OUTLIER COUNTIES: Former Death Penalty Capital Shows Signs of Change

Harris County, Texas, the county that leads the nation in executions, has served as a bellwether in recent years of the nationwide decline of the death penalty. Although the 10 new death sentences imposed in Harris County since 2010 are more than were imposed in 99.5% of U.S. counties, they are significantly fewer than the 53 new death sentences that were handed down in Harris in 1998-2003 and the 16 from 2004-2009. The 2016 Kinder Institute survey of Houston residents showed that just 27% prefer the death penalty over life sentences for those convicted of first-degree murder. Though the number of death sentences has dropped, systemic problems of prosecutorial misconduct, inadequate representation, and racial bias persist. Kelly Siegler, a prosecutor who obtained 19 death sentences, was found by a Texas court to have committed 36 instances of misconduct in a single murder case. In another case, she brought the victim's bloodstained bed into the courtroom and reenacted the murder using one of the knives from the crime scene. Harris County became nationally known in the 1990s for bad defense lawyering when a capital defense attorney slept through his client's trial. A judge told the defendant, "the Constitution does not say that the lawyer has to be awake." Today, Harris County defendants still receive ineffective counsel because of a pay system that discourages defense lawyers from seeking plea bargains or hiring expert witnesses. Every new death sentence imposed in Harris County since November 2004 (not including resentences) has been imposed upon a Black or Latino defendant. Former Harris County District Attorney Chuck Rosenthal, who oversaw 40 death sentences between 2001 and 2008, resigned after a civil suit uncovered racist emails he sent using his official email account. The U.S. Supreme Court is currently deciding Buck v. Davis, a Harris County case in which a Black defendant was sentenced to death after his defense attorney introduced racially-biased testimony during sentencing. Three Harris County defendants have been exonerated from death row, most recently Alfred Brown (pictured) in 2015. Prosecutors withheld evidence that corroborated Brown's alibi, Brown's girlfriend was threatened and eventually imprisoned until she agreed to testify against him, and officials refused requests to test DNA that may implicate another suspect.

OUTLIER COUNTIES: Kern County, California Leads Nation in Police Killings, Ranks Among Highest in Death Sentences

Kern County, California—one of five Southern California counties that have been described as the "new Death Belt"—sent six people to death row between 2006 and 2015, more than 99.4% of U.S. counties. Its death sentence-to-homicide rate during the 10-year-period from 2006 to 2015 also was 2.3 times higher than in the rest of the state. In this same time frame, Kern had the highest rate of civilians killed by police of any county in the country:  between 2005 and 2015, police killed 79 people in Kern County, a rate of 0.9 killings per year per 100,000 residents. In The Washington Post, Radley Balko explained the policy link between high rates of police killings and high use of the death penalty, noting that District Attorneys set the tone for law enforcement in their counties and are usually in charge of investigating excessive use of force by police. "It isn’t difficult to see how when a DA takes a 'win at all costs' approach to fighting crime, that philosophy would permeate an entire county’s law enforcement apparatus, from the beat cop to the DA herself or himself," Balko said. In Kern County, police killings and high numbers of death sentences are part of a larger narrative of official misconduct. Ed Jagels, the longtime District Attorney in Kern County, led the campaign to oust Chief Justice Rose Bird and two other Justices from the California Supreme Court over their votes in death penalty cases. He boasted about Kern leading the state of California in incarceration rate. A largely-fabricated sex abuse scandal led to 26 exonerations. Prosecutors have been found to have altered interrogation transcripts and hidden unfavorable blood test results. According to Harvard University's Fair Punishment Project, current District Attorney Lisa Green "promised to continue to be an example of aggressive prosecution" when she took over in 2010. Saying that for some capital defendants "Justice ... is nothing less than death," she advocated for a state referendum limiting death penalty appeals. Ineffective defense lawyering has also contributed to Kern's high death sentencing rate. In one particularly egregious case, a defense attorney emailed his co-counsel before the sentencing phase of a capital trial, saying, “I don’t know what a penalty trial really looks like—it’s starting to concern me.” Though half of Kern's defendants sentenced to death from 2010-2015 had intellectual disability, brain damage, or mental illness, defense lawyers presented an average of less than 3 days' worth of evidence to spare the defendant's life. In numerous cases, lawyers presented a day or less of mitigating evidence.

U.S. Supreme Court Hears Argument in Buck v. Davis, Texas Case Dealing With Racist Testimony

The U.S. Supreme Court heard oral argument on October 5 in Buck v. Davis, a Texas case in which Duane Buck was sentenced to death after his own lawyer presented expert testimony from a psychologist who called Buck more likely to commit acts of violence in the future because he is Black. While Cecilia Marshall, widow of Thurgood Marshall, and Buck's stepsister, Phyllis Taylor—a survivor of the shooting—observed from the audience, Buck's counsel told the Court that the jury had sentenced Buck to death penalty based upon "a false and pernicious group-based stereotype" that equated being Black with being dangerous. Each of the seven justices who spoke during the hearing sharply criticized trial counsel's conduct, with Justice Samuel Alito saying "what occurred at the penalty phase of this trial is indefensible." Six other defendants whose cases had been tainted by similarly biased testimony by the same psychologist have already received new sentencing hearings, but Buck has not. Texas argued that Buck's case is unique because his defense attorney, not prosecutors, invited the biased testimony. Buck's attorneys previously sought review of his case on the grounds that his lawyer was ineffective, but the U.S. Court of Appeals for the Fifth Circuit denied Buck a "Certificate of Appealability" (COA), which allows a defendant's claims to be heard on the merits by an appeals court. During argument, the Justices raised concerns about the disparate rates at which Circuit Courts grant COAs. The Fifth Circuit denies them in about 60% of cases, while the Eleventh and Fourth Circuits deny them in only 6% and 0% of cases, respectively, meaning that defendants in the Fifth Circuit receive less review of their claims than those in the Eleventh or Fourth. Justice Elena Kagan said, "[I would assume] you think this is such an extraordinary case, and that the 5th Circuit got this so wrong, that it’s the best proof that there is that the court is approaching the COA inquiry in the wrong way." Justice Stephen Breyer agreed, saying, "It seems to me it proves the arbitrariness of what’s going on." (Pictured: Buck's lead counsel, NAACP Legal Defense Fund Litigation Director Christina Swarns, being interviewed on the steps of the Court.) 

U.S. Supreme Court Denies Review of Arizona Case That Could Overturn 25 Death Sentences

In a decision that could affect an estimated 25 Arizona death penalty cases, the U.S. Supreme Court has denied Arizona's request to review a federal appeals court decision declaring unconstitutional an evidentiary rule that limited the types of mitigating evidence capital defendants could present in their cases. The ruling in Ryan v. McKinney let stand a 6-5 decision of the U.S. Court of Appeals for the Ninth Circuit in December 2015 that had reversed James McKinney's 1993 death sentence because the state's so-called "causal nexus" rule unconstitutionally excluded evidence about McKinney's abusive childhood and post-traumatic stress disorder. The Court's ruling could have implications for many of the prisoners on Arizona's death row. The causal nexus rule, which required that mitigating evidence be directly linked to the crime before it could be considered as grounds to spare a defendant's life, had been place in Arizona from the late 1980s until 2005. In 1978, the Supreme Court ruled in Lockett v. Ohio that states could not bar defendants from presenting mitigating evidence relating to their character, background, or record or the circumstances of the case as reasons to impose a life sentence. Four years later, in Eddings v. Oklahoma, it held that states could not require that evidence excuse the murder before it could be considered mitigating. Then, in 2004, in Tennard v. Dretke, it reiterated that any requirement that mitigating evidence have a direct causal link to the offense violated the Eighth Amendment. By denying review, the Supreme Court paved the way for other prisoners whose sentencing was affected by the causal nexus rule to challenge their death sentences. In a dissent to the Ninth Circuit decision, Judge Carlos Bea wrote that the majority decision, "calls into question every single death sentence imposed in Arizona between 1989 and 2005." McKinney's case will return to state court within 120 days for further proceedings, according to the Arizona Attorney General's Office. His re-sentencing must now be done by a jury because the U.S. Supreme Court 2002 decision in Ring v. Arizona ended the state's practice of judges imposing death sentences.

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.