States' Secret Execution Practices Become Increasingly Questionable

Wed, 06/01/2016 - 1:00pm

Pfizer's recent announcement that it was tightening controls against what it calls the misuse of its medicines in executions highlights an on-going struggle between states desperate for execution drugs and a medical community that believes its involvement in the lethal injection process violates its medical and corporate missions and the ethical standards of the pharmaceutical and health professions. As Pfizer and nearly two dozen other pharmaceutical companies have ended open market access to drugs potentially used in executions, states have responded by increasingly shrouding the execution process in secrecy. The states "are mainly concerned about losing their providers of lethal-injection drugs should the companies’ names become public," says Linc Caplan in a recent article in The New Yorker. Otherwise, "companies that do not want their products associated with executions will know that their drugs are being used." He reports that since the Supreme Court upheld Kentucky's execution protocol in 2008, 20 states have responded to drug shortages by abandoning protocols that had been substantially similar to Kentucky’s, making "unfettered substitutions" to their protocols in "desperate attempts to adhere to their execution schedules.” Caplan reports that States "have also been increasingly misleading in their efforts to obtain drugs for executions." He cites documents showing that one Ohio official urged state drug purchasers to identify themselves as from the Department of Mental Health and warned they should "not mention anything about corrections in the phone call or what we use the drug for." Louisiana similarly obtained execution drugs from a local hospital, which mistakenly assumed they were needed for medical use. Last week, an Oklahoma grand jury report described that state's secrecy practices as producing a "paranoia" that "clouded [prison officials'] judgment and caused administrators to blatantly violate their own policies." An article by Chris McDaniel in BuzzFeed after the release of that report documented that the same secrecy and lack of oversight criticized by the Oklahoma grand jury is common in other states, and has contributed to execution problems in Missouri, Georgia, and Ohio. Arizona and Missouri paid executioners in cash, and Missouri's mismanagement of that fund likely violated federal income tax law. Missouri's secrecy, McDaniels writes, also "allowed it to purchase execution drugs from a pharmacy in Tulsa, Oklahoma, that was not licensed in Missouri and had questionable pharmaceutical practices." Other states, like Texas and Arizona "have used the secrecy to purchase drugs illegally," he reports. 

In The New Yorker, Caplan concludes, "In the five years between Hospira’s decision to stop making sodium thiopental and Pfizer’s decision to stop supplying drugs for executions, the unsuccessful effort, by one state after another, to carry out lethal injections in a manner that meets standards of fairness and reliability has made it increasingly clear that states cannot constitutionally perform these types of executions."

(L. Caplan, "THE END OF THE OPEN MARKET FOR LETHAL-INJECTION DRUGS," The New Yorker, May 21, 2016; C. McDaniel, "Scathing Oklahoma Grand Jury Report Showcased Issues Common In Death Penalty States," BuzzFeed, May 20, 2016.) See Lethal Injection.

Texas Court Stays Execution of Man Convicted with Hypnotically Refreshed Testimony

Tue, 05/31/2016 - 2:14pm

The Texas Court of Criminal Appeals has granted a stay of execution to Charles Flores (pictured) to permit him to litigate a claim that prosecutors unconstitutionally convicted and sentenced him to death by using unreliable hypnotically refreshed testimony. Texas had scheduled Flores' execution for June 2. Flores, who is Latino, was convicted in 1999 of murdering a 64-year-old white woman in suburban Dallas, and was sentenced to death. Prosecutors presented no physical evidence linking Flores to the murder, and the sole witness who claimed to have seen him at the scene was hypnotized by police before identifying him. She initially told police she had seen two men in a car outside of the victim's home, identifying the driver, Richard Childs, in a police lineup and describing the passenger as a white man with shoulder-length dark hair. However, when she appeared in court 13 months later after having seen photographs of Flores in news reports about the murder, she told prosecutors that she now recognized Flores as the second man. According to an affidavit Flores submitted from psychology professor Steven Lynn, research has linked "hypnotic refreshment" with the creation of false memories. “Clearly, the techniques that were used to refresh [the witness's] memory would be eschewed today by anyone at all familiar with the extant research on hypnosis and memory,” Lynn wrote. The Flores conviction and death sentence are also tainted with issues of race. Police charged both Childs and Flores with the murder. Childs, who is white, confessed to shooting the victim, pled guilty, and was sentenced to a term of 35 years with parole eligibility after 17 years. He was released on parole in April 2016. Flores, though admitting his involvement in the drug trade, professed his innocence of the murder and was tried and convicted. After his court-appointed lawyers failed to present any witnesses on his behalf in the penalty trial, the jury sentenced him to death. "So the white guy who was the trigger guy is out on parole, and the Hispanic guy, who was not the trigger man, is about to be put to death,” Greg Gardner, Flores' current lawyer, told The Texas Tribune in an interview before the stay was issued. “It really is just a mystery.” 178 of the 246 people on Texas's death row as of May 2016 are black or Latino. 

(C. Tolan, "A court just stayed this Texas man’s execution because a witness was hypnotized," Fusion, May 27, 2016; J. McCullough, "Texas Court Halts Execution in Dallas Murder," The Texas Tribune, May 27, 2016; C. Tolan, "Meth, hypnosis, and murder: An incredible true story of race and punishment on Texas’ death row," Fusion, May 10, 2016.) See Stays of Execution, Arbitrariness, and Race. Photo by Nathan Willis, provided courtesy of Fusion.com.

Texas Court Stays Execution of Man Convicted with Hypnotically Refreshed Testimony

Tue, 05/31/2016 - 12:31pm

The Texas Court of Criminal Appeals has granted a stay of execution to Charles Flores (pictured) to permit him to litigate a claim that prosecutors unconstitutionally convicted and sentenced him to death by using unreliable hypnotically refreshed testimony. Texas had scheduled Flores' execution for June 2. Flores, who is Latino, was convicted in 1999 of murdering a 64-year-old white woman in suburban Dallas, and was sentenced to death. Prosecutors presented no physical evidence linking Flores to the murder, and the sole witness who claimed to have seen him at the scene was hypnotized by police before identifying him. She initially told police she had seen two men in a car outside of the victim's home, identifying the driver, Richard Childs, in a police lineup and describing the passenger as a white man with shoulder-length dark hair. However, when she appeared in court 13 months later after having seen photographs of Flores in news reports about the murder, she told prosecutors that she now recognized Flores as the second man. According to an affidavit Flores submitted from psychology professor Steven Lynn, research has linked "hypnotic refreshment" with the creation of false memories. “Clearly, the techniques that were used to refresh [the witness's] memory would be eschewed today by anyone at all familiar with the extant research on hypnosis and memory,” Lynn wrote. The Flores conviction and death sentence are also tainted with issues of race. Police charged both Childs and Flores with the murder. Childs, who is white, confessed to shooting the victim, pled guilty, and was sentenced to a term of 35 years with parole eligibility after 17 years. He was released on parole in April 2016. Flores, though admitting his involvement in the drug trade, professed his innocence of the murder and was tried and convicted. After his court-appointed lawyers failed to present any witnesses on his behalf in the penalty trial, the jury sentenced him to death. "So the white guy who was the trigger guy is out on parole, and the Hispanic guy, who was not the trigger man, is about to be put to death,” Greg Gardner, Flores' current lawyer, told The Texas Tribune in an interview before the stay was issued. “It really is just a mystery.” 178 of the 246 people on Texas's death row as of May 2016 are black or Latino. 

(C. Tolan, "A court just stayed this Texas man’s execution because a witness was hypnotized," Fusion, May 27, 2016; J. McCullough, "Texas Court Halts Execution in Dallas Murder," The Texas Tribune, May 27, 2016; C. Tolan, "Meth, hypnosis, and murder: An incredible true story of race and punishment on Texas’ death row," Fusion, May 10, 2016.) See Stays of Execution, Arbitrariness, and Race. Photo by Nathan Willis, provided courtesy of Fusion.com.

Nebraska Supreme Court Hears Challenge to Death Penalty Referendum

Thu, 05/26/2016 - 11:01am

The Nebraska Supreme Court heard oral argument on May 25 in a challenge to the proposed November referendum that could reverse the state legislature's 2015 repeal of the death penalty (vote results pictured left). Christy and Richard Hargesheimer, who oppose the death penalty, are challenging the documents submitted by Nebraskans for the Death Penalty, the organization supporting the referendum, on the grounds that the group violated state law when they failed to list Governor Pete Ricketts as a sponsor of the referendum. Nebraska state law requires proponents of a ballot initiative to disclose all of the sponsors of the proposed referendum. Ricketts vetoed the legislature's 2015 repeal of the death penalty, but the legislature voted 30-19 to override his veto. Ricketts then personally contributed $200,000 and, in combination, he and his father donated approximately one-third of all the money raised by Nebraskans for the Death Penalty to gather the signatures needed to place the referendum on the ballot. Much of the argument Wednesday focused on the definition of who is a "sponsor" for the purposes of a referendum campaign. Alan Peterson, an attorney for the Hargesheimers, said the sponsor is the primary initiating force, "the initiator, the instigator." Attorneys for Nebraskans for the Death Penalty argued that the sponsor is someone willing to take legal responsibility for the petition paperwork and said Peterson's definition was "unworkable and would chill involvement in the democratic process." Peterson also argued that a key document required to place the referendum on the November ballot had been filed improperly because it was not an affidavit or sworn statement, as required by Nebraska law. A trial court ruled in February in favor of Nebraskans for the Death Penalty, leading to the Hargesheimer's appeal.

(J. Duggan, "Nebraska Supreme Court hears arguments over whether ballot initiative to reinstate death penalty is valid," Omaha World-Herald, May 26, 2016; L. Pilger, "Attorneys battle over whether death penalty should end up on November ballot," Lincoln Journal Star, May 26, 2016.) See Recent Legislative Activity.