Arbitrariness

Missouri Set to Execute Death Row Prisoner Who Was Denied Federal Review

Missouri plans to execute Mark Christeson (pictured) on January 31, without his case ever receiving substantive review in a federal court. Christeson's appellate attorneys effectively abandoned him, failing to meet with him until a month after the filing deadline in his case had already passed. They filed his federal appeal four months late. As a result, the federal court rejected it as untimely. New attorneys offered to represent him, since the attorneys who missed the filing deadline could not effectively argue his case without admitting their own error. Two federal courts rejected the substitution before the U.S. Supreme Court granted it. A federal district court then, without explanation, denied nearly all the funding requested by his new attorneys to reinvestigate the case. In 2016, a group of former judges and three of the nation's leading criminal defense organizations filed amicus briefs with the U.S. Court of Appeals for the Eighth Circuit, urging the court to grant Christeson the funding necessary to prepare his case. His attorneys say that evidence of Christeson's intellectual impairments and abusive upbringing were never presented to a jury. On January 18, 2017, the Eighth Circuit ordered the federal district court to “convene promptly a limited evidentiary hearing on the question of abandonment.” U.S. District Judge Dean Whipple found that the missed filing deadline did not constitute abandonment and denied Christeson a stay of execution. The Missouri federal district courts have been notable for their failure to intervene in a string of controversial executions, including the cases of Cecil Clayton, Andre Cole, and Richard Strong, but according to the Columbia Daily Tribune, Christeson would be the first person executed in Missouri in the modern era of the death penalty to have had no federal appeals. [UPDATE: The U.S. Supreme Court denied Christeson's petition for certiorari and motion for stay of execution and he was executed on January 31.]

STUDIES: At Least 201 Florida Death Row Prisoners May Be Eligible for Resentencing, 134 Had Non-Unanimous Juries

A new study reports that at least 201 Florida death row prisoners—including at least 134 whom judges sentenced to death after juries had returned non-unanimous sentencing recommendations—may be eligible for resentencing hearings as a result of recent rulings by the United States and Florida Supreme Courts declaring the state's death sentencing practices unconstitutional. In 2016, the U.S. Supreme Court struck down Florida's statute in Hurst v. Florida, ruling that it unconstitutionally denied defendants the right to have juries decide whether the prosecution had proven key facts necessary to impose the death penalty. Later in the year, in Hurst v. State, the Florida Supreme Court also struck down the statute for permitting judges to impose death sentences without a unanimous jury recommendation for death. In a pair of rulings issued in December 2016, Asay v. State and Mosley v. State, the court applied that decision to any defendant whose death sentence was finalized after the U.S. Supreme Court ruling Ring v. Arizona, in 2002. The authors of the study, Michael Radelet (pictured), a sociology professor at the University of Colorado-Boulder, and G. Ben Cohen, a capital litigator in New Orleans, Louisiana, caution that the 134 non-unanimous post-Ring death verdicts that they have identified "are not the only cases that may require resentencing, as defendants may have different claims arising from other constitutional deficiencies in the Florida statutes." Their study shows that ten counties account for nearly 60% of Florida's death row, more than 60% of those sentenced to death since Ring, and 62% of the known non-unanimous verdicts and will most heavily bear the cost of resentencing these defendants. The counties with the largest numbers of affected prisoners are also among the 2% of U.S. counties responsible for a majority of people on death row nationwide. Duval County has 31 defendants who may be eligible for resentencing, of whom at least 26 had a non-unanimous jury. The same is true of 11 of 12 affected defendants from Miami-Dade County, 8 of 12 from Broward County, and 7 of 11 from Seminole County. The authors point out that the constitutional failures of Florida's statute have been evident for many years, and that earlier acknowledgement of these problems could have saved the state from the costly resentencing hearings it now faces: "The significant cost of resentencing all of these individuals under a constitutional scheme was very predictable at the time of Ring in 2002, and was also foreseen by at least some experts who examined the post-Furman statute that was enacted in 1972." They conclude that "In 2017, the Florida legislature will need to make changes in the Florida death penalty statute that were predictable when the statute was first passed in 1972, and inevitable when the U.S. Supreme Court released Ring v. Arizona in 2002. Finally, they will need to acknowledge that Ring has rung."

Texas Prisoner Seeks Stay of Execution Based on Claims of Innocence, Discriminatory Jury Selection, Junk Science

Alleging wrongful prosecution, Texas death row prisoner Terry Edwards (pictured), who is scheduled for execution on January 26, is seeking a stay of execution and an opportunity to present new evidence that his case was tainted by racially-discriminatory jury selection, prosecutorial misconduct, and false and misleading forensic testimony. Edwards was prosecuted by Dallas County assistant district attorney Thomas D'Amore, who, the defense says, was lead prosecutor in at least three other cases in which defendants were exonerated after similar misconduct was disclosed. The Dallas DA's office fired D'Amore in 2006. Edwards, who had no prior history of violence, says that he was not the triggerman in a robbery-murder that prosecutors say he committed with his cousin, and that the prosecution presented false expert testimony to bolster its claim that he was the killer. The cousin—who has an extensive history of violent recidivism—was charged with both murders but then permitted to plead guilty to only robbery, and is now eligible for parole. A state forensic analyst initially testified that no gunshot residue was detected on Edwards' hands when they were tested immediately after the crime. She changed her testimony on cross-examination, stating that one of three chemical elements associated with gunshot residue was found on Edwards hands and that he could have sweated or wiped away the other two. A former FBI agent who later reviewed the case has called that explanation "scientifically unsupportable," explaining that the components of gunshot residue increase or decrease together, and that particles from gunshot residue contain at least two of the three elements that are tested, making it impossible to wipe away two of the elements without wiping away the third. D'Amore and the same state forensic analyst were involved in the 1995 trial of Richard Miles, who was exonerated in 2012 after his lawyers found similar flaws in the analyst's forensic testimony. Defense lawyers also contend that D'Amore withheld evidence that eyewitnesses saw Edwards’ cousin inside the restaurant at the time of the murders and fleeing out the front door. Citing evidence strikingly similar to that presented in the recent Supreme Court case Foster v. Chatman, Edwards' lawyers also argue that his conviction by an all-White jury was the unconstitutional product of racial discrimination.

Texas Court Orders Release of Former Death Row Prisoner Who Spent 32 Years in Prison Without a Valid Conviction

A Texas Court of Appeals ruled on January 19, 2017 that all charges against Jerry Hartfield should be dismissed with prejudice after the state had kept the intellectually disabled former death row prisoner in prison for 32 years without retrying him after his conviction had been overturned. Calling the situation a "criminal judicial nightmare," the court ruled that the three-decade delay in trying Hartfield violated his constitutional right to a speedy trial. Hartfield had been convicted and sentenced to death for a 1976 murder, but in 1983, the Texas Court of Criminal Appeals overturned his conviction and death sentence because a juror in his case had been improperly excluded. Hartfield, an illiterate man with an IQ of 51, believed he was awaiting retrial, but prosecutors were working to render the court's ruling moot under Texas law by having the governor commute his sentence to life. However, they failed to do so in the time period prescribed by law, and then-Governor Mark White's order attempting to commute Hartfield's former death sentence to life without parole was without legal effect. Hartfield's attorneys did nothing further because they believed they were done with the case. In 2006, a fellow prisoner helped Hartfield begin filing motions in his case. In 2013, the Texas Court of Criminal Appeals told him his motions were improperly filed because the provision under which he sought review applied only to people who had been convicted. At that point, he refiled his claims saying he was improperly incarcerated without a conviction, and finally got a new trial. Hartfield's new lawyers then asked for the charges to be dismissed because he had not received a speedy trial, but prosecutors successfully persuaded the trial court that Hartfield himself was partly to blame for the delay. In 2015, he was retried, convicted, and sentenced to life in prison. If his sentence were counted from his first trial, his 38 years in prison would have made him eligible for parole. He appealed his conviction, once again arguing that his constitutional right to a speedy trial had been violated, and a Texas Court of Appeals agreed, noting that there was precedent for a delay of as many as eight years, but not 32. Prosecutors may appeal the ruling to the Texas Court of Criminal Appeals. David R. Dow of the University of Houston Law Center, one of the lawyers who represented Mr. Hartfield on appeal, described Hartfield's case as, “the perfect storm of everything that could go wrong with the criminal justice system.”

OUTLIER COUNTIES: Orange County, California Plagued by Misconduct Scandals

Orange County, California imposed nine death sentences between 2010 and 2015, more than 99.8% of American counties, and ranking it among the 6 most prolific death-sentencing counties in the country during that period. Over the last four years, patterns of misconduct have been revealed in the Orange County District Attorney's Office, sheriff's office, and crime lab. In 2015, Judge Thomas Goethals disqualified District Attorney Tony Rackauckas (pictured) and the entire prosecutor's office from participating in the capital trial of Scott Dekraai because of systemic police and prosecutorial misconduct involving the deliberate and undisclosed use of prison informants to unconstitutionally elicit incriminating statements from defendants. A California appeals court, citing "[t]he magnitude of the systemic problems" in Orange County and the "cozy relationship" between local prosecutors and the sheriff's office, upheld the trial court's order. The sister of the victim in Dekraai's case asked the office to stop seeking the death penalty because the mishandling of the case had led to five years of delays. She called the death penalty a "false promise" for victims' families, yet the office continued to pursue a death sentence. Judge Goethals' ruling prompted the passage of a California law giving judges greater authority to remove prosecutors from cases in which they have committed misconduct, and to report misconduct to the state bar. It also led to a special committee report on the Orange County District Attorney's Office, which found a "failure of leadership" at the root of the misconduct, along with a "win-at-all-costs mentality." In mid-December, the U.S. Department of Justice announced it was opening an investigation into the county's use of jailhouse informants. Meanwhile, a motion by the Orange County Public Defender's Office filed in September accused the county crime lab of doctoring testimony to benefit the prosecution, after a senior forensic analyst offered contradictory testimony in two separate murder trials, each supporting the prosecution's case. Recent death sentences in Orange County show patterns of bias and dispropotionality. 89% of those sentenced to death from 2010-2015 were people of color, and 44% were Black, though Blacks make up just 2% of Orange County's population. Half of the 24 cases decided on direct appeal from 2006-2015 involved defendants with serious mental illness, brain damage, intellectual impairment, or who were under age 25 at the time of their crime.

Florida Supreme Court: More Than 200 Prisoners Unconstitutionally Sentenced to Death May Get New Sentencing Hearing

More than 200 Florida death row prisoners may have their death sentences overturned, while more than 150 others who may have been unconstitutionally sentenced to death will not, as a result of two lengthy opinions issued by the Florida Supreme Court on December 22. The rulings in the cases of Asay v. State and Mosley v. State would entitle death row prisoners whose unconstitutional death sentences became "final" in or after 2002 to have their death sentences vacated in light of the decisions of the U.S. and Florida Supreme Courts in Hurst v. Florida and Hurst v. State earlier in 2016, but would deny that relief to death row prisoners whose sentences had the same constitutional infirmity but had become final prior to 2002. In the case of Mark James Asay, the court recognized that Asay had been condemned under sentencing procedures that both it and the U.S. Supreme Court had found to be unconstitutional. It nevertheless held that he was not entitled to resentencing because he had completed the direct appeal process before the U.S. Supreme Court issued a decision in Ring v. Arizona requiring that "a jury, not a judge, [must] find each fact necessary to impose a sentence of death." Even after the Ring decision, Florida courts continued to allow judges to find the facts necessary to sentence defendants to death; a jury would only recommend a sentence. In Asay's case, a jury recommended death by a 9-3 vote. Because his sentence was imposed in 1991 and became final before Ring, Asay was denied relief and the court lifted his stay of execution. In a second case, the Florida Supreme Court granted a new sentencing hearing to John Franklin Mosley—who was sentenced to death when the trial judge overrode the jury's 8-4 recommendation of a life sentence—because he was sentenced to death after Ring. In so holding, the court explained that "defendants who were sentenced to death based on a statute that was actually rendered unconstitutional by Ring should not be penalized for the United States Supreme Court’s delay in explicitly making this determination." The court limited its holding, however, only to those cases in which the constitutional violation was harmless. In order to be harmless, the court said "it must be clear beyond a reasonable doubt that a rational jury would have unanimously found all facts necessary to impose death and that death was the appropriate sentence." 

Judge Finds Federal Death Penalty Arbitrary and Unreliable, But Leaves Constitutionality for Supreme Court to Decide

After a two-week long "extensive hearing regarding the unreliability and arbitrariness of the death penalty system, the excessive delay involved in executions, and the growing decline in the use of the death penalty," U.S. District Court Judge Geoffrey Crawford (pictured) ruled in the case of U.S. v. Donald Fell that the Federal Death Penalty Act ("FDPA") "falls short of the [constitutional] standard . . . for identifying defendants who meet objective criteria for imposition of the death penalty," but nonetheless allowed Fell's capital trial to move forward. Fell, who is awaiting retrial by federal prosecutors in Vermont, had filed a motion asking the judge to find the death penalty unconstitutional under the Fifth and Eighth Amendments. Judge Crawford wrote that, like the state statutes enacted after the U.S. Supreme Court declared the death penalty unconstitutional in 1972 in Furman v. Georgia, "the FDPA operates in an arbitrary manner in which chance and bias play leading roles." But while the court's order contained detailed findings suggesting the death penalty is arbitrarily and unreliably imposed, it stopped short of declaring the death penalty unconstitutional. "A federal trial judge is without authority to rewrite the law so as to overrule the majority position at the Supreme Court," Judge Crawford wrote. "Changing forty years of decisional law raises questions that can only be settled by the Supreme Court itself." Judge Crawford found significant problems in numerous aspects of capital proceedings. He found that instead of redressing questions of bias, death penalty jury selection procedures are "a substantial part of the problem" and create as "inherent jury bias" by selecting "jury populations which stack the deck against defendants" in both the guilt/innocence and penalty phases of the trial. He found that "the death penalty continues to be imposed in an arbitrary manner," noting that where the "crime occurs is the strongest predictor of whether a death sentence will result" and "whether the murder victim is white" is also a signficant predictor. Judge Crawford explained that "the arbitrary qualities of the death penalty are most clearly visible through the narrative comparison of crimes which do and those which do not receive death sentences." There is, he said, no principled way to distinguish between which is which.

As Supreme Court Rejects Death Penalty Petitions, Justice Breyer Renews Call For Constitutional Review

In the span of one week, the U.S. Supreme Court declined to review petitions from six death row prisoners, denying them relief in their cases. The petitioners raised issues related to DNA procedures, conflict of counsel, a disputed guilty plea, juror bias, judicial override, and a previously botched execution attempt. In two of the cases, the Court allowed executions to proceed in Georgia and Alabama. The case of Ronald Smith left the Court deadlocked 4-4, with enough votes to grant review in his case, but not enough to halt his execution. On December 12, as the Court denied review in four other death penalty cases, Justice Stephen Breyer (pictured) authored a written dissent in the case of Florida death row prisoner Henry Perry Sireci indicating that he would have granted review to Sireci, Smith, and Ohio death row prisoner Rommell Broom to consider the constitutionality of the death penalty in the United States. Breyer wrote: "Individuals who are executed are not the 'worst of the worst' but, rather, are individuals chosen at random on the basis, perhaps of geography, perhaps of the views of individual prosecutors, or still worse on the basis of race. The time has come for this court to reconsider the constitutionality of the death penalty." Breyer previously called for a consideration of capital punishment's constitutionality in his dissent in Glossip v. Gross, which was joined by Justice Ruth Bader Ginsburg. Justice Kagan also noted her dissent from the denial of certiorari in Broom's case. In 2009, Ohio attempted to execute Broom, but the execution was halted after two hours of repeated painful attempts to establish IV access failed, including striking Broom's bone with the execution needle. In his dissent, Justice Breyer noted that Sireci has been on death row "under threat of execution for 40 years. When he was first sentenced to death, the Berlin Wall stood firmly in place. Saigon had just fallen." Referencing Broom's petition, Breyer wrote that Sireci's was not "the only case during the last few months in which the Court has received, but then rejected, a petition to review an execution taking place in what [he] would consider especially cruel and unusual circumstances."  

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