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Justice Ginsburg Discusses Glossip Dissent

In an interview at Duke Law School, Justice Ruth Bader Ginsburg reflected on the past term at the U.S. Supreme Court. She discussed several landmark cases from the past year, including Glossip v. Gross, in which she joined Justice Stephen Breyer in a dissent that questioned the constitutionality of the death penalty. Ginsburg said she had waited to take such a stance on the death penalty because past justices, "took themselves out of the running," when the did so, leaving, "no room for them to be persuasive with the other justices." She reiterated many of the key points from the dissent, saying, "I think that [Breyer] pointed to evidence that has grown in quantity and in quality. He started out by pointing out that there were a hundred people who had been totally exonerated of the capital crime with which they were charged ... so one thing is the mistakes that are possible in this system. The other is the quality of representation. Another is ... yes there was racial disparity but even more geographical disparity. Most states in the union where the death penalty is theoretically on the books don’t have executions." She also noted the growing isolation of the death penalty. "[L]ast year, I think 43 of the states of the United States had no executions, only seven did, and the executions that took place tended to be concentrated in certain counties in certain states. So the idea that luck of the draw, if you happened to commit a crime in one county in Louisiana, the chances that you would get the death penalty are very high. On the other hand, if you commit the same deed in Minnesota, the chances that you would get the death penalty are almost nil. So that was another one of the considerations that had become clear as the years went on."

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.

Judges, Commentators Critical of Habeas Law That "Keeps People on Death Row Despite Flawed Trials"

A recent article in the The New York Times Magazine examines the effects of the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA), which was intended to streamline and shorten capital appeals. Its title summarizes the statute as "The Law That Keeps People on Death Row Despite Flawed Trials." Emily Bazelon opens the article with the story of death-row prison Hector Ayala, who was tried before a jury from which prosecutors excluded all 7 black or Latino jurors. The federal appeals court overturned Ayala's death sentence but in turn was reversed in a 5-4 opinion by the Supreme Court, with Justice Alito saying that habeas corpus judges should intervene only in "extreme" cases. AEDPA restricts federal review of habeas corpus appeals, limiting federal judges to overturning state courts only when a state court decision is not just wrong, but "was contrary to, or involved an unreasonable application of, clearly established federal law” or “was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." The High Court's interpretation of this language, say Judges Alex Kozinski and Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit in separate articles criticizing the unjust impact of the statute, has often left federal judges powerless to correct constitutional violations, even when the defendant appears to be innocent. Bazelon highlights the consequences of this judicial abstentionism on innocence cases, such as when Troy Davis was denied a new trial by the federal courts and was executed despite presenting evidence that "7 of the 9 eyewitnesses who testified against [him] at trial had recanted, and new witnesses implicated someone else." The Davis case produced a now-famous statement by Justice Scalia that habeas corpus is not available to prevent the execution of an innocent person if he was fairly convicted. A 2007 study showed that rather than hastening appeals, the average time courts spend on habeas cases has actually increased since the law went into effect. Instead, the law has become, in the words of Cornell law professor John Blume, a vehicle for “agenda-driven judicial policy-making.”

Citing High Cost of Death Penalty Appeals, California Prosecutor Agrees to Reduce Prisoner's Sentence to Life Without Parole

Citing the high cost of death penalty appeals and difficulty obtaining custody of an out-of-state prisoner, the Kern County, California District Attorney's office has agreed to reduce the 1989 death sentence imposed upon Clarence Ray (pictured) to a sentence of life without parole. Ray's lawyers had filed a petition challenging the constitutionality of his California conviction and death sentence. The parties reached agreement that Ray's death sentence would be reversed in exchange for his giving up the remainder of his appeals. Prosecutors said that fighting the petition for a reduced sentence would have cost the District Attorney's office more than $100,000. They also indicated that they faced substantial obstacles in obtaining custody of Ray. Ray had confessed to the California murder while in prison in Michigan, where he is serving a life sentence for a separate crime. California prosecutors said that because Ray first had to serve that sentence, he would not be turned over to California authorities until he died. They said that officials in Michigan - which has not had the death penalty since 1847 - had intimated that Michigan would not release custody of inmates to states in which they face execution. A California Superior Court judge last week approved the deal and resentenced Ray to life without possibility of parole. 

CNN Legal Analyst Calls "Sanity of the Death Penalty” Into Question

Philip Holloway, a CNN legal analyst who has been both a prosecutor and criminal defense attorney, says in a recent op-ed that "it is hard not to question the rationality -- indeed the sanity" of the death penalty. Holloway says "there are several practical reasons why the death penalty just doesn't make sense any longer, if it ever really did in the first place," and outlines five reasons why he believes the United States should reconsider capital punishment. First, he says that life without parole is actually a harsher punishment than the death penalty, citing the harsh conditions of maximum-security prisons on the state and federal level. Second, Holloway points to the ongoing trial of James Holmes in Colorado as one instance of the excessive cost of the death penalty. The Holmes trial is expected to cost about $3.5 million, compared to an average of $150,000 in cases without the death penalty. Third, he notes the toll of capital cases on victims' families: "family members and loved ones of murder victims often find themselves entangled in the justice system for a very long time" because of lengthy appeals after a death sentence is handed down. His fourth point is the uneven application of the death penalty, which he says is the result of prosecutorial discretion in whether to seek a death sentence. Finally, Holloway says, "Despite safeguards, innocent people do wind up on death row." He mentions the 154 people exonerated from death row, highlighting last year's exoneration of Henry McCollum, who spent 30 years on death row before being cleared by DNA evidence. "Our criminal justice system -- and those caught up in it, including the families of victims -- would be the biggest beneficiaries should we choose to end capital punishment in the United States," he concludes. 

One Year After Botched Execution, Many States Still Haven't Resumed Executions

On July 23, 2014, Arizona's execution of Joseph Wood was botched, taking nearly two hours from the time the state began injecting him with lethal drugs until he was finally pronounced dead. Witnesses reported that Wood gasped more than 640 times during the course of the execution, and an official report later revealed that he was injected with 15 doses of the execution drugs. Michael Kiefer, a reporter for the Arizona Republic, who witnessed Wood's execution, described it, saying, "He gulped like a fish on land. The movement was like a piston: The mouth opened, the chest rose, the stomach convulsed." Arizona used a combination of midazolam, the drug recently reviewed by the Supreme Court in Glossip v. Gross, and hyrdromorphone, a narcotic. Wood's lawyer, Dale Baich, describing the execution, said "The experiement failed." The same drug protocol had been used in Ohio's botched execution of Dennis McGuire earlier in 2014 and witnesses to an October 2014 execution by Florida using midazolam reported that the death took longer than usual. In the year since Wood's execution, Arizona has not carried out any executions as a stay issued by a federal judge remains in place. In that time, Oklahoma and Florida have used midazolam in a total of three executions, with Charles Warner in Oklahoma saying "My body is on fire." Both states temporarily put executions on hold while the Supreme Court review was underway, but indicate they intend to resume executions now that the use of midazolam has been upheld. An Oklahoma federal court has scheduled a trial for 2016 on Oklahoma's use of midazolam. All other executions since Wood's have used a one-drug protocol of pentobarbital, likely obtained from compounding pharmacies, since the primary manufacturer of the drug opposes its use in executions. Ohio delayed all executions until at least 2016 to review executions procedures, and executions in Tennessee are on hold because of legal challenges to its lethal injection protocols. Georgia is conducting an investigation into problems with execution drugs and has not set new execution dates as a result.

NEW VOICES: Ninth Circuit Judge Calls for Sweeping Criminal Justice Reform

In a recent article for the Georgetown Law Journal, Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit calls for sweeping reforms in the criminal justice system. The former Chief Judge, who was appointed by President Reagan in 1985, outlined a number of "myths" about the legal system, raising questions about the reliability of eyewitness testimony, fingerprint evidence, and even DNA evidence, which can easily be contaminated. Judge Kozinski directed his harshest critism at the limitations the Antiterrorism and Effective Death Penalty Act (AEDPA) imposes on federal habeas corpus review of state criminal cases. He pointed to the case of Ron Williamson, the death-row inmate who was the subject of the John Grisham book, The Innocent Man, who five days before his scheduled execution obtained a stay from the federal courts "that began a process culminating in Williamson’s exoneration." AEDPA, he says, "abruptly dismantled" this habeas corpus "safety-value," and has "pretty much shut out the federal courts from granting habeas relief in most cases, even when they believe that an egregious miscarriage of justice has occurred." Instead, federal courts "now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted." He calls AEDPA "a cruel, unjust and unnecessary law that effectively removes federal judges as safeguards against miscarriages of justice. It has resulted and continues to result in much human suffering. It should be repealed." Judge Kozinski also examines the roles of decision makers in criminal cases, highlighting such myths as "juries follow instructions," "prosecutors play fair," and "police are objective in their investigations." He recommends reforms to improve the accuracy and fairness of trials, including requiring "open file discovery" - meaning that all prosecution evidence related to a case is made available to the defense - and adopting more rigorous standards for eyewitness identification, suspect interrogations, and the use of jailhouse informants. He also advocates for the elimination of elected judges, noting that studies show "that judges who face elections are far more likely to override jury sentences of life without parole and impose the death penalty" and that elected judges often face political retaliation for ruling in favor of the defense or for sanctioning prosecutors for instances of misconduct.

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