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Despite Possible Innocence and Intellectual Disability, Alabama Intends to Execute Rocky Myers

Posted: March 22, 2019

Robin “Rocky” Myers (pictured) may be innocent and intellectually disabled. His jury did not think he should be sentenced to die. Alabama intends to execute him anyway. Myers’ case is rife with legal issues, but he received no federal court review because his appellate lawyer abandoned him without notice, letting the filing deadline for challenging Myers’ conviction and death sentence expire. In a recent feature story in The Nation, reporter Ashoka Mukpo tells the story of how the intellectually-disabled Myers was convicted and sentenced to death for the 1991 murder of his neighbor, Ludie Mae Tucker, even after his jury recommended 9-3 that he should be sentenced to life.

Mukpo reports that the prosecution evidence against Myers was problematic. Two informants initially told police that, on the night of the murder, another man—Anthony “Cool Breeze” Ballentine— had traded a VCR stolen from Tucker’s house for crack cocaine. Another witness corroborated their story, informing police that she had seen Ballentine, wearing a white shirt stained with blood, run into an alley near Tucker’s house. Weeks later, another man, Marzell Ewing, who had known Ballentine for 30 years, came forward to claim a reward for information about the murder. He told police he’d seen a short, stocky man near the crime scene, carrying the stolen VCR. After his statement, the original informants changed their stories, naming Myers as the man who had traded the VCR for drugs. Myers later admitted that he had found the VCR in an alley next to his house—a common drop spot for stolen goods. Because of his intellectual disability, Myers was unable to tell police when he had found the VCR, leading police to conclude he was lying. In 2004, Ewing recanted his story. In a signed statement, he revealed that a detective had offered to eliminate the record of a prior arrest if Ewing testified against Myers. Ewing’s statement admitted that his testimony was “not truthful. I did not see who brought the VCR to the shot house that night.”

Other evidence also suggested Myers is innocent. Before she died, Tucker was able to describe her assailant to the police and the clothing he was wearing. Although Tucker knew Myers, she did not identify him as her attacker. Multiple witnesses testified at Myers’ s trial that he had been wearing a dark shirt the night of the murder, not the light shirt described by Tucker. No physical evidence linked Myers to the murder and none of the fingerprints found at the crime scene matched his. Mae Puckett, one of the jurors in Myers’ case, said she and a few other jurors were not convinced of his guilt but felt pressured by the majority of the jury to vote for guilt. One white juror later spoke to Myers’ defense team, referring to him as a “thug” and describing him with a racial slur. “I never thought for a moment that he did it,” Puckett said, but she and the other jurors who doubted his guilt agreed to vote for convict if the jury would recommend a life sentence. Nonetheless, exercising a since-repealed power to override a jury’s vote for life, the trial judge sentenced Myers to death.

After Myers was sentenced to death, a Tennessee attorney, Earle J. Schwarz, agreed to represent him pro bono in his post-conviction appeals. But when the state courts denied Myers’ appeal, Schwarz never told Myers and never filed a federal habeas corpus petition, causing Myers to miss the federal filing deadline. “Mr. Schwarz decided that he could no longer represent Rocky, but unfortunately he just sat in a room and said that quietly to himself,” said Kacey Keeton, who now represented Myers. “He didn’t tell Rocky, he didn’t call the courts and let them know, he didn’t tell the prosecutors, he just quit doing anything.” On behalf of Myers, Keeton is now seeking clemency from Governor Kay Ivey, Myers’ last chance to avoid execution. “The fact that we are potentially executing a man who did not have his day in court because an attorney screwed up should give everybody pause,” Keeton said.

 
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Justices Express Concern About “Disturbing History” of Race Bias in Mississippi Death Penalty Case

Posted: March 21, 2019

The U.S. Supreme Court seems poised to grant a new trial to Curtis Flowers (pictured), an African-American death-row prisoner tried six times for the same murders by a white Mississippi prosecutor who struck nearly every black juror from service in each of the trials. During oral argument in Flowers v. Mississippi on March 20, 2019, eight justices expressed concern that Flowers had been denied a fair trial as a result of race discrimination in jury selection in his case. Justice Samuel Alito called the case “very troubling” and Justice Brett Kavanaugh raised concerns about prosecutor Doug Evans’ pattern of discrimination.

Flowers has been tried six times for a quadruple murder in Winona, Mississippi in 1996. His first three convictions were overturned by the Mississippi Supreme Court as a result of prosecutorial misconduct. Two of those reversals included findings that Evans had violated Batson v. Kentucky, the landmark 1986 Supreme Court decision barring the use of discretionary strikes to remove jurors on the basis of race. Flowers’ fourth and fifth trials — the only trials in which more than one black juror was empaneled — ended in hung juries. At issue before the Court was Flowers’ sixth trial, in which a jury of 11 white jurors and one black juror convicted him and sentenced him to death.

The justices focused many of their questions on the records showing that Evans had a pattern of racial discrimination in selecting the juries for Flowers’ trials. Over the course of the five trials for which jury selection transcripts are available, Evans struck 41 of 42 eligible black jurors he had the opportunity to accept. Justice Kavanaugh said, “When you look at the 41 out or 42, how do you look at that and not come away thinking that was going on here was … a stereotype that you’re just going to favor someone because they’re the same race as the defendant?” Justice Alito said that Evans’ history left “reasons to be suspicious,” and said the case had an “unusual and really disturbing history.” Justice Sonia Sotomayor questioned Evans’ motives in personally prosecuting Flowers six times. Jason Davis, the lawyer arguing on behalf of the state of Mississippi, acknowledged that the history was “troubling,” but argued that Evans’ jury strikes in the sixth trial were not racially motivated. Kavanaugh challenged Davis, saying, “Part of Batson was about confidence of the community and the fairness of the criminal justice system. That was against a backdrop of a lot of decades of all-white juries convicting black defendants …. Can you say you have confidence in how this all transpired in this case?”

Sheri Lynn Johnson, arguing on behalf of Flowers, said Evans entered Flowers’ trial “with an unconstitutional end in mind – to seat as few African-American jurors as he could.” “The history is relevant,” she said, calling it “a history of a desire for an all-white jury, a history of willingness to violate the Constitution, and a history of willingness to make false statements to a trial court.” She urged the justices to consider the pattern of discrimination, not just Evans’ actions in the most recent trial. If the Court overturns Flowers’ conviction, the case will return to the state to decide whether to try Flowers for a seventh time.

 
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Federal Court Orders Alabama to Release Execution Protocol

Posted: March 20, 2019

In a victory for the media and advocates of open government, a unanimous three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit ruled on March 18, 2019 that Alabama must disclose key portions of its highly secretive lethal-injection execution protocol to the public. The Associated Press, the Montgomery Advertiser, and Alabama Media Group had sued for access to the protocol, which came under intense scrutiny in the wake of Alabama’s failed attempt to execute Doyle Lee Hamm (pictured) in February 2018.

Hamm, who has terminal cancer, challenged Alabama’s execution protocol. He argued that his veins had been compromised by his illness and executing him by lethal injection would constitute cruel and unusual punishment. The courts permitted the execution to proceed after Alabama said it would not attempt to insert an IV-line in Hamm’s arms or upper extremities. On February 22, 2018, executioners tried and failed for two-and-one-half hours to set an intravenous execution line. Alabama Department of Corrections Commissioner Jeffrey Dunn called off the execution but told the media, “I wouldn’t characterize what we had tonight as a problem.” Dunn repeatedly asserted the state had followed its execution protocol and claimed the execution had been halted only because the late court rulings in the case did not leave corrections personnel sufficient time to execute Hamm before his death warrant would have expired. Hamm filed a federal civil-rights lawsuit seeking to prevent Alabama from attempting to execute him a second time. As part of that suit, he filed a doctor’s report—the only public document describing the circumstances of the execution attempt—that indicated execution personnel had unsuccessfully inserted IV needles more than 10 times into Hamm’s feet, legs, and right groin, causing bleeding in his groin, and likely puncturing his bladder, causing blood in his urine. Shortly thereafter, Hamm and the state reached a confidential settlement in which Alabama agreed not to seek another execution date, the court records of the case would be sealed, Hamm would dismiss his lawsuit, and Hamm and his lawyers would not disclose any additional information about the case. In the aftermath, the three media outlets filed a motion to gain access to the protocol and execution records. A federal district court ruled in their favor in May 2018.

Alabama appealed that ruling, arguing that the lethal-injection protocol had never been formally filed with a lower court, and therefore was not a court record subject to public access. The appeals court rejected that argument, with Judge Charles Wilson writing: “Alabama’s lethal injection protocol may not have been formally filed under the rushed timeline of Hamm’s approaching execution, but the protocol constitutes a judicial record subject to the common law right of access because it was submitted to the district court to resolve disputed substantive motions in the litigation, was discussed and analyzed by all parties in evidentiary hearings and arguments, and was unambiguously integral to the court’s resolution of the substantive motions in Hamm’s as-applied challenge to the protocol.” The decision also addressed the importance of transparency to the public, saying “Judicial records provide grounds upon which a court relies in deciding cases, and thus the public has a valid interest in accessing these records to ensure the continued integrity and transparency of our governmental and judicial offices.”

Alabama’s execution secrecy has been at the core of several other execution controversies. In December 2016, execution witnesses reported that Ronald Smith clenched his fists and gasped repeatedly for nearly fifteen minutes. After the execution, Dunn told the public only that the state had “followed [its] protocol.” State officials later refused to provide any documentation about the execution. In February 2019, late disclosure of its secret protocol provision mandating that a Christian chaplain—and no other religious adviser—be present in the execution chamber led to the controversial execution of Muslim prisoner Domineque Ray without affording him access to an imam at the time of his execution.

 
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Supreme Court Refuses to Hear Georgia Death-Penalty Case Involving Racist Juror

Posted: March 19, 2019

For the second time in just over one month, the United States Supreme Court has cleared the way for the execution of an African-American prisoner in the face of strong evidence of racial or religious bias. On March 18, 2019, the Court unanimously declined to hear an appeal from Georgia death-row prisoner Keith Tharpe (pictured), who argued his death sentence was unconstitutionally tainted by the participation of racist white juror who called him a “ni***er” and questioned “if black people even have souls.” That juror, Barney Gattie, signed an affidavit also saying that there were “two types of black people: 1. Black folks and 2. Ni**ers.” Tharpe, Gattie said, “wasn’t in the ‘good’ black folks category [and] should get the electric chair for what he did.” In February, in a decision that evoked widespread condemnation from critics across the political spectrum, the Court vacated a stay of execution for Domineque Ray, a Muslim death-row prisoner, after Alabama denied his request to have an Imam present at the execution in circumstances in which it provided a chaplain for Christian prisoners.

Though agreeing on procedural grounds that the Court should not review the case, Justice Sonia Sotomayor issued a statement in connection with the Court’s action saying she was “profoundly troubled by the underlying facts of the case.” She wrote: “These racist sentiments, expressed by a juror entrusted with a vote over Tharpe’s fate, suggest an appalling risk that racial bias swayed Tharpe’s sentencing.” Justice Sotomayor said the latest decision “may be the end of the road for Tharpe’s juror-bias claim,” and the Court should therefore “not look away from the magnitude of the potential injustice that procedural barriers are shielding from judicial review.” "It may be tempting to dismiss Tharpe's case as an outlier, but racial bias is a familiar and recurring evil," she wrote. "That evil often presents itself far more subtly than it has here. Yet Gattie's sentiments—and the fact that they went unexposed for so long, evading review on the merits—amount to an arresting demonstration that racism can and does seep into the jury system."

In January 2018, the U.S. Supreme Court ordered the U.S. Court of Appeals for the Eleventh Circuit to reconsider Tharpe’s case, acknowledging that Tharpe had “present[ed] a strong factual basis for the argument that [his] race affected Gattie’s vote for a death verdict.” However, the appeals court refused to review his discrimination claim, saying he had never presented the issue to the state courts. Tharpe sought review of that decision by the U.S. Supreme Court, and received support from a number of groups, including Catholic bishops and the NAACP Legal Defense Fund.

Responding to the Court’s decision, Tharpe’s attorney Marcia Widder said in a statement: “Today’s decision from the U.S. Supreme Court takes giant steps backwards from the Court’s longstanding commitment to eradicating the pernicious effects of racial discrimination on the administration of criminal justice. What happened in Mr. Tharpe’s death penalty case was wrong. … Allowing Mr. Tharpe’s death sentence to stand is an affront to the fairness and decency to which we, as a society, should aspire.  True justice would not permit the State of Georgia to execute Mr. Tharpe on the basis of this record.” The NAACP Legal Defense Fund, which filed an amicus brief urging the Court to hear Tharpe’s case, issued a statement saying, “the Court’s refusal to consider his case on the merits is deeply distressing. As the Court recognized in Buck [v. Davis, in which a mental health expert testified that Buck posed an increased risk of future dangerousness because he is black], allowing death sentences to stand tainted by overt racial discrimination weakens public confidence in the rule of law and the administration of justice.” Putting it more directly, commentator Michael Harriot wrote for The Root, “Unlike the appeals process, apparently racism has no expiration date.”

 
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Pittsburgh Rabbi’s Wife Opposes Death Penalty for Tree of Life Synagogue Killings

Posted: March 18, 2019

Beth Kissileff (pictured), a writer and the wife of a rabbi who survived the shooting rampage that killed eleven worshippers at Pittsburgh’s Tree of Life synagogue, has asked the U.S. Department of Justice not to seek the death penalty against the man charged with committing those murders. In an opinion article for the Religion News Service, Kissileff wrote that she and her husband, Rabbi Jonathan Perlman of Pittsburgh’s New Light Congregation, engaged federal prosecutors and a social worker who had come to discuss the trial of the white supremacist accused of the act of domestic terrorism in “a discussion of Jewish concepts of justice.” Three members of the New Light Congregation were among those murdered in the synagogue. Rabbi Perlman, Kissileff wrote, told the prosecution team: “Our Bible has many laws about why people should be put to death. … But our sages and rabbis decided that after biblical times these deaths mean death at the hands of heaven, not a human court.” She writes, “if as religious people we believe that life is sacred, how can we be permitted to take a life, even the life of someone who has committed horrible actions?”

Kissileff bases her conclusion that a sentence of life without parole for the synagogue shooting is more appropriate than death both on Jewish teachings against the death penalty and on her hope that the killer might yet change his white supremacist beliefs. She wrote in an article for The Jerusalem Post that “[w]hen Jews are killed just for being Jewish, we commemorate them with the words ‘Hashem yikom damam,’ may God avenge their blood. This formulation absents us from the equation since it expresses that it is God’s responsibility, not ours, to seek ultimate justice. As humans, we are incapable of meting out true justice when a monstrous crime has been committed.” She explains that, although the Torah calls for a death sentence for some crimes, Jewish tradition teaches that death sentences should be very rare, if they are allowed at all. She writes that “a Jewish court is considered bloodthirsty if it allows the death penalty to be carried out [even] once every 70 years.”

Though recognizing that repentance is rare, Kissileff said nonetheless “[t]here is always a chance for redemption. Calling for the death penalty means there is no possibility for the shooter to repent, to change or to improve. I would rather not foreclose that possibility of change, slim as it may be, by putting someone to death.” She recounted the cases of white nationalists Derek Black, who renounced his hatred of Jews after being invited to Shabbat dinners by Jewish students at his college, and Arno Michaelis, a former skinhead leader who later co-authored a book on forgiveness with a man whose father was among the seven congregants murdered in a hate attack on a Sikh temple in Wisconsin. Referring to these examples, Kissileff said “[n]either [man] might have been expected to change their beliefs, and yet they have.”

Kissileff’s articles describe the legacy of those who were killed in the Pittsburgh attack and how the shooting has inspired others to become more involved in the synagogue and to learn more about their Jewish faith: “Creating more knowledge of what Judaism and Jewish values are, and encouraging more Jews to commit to them, is the most profound way to avenge their blood.” She writes that, “rather than seeking the shooter’s death,” a better response for Jews would be “strengthening other Jews and Jewish life in Pittsburgh and around the world. Doing so will mean that Jews, not forces of evil, have the ultimate victory.” She concludes: “The most important vengeance for the murder of 11 Jews or 6 million is for the Jewish people to live and the Torah to live, not for their killer to die.”

 
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NEW VOICES: Prosecutors in Colorado and Nevada Call for Death-Penalty Repeal

Posted: March 15, 2019

Two prosecutors with different philosophical perspectives on capital punishment have called on their respective states to abolish capital punishment. Boulder County, Colorado, District Attorney Michael Dougherty (pictured, left), who opposes capital punishment in principle, and former Washoe County, Nevada, homicide prosecutor Thomas E. Viloria (pictured, right), who has successfully obtained four death verdicts, have added their voices to support efforts to repeal the death penalty in their states. Though approaching the issue with different ideologies, both prosecutors agreed that the death penalty should be eliminated because of its high cost, its ineffectiveness as a crime deterrent, and its potentially detrimental effects on victims’ families.

In comments to legislators on March 4, Dougherty said, “I’m strongly opposed to the death penalty, and it should be abolished in Colorado. … I don't believe any state or country should put its citizens to death.” The high costs in time and resources can’t be justified, he also stated, particularly in a jurisdiction such as Boulder in which juries don’t believe it should be imposed. “I talk to victims' families about it,” Dougherty said, “and one of the things we always focus on in these conversations, is it is up to the jury to decide on a sentence, and a Boulder jury would have to reach a unanimous verdict finding the death penalty sentence is morally just. As Boulder district attorney, I will not simply ignore the law that allows for use of the death penalty, but I must weigh a prosecutor’s ethical obligation to only pursue charges that can be proven beyond a reasonable doubt. I don’t believe a Boulder jury would reach a unanimous verdict finding a death sentence is justified.” Dougherty also expressed qualms about using the threat of death to obtain plea deals. “I have significant ethical concerns if people were ever to use the death penalty to motivate a guilty plea to a lesser sentence,” he said. “I would never want any prosecutor to say that a defendant has to accept life without parole in order to avoid the death penalty.”

Viloria has also come to oppose capital punishment, but he took a very different route in reaching that conclusion. In an op-ed for the Reno Gazette Journal, Viloria wrote about his experiences prosecuting five death-penalty cases and obtaining death sentences in four. “In each of the cases I prosecuted, the victim’s family members believed the death penalty would help close their emotional wounds,” Viloria said.  “Yet because none of those inmates have been executed many years later, family members haven’t received that promised closure.” He said “[d]eath penalty cases rightfully demand greater scrutiny, so murder victim family members often suffer more trauma than murder victim families in non-death penalty cases. They must endure more media coverage, court appearances, and appeals, plus, often times, a reversal of the death sentence.” Viloria also pointed to systemic problems in the administration of capital punishment, writing that the death penalty “is often unevenly and unfairly applied, partly because it is sought at the sole discretion of a particular prosecutor or prosecutorial administration. It is extremely costly to taxpayers and, because the state has no drug supply to administer an execution, it is uncertain if Nevada can even carry out the death penalty.” Viloria urged the Nevada legislators to conduct a hearing on the abolition bill “so lawmakers can decide the very serious issue of whether to maintain our broken death penalty system.”

Legislatures in Nevada and Colorado are both considering bills that would abolish the death penalty. Colorado’s bill, SB 19-182, passed the Senate Judiciary Committee by a 3-2 vote on March 6, 2019. Nevada’s bill, AB 149, has not yet received a hearing.

 
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NEW PODCAST: The Race Study that Convinced the Court to Declare Washington’s Death Penalty Unconstitutional

Posted: March 14, 2019

In October 2018, the Washington Supreme Court unanimously struck down the state’s death penalty, finding that it had been “imposed in an arbitrary and racially biased manner.” In reaching its decision in State v. Gregory, the court relied upon a study of twenty-five years of Washington State capital prosecutions that demonstrated that Washington juries were 4.5 times more likely to impose a death sentence on a black defendant than on a white defendant in a similar case. The authors of that study, Dr. Katherine Beckett (pictured, left) and Dr. Heather Evans (pictured, right), join DPIC’s Managing Director Anne Holsinger in the latest episode of our podcast, Discussions with DPIC, to discuss their research and its impact on the court’s decision to strike down the state’s death penalty. Beckett and Evans describe the factors they examined at various stages of capital sentencing, the major results of their study, and the role social science research plays in policymaking.

One of the most dramatic findings of the Washington study was that racial bias was rampant in the state’s capital sentencing outcomes even though there was no statistical evidence of racial discrimination in prosecutorial decisions on whether to seek the death penalty. “The research literature has identified a number of factors that contribute to bias in decision-making outcomes by juries,” Beckett explained. “We know, for example, that implicit bias is pervasive and affects perception and decision-making. … The death-qualification process is also a contributing factor, so we know that people who are in favor of the death penalty are more likely to exhibit implicit and possibly explicit bias. By excluding people who don’t feel comfortable or are philosophically opposed to the death penalty, we amplify the implicit bias that exists in the general population.” They noted that “substantial changes” would have to be made to the process of jury selection in capital cases in order to reduce the effects of implicit bias.

Although their study profoundly influenced capital litigation in Washington, Beckett and Evans said the information that allowed them to prove discrimination in sentencing may not be available in some other states. Under Washington’s death-penalty statute, the state supreme court was required to conduct proportionality review to determine whether a sentence was disproportionate to others imposed in similar circumstances. As a result, the state courts kept thorough records of the facts of murder convictions that are not necessarily available in other states. The researchers also noted that because the Washington Supreme Court decision was ultimately based on state constitutional law, other state courts might reach a different conclusion even if defendants could show similar patterns of bias in their state sentencing practices. With those caveats, Beckett and Evans believe that courts in other death-penalty states could benefit from similar studies. They noted that the Washington Supreme Court engaged “thoughtfully” and “deeply” with their research and found it heartening that “facts and evidence and rigorous research could be included in a deliberation of how to achieve more equity in the criminal justice system.”

 
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California Governor Announces Moratorium on Executions

Posted: March 13, 2019

California Governor Gavin Newsom on March 13, 2019 declared a moratorium on executions in the state with the nation’s largest death row. Newsom implemented the moratorium through an executive order granting reprieves to the 737 prisoners currently on California’s death row. He also announced that he was withdrawing the state’s execution protocol—the administrative plan by which executions are carried out—and was closing down the state’s execution chamber. In his executive order imposing the moratorium, Newsom said, “I will not oversee the execution of any person while Governor.”

With the governor’s announcement, California joins Colorado, Oregon, and Pennsylvania as states in which governors have imposed moratoria on executions, meaning that more than one-third (34.1%) of all death-row prisoners in the U.S. are now incarcerated in states in which governors have said no executions will occur. As a result of legal challenges to the state’s execution protocol and appeals challenging the constitutionality of the state’s death-penalty system, California has not carried out an execution since 2006. “Our death penalty system has been, by all measures, a failure,” Newsom said in a statement accompanying his moratorium declaration. “It has discriminated against defendants who are mentally ill, black and brown, or can’t afford expensive legal representation. It has provided no public safety benefit or value as a deterrent. It has wasted billions of taxpayer dollars. But most of all, the death penalty is absolute. It’s irreversible and irreparable in the event of human error.”

Despite the large number of death sentences in California, the state has conducted only 13 executions since reintroducing the death penalty in 1978. A 2011 study estimated the state had spent more than $4 billion on death penalty trials, appeals, and incarceration, and estimated an annual savings of $170 million if the death penalty were abolished. In his executive order, the governor said that the cost has since risen to $5 billion. In his remarks at the news conference, Newsom said that 164 wrongly convicted prisoners have already been exonerated from U.S. death rows since 1973, and an estimated 30 innocent prisoners may be among those still sentenced to death in California. In 2012 and 2016, voters narrowly rejected referenda that would have abolished capital punishment. In 2016, a voter referendum intended to speed up executions by limiting appeals passed by a two-percentage point margin. That measure, Proposition 66, was upheld but curtailed by a 2017 California Supreme Court decision.

Governor Newsom follows the lead of governors in three other Western U.S. states who have imposed moratoria on executions in the last decade. Governors John Kitzhaber of Oregon (November 2011), John Hickenlooper of Colorado (May 2013), and Jay Inslee of Washington (January 2014) halted executions in their states, and Kate Brown of Oregon announced in February 2015 that she would extend the existing moratorium. Washington’s supreme court struck down the death penalty in October 2018 on grounds of geographic arbitrariness and racial bias, making it the 20th state to abolish the death penalty. Legislators in Colorado and Oregon are considering bills to abolish or seriously restrict the death penalty, and a Republican-backed bill to repeal the death penalty passed the Wyoming state House and a Senate committee earlier this year before failing in a vote before the full Senate. No state west of Texas carried out any executions in 2018, and those states collectively imposed the fewest new death sentences since California brought back capital punishment in 1978. Newsom said “[t]he intentional killing of another person is wrong” and that his moratorium was a first step towards the ultimate goal of ending the death penalty in California.

 
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To End Years-Long Delays, Prosecutors in Three States Drop Death Penalty

Posted: March 12, 2019

Prosecutors in separate capital cases in Indiana, Florida, and Texas have dropped pursuit of the death penalty in order to end notoriously lengthy delays and facilitate healing for the victims’ families. On March 8, 2019, St. Joseph County, Indiana prosecutors agreed to a plea deal instead of a third death-penalty trial for Wayne Kubsch (pictured) at the request of the victims’ family. Kubsch was initially sentenced to death in 2000 and received the death penalty a second time in 2005, but both times his triple-murder convictions was overturned. In announcing the plea agreement, St. Joseph County Prosecutor Kenneth Cotter said “[t[he family actually asked us to take the death penalty off. They wanted to remember their loved ones, not remember him every time he came back with another appeal.” Kubsch pled guilty and was sentenced to life without parole, agreeing to waive his right to appeal his sentence. “I'm 75 years old. I'll soon be 76. And we decided that the best thing would be life in prison, because that way we don't have all the appeals. We don't have all this to go through and the kids don't have to deal with this constantly,” said Diane Mauk, the mother of victim Beth Kubsch. Chief Deputy Prosecutor Eric Tamashasky said, "For the family, this gives them the closure that they’ve so desperately needed for 20 years.”

Prosecutors also decided to drop the death penalty to end lengthy pre-trial delays in cases in Florida and Texas. After eight years of proceedings in what news reports described as Hillsborough County’s “longest-running murder case that has yet to see trial,” Florida state attorneys announced on February 4 that they would no longer seek the death penalty against Michael Keetly. Keetly had been in pretrial detention for nearly 3,000 days. Keetly’s attorney, Lyann Goudie, said she had recently presented mitigating evidence to the prosecutors in an effort to persuade prosecutors that they were unlikely to obtain a unanimous vote for death, and had challenged the ballistic evidence and eyewitness identification the prosecution intended to present at trial. Following the prosecution’s decision, the case is now scheduled to go to trial in June.  Todric Deon McDonald was charged with two counts of capital murder in McLennan County, Texas, more than four years ago. In 2018, with the case facing additional delays to permit the defense to prepare for a potential penalty phase, the victims’ families told prosecutors they supported withdrawing the death penalty if it meant the case would proceed to trial as scheduled. The prosecutors dropped the death penalty in August 2018 and jury selection began on February 11, 2019, after McDonald had spent 1,733 days in jail. McDonald was convicted three days later and sentenced to life without parole.

A death-penalty trial requires extensive pretrial preparation, because defense attorneys have to conduct an in-depth investigation into their client’s life history and mental health to present mitigating evidence in the event their client is convicted. The longer pretrial period is one of many reasons why death-penalty trials are significantly more expensive than trials in which a death sentence is not an option. There is also a lengthy appeals process if a defendant is sentenced to death, and at that point, the most likely outcome is that the conviction or death sentence will be reversed.

 
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Two Legislatures, Two Divergent Approaches to Execution Transparency

Posted: March 11, 2019

After controversial executions raised questions of government competence or misconduct, legislatures in two states have responded with bills taking sharply different approaches to the questions of government accountability and public oversight. Following an execution in which Nebraska Department of Corrections officials closed the curtain on fourteen crucial minutes of the execution of Carey Dean Moore, the Nebraska Senate Judiciary Committee heard testimony on March 7, 2019 on a bill that would mandate that two legislators witness an execution and require that eyewitnesses be permitted to observe the entirety of an execution from the moment the condemned prisoner enters the execution chamber to the time death is declared or the execution is called off. By contrast, an Arkansas state senator has responded to a lawsuit by pharmaceutical companies challenging widespread improprieties in the state’s procurement of execution drugs with a proposal that the state adopt the most extreme and punitive drug-secrecy law in the country.

In her statement to the Judiciary Committee, Nebraska State Sen. Patty Pansing Brooks of Lincoln (pictured, left), who sponsored Legislative Bill 238, said legislation was necessary to redress the “profound” lack of transparency in the state’s execution process. “This bill is not about whether the death penalty is right or wrong,” she said, “it’s about whether we have proper government accountability and transparency in carrying out this grave and somber event.” Corrections Director Scott Frakes, whom committee members criticized for failing to appear personally to respond to questions about the Moore execution, sent a letter to the committee opposing the bill. Omitting reference to the periods of the execution in which the execution-IV line was inserted and the curtain was dropped, Frakes claimed that “[w]itnesses observe the entire execution process." Referring legislators to the Death Penalty Information Center’s November 2018 report on execution secrecy in the United States, DPIC Executive Director Robert Dunham told the committee of numerous incidents in which eyewitness observations could have resolved serious questions about problematic executions. Dunham told the committee that in a government by and for the people, the state “shouldn't hide important information from the people.”

In Arkansas, a bill introduced in the state senate sought to further conceal the state’s controversial execution practices. On March 6, the Senate Judiciary Committee approved a bill sponsored by State Sen. Bart Hester (pictured, right), that would broadly exclude from public disclosure any documents, records, or information that could lead to the discovery of the state’s sources of execution drug or the identification of drug manufacturers or distributors. The bill also would make reckless disclosure of such information a felony. Arkansas’s conduct in procuring execution drugs, which led drug distributor McKesson Medical-Surgical to sue the state alleging that Arkansas had deliberately misled the company to believe that the drug purchase was for legitimate medical purposes, raised questions concerning the need for transparency in the execution process. Those questions were heightened following evidence of additional problems during executions with those drugs. After Arkansas state courts ruled that the state’s prisons must disclose portions of the pharmaceutical drug and packaging labels for the drugs it intended to use in executions, the Department of Corrections said it was suspending its search for new supplies of execution drugs until the legislature adopted even broader secrecy laws.

Hester downplayed the importance of transparency concerns, calling a March 8 meeting of a legislative Freedom of Information Act Task Force “a waste of my time.” Refusing to attend the meeting, Hester said “[a]nything that they have to say on it I don't think has value.” In an email to the Associated Press, Dunham said, “If a state wanted to break the law and breach contracts with impunity and hide its misconduct from the public, [the Arkansas bill] is the type of bad-government law it would pass.”

 
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