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Florida Prosecutor, Public Defender Tied to Outlier Death Penalty Practices Suffer Landslide Election Loss

Posted: August 31, 2016

In a primary election described as reshaping the political landscape of Northeast Florida, the region voted in a landslide Tuesday to oust State Attorney Angela Corey (pictured) and Public Defender Matt Shirk. The pair's controversial policies had made Duval County one of the most prolific death sentencing counties in the country and had led to national derision of its criminal justice system. Some legal experts touted Corey's defeat by political newcomer Melissa Nelson as evidence of voter backlash against overaggressive prosecutorial policies. Northeastern Law School professor Daniel Medwed said the election showed that “the era of tough-on-crime rhetoric is coming to a close" and Fordham University law professor John Pfaff said Corey’s defeat "continues a small—but important—trend of powerful, incumbent prosecutors losing primary elections for being too aggressive." Local legal experts drew a link between the election results and Corey's hard-line death penalty practices. University of Florida law school professor Kenneth Nunn, said that “[f]or too long, Duval County has been an outlier in its excessive use of the death penalty, its harsh punishment of juveniles, and its reliance on outdated sentencing practices." Florida International University Law School Professor Stephen Harper found it "refreshing to see a prosecutor who is so overly aggressive defeated in a conservative southern jurisdiction. This goes to show, among other things, that the death penalty is on its way out.” In the Public Defender election, incumbent Matthew Shirk had drawn criticism by firing the most experienced death penalty and juvenile court lawyers and installing as his chief of homicide a lawyer who had 16 clients on death row and whom courts had found to have provided ineffective representation is several death penalty cases. Shirk was defeated by retired Judge Charlie Cofer, who had spent 18 years in the Public Defender’s Office and then 17 years as a county judge. Last fall, voters in Caddo Parish (Shreveport), Louisiana voted out a prosecutorial regime known nationally for its aggressive pursuit of the death penalty and elected its first black District Attorney.

 

FBI Documents Show States' Claims of Threats to Execution Drug Suppliers Were Exaggerated

Posted: August 30, 2016

FBI records show that state claims that execution drug suppliers have been the subject of threats by anti-death penalty activists are largely unsubstantiated and exaggerated, according to an investigation by BuzzFeed NewsBuzzFeed found that "few concrete examples" of the alleged harassment, intimidation, and physical threats states claim have been made against drug suppliers, and that "the states’ marquee example — in which the FBI allegedly investigated a serious bomb threat sent to a drug supplier — is contradicted by internal FBI documents." Instead, BuzzFeed found, "the real danger to drug suppliers appears to be legal and economic risk, not risk of violence." Texas and Ohio have claimed secrecy was necessary to protect the safety of potential drug suppliers, citing an alleged threat against a disgraced and now defunct Tulsa, Oklahoma pharmacy, The Apothecary Shoppe, that had been supplying execution drugs to Missouri. That "threat" appears to have consisted of an email sent by a retired college professor who used his own name and included his own phone number, and which the professor has characterized as a warning to the pharmacy to be cautious. An expert witness for the two states—a former Secret Service officer named Lawrence Cunningham who is now employed by a private security company—testified in litigation over their secrecy policies that the email constituted a "serious threat," as evidenced by the fact that it was investigated by the FBI. However, FBI and Tulsa Police Department records show that neither agency was aware of any threats against the pharmacy until a reporter called the FBI months later to ask about alleged threats. The pharmacy had not filed any complaint about the email and, FBI records show, did not come forward with copies of any threatening emails after having been given an opportunity to do so. Cunningham also testified in the Ohio case that the Texas Department of Public Safety had investigated the email, including interviewing the professor—a claim that is contradicted by Cunningham's own sworn testimony in the Texas case and, BuzzFeed says, by Texas DPS documents, sworn statements of the DPS department head, and FBI internal documents. Indeed, Colonel Steven McCraw of Texas DPS testified in a deposition, “I did not do any investigations. We didn’t look at any people. We didn’t do anything.” Officials in Mississippi, Ohio, and Missouri also exaggerated threats by stating suppliers were "harmed" or "threatened" by facing lawsuits or disparaging comments in the media. 

 

Seventh Consecutive Scheduled Execution in Texas Halted as Court Grants Ronaldo Ruiz a Stay

Posted: August 29, 2016

In a 5-2 order, with two judges dissenting and two others not participating, the Texas Court of Criminal Appeals stayed the scheduled August 31 execution of Rolando Ruiz (pictured). The order did not specify the reason why the court issued the stay, saying only that after reviewing a new challenge to Ruiz's death sentence that his lawyers had filed, "we have determined that his execution should be stayed pending further order by this Court." Although Texas remains the most prolific state in carrying out executions and, along with Georgia, has executed six prisoners in 2016, this is the seventh consecutive time a scheduled Texas execution has been halted or postponed as a result of either a stay, a rescheduled execution date, or the withdrawal of the death warrant. Ruiz's stay came after his new lawyers filed a petition for relief in the Texas courts seeking relief from his death sentence on the grounds that his trial lawyer unreasonably failed to investigate and present mitigating evidence to spare his life at the punishment phase of his trial, violating his right to effective assistance of counsel, and that the lawyer Texas appointed to represent him in his initial state habeas challenge to his conviction and sentence also unreasonably failed to investigate and present that evidence. Ruiz also claimed that executing him more than two decades after his conviction would constitute cruel and unusual punishment in violation of the Eighth Amendment. This was Ruiz's third death warrant. He first faced execution in 2007, but he received a stay from a federal appeals court. The U.S. Supreme Court declined to review his case in May 2015 and he faced a second death warrant earlier this year, when his execution was set for July 27. That execution was rescheduled for Aug. 31, reportedly because Texas failed to provide Ruiz's lawyers with sufficient notice of the execution. Texas has four more executions scheduled for 2016, with the execution of Robert Mitchell Jennings scheduled for September 14. Its last execution was on April 6. Texas has not gone that long between executions since June 2008, when executions resumed after a nearly nine-month hiatus while the U.S. Supreme Court was considering the constitutionality of lethal injection.

 

OUTLIER COUNTIES: Duval, Florida--Controversial Prosecutor, Inadequate Defense, Systemic Death Penalty Problems

Posted: August 26, 2016

Between 2010 and 2015, only 16 counties in the United States imposed five or more death sentences. Duval County, Florida, which consistently ranks among the most punitive death sentencing counties in the country, sentenced 25 capital defendants to death. According to a new report released by the Fair Punishment Project at Harvard University, Duval produced roughly one-quarter of the death sentences imposed in Florida during that period, although the entire Jacksonville Standard Metropolitan Statistical Area -- which includes Duval County and four other counties -- accounts for only about 9% of the state's murders. The Fair Punishment Project says the county's death-sentencing rate per homicide "is more than 40 percent higher than in the rest of the state." The county's prolific death-sentencing practices are attributable to a constellation of outlier practices. Only two states, Florida and Alabama, allow death sentences to be imposed without a unanimous recommendation for death by the sentencing jury. Since 2006, 88% of the 25 Duval death sentences reviewed by the Florida Supreme Court on direct appeal had non-unanimous jury recommendations. A second key factor is the county's prosecutor, state attorney Angela Corey (pictured), of whom The Nation asked, is she "the Cruelest Prosecutor in America?" In a piece for The New York Times, Emily Bazelon focused on Corey to explain the county's heavy use of the death penalty, saying that she "has made her reputation, in part, by winning verdicts that carry the death pen­alty." Bazelon writes that Corey "has one of the highest rates of death sentences in the country, with 24 (19 in Duval) in the eight years since she was elected." Corey has said "[i]t’s my statutory and constitutional duty to seek justice for this community and to give the victim’s family justice," but she is currently pursuing a death sentence against James Rhodes for the murder of Shelby Farah, despite strong opposition from Farah's family. The county's death sentences are also clouded by racial bias. The Fair Punishment notes that, since 2010, 87% of death sentences in Duval were imposed against Black defendants, up from 62% over the preceding two decades. Duval County Judge Mark Hulsey, who presided over the 2012 capital murder trial of a black teenager, Terrance Tyrone Phillips, is the subject of ethics charges after he allegedly told a staff member he "wished all blacks could be sent back to Africa on a boat." Analysts also fault substandard defense representation for affirmatively contributing to Duval's overproduction of death sentences. In 2008, Matt Shirk, the county's newly-elected public defender, a former intern of Corey's who had pledged fiscal responsibility and to "never call a cop a liar," slashed the office's budget and fired 10 lawyers, including senior capital litigators. The Nation reports, "Shirk has boasted that he consistently returns money to the state earmarked for the investigation of mitigation evidence for death-penalty clients." He then installed as his deputy and chief of homicide, Refik Eler, who the Fair Punishment Project reports had been defense counsel "on at least 16 cases that resulted in a death sentence." Courts have found that Eler has provided substandard representation in three capital cases, with a fourth ineffectiveness claim recently argued in the Florida Supreme Court. Both Corey and Shirk face challenges in the August 30 Republican primary election, but neither office has a general election challenger.

 

Former Judges, Criminal Defense Associations File Briefs Supporting Missouri Inmate Who Was Denied Funding for Counsel

Posted: August 25, 2016

A group of 16 former state and federal judges and three of the nation's preeminent criminal defense organizations have filed briefs in the U.S. Court of Appeals for the Eighth Circuit in support of Missouri death row inmate Mark Christeson's efforts to be afforded a meaningful opportunity to investigate and present his claims to the federal courts. Christeson was nearly executed in 2014 without ever having any federal court hear his case, after the lawyers appointed to represent him in his federal proceedings failed to meet with him until six weeks after his filing deadline had passed. After the U.S. Supreme Court ordered the district court to appoint new lawyers, a Kansas City-based court directed them to submit a proposed budget for the case. Then, without explanation, it refused to fund 94% of their requested budget, limiting the defense to $10,000 for the entire capital case. The amicus briefs urge the Eighth Circuit to overturn the funding decision, arguing that it effectively deprives Christeson of his right to counsel. The former judges brief, organized by Constitution Project, calls the district court’s ruling “nakedly partisan,” reading “less like a judicial opinion and more like a prosecutor’s brief.” They say "“When attorneys lack adequate funds to investigate and prepare submissions in a capital habeas case, the adversarial process cannot perform its essential function of revealing the truth.” In particular, they say the funding ruling prevented counsel from developing and presenting mental health evidence that Christeson's severe cognitive impairment left him unable to assert his own rights after his previous counsel had abandoned him. The second brief, filed by the National Association for Public Defense, the National Association of Criminal Defense Lawyers, and the National Legal Aid and Defender Association, joined by the MacArthur Justice Center at St. Louis, argued that, "It is not possible to maintain the integrity and fairness of capital punishment, and habeas proceedings generally, if district court judges continue to interfere with representation in this manner with no check on their abuse of discretion." Mae Quinn, the Director of the MacArthur center, said the denial of resources "is sadly consistent with the culture and ongoing challenges faced by the Missouri criminal and juvenile defense bar." Missouri ranks 49th in the nation in funding indigent defense.

 

Pennsylvania Death Row Inmate Granted New Trial on Innocence-Related Claims; Capitally-Charged Inmate Exonerated

Posted: August 24, 2016

Two Philadelphia, Pennsylvania capital cases involving men who have long asserted their innocence reached major milestones on August 23, with one winning an appeal granting him a new trial and a jury acquitting a second in his retrial. Both cases involved allegations of serious police and prosecutorial misconduct. James Dennis (pictured), who has been on the Commonwealth's death row for nearly 25 years, was granted a new trial by the U.S. Court of Appeals for the Third Circuit after prosecutors withheld evidence that supported his claims of innocence. Anthony Wright, who was capitally tried but received a sentence of life without parole when the jury split 7 for death, 5 for life on the penalty verdict, was exonerated after 25 years. Dennis was convicted and sentenced to death for the 1991 murder of a 17-year-old in Philadelphia. The full federal appeals court voted 9-4 on Tuesday to uphold a district court ruling granting Dennis a new trial, reversing an earlier decision by a three-judge appellate panel. Writing for the majority, Judge Marjorie O. Rendell said, "Evidence suppressed by the prosecution—a receipt corroborating Dennis' alibi, an inconsistent statement by the Commonwealth's key eyewitness, and documents indicating that another individual committed the murder—effectively gutted the Commonwealth's case against Dennis. The withholding of these pieces of evidence denied Dennis a fair trial in state court." On the same day, a jury acquitted Anthony Wright in a retrial for another 1991 Philadelphia murder. Prosecutors had initially sought the death penalty when Wright was convicted in1993, but did not pursue the death penalty after agreeing that DNA evidence entitled Wright to a new trial. DNA testing of semen found at the crime scene excluded Wright and identified another perpetrator who recently died in prison in South Carolina. Wright's attorneys say police pressured him into signing a confession and falsely claimed that a set of bloody clothes they reportedly "found" in Wright's bedroom in his mother's house belonged to Wright, when in fact they belonged to the victim and contained DNA from the actual killer. Peter Neufeld, co-director of the Innocence Project, said "DNA testing proved not only that Mr. Wright is absolutely innocent but also that law enforcement fabricated evidence against him." Grace Greco, the jury forewoman for Wright's retrial, said, "I'm angry. The evidence was there that he did not commit this crime. The city should never have brought this case. I'm just happy that today's verdict will let Tony move on with the rest of his life."

 

New Study Explores "Systemic Deficiencies" in High-Use Death Penalty Counties

Posted: August 23, 2016

As states and counties across the United States are using the death penalty with decreasing frequency, a new report issued by the Fair Punishment Project on August 23 explores the outlier practices of 16 U.S. counties that are bucking the national trend and disproportionally pursuing capital punishment. These jurisdictions, representing one-half of one percent of all U.S. counties or county equivalents, are the only locales in the United States to have imposed five or more death sentences since 2010. Six of the counties are in Alabama and Florida, the only two states that still permit non-unanimous death verdicts. Five are located in highly-populated Southern California counties that have been the focus of repeated allegations of prosecutorial misconduct. The others include Caddo (LA), Clark (NV), Dallas (TX), Harris (TX) and Maricopa (AZ), all of which have been criticized for systemic inequities in their administration of the death penalty. Part one of the report examines the "systemic deficiencies" that contribute to the high number of death sentences in these counties and provides detailed analysis of the circumstances in 8 of the counties (a second part of the study, examining the remaining 8 counties, will be released in September). The report finds that these counties frequently share at least three types of structural failings: "a history of overzealous prosecutions, inadequate defense lawyering, and a pattern of racial bias and exclusion." The study found that these in turn "regularly produce two types of unjust outcomes which disproportionately impact people of color: the wrongful conviction of innocent people, and the excessive punishment of persons who are young or suffer from severe mental illnesses, brain damage, trauma, and intellectual disabilities." 

 

New Poll Finds "Strong Majority" of Floridians Prefer Life Without Parole Over Death Penalty

Posted: August 22, 2016

A recent poll by researcher Craig Haney, a Professor of Psychology at the University of California - Santa Cruz, has found that a "strong majority" of Florida respondents prefer life without parole to the death penalty for people convicted of murder, even as many harbor continuing misconceptions about capital punishment that would predispose them to support the death penalty. In Haney's survey of more than 500 jury-eligible respondents who were asked to choose between Florida's statutorily available sentencing options, 57% chose life without parole, while 43% chose the death penalty, as the appropriate punishment for a person convicted of murder. The preference for life held true, Haney said, across racial groups, genders, educational levels, and religious affiliation. The Florida results are consistent with recent polls in other death penalty states, such as Kentucky and Oklahoma. Dr. Haney found that Floridians held two common misconceptions about the death penalty that affected their views on the issue: 68.9% mistakenly believed that the death penalty was cheaper than life without parole, and 40.2% mistakenly believed that people sentenced to life without parole would be released from prison. Haney said "support for the death penalty plummeted" to 29% if the life sentencing option was combined with a requirement that these prisoners be required to pay restitution to victims' families. In addition, when Floridians were given the option of diverting the $1 million per case currently spent on the death penalty to investigate unsolved rapes and murders, only one quarter still supported capital punishment. Dr. Haney's research also found that a majority of Floridians oppose the death penalty for defendants with serious mental illness, do not believe the death penalty is a deterrent, and agree that most religious opinion opposes capital punishment. Haney said asking people simply if they support the death penalty is inadequate because "[t]hat question offers a limited and often flawed snapshot of voter attitudes, capturing only abstract support or opposition, but failing to expose strong preferences and deeper pragmatic thinking."

 

Diverse Range of Voices Call for Sparing Jeff Wood, Who Never Killed Anyone, from Execution in Texas

Posted: August 19, 2016

As his August 24 execution date approaches, Jeffrey Wood's case has garnered mounting attention from groups and individuals calling on the Texas Board of Pardons and Paroles and Gov. Greg Abbott to commute Wood's sentence. These diverse voices include a conservative Texas state representative, a group of evangelical leaders, and the editorial boards of the New York Times, the Washington Post, and several Texas newspapers, among others. Wood (pictured) was convicted under Texas' "law of parties," but he neither killed nor intended for anyone to be killed and, his supporters say, was not even aware the robbery in which a codefendant killed a store clerk was going to occur. His trial also featured misleading testimony from Dr. James Grigson, who had been expelled from psychiatric associations because of his unethical testimony regarding the potential future dangerousness of capital defendants. Republican state representative Jeff Leach, a long-time death penalty supporter, said "Jeffery Lee Wood’s case has caught my attention unlike any death row inmate in my time in office has. ...I simply do not believe that Mr. Wood is deserving of the death sentence. I can’t sit quietly by and not say anything." Leach has spoken with Gov. Abbott's office and the parole board about the case and is urging other legislators to contact the board in support of commutation before the board votes on Wood's clemency petition on Monday. Gov. Abbott also received a petition from a group of evangelical Christian leaders, who said "Our faith compels us to speak out in this case, where a looming execution date threatens the life of an individual with significant mental impairments who never should have been sentenced to death." The 49 religious leaders also noted the disproportionality of Wood's sentence: "As the getaway driver, Wood committed a crime, but not one deserving the death penalty." A New York Times editorial also urged clemency for Wood and sharply critiqued the law of parties. "The Law of Parties stands as a grotesque demonstration of how utterly arbitrary capital punishment is," it said. "The only true course for justice in Texas is for the law to be scrapped and Mr. Wood’s life to be spared." Wood's supporters say they will deliver a petition to Gov. Abbott and the parole board Friday with thousands of signatures seeking commutation of Wood's sentence. Texas last commuted a death sentence in 2007 in the case of Kenneth Foster, a getaway driver who, like Wood, had been convicted under the law of parties. [UPDATE: On August 19, the Texas Court of Criminal Appeals granted a stay of execution to permit Wood to litigate his claims that the prosecution had presented false scientific evidence and that the use of false testimony from Dr. Grigson violated due process.]

 

Defense Attorney Retires from Capital Practice After No Acquittals in 40 Years and 21 Clients Sent to Death Row

Posted: August 18, 2016

Harris County, Texas has sent more people to death row than any other county in the United States and Jerry Guerinot (pictured) was defense counsel for twenty-one of them. His death-sentenced clients included two who were juveniles at the time of the crime and another who was later freed after prosecutors dropped charges against him. Labeled by some as "the worst lawyer in the United States," in forty years of practice, none of Guerinot's capital murder clients was acquitted. Now, after decades of criticism, Guerinot says he will no longer take capital cases. Guerinot asserts that his record is a by-product of the cases he was assigned: "My theory is if they are the sorriest of the worst or the very worst, I got 'em. Somebody's got to defend - 'defend' is the wrong word - represent these people." Other attorneys, however, say he did not adequately represent his clients. "I wouldn't be here if I had better counse," Linda Carty, a British national who was one of Guerinot clients, said. "I met this guy for less than 15 minutes. Once." Although investigative assistance was available from the British consulate, Guerinot never sought it, she says. Guerinot also served as top assistant to the lead attorney for Duane Buck, whose appeal will be heard by the U.S. Supreme Court this fall based upon defense counsel's use of a psychologist who told Buck's sentencing jury that he was more likely to pose a future danger to society because he is Black. Kathryn Kase, executive director of the Texas Defender Service, said defense counsel sat silent as their witness provided racially-biased testimony against their client and "never objected to the prosecution's questions or arguments ... that skin color, race, makes someone more likely to be dangerous in the future." Jim Marcus, co-director of the Capital Punishment Clinic at the University of Texas, noted that Guerinot had four separate clients sentenced to death in a seven-month period in 1996. "It is unthinkable that a defense attorney would try four separate death penalty cases to verdict in the space of seven months," he said. Veteran capital defense lawyer and University of Houston law professor David Dow told the New York Times in 2010 that the large number of death sentences imposed on Guerinot's clients reflected a failure to conduct simple investigations. "He doesn't even pick the low-hanging fruit which is hitting him in the head as he's walking under the tree," Dow said. Guerinot said, "I'm there to ensure they get a fair shake. And, by God, there ain't one of them that didn't."

 

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