Lawyers Seek Supreme Court Review Of Alleged Torture As Accused USS Cole Bomber Awaits Capital TrialPosted: March 22, 2017
Lawyers for Abd al Rahim al Nashiri, the man accused of plotting the bombing of the USS Cole in 2000, are seeking U.S. Supreme Court intervention to prevent his trial before a military tribunal in which Nashiri faces the death penalty if convicted. The petition for a writ of certiorari asks the Court to allow Nashiri's lawyers to challenge his military detention—and efforts to try him in a military tribunal rather than a civilian court—because the CIA admittedly subjected him to 14 years of "physical, psychological and sexual torture." Hundreds of pages of documents chronicle Nashiri's experiences. These documents include evidence that Nashiri was subjected to waterboarding, forcible sodomy, starvation, rectal force-feeding, sleep deprivation, being placed in a coffin-sized box for a total of 11 days and a box the size of an office safe for 29 hours, and being threatened with a racked gun and a revved power drill while being suspended, naked and shackled, from the ceiling of a cell in a black site one CIA agent described as "the closest thing he has seen to a dungeon." Dr. Sondra Crosby, an expert on the medical and psychological effects of torture, wrote in October 2015 that Nashiri, "is most likely irreversibly damaged by torture that was unusually cruel and designed to break him." She predicted that Nashiri is likely to "decompensate fully during his trial." The heavily redacted descriptions of torture contained in Nashiri's petition are based on a prosecution timeline of his time at black sites, a gradual collection of declassified information, and recently published memoirs by a former CIA contract psychologist. All of the interrogation practices are also documented in the U.S. Senate Select Committee on Intelligence's controversial 2014 report, known as “The Torture Report.” Nashiri's case presents a range of important factual, legal, and evidentiary issues, but without Supreme Court intervention, he will not have any legal mechanism to obtain appellate review of them prior to trial. Although Nashiri is considered one of Guantánamo’s 15 most “high-value” prisoners, detained in a secret location in a special jail known as "Camp Seven," his lawyers argue he is actually an intellectually limited al-Qaeda foot soldier, not a criminal mastermind. In a federal civilian court, evidence obtained as a result of the torture to which the CIA admits Nashiri was subjected would be inadmissible; but in a military tribunal, there are questions whether that evidence may be admitted and whether the fact and extent of his torture may be used as evidence in his defense. In addition, Nashiri's case involves potentially sensitive national security matters and CIA videotapes of some of Nashiri's interrogations may have been destroyed, leaving questions both as to what information the government may withhold and what sanctions, if any, there should be for evidence it may have destroyed.
A feature story in the March issue of Harper's Magazine explores the growing conservative movement against the death penalty, with a focus on the group Conservatives Concerned About the Death Penalty and its national advocacy coordinator, Marc Hyden (pictured). Hyden, who previously worked on Republican campaigns and was a field representative for the NRA, explained the genesis of his views against the death penalty. His opposition to the death penalty came from his pro-life beliefs, concerns about wrongful convictions, and the high cost of the death penalty, which violated his belief in small government. “There’s really no greater power than the power to take life, and currently our government can kill its citizens,” he said. “I don’t think there’s anything limited in that.” The article recounts one meeting Hyden had with Tea Party members in his native Georgia. After pointing out notable conservatives who oppose the death penalty, discussing the financial burdens imposed on communities by capital punishment, and providing examples of innocent death-row prisoners who were later exonerated or executed, Hyden asked the group, “Do you trust the government to fairly administer the death penalty?” Polling from the Pew Research Center shows that support for the death penalty among those identifying themselves as conservative Republicans dropped by seven percentage points between 2011 to 2015, while support among white Evangelical Protestants dropped by 6 percentage points. Hyden and his colleague, Heather Beaudoin, an evangelical Christian and former staff member at the National Republican Congressional Committee, have worked to bolster that trend, highlighting the numerous conservative voices already speaking out about capital punishment and creating an environment in which conservative officials and groups understand they are not alone in their opposition to the death penalty. They helped to shift the National Association of Evangelicals from strong support for capital punishment to a more neutral stand that acknowledges "systemic problems" in the administration of the death penalty in the United States and that "a growing number of evangelicals now call" for a shift away from its use, and have worked with conservative legislators in states such as Kansas, Montana, Utah, and Nebraska to bolster bipartisan support for abolition legislation.
After prison personnel took more than a half hour to set the IV line during Virginia's January 18 execution of Ricky Gray, the Commonwealth's Department of Corrections has changed its execution procedures to conduct more of the execution preparations out of view of witnesses. Prior to the change, witnesses watched as the prisoner entered the execution chamber and was strapped to the gurney. A curtain was closed while staff placed intravenous lines and electrodes for a cardiac monitor, then reopened when the execution was ready to be carried out. The curtain was closed for 33 minutes during Gray's execution, raising concerns that something had gone wrong in the placement of the IV. The ACLU of Virginia said, "the length of time Gray was behind the curtain, as well as the presence of a doctor who confirmed his death using a stethoscope rather than by viewing a heart monitor as the previous protocols required, suggest something unusual happened during the process of killing him." Under the new protocol, witnesses will no longer be able to view the prisoner entering the chamber, so they will not know when the process begins. In 2015, the American Bar Association adopted an Execution Transparency Resolution calling for execution protocols to be promulgated "in an open and transparent manner" and to "require that an execution process, including the process of setting IVs, be viewable by media and other witnesses from the moment the condemned prisoner enters the execution chamber until the prisoner is declared dead or the execution is called off." In response to the Commonwealth's change in policy, the ACLU of Virginia urged Governor Terry McAuliffe to halt all pending executions and initiate a public review of the execution protocol. "It seems that, when confronted with questions and criticism over issues with the written protocols and actual practice of executing people in Virginia, the DOC and the administration’s posture is to ignore these concerns and then tighten the veil of secrecy even further to avoid uncomfortable questions in the future," the ACLU stated in a letter to the governor. The Virginia ACLU's Director of Public Policy and Communications, Bill Farrar, told WVIR-TV, "We have secrets upon secrets upon secrets with Virginia's process of executing people in this state and it needs to stop."
Florida Prosecutor Announces She Will No Longer Seek Death Sentences, Governor Moves to Exclude Her From Police-Killing CasePosted: March 17, 2017
Saying that pursuing the death penalty "is not in the best interests of this community or in the best interests of justice," Orange-Osceola County, Florida State Attorney Aramis Ayala (pictured) announced on March 16 that her office would not seek the death penalty while she is State Attorney. Ayala—the first black elected prosecutor in Florida—said that as State Attorney, it was her obligation to make policy decisions based on the evidence and that, after reviewing the evidence, she had concluded that the death penalty had failed as a deterrent, drained public resources, and made promises to family members of murders victims that the system could not keep. She said, “I am prohibited from making the severity of sentences the index of my effectiveness. Punishment is most effective when it happens consistently and swiftly. Neither describe the death penalty in this state.” As of January 2013, Orange County had more prisoners on its death row than 99.2% of U.S. counties and was among the 2% of counties responsible for more than half of all executions in the U.S. since 1976. However, the county has been moving away from the death penalty and had imposed only one new death sentence since 2012. Ayala's decision produced both praise and immediate backlash. Civil rights groups and faith leaders praised the announcement. Adora Obi Nweze, president of the Florida State Conference NAACP, called the move "a step toward restoring a measure of trust and integrity in our criminal justice system.” "A powerful symbol of racial injustice has now been discarded in Orange County," he said. Florida attorney general, Pam Bondi, blasted the decision as a “blatant neglect of duty.” Governor Rick Scott immediately asked Ayala to recuse her office from the high-profile prosecution of Markeith Loyd, who is accused of killing his ex-girlfriend and an Orlando police officer, and when she refused to step down, he issued an executive order appointing Lake County State Attorney Brad King, a former Vice President of the Florida Prosecuting Attorneys Association, to prosecute Loyd. That decision also provoked immediate criticism. Howard Simon, executive director of the American Civil Liberties Union of Florida, said "this a dangerous precedent” and asked “Whenever the governor doesn’t like the exercise of prosecutorial decision by an elected prosecutor, he’s going to step in and appoint somebody else?”
The U.S. Court of Appeals for the Eleventh Circuit ruled on March 15 that Alabama death-row prisoner Vernon Madison (pictured)—who was spared execution last May when the U.S. Supreme Court deadlocked at 4-4 on whether to lift a stay—is not mentally competent to be executed. The appeals court overturned an Alabama state court ruling, saying that the state court had unreasonably determined the facts when it concluded that Madison was aware of the reasons for his impending execution. “The only evidence in the record that does address this issue demonstrates that, due to his serious mental disorder, Mr. Madison does not understand the connection between his crime and his execution,” Judge Beverly Martin wrote. Under the 1986 Supreme Court ruling Ford v. Wainwright, the execution of individuals who lack a rational or factual understanding that they will be executed and the reason for their execution constitutes cruel and unusual punishment, in violation of the Eighth Amendment. The court found that the record contained uncontroverted evidence that Madison has "memory loss, difficulty communicating, and profound disorientation and confusion," in part caused by two debilitating strokes in 2015 and 2016. As a result, he no longer remembers the crime for which he was sentenced to death, nor does he understand why he was to be executed. He asked the prison to notify his mother of one of his strokes, but she had been dead for several years. The court noted that Madison is, "legally blind, cannot walk independently, is incontinent and has slurred speech.” Madison is one of the longest serving death-row prisoners in Alabama, having been tried three times for the 1985 murder of a Mobile police officer. His first conviction was overturned because of racially biased jury selection. His second conviction was reversed because prosecutors presented illegal evidence. At his third trial, the jury voted 8-4 to recommend that Madison receive a life sentence, but the judge overrode the jury's verdict and sentenced him to death. In 2016, the Eleventh Circuit granted Madison a stay of execution just hours before he was scheduled to die, in order to consider his incompetency claim, and the Supreme Court split on the prosecution's motion to vacate the stay, leaving the appeals court's decision in place.
Prosecutorial misconduct, including withholding evidence favorable to the defense, is the most common cause of wrongful convictions in death penalty cases, but prosecutors frequently fail to disclose this evidence, narrowly interpreting the U.S. Supreme Court's 1963 decision in Brady v. Maryland calling for its disclosure. On March 29, the Court will hear two consolidated cases—Turner v. United States and Overton v. United States—that raise questions under Brady as to when courts should grant defendants a new trial when prosecutors fail to disclose exculpatory evidence to the defense. While the Court may narrowly address Brady's application to these two cases, attorney and legal commentator Bidish Sarma argues that Turner-Overton presents an opportunity for the Court to "clarify principles and curtail the confusion that permeates lower courts’ opinions." Prosecutors currently argue that they may consider the materiality of evidence that favors the defense when they decide whether to disclose that evidence. Others say all evidence favorable to the defense must be disclosed, irrespective of materiality. Withholding favorable evidence from the defense appears to work—a study by the VERITAS Initiative of Santa Clara University School of Law and the National Association of Criminal Defense Lawyers found that courts upheld convictions in 86 percent of the cases in which they found that prosecutors had suppressed exculpatory evidence. An amicus brief by the Texas Public Policy Foundation, FreedomWorks, Cause of Action Institute, and American Legislative Exchange Council urges the Court to make it clear that prosecutors must turn over all evidence favorable to the defense, saying, "[r]equiring production of all favorable evidence solves the problem that prosecutors face in administering the current materiality standard." A recent study by the National Registry of Exonerations found that more than half of all murder exonerations involved Brady violations. According to that study, official misconduct was more common in cases involving black defendants (76%) than white defendants (63%). That disparity grew in capital cases, where 87% of death-row exonerations of black defendants involved official misconduct, compared to 67% of death-row exonerations of white defendants. A DPIC analysis of recent death-row exonerations found that police or prosecutorial misconduct was a major factor in 16 of the last 18 exonerations. DPIC's review of the National Registry's 2016 exoneration data also found that every one of the 13 murder exonerations in which prosecutors had sought or threatened to impose the death penalty involved either official misconduct or perjured testimony/false accusation, and eleven (84.6%) of them involved both.
A study published in The Yale Law Journal provides new evidence that, as public opinion continues to shift away from the death penalty, juries empaneled in capital cases may become even less representative of the community and even more prone to convict. The study—conducted by Professors Brandon Garrett (University of Virginia), Daniel Krauss (Claremont-McKenna College), and Nicholas Scurich (University of California Irvine)—found that with increased public opposition to the death penalty, more prospective jurors may be excluded from serving on capital juries because of their views against the death penalty. The researchers surveyed people reporting for jury duty in Orange County, California about their views on the death penalty itself and on the impact of the rarity of executions in California. Orange County is one of the ten most prolific death-sentencing counties in the United States and was one of just 16 U.S. counties that imposed five or more death sentences from 2010 to 2015. But despite those facts, about one-third (32%) of those surveyed said they would automatically vote for life without parole in the sentencing phase of a death penalty case. This view would make them excludable from a capital jury in a process known as death qualification, a result that the authors said, "raises new constitutional questions concerning [death qualification's] effect on the ability to secure a fair cross-section of the community in the jury venire." The researchers also found that nearly one in four jurors (24%) said that, as a result of their concerns about the death penalty, they would "refuse to vote for murder in the first degree merely to avoid reaching the death penalty issue." These so-called "nullifiers" would also be excludable from the jury, producing a jury that would be more prone than the overall population to find the defendant guilty. But at the same time that death qualification "excludes far higher percentages of the population than ever before," the researchers found that it "also has become an even less predictable prosecution tool, because even many stated death penalty proponents now harbor serious doubts about the death penalty." Finally, researchers asked the jurors whether the fact that California has not carried out an execution since 2006 would make them more likely or less likely to impose a death sentence. 67% of those surveyed said it made them less likely to vote for death. The authors urge further research into jury attitudes about the death penalty and conclude, "These findings have implications for how we should think about punishment as well as the Eighth Amendment in the area of the death penalty, but also far more broadly. Perhaps unusual punishments appear cruel or unsupported due to their rarity in practice."
As U.S. pharmaceutical companies have removed medicines from the market to prevent states from obtaining them for executions, states have turned to alternatives, like the sedative midazolam. Dr. Armin Walser, who was part of the team that invented the drug in the 1970s, is dismayed at that development. “I didn’t make it for the purpose” of executing prisoners, Dr. Walser told The New York Times. “I am not a friend of the death penalty or execution.” For most of midazolam's history, the medicine was used only for its intended purpose: as a sedative in procedures like colonoscopies and cardiac catheterizations. Since 2009, however, six states have used it to carry out a total of 20 executions. Midazolam's use in executions has been marked by controversy because, critics argue, it is a sedative, not an anesthetic, and does not adequately anesthetize the condemned prisoner before painful execution drugs are administered. Megan McCracken, a specialist in lethal injection litigation with the University of California-Berkeley law school said, “Time and time again when you see executions with midazolam, you see, at best, surprises and, at worst, very bad executions.” Midazolam was used in the botched executions of Dennis McGuire in Ohio, Clayton Lockett in Oklahoma, Joseph Wood in Arizona, and Ronald Smith in Alabama. In January 2017, a federal magistrate judge barred Ohio from using midazolam in executions, saying that its use presented a substantial and objectively intolerable risk of serious pain and suffering during executions. As a result of litigation challenging Arizona's lethal injection protocol in the wake of Wood's execution, that state agreed that it would never again use midazolam. The manufacturer of the drug has said it “did not supply midazolam for death penalty use and would not knowingly provide any of our medicines for this purpose," leaving states to turn to alternative suppliers if they want to continue using midazolam in executions. Walser said that, when he learned about midazolam's use in executions, "I didn't feel good about it."
A Florida bill that would require the jury to make a unanimous recommendation for death before a judge may impose a death sentence will head to Governor Rick Scott for final approval, after both houses of the Florida legislature passed it by overwhelming margins. Senate Bill 280 passed unanimously (37-0) on March 9, and the corresponding House Bill 527 passed by a 112-3 vote on March 10. If signed by the governor, the bill will bring Florida into compliance with the Florida Supreme Court's rulings in Hurst v. State and Perry v. State in 2016. Hurst struck down Florida's prior capital sentencing statute, which had allowed judges to impose the death penalty if a majority of jurors recommended death or to override a jury's recommendation of life. Perry struck down an amended version of the statute, which had permitted judges to impose a death sentence if 10 or more jurors recommended death. The Florida Supreme Court also ruled that the unanimity requirement would apply to death-row prisoners whose direct appeals had been decided after the United States Supreme Court's June 2002 decision in Ring v. Arizona, which held that capital defendants had a right to a jury determination of all facts necessary to impose the death penalty. That decision is expected to overturn approximately 200 death sentences, while permitting a similar number of prisoners whose direct appeals had already been completed to be executed despite constitutional violations in their cases. Until recently, three states—Florida, Alabama, and Delaware—permitted judges to impose death sentences on the basis of non-unanimous jury recommendations for death. Non-unanimous cases accounted for more than 20% of all death sentences in the U.S. from 2010-2015 and disproportionately contributed to death-row exonerations. In 2016, the Delaware Supreme Court struck down its state's death penalty statute, holding that death sentences based upon non-unanimous jury recommendations for death were unconstitutional. The change to Florida's law would leave Alabama as the only remaining state in which a judge may impose a death sentence based upon a non-unanimous jury recommendation.
In a new article for the Lewis & Clark Law Review, author Carla Edmondson argues that the future dangerousness inquiry that is implicit in capital setencing determinations "is a fundamentally flawed question that leads to arbitrary and capricious death sentences" and because of the "persistent influence of future dangerousness ... renders the death penalty incompatible with the prohibitions of the Eighth and Fourteenth Amendments on cruel and unusual punishment." Edmonson's article, Nothing is Certain but Death: Why Future Dangerousness Mandates the Abolition of the Death Penalty, reviews the pervasive influence of future dangerousness in capital sentencing decisions throughout the U.S., either as a statutory aggravating factor, or as a permissable line of argument that prosecutors may use to encourage a jury to impose a death sentence. Edmondson argues that the practice of considering future dangerousness "impermissibly asks jurors to function as fortune tellers, basing their sentencing determination on the likelihood of some future, unascertained event." The article examines the history of the future dangerousness question, its use in various states, and empirical evidence documenting its inaccuracy, randomness, and powerful impact. Edmonson cites seminal studies conducted in Texas and Oregon, two states in which capital sentencing juries are required to find that defendants pose a continuing threat to society before they may impose the death penalty. Those studies, she writes, demonstrate both the unreliability of expert testimony on future dangerousness and the inaccuracy of jury determinations on the subject. Experts in psychology have long argued that predictions of future dangerousness are junk science, and their use in capital sentencing proceedings continues to create serious constitutional concerns. On February 22, 2017, the U.S. Supreme Court overturned the death sentence imposed in Texas on Duane Buck (pictured), whose trial was tainted by racial bias when the defense's own psychologist testified that Buck posed a future danger because he was black. On August 19, 2016, the Texas Court of Criminal Appeals stayed the execution of Jeffery Wood to permit him to litigate claims that the future dangerousness predictions of the state's expert—who had been expelled from state and national professional associations for his unscientific and unethical future dangerousness predictions in the past—constituted false scientific evidence whose use violated due process. "Often based on unreliable and prejudicial evidence, predictions of future dangerousness undermine the efficacy of any imposed sentence," Edmondson argues. "Its unavoidable influence on life-or-death decisions, and the irremediableness of the problems associated with inaccurate predictions of future behavior, demonstrates why any system of capital punishment is unconstitutional and cannot be applied consistent with the Eight Amendment’s prohibition on cruel and unusual punishment."