Race

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.

MLK Day 2017: The Reverend Dr. Martin Luther King, Jr. on the Death Penalty

On Martin Luther King Day, DPIC looks at the Reverend Dr. Martin Luther King's views on capital punishment. In a November 1957 article in Ebony, Dr. King was asked "Do you think God approves the death penalty for crimes like rape and murder?" He responded, "I do not think that God approves the death penalty for any crime, rape and murder included.... Capital punishment is against the better judgment of modern criminology, and, above all, against the highest expression of love in the nature of God."  Several months later, Alabama executed Jeremiah Reeves, a young black man who was 16 years old when he was charged with raping a white woman. Tried before an all-white jury, Reeves was convicted and sentenced to death. In April 1958, Dr. King stood on the state capitol steps during a prayer pilgrimage protesting what he called "a tragic and unsavory injustice." Dr. King said: "A young man, Jeremiah Reeves, who was little more than a child when he was first arrested, died in the electric chair for the charge of rape. Whether or not he was guilty of this crime is a question that none of us can answer. But the issue before us now is not the innocence or guilt of Jeremiah Reeves. Even if he were guilty, it is the severity and inequality of the penalty that constitutes the injustice. Full grown white men committing comparable crimes against Negro girls are rare ever punished, and are never given the death penalty or even a life sentence. It was the severity of Jeremiah Reeves penalty that aroused the Negro community, not the question of his guilt or innocence." Later, in his sermon "Loving Your Enemies," Dr. King preached a philosophy that had no room for capital retribution: "Returning hate for hate multiplies hate, adding deeper darkness to a night already devoid of stars. Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that. Hate multiplies hate, violence multiplies violence, and toughness multiplies toughness in a descending spiral of destruction."

National Black Caucus of State Legislators Call for Repeal of Death Penalty

Saying that "race plays a decisive role in who lives and who dies" in capital cases in the United States, the National Black Caucus of State Legislators (NBCSL) voted at its 40th annual conference on December 14, 2016, to adopt its first ever resolution calling for the abolition of the death penalty. The resolution states that "racial bias in the criminal justice system, including the death penalty and its application, is an undisputed fact," and notes that "from slavery to Jim Crow to the present day, the death penalty has long been a tool of injustice and discrimination." The resolution says "African-Americans, Latinos, Native Americans, and all people of color are sentenced to longer prison terms, more likely to be tried as adults, and more likely to be sentenced to death in the United States." The NBCSL joined the National Hispanic Caucus of State Legislators and the Movement for Black Lives, which passed anti-death penalty resolutions in August 2016, in advocating for legislation to repeal capital punishment statutes across the country.  In supporting death penalty repeal legislation, the NBCSL resolution cited studies and reports showing that: Black jurors are three times more likely than other jurors to be struck from a jury in a case in which a Black defendant faces a death sentence; according to 88% of criminologists, the death penalty is not an effective deterrent against crime; the death penalty has a negative impact on the families of both the murder victim and the defendant; and 156 wrongfully convicted death row prisoners have been exonerated and released from death row. "[T]he risk of executing an innocent person is higher than ever," the resolution states, "and evidence suggests that innocent African-Americans have been executed." The NBCSL also considered the excessive cost of the death penalty and the uses to which the money saved could be used as additional reasons to abolish the death penalty. The resolution says "repeal of the death penalty will free up millions of tax dollars in cash-strapped state budgets that could be redirected to violence prevention, combating implicit bias, or supporting victims of violence in Black communities." The NBCSL offered its support for "justice reinvestment initiatives and alternative programs that address criminal justice reform" and urged the "U.S. justice department to investigate the fairness, effectiveness, and costs of the death penalty and disproportionate sentencing."  Nebraska State Senator Tanya Cook sponsored the resolution, saying that the death penalty "is not a deterrent to violent crime. Period."  In 2002, the NBCSL had passed a resolution calling for a moratorium on capital punishment.

NEW VOICES: Latinos Increasingly Vocal in Opposition to Death Penalty

Juan Cartagena (pictured), President and General Counsel of LatinoJustice PRLDEF (formerly the Puerto Rican Legal Defense Fund), says there is "a growing understanding" among Latinos in Florida and across the country "that the death penalty is broken and it can't be fixed." In an op-ed for the Orlando Sentinel, Cartagena explains the reasons for Latino opposition to the death penalty, especially in Florida, which has a large Latino population and is home to Miami-Dade, Hillsborough, Pinellas, and Duval counties. Those four counties are among the 16 counties that have imposed the most death sentences in the U.S. over the past five years and, Cartagena writes, "[t]hey all suffer from prosecutor misconduct, bad defense lawyers, wrongful convictions and racial bias. In Miami-Dade County from 2010 to 2015, every single person sentenced to death was black or Latino." Cartagena particularly emphasizes the historical opposition to the death penalty among Puerto Ricans, of whom increasing numbers have moved to Florida in recent years. "Puerto Rico abolished the death penalty in 1929. Its constitution, drafted in 1952, states that 'the death penalty shall not exist.' Opposition to capital punishment is a part of our legacy." As a result, he writes, "Puerto Ricans in Florida are paying close attention" to the serious flaws in Florida's death penalty, including allowing non-unanimous juries to impose death sentences–a practice that was struck down as unconstitutional earlier this year. All these concerns, he says, are reflected in a nationwide "shift away from the death penalty" among Latinos. In the last two years, three major Latino organizations have made strong public statements against the death penalty. The National Latino Evangelical Coalition adopted a position against the death penalty in March 2015, contributing to a change in the National Association of Evangelicals' stance later that year. In June 2016, the National Hispanic Leadership Agenda called for repeal of the death penalty, and in August, the National Hispanic Caucus of State Legislators passed a resolution urging repeal.

OUTLIER COUNTIES: Miami-Dade Death Sentences Reflect Constitutional Defects, Misconduct

Miami-Dade County has historically been a significant contributor to Florida's death row and large proportions of its recent death sentences raise serious constitutional questions about the practices that result in death verdicts and the characteristics of the defendants who are sentenced to death. Miami-Dade imposed five death sentences between 2010 and 2015, placing it among the 16 counties that produced more death sentences than 99.5% of all U.S. counties. The questionable reliability of the Miami-Dade death penalty cases is illustrated by the characteristics of the seven cases that came before the Florida Supreme Court on direct appeal from 2006-2015. Six of those cases (86%) involved a non-unanimous jury recommendation for death, a practice the Florida Supreme Court struck down as unconstitutional in October 2016. Miami-Dade had the second highest rate of prosecutorial misconduct among the 16 most prolific death-sentencing counties and nearly a third (29%) of the cases decided on direct appeal since 2006 involved misconduct. In reversing one of the cases for misconduct, the court said the prosecutor “appeared to be committed to winning a death recommendation rather than simply seeking justice.” In another, the court overturned the death sentence as a result of the prosecutor's "inflammatory, egregious, and legally improper closing argument.” One former Assistant State Attorney, who was credited with sending more people to death row than any other Florida prosecutor, spoke disparagingly of the role of mitigating evidence in capital cases, saying, “Of course I feel bad that society has created a monster, but should the bad background in the past disable us from imposing an appropriate punishment now?” And the defendants judges sentenced to death in four of the cases had presented significant mitigating evidence that made them nearly indistinguishable from those who are exempt from capital punishment as a result of their age or mental health status. Yet such a full presentation of mitigating evidence was atypical in the cases that resulted in death verdicts. The lawyers in those cases presented an average of one day of mitigating evidence. The new death sentences also reflect the role of race. All five of the defendants sentenced to death in Miami-Dade from 2010-2015 were Black or Latino, and a study of sentencing rates in Florida found that defendants are 6.5 times more likely to be executed if the victim is a White female than if the victim is a Black male.

Experts Say Texas' Future Dangerousness Concept Is Based on Junk Science

Since 1973, juries in Texas have had to determine whether a defendant presents a future danger to society before imposing a death sentence. But while they have found that each of the 244 men and women currently on the state's death row poses "a continuing threat to society," experts argue that juries cannot accurately predict a defendant's future. According to Dr. Mark Cunningham, a psychologist and leading researcher on the issue of future dangerousness, “[j]uries show absolutely no predictive ability whatsoever” on this issue. In Texas capital cases, prosecutors typically present testimony from psychiatric witnesses who offer their opinion that the defendant will commit future acts of violence. One witness, psychiatrist Dr. James Grigson, testified in 167 capital cases, repeatedly responding to hypothetical questions posed by prosecutors (even after he was expelled from state and national professional associations because of this practice) that defendants whose institutional records he had never reviewed and whom he had never evaluated were certain to commit future acts of violence. The Texas Court of Criminal Appeals recently granted a stay of execution to Jeffery Wood—who had no history of violence and did not himself kill anyone—to permit him to challenge Dr. Grigson's testimony in his case as false and unscientific. Studies show that the ostensibly objective inquiry into future dangerousness has not reduced the arbitrary imposition of death sentences and that, in fact, testimony on the issue has often instead introduced racial bias into trials. The U.S. Supreme Court is currently considering the case Buck v. Davis, in which a psychologist testified that the fact that defendant Duane Buck (pictured) is African-American increases the likelihood that he presents a future danger to society. A study led by Stanford University Prof. Jennifer Eberhardt found that in interracial murders involving a White victim and a Black defendant, the physical features of the defendant greatly affected the outcome of the case. In those cases, defendants with stereotypically African facial features were more than twice as likely to be sentenced to death as Black defendants who had a less stereotypically African appearance. The American Psychiatric Association has sought to eliminate the question of future dangerousness from jury decisions, writing in an amicus curiae brief to the U.S. Supreme Court: “[t]he unreliability of psychiatric predictions of long-term future dangerousness is by now an established fact within the profession.” Kathryn Kase, director of the Texas Defender Service, described the determination of future dangerousness as "akin to giving jurors two cotton swabs, asking them to look at them and saying, ‘Does the DNA match?’ If an expert can’t figure it out, then how can jurors do that? It is no accident that African Americans are overrepresented on death row.”

OUTLIER COUNTIES: Dallas County, Texas Imposing Fewer Death Sentences After Years of Discrimination

With 55 executions since the 1970s, Dallas County, Texas, ranks second among all U.S. counties -- behind only Harris County (Houston), Texas -- in the number of prisoners it has put to death. It is also among the 2% of counties that account for more than half of all prisoners on death row across the country, and produced seven new death sentences and one resentence between 2010 and 2015, more than 99.5% of all U.S. counties during that period. Dallas County has a long history of prosecutorial misconduct and racial discrimination, evidenced most tellingly in its biased jury selection practices. Long-time Dallas District Attorney Henry Wade, whose tenure in office spanned the years 1951 to 1987, once told an assistant prosecutor, “If you ever put another n****r on a jury, you’re fired.” An office manual first written in 1963 instructed Dallas County prosecutors not to “take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well educated.” In 2005, the U.S. Supreme Court took notice of what Justice Anthony Kennedy described as a "culture of discrimination" that was “suffused with bias against African-Americans," and overturned the capital murder conviction of Thomas Joe Miller-El because prosecutors removed 10 of the 11 Black potential jurors on the basis of race. 51 people have been exonerated of serious crimes in Dallas County since 1989, including Randall Dale Adams, who had been sentenced to death after witnesses for the prosecution committed perjury at his trial. Dallas has shown signs of change in recent years. No new death sentences have been imposed since 2013. That year, District Attorney Craig Watkins said he would advocate for the Texas legislature to pass a Racial Justice Act, permitting death row prisoners to challenge their sentences based upon statistical evidence of racial discrimination. Former Assistant District Attorney James Fry said in 2009 that concerns about innocence had changed his views on the death penalty: "For years I supported capital punishment, but I have come to believe that our criminal justice system is incapable of adequately distinguishing between the innocent and guilty. It is reprehensible and immoral to gamble with life and death."

Circuit Court Overturns South Carolina Death Sentence for Prosecutor's Racially Inflammatory Argument

The U.S. Court of Appeals for the Fourth Circuit has upheld a federal district court's decision ordering a new sentencing hearing for Johnny Bennett, a black man who was sentenced to death by an all-white South Carolina jury in a trial tainted by a prosecutor's racially-inflammatory cross-examination and argument. Bennett was prosecuted by Donald Myers (pictured), known as “Death Penalty Donnie” for having sent 28 South Carolina defendants to death row. In response to defense argument at Bennett's sentencing proceedings in 2000 that Bennett would not pose a future danger to society if incarcerated for life, Myers repeatedly invoked violent animal references, calling Bennett "King Kong on a bad day," a “caveman,” a “mountain man,” a “monster,” a “big old tiger,” and “[t]he beast of burden.” Earlier in the trial, Meyers had elicited irrelevant testimony that a white witness whom Bennett had assaulted when he was a juvenile had dreamt of "being chased by black savages." The prosecuter also gratuitously asked a witness about sexual relations Bennett had had with a "blonde-headed" prison guard. A juror later described Bennett as "just a dumb ni**er." The South Carolina Supreme Court upheld Bennett's sentence, saying that the "King Kong" comment was “not suggestive of a giant black gorilla who abducts a white woman, but rather, descriptive of [Bennett’s] size and strength as they related to his past crimes.” It ruled that the jurors comments did not show that he was “racially biased at the time of the ... trial.” In March 2016, a federal district court overturned Bennett's sentence, saying that Myers had "made multiple statements clearly calculated to excite the jury with racial imagery and stereotypes." The District Court judge called Myers' arguments "a not so subtle dog whistle on race that this court cannot and will not ignore." Judge J. Harvie Wilkinson, writing the Fourth Circuit opinion called Myers' comments "unmistakably calculated to inflame racial fears and apprehensions on the part of the jury." He wrote, "It is impossible to divorce the prosecutor’s 'King Kong' remark, 'caveman' label, and other descriptions of a black capital defendant from their odious historical context. And in context, the prosecutor’s comments mined a vein of historical prejudice against African-Americans, who have been appallingly disparaged as primates or members of a subhuman species in some lesser state of evolution." John Blume, who represented Bennett in the Fourth Circuit argument, said it was "antithetical to the criminal justice system for a prosecutor to pander to an all-white jury's racial fears and implicit biases."

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