Arbitrariness

OUTLIER COUNTIES: Legacy of Racism Persists in Caddo Parish, Which Had Nation's Second-Highest Number of Lynchings

The death-sentencing rate per homicide in Caddo Parish, Louisiana was nearly 8 times greater between 2006 and 2015 than the rest of the state, making a parish with only 5% of Louisiana's population responsible for 38% of the death sentences imposed statewide. Caddo currently has more people on death row than any other parish in the state. Known as "Bloody Caddo," the parish had the second highest number of lynchings of any county in the nation. The Confederate flag flew in front of the steps to the courthouse until 2011 (pictured), where a monument to the Confederacy still stands. Inside that courthouse, 80% of defendants sentenced to death between 2010 and 2015 were Black, and no White person has ever been executed for killing a Black person in Caddo Parish. Caddo received national attention in 2015 when Acting District Attorney Dale Cox said he believed the state needed to "kill more people." Cox was personally responsible for one-third of the death sentences in Louisiana from 2010 to 2015. His controversial statements were in response to questions about the exoneration of Glenn Ford, a Black man convicted by an all-White jury, who spent 30 years on death row for a crime he did not commit. Ford's case illustrated many of the factors that have contributed to the overproduction of death sentences in Caddo Parish: racial bias in jury selection and the application of death sentences, inadequate representation, and official misconduct. A 2015 study by Reprieve Australia found that prosecutors used peremptory strikes against 46% of Black jurors, but only 15% of other jurors. One Black prospective juror was removed from a jury pool in 2009 for objecting to the presence of the Confederate flag in front of the courthouse. Like Ford, who was represented by two appointed attorneys who had never represented a criminal defendant at trial, most Caddo Parish defendants have not received adequate representation. In the last decade, 75% of people sentenced to death in Caddo Parish were represented by at least one lawyer who does not meet recently-imposed standards for capital attorneys. Official misconduct, like the false police testimony in Ford's trial, has also contributed to the high number of death sentences in Caddo. In 2014, Dale Cox wrote a memo regarding the capital trial of Rodricus Crawford in which he stated that Crawford, "deserves as much physical suffering as it is humanly possible to endure before he dies." Crawford was convicted and sentenced to death for allegedly killing his infant son, despite medical evidence that the child actually died of pneumonia. Caddo prosecutors have a history of seeking death against the most vulnerable Black defendants: Lamondre Tucker and Laderrick Campbell were 18 years old at the time of their offenses and both had IQs in the intellectually disabled range; Corey Williams, who was 16 and removed from death row after being found to be intellectually disabled, is still serving a life sentence despite powerful evidence that his confession was coerced and that others committed the offense for which he was condemned. In November 2015, Caddo Parish elected its first Black District Attorney, James E. Stewart, Sr., who pledged, "to bring professionalism and ethics back to the district attorney’s office." 

New Podcast: Jeffery Wood and the Texas Law of Parties, With Expert Guest Kate Black

Today, DPIC launches a new podcast series, "Discussions With DPIC," which will feature monthly, unscripted conversations with death penalty experts on a wide variety of topics. The inaugural episode features a conversation between Texas Defender Services staff attorney Kate Black (pictured) and DPIC host Anne Holsinger, who discuss the case of Jeffery Wood and Texas' unusual legal doctrine known as the "law of parties." Wood's case garnered national media attention because he was sentenced to death despite having neither killed anyone nor even intended that a killing take place. His execution, which had been scheduled for August 24, was stayed by the Texas Court of Criminal Appeals to permit him to litigate a challenge to the prosecution's use of scientifically invalid predictions of future dangerousness by a psychiatrist who had been expelled from state and national psychiatric associations for similarly improper testimony in the past. In the podcast, Black explains the law of parties and its application in Wood's case, and discusses how the national dialogue that developed around Wood's case may affect the death penalty in the future. 

NEW VOICES: Former Ohio Attorney General Jim Petro Says Death Penalty Unfixable, "Not Worth It Any More"

In a recent commentary in the Columbus Dispatch, former Ohio Attorney General Jim Petro (pictured) criticized the state's death penalty as "a broken system that currently serves only the interest of Ohio prosecutors" and said that keeping "the death penalty is just not worth it any more." As a state legislator, Petro helped write Ohio’s current death-penalty law and he oversaw eighteen executions as Attorney General from 2003-2007. He says, at the time "[w]e thought maybe it would be a deterrent. Maybe the death penalty would provide cost savings to Ohio. What I know now is that we were wrong." Petro expressed his agreement with the conclusions in a report, “A Relic of the Past: Ohio’s Dwindling Death Penalty," released last week by Ohioans to Stop Executions (OTSE), which he says "details a continuing decline in executions and new death sentences in Ohio while highlighting the disparities between counties that prosecute death cases." The decline is exemplified by the fact that only one new death sentence was imposed in Ohio in 2015 -- the fourth consecutive year of decline -- and Cuyahoga and Summit counties, which are responsible for more than 25% of Ohio's death sentences, did not initiate any new death penalty cases last year. The change in death penalty practices in Cuyahoga, which through 2012 had sought death in dozens of cases a year, had nothing to do with crime rates: "there was a new prosecutor," Petro said. By contrast, Trumbull County had one of the lowest homicide rates in the state but the highest death-sentence-per-homicide rate. "It has become clear to me that what matters most is the personal predilections of a county prosecutor," Petro said. Petro also was critical of apparent legislative indifference to the flaws in Ohio's capital punishment system. Despite 13 wrongful convictions and exonerations in Ohio death penalty cases and 56 recommendations for reform made in 2014 by the Ohio Supreme Court's Joint Task Force on the Administration of Ohio’s Death Penalty, the legislature has seen fit to consider "[o]nly a handful of the recommendations ... , and not those which would make the biggest difference." Petro concludes: "I am convinced that the death penalty is just not worth it any more, and I don’t think it can be fixed. ... If we’re going to have the death penalty, then it must not be carried out until the legislature implements the task force’s reforms intended to ensure fairness and accuracy."

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

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.

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

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." 

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

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.]

As Council Reviews Kentucky's Criminal Justice Policies, Former Prosecutors, Judge Urge Repeal of Death Penalty

Kentucky's recently-formed Criminal Justice Policy Assessment Council will be examining the state's criminal code, and is expected to examine a wide range of criminal justice issues—including the death penalty—in the first major overhaul of Kentucky's criminal code since the 1970s. The council, which was formed by Gov. Matt Bevin, includes legislators, judges, criminal justice experts, and religious leaders, charged with producing a list of recommendations for Kentucky lawmakers. One council member, Bishop William Medley, of the Catholic Diocese of Owensboro, has expressed moral opposition to the death penalty, and received backing for repealing the punishment from some in the courts and the prosecution bar. Circuit Judge Jay Wethington, a former prosecutor who prosecuted death penalty cases told the Messenger-Inquirer that he was "going to side with ... Bishop Medley" on that issue, but for different reasons. "We need to get rid of the death penalty," he said. "We spend too much money for the results." Meanwhile, three former Kentucky prosecutors wrote an op-ed for Louisville's Courier-Journal urging abolition of the death penalty. Joseph Gutmann (pictured), Stephen Ryan, and J. Stewart Schneider discussed the results of a recent University of Kentucky poll, which found that a large majority (72.4%) of Kentuckians support a moratorium on executions. They noted that support for the death penalty has risen since 2011, when the American Bar Association released a study that found serious problems with Kentucky's application of the death penalty. At that point, 62% of Kentuckians favored a suspension of executions. They conclude, "These poll results make it clear that Kentuckians’ concern about the fairness of the state’s criminal justice system is growing. As we have written before, replacing the death penalty with life without parole is the best approach for our state – protecting public safety, providing justice to the families of victims, removing the possibility that an innocent person will be executed and saving limited tax dollars."

Defense Lawyers, Former Prosecutors, and Constitutional Rights Groups File Amicus Briefs in Buck v. Davis

Five groups, representing defense lawyers, former prosecutors, and organizations devoted to protecting constitutional liberties have filed amicus briefs in the U.S. Supreme Court in support of Texas death row prisoner Duane Buck. Buck was sentenced to death when a psychiatrist presented by his own lawyer said he posed a greater potential danger to society because he is Black, and the case attained widespread notoriety after the new Texas attorney general failed to honor a commitment by his predecessor not to oppose a new sentencing hearing. On August 4, the National and Texas Associations of Criminal Defense Lawyers, a group of former prosecutors, the Lawyers' Committee for Civil Rights Under Law, and the Constitutional Accountability Center joined the National Black Law Students Association (NBLSA) in submitting briefs arguing that Buck's rights were violated by the racial arguments made at his trial. The NBLSA said, "Whether by a judge, a prosecutor, or defense counsel, an appeal to a jury based on racial prejudice poisons our system of justice." The Lawyers Committee for Civil Rights Under Law stated, "Mr. Buck was entitled to have his dangerousness assessed on an individualized basis based on his personal attributes. Instead he received a death sentence tainted by four hundred years of racial stereotyping invoked by a witness who was supposed to testify on his behalf." The former state and federal prosecutors, who include former Texas Governor and Attorney General Mark White, former Attorneys General from Virginia, Tennessee, North Carolina, and Ohio, and the second-chair prosecutor from Buck's trial, highlighted Texas' refusal to provide Buck a new sentencing hearing, even though it had included him on a list of defendants whose trials were tainted by similar testimony by the same psychologist, and every other one of those defendants had received new sentencing hearings. "To backtrack on an ethical obligation and decision to grant relief to a defendant in any context is extraordinary; it is particularly so here, where the purpose of backtracking was to defend the propriety of a capital sentencing hearing tainted by racist testimony," they said. The Court is scheduled to hear argument in Buck v. Davis on October 5. 

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