Innocents Lost: Remembering The Wrongfully Condemned Who Died in 2015
Three death-row exonerees, including two who became symbols of the risks of wrongful capital convictions, died in 2015. David Keaton (pictured, far left), the first man exonerated from death row in the modern era of the death penalty, died on July 3 at the age of 63. A teenaged Keaton was sentenced to death in Florida in 1971 for the murder of an off-duty police officer. His conviction was based upon a coerced confession and erroneous eyewitness testimony. Keaton was exonerated in 1973 when new evidence revealed the actual perpetrator. Glenn Ford (pictured, left), who was exonerated in 2014 after spending nearly 30 years on Louisiana's death row, died of lung cancer on June 29 at age 65. Ford was tried before an all-white jury, represented by appointed counsel who had never handled a criminal case. He was convicted despite the absence of any evidence linking him to the murder weapon, when prosecutors failed to disclose that confidential informants had identified two other men as the murderers. They ultimately admitted that "credible evidence" showed that "Ford was neither present at, nor a participant in," the murder. Death-row exoneree Andrew Golden, who spent 26 months on Florida's death row from 1991 to 1994, died in May. Golden had been wrongly convicted of murdering his wife although police investigators and the medical examiner had testified that the evidence did not suggest foul play. At least four other death-row prisoners who may have been wrongfully condemned - Lester Bower, Brian Keith Terrell, Donnis Musgrove, and Ronald Puksar - were executed or died on death row before judicial review of their cases were complete.
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Report: 75% of 2015 Executions Raised Serious Concerns About Mental Health or Innocence
Three quarters of American executions in 2015 involved cases of "crippling disabilities and uncertain guilt," according to a report by the Charles Hamilton Houston Institute for Race and Justice at Harvard University. Saying that the 2015 executions revealed "a broken capital punishment system," the report found that, "[o]f the 28 people executed [in 2015], 75% were mentally impaired or disabled, experienced extreme childhood trauma or abuse, or were of questionable guilt." It said seven people who were executed suffered from serious intellectual impairment or brain injury, including Warren Hill, who even the state's doctors agreed had intellectual disability, and Cecil Clayton, who lost 20% of his prefrontal cortex as a result of a sawmill accident. An additional seven suffered from serious mental illnesses. One, Andrew Brannan, was a decorated war veteran whom the Veterans Administration had classified as 100% disabled as a result of combat-related Posttraumatic Stress Disorder from his service in Vietnam. The report identified five more cases in which the executed prisoners had experienced extreme childhood trauma and abuse, and another two - Lester Bower and Brian Keith Terrell - in which it said the executed men "were potentially innocent." The report also highlighted developments described in DPIC's Year End Report, including the increasing isolation of death penalty use to a small number of jurisdictions. "Only a handful of outlier counties still impose the death penalty," the report said, and an examination of practices in those counties often "reveals themes of overzealous prosecutors who often bend the rules, poorly performing defense lawyers, and a legacy of racial bias." As a result, "these outlier counties tend to [also have] an unacceptable history of convicting the innocent and individuals with crippling mental impairments." (Click image to enlarge.)
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After 3 Trials and Recanted Testimony, Georgia Set to Execute Man Who May Be Innocent
UPDATE: Terrell was denied clemency on Dec. 7 and executed just before 1:00 a.m. on December 9. The Atlanta Journal Constitution reported that it took a nurse an hour to find a vein for the lethal injection IV and that, as the execution drug was being administered, Terrell mouthed the words: "Didn't do it." EARLIER: After three trials, Georgia is set to execute Brian Keith Terrell (pictured) on December 8, unless the Georgia Board of Pardons and Paroles grants him clemency in a hearing at which he will present claims that he is innocent. Terrell's lawyers say that no physical evidence links him to the murder and that this conviction and death sentence are a product of prosecutorial misconduct and false and misleading testimony. The key testimony against Terrell came from a witness whom defense investigators say now admits to having lied to save himself. Terrell's first trial ended in a mistrial when jurors could not agree on whether he was guilty. The second resulted in a conviction that was later overturned by the Georgia Supreme Court. The third trial concluded with a conviction and death sentence. Physical evidence from the crime scene leaves substantial questions as to Terrell's guilt: footprints found near the victim's body were smaller than Terrell's feet, and none of the 13 fingerprints found by investigators matched his fingerprints. Terrell was convicted primarily on the testimony of his cousin, Jermaine Johnson, who spent a year in jail facing the threat of the death penalty before he made a deal with prosecutors to testify against Terrell in exchange for a five-year sentence. Johnson has told defense investigators that police and prosecutors pressured him to give false testimony against his cousin. Terrell's lawyers say that prosecutors also presented misleading testimony that a neighbor had said she had seen Terrell at the murder scene, when in fact she had told authorities that he was not the man she had seen. At Terrell's trial, the prosecutor emphasized the importance of Johnson's testimony, saying during his closing statement, "If you never heard anything about Jermaine Johnson in this case, if he had never testified, would you have enough information to make a decision in this case? You wouldn't."
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Alabama Inmate Dies on Death Row Before Federal Court Can Decide His Innocence Claim
Donnis Musgrove (pictured), an Alabama death row prisoner with a substantial claim of innocence, died of lung cancer on Alabama's death row on November 25, while his case was pending before a federal judge. Musgrove's attorneys had asked U.S. District Judge David Proctor to rule quickly because of Musgrove's medical condition. Musgrove and his co-defendant, David Rogers, who previously died on Alabama's death row, were sentenced to death in 1988. Rogers' lawyer, Tommy Nail - now a state court judge - said he believed Musgrove and Rogers "got a raw deal and I've always felt they were not guilty of this offense." He said the case shared "eerie" similarities with that of recent death row exoneree Anthony Ray Hinton: both cases were tried by the same prosecutor before the same judge, and the prosecution presented questionable weapons testimony from the same ballistics expert. The ballistics testimony in Hinton's case was contradicted by three other ballistics experts, and prosecutors decided not to retry him after saying they could not link the bullets from the crime to a gun that belonged to Hinton. Nail said the defendants in both cases also presented solid alibi evidence. Musgrove's attorneys argued that, in addition to similarly unreliable ballistics testimony, Musgrove's conviction was tainted by falsified eyewitness testimony, prosecutorial misconduct, and false testimony by a jailhouse informant who later recanted. Musgrove's attorney, Cissy Jackson, said "It was a privilege to know and represent Donnis. My husband and I have been working for his release since 1997, and we are so sorry that he did not live to be exonerated."
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Death Row Exoneree Anthony Graves Seeks to Right the "Injustice of the Justice System"
Death row exoneree Anthony Graves (pictured, right, with Sen. Richard Durbin after testifying before the U.S. Senate Subcommittee on the Constitution, Civil Rights and Human Rights in 2012) has experienced what he calls the "injustice of the justice system" and is working to make the system better. Graves was exonerated from death row in Texas in 2010, 16 years after being wrongfully convicted in a multiple murder case. Using some of the $1.5 in compensation that he was awarded for his wrongful imprisonment, Graves created the Anthony Graves Foundation with a mission "to promote fairness and effect reform in the criminal justice system." Now, he is advocating for broad criminal justice reforms to redress not only problems with the death penalty, but with questionable forensic evidence, racially disparate sentencing, the imprisonment of people with mental illness or drug addictions, and laws that unnecessarily require jail time or carry harsh mandatory minimum sentences. In an interview with Voice of America, Graves said, referring to the Texas criminal justice system: "You tried to murder me and I want to stay in your face every day to remind you that we need to do better." He described his advocacy, saying, "I use my story to educate people, but more importantly, keep it on people’s minds about the injustice that is going on in our criminal justice system."
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5 Georgia Executions Emblematic of Systemic Problems With State's Death Penalty
Georgia is scheduled to execute Marcus Johnson (pictured) on November 19 despite ongoing concerns about his innocence. The execution would be Georgia's fifth since December 2014 - each raising serious questions about systemic problems in Georgia's application of the death penalty. In a commentary for The Marshall Project, Sara Totonchi, executive director of the Southern Center for Human Rights, says these cases "are emblematic" of death sentences imposed before Georgia's statewide capital defense office opened in 2005 and "encapsulate what’s wrong with capital punishment in Georgia." In December 2014, Georgia executed Robert Wayne Holsey, whose drunk lawyer failed to investigate and present mitigating evidence that Holsey had an IQ of 70 and had been seriously abused as a child. The lawyer was later imprisoned and disbarred for misconduct in another case. Andrew Brannan, a decorated Vietnam veteran with bi-polar disorder who was declared 100% disabled by the Veterans Administration as a result of combat-related PTSD, was executed in January, the first U.S. execution in 2015. The jury was never heard details of Brannan's military service or disability. Two weeks later, Georgia executed Warren Hill, a man with intellectual disabilities. A judge found that Hill had proven his disability by a "preponderance of the evidence," the standard of proof required by every other death penalty state, but Georgia requires defendants to prove intellectual disability "beyond a reasonable doubt." Even after the state's doctors admitted that Hill met this higher standard, the state and federal courts refused to consider this evidence on technical procedural grounds and Hill was executed. Kelly Gissendaner's execution in September hghlighted a different type of arbitrariness: she was executed for planning to murder her husband, while her boyfriend, who actually committed the killing, made a deal with prosecutors to serve a life sentence and will be eligible for parole in seven years. Finally, Marcus Johnson's case raises concerns that Georgia may be executing an innocent man. The DNA evidence from the murder scene that was tested was inconclusive, other blood evidence was not tested, and none of Johnson's DNA was found on or in the car where the victim's body was found. The trial judge wrote to the Georgia Supreme Court that the evidence in Johnson's case "does not foreclose all doubt respecting the defendant’s guilt."
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Forensic Pseudoscience and the Death Penalty
In light of the FBI's acknowledgement in April that flawed forensic testimony by its expert hair-comparison analysts had tainted at least 268 cases, including 32 death penalty cases, forensic science is coming under increased scrutiny. A commentary in the Boston Review argues that "mounting horror stories," including instances of crime-lab "corruption and dysfunction, have created a moment of crisis in forensic science." Referencing "scores of individual cases in which forensic science failures have led to wrongful convictions" and highlighting the wrongful execution of Cameron Todd Willingham in Texas based upon scientifically invalid arson testimony, the commentary questions the continued high degree of confidence accorded forensic science testimony in the courts. A 2009 report by the National Academy of Sciences (NAS) sharply critiqued many of the techniques used by forensic examiners, saying, "Many forensic tests—such as those used to infer the source of tool marks or bite marks—have never been exposed to stringent scientific scrutiny." Even widely-accepted practices like fingerprint matching had no mechanism for independent confirmation, relying entirely on the examiner's opinion. Ultimately, the NAS report concluded, "With the exception of nuclear DNA analysis . . . no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source." Yet even DNA evidence can be tainted by faulty practices or intentional malfeasance. Close affiliations between forensic laboratories and police or prosecutors raise concerns of bias. As former FBI investigator Frederic Whitehurst put it, forensic scientists can "run into a sledgehammer" when their findings contradict the theory that prosecutors are trying to advance.
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UN Secretary-General: "I Will Never Stop Calling for an End to the Death Penalty"
Calling the punishment "simply wrong," United Nations Secretary-General Ban Ki-Moon has vowed to "never stop calling for an end to the death penalty." Speaking at the launch of a new book by the Office of the UN High Commissioner for Human Rights, "Moving Away from the Death Penalty: Arguments, Trends and Perspectives," the Secretary-General highlighted the worldwide decline of capital punishment, noting that "more and more countries and States are abolishing the death penalty." Data from the book confirms these trends: in 1975, about 97% of countries were carrying out executions, as compared to only 27% today. Ban Ki-Moon appeared alongside Kirk Bloodsworth, the first death-sentenced person in the U.S. to have been exonerated by DNA evidence. The Secretary-General said of Bloodsworth, "[Mr. Bloodsworth] represents the reason we are here today. He is totally innocent of any crime. But like too many other people, he suffered the unforgiveable injustice of a death sentence…I am conscious that he says he was not exonerated because the system worked but because of a series of miracles." Bloodsworth explained his reasons for supporting abolition by saying, "It’s very simple: if it can happen to me it can happen to anyone; in America or anywhere. What I’m saying is that an innocent person can be executed and that should never happen. If it can happen to me it can happen to anybody anywhere in the world."
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History of Misconduct Chronicled in Oklahoma County With 41 Executions
Oklahoma County has executed 41 prisoners since 1976, the third highest in the country, and is among the 2% of American counties responsible for 56% of the men and women currently on the nation's death rows. A ThinkProgress report chronicles the decades-long pattern of misconduct committed under its long-time District Attorney "Cowboy Bob" Macy (pictured). Macy sent 54 people to death row during his 21 years as District Attorney, more than any other prosecutor in the U.S. in that period. “Macy would pretty much do whatever it took to win,” including making inflammatory arguments and routinely withholding exculpatory evidence, says David Autry, an Oklahoma County public defender from the Macy era. 23 of the Macy capital convictions relied heavily on the testimony of disgraced police chemist Joyce Gilchrist, whom an FBI investigation in 2001 concluded had offered testimony "that went beyond the acceptable limits of science.” An internal police investigation discovered that evidence in many of Gilchrist's major cases was missing, along with three years of her blood analysis files. In the case of Curtis McCarty, one of three death-row exonerees prosecuted under Macy, Gilchrist falsely testified that hairs found at the crime scene matched McCarty's and that his blood type matched the semen found on the victim's body. A later investigation revealed that Gilchrist had altered her notes to implicate McCarty and that the hairs she had tested were missing. McCarty was exonerated in 2007 after independent DNA testing excluded him as a suspect. Almost half of the 23 people who were sentenced to death in trials where Gilchrist testified were executed before their cases could be reviewed and ThinkProgress reports that as many as 38 of those Macy sent to death row have been executed.
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Amid Threatening Comments by Current DA, Death Penalty Dominates Caddo Parish Prosecutor Election
Capital punishment is dominating the discussion in the runoff election between James E. Stewart, Sr. and Dhu Thompson to succeed acting Caddo Parish, Louisiana District Attorney Dale Cox. Cox's controversial statements about the death penalty - including that the state needs to "kill more people" - have focused national attention on the parish, which ranks among the two percent of U.S. counties responsible for 56 percent of the inmates on death row nationwide. On October 27, defense attorneys in the death penalty retrial of Eric Mickelson requested Cox's removal from the case after they overheard him saying he wanted to "cut their (expletive) throats." The attention surrounding Cox, as well as the 2014 exoneration of Glenn Ford and charges that Cox may have put an innocent man, Rodricus Crawford, on death row has forced Stewart and Thompson to focus on their proposed capital punishment policies. Stewart said he would place an emphasis on ethics and professionalism in the DA's office: "The evaluation and screening of cases with an ethical and professional standard alleviates the Glenn Ford type of cases. You don’t get so caught up in the case that you miss certain things along the way, and that can happen if people are not looking at the case correctly." He said he'd like to get rid of peremptory challenges, in which prosecutors can strike jurors without cause. A recent study found that Caddo prosecutors had systematically employed peremptory challenges in a racially biased manner. Thompson said he believes the office has approached the use of the death penalty in a thoughtful way, adding, "What we do is seek justice based on the facts and merits of the case." He also said he does not believe that Glenn Ford was innocent and that the 30 years Ford spent in prison was appropriate.
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