Arbitrariness

Federal Court Rejects Duane Buck Racial Bias Appeal

The U.S. Court of Appeals for the Fifth Circuit rejected an appeal in the case of Texas death row inmate Duane Buck, who argued that his trial was tainted by ineffective representation and racial bias when Buck’s own mental health expert testified that he could be a future danger to society because he is black. Dr. Walter Quijano, a clinical psychologist, testified in the sentencing phase of Buck's case on the issue of future dangerousness. The prosecutor asked Quijano, "You have determined that the sex factor, that a male is more violent than a female because that's just the way it is, and the race factor, black, increases the future dangerousness for various complicated reasons, is that correct?" Quijano answered, "Yes." Buck, who is black, was sentenced to death. Buck's case was one of six capital cases identified in 2000 as tainted by Quijano's testimony. The other five have had new sentencing hearings, but Buck has not. Buck presented 11 arguments in his appeal, but the court said, "Jurists of reason would not debate that Buck has failed to show extraordinary circumstances justifying relief." Attorneys for Buck said, "This decision can only deepen the growing skepticism of the fairness of the criminal justice system. No competent capital defense attorney would invite the sentencing jury to make a life-or-death decision based on racial fears and stereotypes and no court should enforce a judgment in which race was explicitly proffered as the basis for a death sentence."

STUDIES: Racial Bias in Jury Selection

A new study of trials in Caddo Parish, Louisiana, revealed that potential jurors who were black were much more likely to be struck from juries than non-blacks. The results were consistent with findings from Alabama, North Carolina, and other parts of Louisiana, highlighting an issue that will be reviewed by the U.S. Supreme Court this fall. In Caddo Parish, an area known for its many death sentences, prosecutors used peremptory strikes against 46% of black jurors, but only 15% of other jurors, according to the study by Reprieve Australia. The racial composition of the juries appeared to make a difference in the ultimate outcome of the cases. The study found that no defendants were acquitted by juries with 2 or fewer black jurors, but 19% were acquitted when 5 or more jurors were black. In an Alabama study, prosecutors used peremptory strikes to remove 82% of eligible black potential jurors from trials in which the death penalty was imposed. A study of death penalty cases in North Carolina found that prosecutors struck 53% of black potential jurors but only 26% of others. (Click image to enlarge.)

Connecticut Supreme Court Finds Death Penalty Violates State Constitution

The Connecticut Supreme Court ruled on August 13 that the death penalty violates the state constitution. In the 4-3 decision, the Court said that, because of the prospective repeal of the death penalty in 2012 and "the state’s near total moratorium on carrying out executions over the past fifty-five years, capital punishment has become incompatible with contemporary standards of decency in Connecticut." As a result, the Court said, it "now violates the state constitutional prohibition against excessive and disproportionate punishments." The Court also stated that "the death penalty now fails to satisfy any legitimate penological purpose and is unconstitutionally excessive on that basis as well." The state's prospective repeal had left 11 men on death row, but the ruling replaces their sentences with life without parole. The Court concluded, "In prospectively abolishing the death penalty, the legislature did not simply express the will of the people that it no longer makes sense to maintain the costly and unsatisfying charade of a capital punishment scheme in which no one ever receives the ultimate punishment. Public Act 12-5 also held a mirror up to Connecticut’s long, troubled history with capital punishment: the steady replacement by more progressive forms of punishment; the increasing inability to achieve legitimate penological purposes; the freakishness with which the sentence of death is imposed; the rarity with which it is carried out; and the racial, ethnic, and socio-economic biases that likely are inherent in any discretionary death penalty system. Because such a system fails to comport with our abiding freedom from cruel and unusual punishment, we hold that capital punishment, as currently applied, violates the constitution of Connecticut."

Death Sentences Drop in Three High-Use Counties As Prosecutors Change

Changes in who is District Attorney have caused a dramatic decline in death sentences in 3 counties that historically have produced a disproportionate number of death sentences in the United States, according to a story from The Marshall Project. Harris County (Houston), Texas, Oklahoma County, Oklahoma, and Philadelphia County, Pennsylvania were all among the 2% of counties that accounted for 56% of inmates on death row as of 2013, but the resignations or retirements of their long-time District Attorneys have been followed by significant drops in the number of new death sentences. In Harris County, DA Johnny Holmes secured an average of 12 death sentences a year from 1992 to 2000. His immediate successor obtained about 6 death sentences a year, and DAs elected since 2008 have averaged about 1 death sentence per year. Similarly, Oklahoma County saw about 2.5 death sentences a year under long-time DA Robert Macy, but has handed down just 3 sentences since 2009. In both Harris and Oklahoma counties, exonerations shook public confidence in the justice system, also contributing to the drop in death sentences. An FBI review of an Oklahoma police chemist who worked closely with Macy uncovered deliberately falsified DNA tests and withheld evidence, which defense attorney Doug Parr said made people, "more skeptical of death penalty prosecutions." In Philadelphia, DA Lynne Abraham obtained an average of 9.5 death sentences per year in the 1990s. According to the article, the picture began to change in response to budget shortfalls and criticisms about racial disparities in death sentences. In 2009, Philadelphia elected a new DA, Seth Williams, who, the article says, promised to improve relations with minorities. In the last 5 years, Philadelphia has had only 3 death sentences. (Click image to enlarge.)

Mentally Ill James Holmes Sentenced to Life in Prison in Aurora, CO Theater Shooting

On August 7, a jury in Aurora, Colorado, sentenced James Holmes to life in prison without the possibility of parole for the 2012 movie theater shooting that killed 12 people and injured dozens more. The jury said they could not reach a unanimous decision on Holmes' sentence, an outcome that results in a sentence of life without parole. After the trial, one juror said that the prosecution had not persuaded three of the jurors to impose a death sentence. The deliberations, she said, were very emotional, and at the time jurors agreed to stop deliberating, one juror was firmly committed to a life sentence, with two other holdouts still undecided. She said, "The issue of mental illness was everything for the one who did not want to impose the death penalty." Holmes had also offered to plead guilty in exchange for a sentence of life without parole, which would have removed the need for the six-month trial that cost Colorado taxpayers more than $5 million. After that plea offer was rejected, Holmes pleaded not guity by reason of insanity. All of the mental health experts agreed that Holmes would not have committed the killing but for his mental illness, but disagreed on whether he could appreciate the criminality of his conduct. The jury rejected the insanity defense and convicted him of all charges. Holmes' sentence highlights both the rarity of death sentences in Colorado and racial and geographic inequities in its imposition.

New Study Shows Discrimination in Colorado Prosecutors' Use of Death Penalty

new study to be published in the University of Denver Law Review shows that whether prosecutors seek the death penalty in Colorado "depends to an alarming extent on the race and geographic location of the defendant." The study - based upon 10 years of data collected by attorney Meg Beardsley and University of Denver law professors Sam Kamin and Justin Marceau and sociology professor Scott Phillips - shows that race and place are statistically significant predictors of whether prosecutors will seek the death penalty in Colorado and that prosecutors are more likely to seek the death penalty against minority defendants than against white defendants. In a press release accompanying the release of the study, the researchers say the data "directly refutes the claims made by elected officials, that racial disparities merely reflect the propensity of certain races to commit more murders." The study also shows that, even after controlling for the rates at which different racial groups commit statutorily death-eligible murders and for the "heinousness" of the murders, non-white defendants and defendants in Colorado’s 18th Judicial District - where the capital trial of James Holmes for the Aurora movie theater killings is taking place - were more likely than others to be capitally prosecuted. 

After Prior Jury's Life Verdict, Washington Prosecutors Drop Death Penalty in "One of the Worst Crimes We've Ever Had"

King County (Washington) Prosecutor Dan Satterberg (pictured) announced that his office will no longer seek the death penalty against Michele Anderson after a jury returned a life sentence for her co-defendant, Joseph McEnroe. McEnroe and Anderson were charged with killing six members of Anderson's family in 2007 in what Satterberg called "one of the worse crimes we've ever had in King County." Satterberg explained his decision in a news conference on July 29, saying, "To proceed with the death penalty against defendant Anderson, in light of the sentence imposed [on] defendant McEnroe, would not be in the interest of justice." Pam Mantle, the mother of one of the victims, said she was relieved by the decision. “It’s been devastating for all of our friends and family,” said Mantle. “We’re all just worn out from the whole thing. It’s almost eight years.“ Less than one week ago, on July 23, after a highly publicized six-month trial, a King County jury sentenced a mentally ill defendant, Christopher Monfort, to a life sentence in the killing of a Seattle police officer. Anderson has spent time in a state mental institution during her pretrial incarceration, portending extensive presentation of mental health evidence if the death penalty was pursued in her case. Seeking the death penalty against Anderson, McEnroe, and Monfort has cost King County taxpayers more than $15 million in defense costs alone. A recent Seattle University study found that cases where the death penalty is sought cost an additional $1 million, on average, compared to non-death penalty cases.

Delaware Prosecutor Suspended for Misconduct in Capital Trial

The Supreme Court of Delaware voted unanimously on July 27 to suspend former Deputy Attorney General R. David Favata as a result of his misconduct during a recent capital trial. With a single dissent as to the length of the suspension, the Court banned Favata from the practice of law for six months and one day for intentional misconduct during the capital trial of Isaiah McCoy. Earlier this year, the state Supreme Court overturned McCoy's conviction and death sentence and ordered a new trial because of Favata's misconduct. The court found that Favata had committed seven distinct ethical violations in McCoy's case, including vouching for the testimony of a key government witness, repeatedly belittling McCoy as he attempted to represent himself at trial, and lying to the judge about attempting to intimidate McCoy. At one point, Favata objected to defense questioning of the victim's girlfriend and during the objection told the jury that McCoy had "shot her boyfriend." During a break in the proceedings, Favata commented in front of McCoy about a mafia code of silence, and said he would put a detective back on the stand to tell everyone that McCoy was a snitch. After McCoy raised the matter with the court, Favata lied about making these comments, prompting a court officer to pass a note to the judge saying that McCoy was telling the truth. Favata also repeatedly disparaged McCoy's attempt to represent himself, saying "The trouble with dealing with somebody with a limited education and no legal education is he doesn't clearly understand what he's reading." The prosecutor also demeaned McCoy by telling him to "start acting lke a man" and criticizing his attire, saying "You can dress him up. He’s still a murderer.” The case was the second time since 2014 that Delaware courts granted a new trial for prosecutorial misconduct in a capital case. In May 2014, Jermaine Wright won a new trial after 21 years on death row when prosecutors and police withheld exculpatory evidence about possible alternate suspects in a case in which no forensic or eyewitness evidence linked Wright to the crime.

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