Florida has executed Bobby Joe Long (pictured), a mentally ill Vietnam veteran with service-related traumatic brain injuries, after the U.S. Supreme Court on May 23, 2019 declined to review his case. Long had asked the Court to halt his execution to address “[w]hether an individual who suffers from severe mental illness is exempt from execution under the Eighth Amendment. In 1980, Long received a diagnosis of “Traumatic Brain Disease” from the Veterans Administration as a result of injuries sustained during his military service. He also had a history of several traumatic head injuries during his childhood. Following his diagnosis, he was discharged and given a “service-connected disability rating,” but received little or no treatment from the military or the VA for his brain damage. Four years later, he killed eight women in an eight-month span, including the murder for which he was sentenced to death. At Long’s trial, medical experts testified that his injuries had damaged the areas of the brain responsible for judgment and behavior control.

Long’s petition for review—one of three he filed in the Court during the pendency of his death warrant—urged the Court to prohibit the execution of people with severe mental illness, saying, “[t]he same lessened moral culpability cited by Atkins [which prohibited the execution of people with intellectual disability] and Roper [which prohibited the execution of juvenile offenders] in finding the intellectually disabled and juveniles ineligible for execution applies with equal force to individuals with severe mental illness.” His lawyers argued that “[s]evere mental illness, like intellectual disability, is a persistent and frequently debilitating medical condition that impairs an individual’s ability to make rational decisions, control impulses, evaluate information, and function properly in society. Because severely mentally ill defendants have a lessened moral culpability, because their impairments ‘jeopardize the reliability and fairness of capital proceedings,’... and because their diminished capacity negates the retributive and deterrent goals of capital punishment, they should be held categorically ineligible to receive the death penalty.”

Florida’s Catholic bishops had called on Governor Ron DeSantis to grant clemency for Long, citing both Long’s mental illness and the Church’s teachings against capital punishment. In a letter to the governor, the Florida Catholic Conference wrote that, “[a]lthough [Long] caused much harm, society has been safe from his aggressive acts in the decades of his incarceration. Without taking his life, society can be protected while he endures the alternative sentence of life without the possibility of parole.” The letter called attention to “the multiple traumas [Long] experienced throughout his life,” including a motorcycle accident he suffered in 1974. “That incident profoundly affected him and his behaviors,” the Florida conference said, and “contributed to his receiving a disability rating from the military, from which he was honorably discharged.”

Long was the eighth person executed in the United States in 2019 and the first in Florida. He is the 1498th person put to death in the U.S. since executions resumed in 1977.

The U.S. Supreme Court has declined to review a case in which the Texas courts decided a death-row prisoner’s appeal by adopting the prosecution’s fact findings and legal arguments word-for-word without providing the defendant’s lawyer any opportunity to respond. In a May 20, 2019 ruling, the Court without comment denied the petition for writ of certiorari filed by Ray Freeney (pictured), thereby permitting the Harris County prisoner’s conviction and death sentence to stand. The decision was the latest in a series of cases in which the Court has refused to take up the issue of state-court rulings that are verbatim copies of proposed orders written entirely by the prosecution. In June 2018, researchers at the University of Texas School of Law Capital Punishment Center exposed the systemic rubberstamping of prosecutors’ pleadings in Harris County capital cases. The researchers found that county judges had adopted prosecutors’ proposed findings of fact verbatim in 96% of 191 capital cases in which factual issues had been contested. Harris County has executed 129 men and women, more than double the number executed in any other county in the United States and more than have been executed in any state in the country other than Texas.

In a Washington Post op-ed, columnist Radley Balko said Freeney’s case not only raises questions about the practice of judges rubberstamping prosecutorial findings, but also “test[s] the absurd, outer limits of AEDPA’s deference to state courts.” AEDPA is the Anti-Terrorism and Effective Death Penalty Act, the habeas corpus amendments passed by Congress in 1996. Those amendments have significantly reduced federal courts’ ability to review and redress violations of a state defendant’s right to a fair trial and sentencing by requiring federal judges to give a high level of deference to state court findings. Balko explains, “to get a federal court to review a state court’s ruling, a defendant must show not only that the state court (and the state courts that upheld the ruling) were wrong, but that the prevailing ruling was either ‘contrary to, or involved an unreasonable application of, clearly established Federal law,’ or an ‘unreasonable determination of the facts in light of the evidence presented.’ Put plainly, you must convince the federal courts not only that the state courts were wrong, but also that they were unreasonably wrong.”

When Ray Freeney’s case came before Texas District Court Judge Renee Magee, his appeal lawyers sought a new sentencing hearing because his trial lawyers had failed to investigate and present to the jury evidence that Freeney suffered from mental illness and had been the victim of chronic child abuse. Judge Magee, who had spent 19 years as a prosecutor in the Harris County District Attorney’s Office, asked for briefs, and received 204 proposed findings of fact from the prosecution, based on over 800 pages of testimony. The next day, she adopted the factfinding verbatim. Freeney’s defense attorneys were never given an opportunity to respond, or to submit their own brief containing new evidence to support their claim that his trial attorneys had provided inadequate counsel. The University of Texas study has demonstrated that “rubberstamping” of prosecutors’ proposed orders is common in Harris County, particularly in cases in which the judge was a former county prosecutor. But Feeney’s case stood out even more in that Judge Magee provided his lawyers no opportunity to respond to the prosecution’s proposed disposition of the case. “When you have such egregious inattention to facts and lack of stewardship of constitutional rights as we’ve seen in Harris County,” Balko said, “the entire system begins to look like a farce.”

Under AEDPA, rubberstamped findings are routinely treated with the same level of deference as findings that judges wrote themselves. Balko explains that, “under the controlling case law for the [Texas federal courts], ‘a full and fair hearing is not a precondition to presumption of correctness to state habeas court findings of fact.’” “The message sent to state judges by the Fifth Circuit in Mr. Freeney’s case was clear,” says Richard Bourke, one of Freeney’s attorneys. “You don’t need to consider the defense’s legal arguments. You don’t need to consider the defense’s evidence. You don’t even need to wait until the defense has presented either. You can just rubber stamp the state’s brief. And you needn’t worry about the Fifth Circuit overruling you.” 

In the latest episode of the Discussions with DPIC podcast, Emmy- and Oscar-winner Edward Zwick speaks about his new movie, Trial By Fire. The film, which Zwick co-produced and directed, tells the story of Cameron Todd Willingham, who was convicted and sentenced to death in 1992 for the deaths of his three children in a house fire that prosecutors wrongly claimed had been intentionally set. As Willingham’s execution approached in 2004, evidence came to light that arson investigators had relied on flawed and outdated methods. The trial prosecutor also withheld evidence that a jailhouse informant who claimed that Willingham had confessed to him had been provided favorable treatment in exchange for implicating Willingham.

Willingham’s case featured what Zwick called a “catalog” of problems: “it had the withholding of exculpatory evidence, it had junk science, it had jailhouse snitches who would testify in exchange for reduced sentences, [and] it had a piss-poor public defender.” In an interview with DPIC’s Managing Director, Anne Holsinger, Zwick describes why he decided to tell Willingham’s story, what he learned from the experience, and how he hopes the film will affect audiences. Trial By Fire opens on May 17, 2019.

Trial By Fire is largely based on an investigative article of the same name written by David Grann and published in The New Yorker in 2009. Zwick called Grann’s account of the case a “categorical denunciation of everything that was wrong with the prosecutions in death-penalty cases.” The movie focuses on the relationship between Willingham (Jack O’Connell) and his penpal, Elizabeth Gilbert (Laura Dern). Gilbert worked with the filmmakers and offered them access to her correspondence with Willingham. Zwick said he chose to portray that relationship because it was a “beautiful juxtaposition to the horrors of the case.” He expressed gratitude to Gilbert for sharing the letters, which he said showed the “internal workings and the value of a man’s life, so he was more than just a statistic.” He also said that the friendship between Willingham and Gilbert humanized the story and helped the film avoid being didactic. “People go to the movies because they want to invest in the characters and in the relationships. They don’t go to the movies to learn about issues, but that doesn’t say that they can’t have both.”

Zwick characterized Willingham’s story as embodying the systemic problems in the way the death penalty is carried out in the United States. “In a system that cannot be guaranteed to be infallible, if a single innocent person has been put to death, that more than justifies getting rid of the death penalty,” he said. Capital punishment, he said, is emblematic of the inequities in the criminal justice system at large: “The death penalty sits on top of the pyramid of charging and sentencing and trials, and that if it is so flawed and revealed to be unjust and if its absurdities can be so accepted, how then can we reform the rest of the system, before dealing with it?” The interview concluded with a discussion of the filmmaker’s hopes for how the audience will respond to the movie. “I know that it’s a Pollyanna-ish notion that a single film can do anything that affects policy itself. What it can do is add a set of images and a warm-bloodedness and a personal understanding of something that an audience might have only understood in more philosophical or political terms.” Storytelling can be part of cultural “paradigm shifts,” he said, noting that pop culture depictions of same-sex relationships helped shape public opinion on same-sex marriage. “Change happens," Zwick said, "but how it happens and when it happens, and the rate at which it happens is unpredictable, and all that one can do in any kind of activist cause is to keep your head down and keep doing the work that you do because you are committed to that change.”

In the wake of sharp criticism of several controversial death-penalty decisions, the five conservative justices of the U.S. Supreme Court issued three opinions on May 13, 2019, explaining their votes in those earlier cases. The opinions, issued in connection with the apparently inconsistent orders in religious discrimination claims brought by two death-row prisoners and a decision declining to review the case of an Alabama death-row prisoner who had challenged the state’s execution process, highlighted growing friction and fissures within the Court.

In a pair of opinions issued five weeks after the Court halted the March 28 execution of Buddhist death-row prisoner Patrick Murphy, the Court’s three far-right justices dissented from the order granting him a stay and Justice Kavanaugh and Chief Justice Roberts issued a statement seeking to explain why they voted to spare Murphy from execution while permitting the execution of Muslim prisoner Domineque Ray to go forward. The Court’s disparate treatment of Murphy and Ray—both of whom claimed religious discrimination because their states denied their requests to have non-Christian spiritual advisors present in the execution chamber—had generated widespread condemnation across the political spectrum. In a second contentious case, Justice Clarence Thomas wrote to “set the record straight” in response to criticism from Justice Breyer and the Court’s other moderate and liberal justices regarding a 5-4 late-night ruling on April 12 to vacate a lower court stay of execution for Alabama death-row prisoner Christopher Price.

In Murphy’s case, Justice Alito, joined by Thomas and Gorsuch, accused defense lawyers of “inexcusably dilatory litigation tactics” and complained that “the great majority” of applications for stays of execution “are almost all filed on or shortly before the scheduled execution date … [with] no good reason for the late filing.” Staying Murphy’s execution, Alito wrote, “countenance[es] the dilatory litigation [and], I fear, will encourage this damaging practice.” While acknowledging that “[t]he claims raised by Murphy and Ray are important and may ultimately be held to have merit,” Alito said that “[p]risoners should bring such claims well before their scheduled executions so that the courts can adjudicate them in the way that the claims require and deserve and so that States are afforded sufficient time to make any necessary modifications to their execution protocols.”

Justice Kavanaugh and Chief Justice Roberts defended the stay, saying that Murphy had not been dilatory. Murphy had made his request to have his spiritual advisor in the execution chamber 30 days before his scheduled execution, they wrote, and the delay in filing his court appeal was attributable to “the State’s footdragging” in response to his request. Kavanaugh also disagreed that the stay encouraged additional litigation, noting that within five days of the order Texas had revised its protocol to “allow religious advisers only into the viewing room.” The stay, he wrote, “facilitated the prompt resolution of a significant religious equality problem … [and] should alleviate any future litigation delays or disruptions that otherwise might have occurred.” Kavanaugh justified granting Murphy a stay while allowing Ray’s execution to proceed by saying the two had presented different legal claims to the courts. Murphy, he wrote, had argued that Texas treated prisoners of different religions unequally, permitting Christians and Muslims to have ministers in the execution chamber, while limiting other prisoners to “hav[ing] ministers of their religions only in the adjacent viewing room.” By contrast, he said, Ray had raised a claim under the Establishment Clause of the First Amendment and the religious discrimination claim had been raised on its own by a federal appeals court.

In his statement concurring in the Court’s denial of review in the Price case, Justice Thomas—joined by Justices Alito and Gorsuch—accused death-row prisoners of attempting to manipulate the legal process by “gamesmanship” by “bring[ing] last-minute claims that will delay the execution, no matter how groundless. The proper response to this maneuvering,” he wrote, “is to deny meritless requests expeditiously.” Price had challenged the constitutionality of Alabama’s lethal injection practices, offering execution by lethal gas as an alternative. However, the state argued he had missed the statutory deadline for electing that option and that his request was untimely. As the warrant to execute Price on April 12 was expiring, Justice Breyer urged his colleagues to leave the lower court stay in place until the Court could meet in person to discuss “substantial” procedural and substantive issues presented by the case. When the Court then lifted the stay with no discussion even after the execution had been called off, Breyer wrote: “To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system. To proceed in this matter in the middle of the night without giving all members of the court the opportunity for discussion tomorrow morning is, I believe, unfortunate.”