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New York Times Columnist Says Kevin Cooper May Have Been Framed, Urges DNA Testing That Could Prove His Innocence

Posted: May 18, 2018

Citing extensive evidence that California death-row prisoner Kevin Cooper (pictured) may have been framed, New York Times Pulitzer Prize-winning columnist Nicholas Kristof has urged Governor Jerry Brown to permit advanced DNA testing of evidence that could potentially prove Cooper's innocence. In a column electronically posted by the Times on May 17, 2018 and scheduled to appear in the paper's May 20 Sunday print edition, Kristof joins a former FBI agent, the American Bar Association, and Judge William A. Fletcher of the U.S. Court of Appeals for the Ninth Circuit in calling for closer review of the case. In his column, Kristof calls Cooper's case "a failure at every level," and says that he believes Cooper was framed by the San Bernardino's sheriff's office, which had a history of planting and mishandling evidence. Cooper, who is Black, became the lead suspect in the 1983 killings of Doug and Peggy Ryen, their 10-year-old daughter Jessica Ryen, and 11-year-old neighbor Chris Hughes, in spite of statements by 8-year-old Josh Ryen, the sole survivor of the attack, who twice told investigators that three White men had committed the murders. The four victims had been stabbed or slashed a combined 140 times with an ice pick, a hatchet, and at least one knife—an assault, Kristof said, that a single perpetrator, much less the 155-pound Cooper, was unlikely to have been able to carry out. Multiple witnesses saw three White men driving a vehicle fitting the description of the Ryens' car—which had been stolen from their home—near the time of the murders. Other witnesses reported three White men in bloody clothes acting strangely at a nearby bar the night of the crime. When the car was found 30 miles away, Kristof writes, it "inconveniently had blood on the driver’s seat, the front passenger seat and the back seat—suggesting at least three killers." Cooper came under suspicion because he had escaped from a local prison, where he had been incarcerated for robbery, and had hidden in an empty house near the Ryen family's home. An initial police search of Cooper's hideout turned up no evidence, but the day after they identified him as a suspect, police "found" the sheath of a hatchet and a bloody prison-uniform button in a room they claimed—falsely, Kristof says—to have not previously searched. The hatchet itself was found in a different direction, near the path the Ryens' vehicle took the night of the murder, and the button later turned out to be a different color from the uniform Cooper had been wearing. Numerous leads pointed to an alternative suspect, a recently released convicted murderer whom Kristof identifies only as "Lee," but police destroyed key evidence—a pair of bloody coveralls given to police by Lee's girlfriend—before any testing took place. In 2004, Cooper was allowed to test a blood sample from a tan T-shirt that was found near the murder scene. The shirt was the same color, size, and brand as a T-shirt Lee's girlfriend said she had recently bought for him and that he had been wearing earlier on the day of the murders. The testing found Cooper's blood on the shirt, but his blood was contaminated with a chemical used in preserving blood samples, indicating that it had likely been planted on the shirt. The lab then tested the sample of Cooper's blood held by the sheriff's office and found multiple blood types, suggesting that Cooper's sample had been topped off with someone else's blood. Testing of other evidence, including the murder weapon and strands of hair found at the scene, could prove Cooper's claim that he is innocent. Kristof said, "[I]f we execute a man in so flawed a case without even bothering to test the evidence rigorously, then a piece of our justice system dies along with Kevin Cooper." [UPDATE: U.S. Senator Kamala Harris, who as California's Attorney General had opposed Cooper's requests for DNA testing and had initially declined to comment for the story, joined in Kristof's request for DNA testing. On May 18, she posted on Facebook: "As a firm believer in DNA testing, I hope the governor and the state will allow for such testing in the case of Kevin Cooper."]  

 

Texas Executes Juan Castillo Without a Hearing on His Claims of Innocence and Ineffective Representation

Posted: May 17, 2018

Texas executed Juan Castillo (pictured) on May 16, 2018, after its state courts stayed his execution to address whether his conviction and death sentence for a botched robbery and murder had been a product of false testimony, but then denied him an evidentiary hearing necessary to prove that claim. No physical evidence implicated Castillo in the murder, and he consistently asserted his innocence. To convict him, Bexar County prosecutors presented testimony from several admitted perpetrators who had been given favorable plea deals, corroborated by the testimony of prison informant, Gerardo Gutierrez, who claimed that Castillo had confessed to him. But in 2013, Gutierrez recanted, admitting in a sworn affidavit that he had lied "to try to help myself." With Castillo facing a December 2017 execution date, the Texas Court of Criminal Appeals granted him a stay on November 28, and directed the trial court to resolve his claim that prosecutors had violated his rights by presenting false or perjured testimony from Gutierrez. Two days later, on November 30, the Bexar County District Attorney's office submitted proposed findings of fact and a proposed order to deny Castillo's petition without a hearing. The next day, on December 1, Judge Maria Teresa Herr adopted the prosecution's proposed findings and order verbatim—changing only the signature line on the order—without permitting Castillo's lawyers to submit proposed findings or to respond to the prosecution's submission. The Texas Court of Criminal Appeals upheld the ruling, and with Texas prosecutors arguing that defects in the state-court process were not a basis for federal review because prisoners "ha[ve] no due process right to collateral proceedings," the U.S. Supreme Court declined to intervene. Castillo also asked the Texas Board of Pardons and Paroles and Governor Greg Abbott to stop his execution. Greg Zlotnick, who represented Castillo in his clemency proceedings, argued that the treatment of Castillo's case by the courts "had been marked by unfair and arbitrary decisions" and the courts had "rubber-stamped" the denial of Castillo's latest petition "with no regard for his opportunity to be heard." Zlotnick argued that Castillo’s trial lawyers "failed to actively investigate the case, speak with witnesses, question police, request additional evidence from law enforcement and district attorney offices, and properly plead legal claims in the courts" and that the post-conviction courts had denied without a hearing Castillo's "common-sense request for DNA testing on physical evidence that could have pointed to another perpetrator." Trial counsel's performance was so bad, Zlotnick said, that "Mr. Castillo even felt compelled to represent himself at sentencing." After the pardons board denied the clemency application, the Texas Defender Service (TDS)—which became involved in the case close to the execution date—sought a 30-day reprieve from Governor Abbott to further develop evidence in the case. In a May 15 letter to the governor, executive director Amanda Marzullo wrote that TDS had discovered additional evidence that contradicted the testimony given at Castillo’s trial, including a video of a woman telling police—contrary to her prior statements—that Castillo had never told her he was the triggerman. Abbott did not act on that request. Castillo was the eleventh person executed in the United States in 2018, and the sixth in Texas.

 

Prosecutors Withdraw Death Penalty, Agree to Guilty Pleas in Two High Profile Cases With Multiple Victims

Posted: May 16, 2018

State and federal prosecutors have agreed to withdraw the death penalty in exchange for guilty pleas by defendants charged with multiple killings in two unrelated high-profile murder cases. On May 4, Lake County, Indiana prosecutors dropped the death penalty against Darren Vann (pictured, left), who had killed seven women. On May 1, federal prosecutors announced they would not pursue the death penalty against Esteban Santiago (pictured right), who killed five people and wounded six others in a shooting rampage at the Fort Lauderdale-Hollywood International Airport in Florida in 2017. Military records reflect that Vann—a former Hawk Missile system operator who had earned a National Defense Service Medal—was prematurely discharged from the Marine Corps in 1993 for conduct described as "incongruent with Marine Corps’ expectations and standards." Vann had been capitally charged in the strangulation deaths of two women after having been released from prison in Texas in 2013 where he had served time for a rape conviction. County prosecutors agreed to withdraw the death penalty in exchange for his admission of guilt in their murders and the murders of five other women in an area of Gary, Indiana, frequented by sex workers and drug users. He was arrested in October 2014 after police found one victim's body in a motel bathtub. Vann told police he had killed six other women and later led authorities to their remains. Marvin Clinton, the longtime boyfriend of one of the victims and father of her child, called the death penalty "the easy way out" and said he preferred than Vann be sentenced to life without parole. "I want him to suffer," Clinton said. "These women will haunt him for the rest of his life.” Federal prosecutors reached a plea agreement that would avoid a protracted death-penalty trial for Santiago, a severely mentally ill Iraqi War veteran who suffers from auditory hallucinations and is being medicated for schizophrenia. Santiago opened fire in the Fort Lauderdale airport two months after having been released from a psychiatric hospitalization in Alaska. At that time, Santiago told local FBI agents in Anchorage that he was hearing voices and thought the government was controlling his mind. Local police then confiscated his handgun, but returned it to him weeks before the airport shooting. Santiago's lawyer, Assistant Federal Public Defender Eric Cohen, said Santiago has expressed remorse for the shooting. U.S. District Judge Beth Bloom has ordered Santiago to undergo a mental health evaluation to ensure he is legally competent to plead guilty and has scheduled a competency hearing for May 23.

 

Illinois Governor Uses Gun-Control Veto to Attempt to Re-Enact Death Penalty

Posted: May 15, 2018

lllinois Governor Bruce Rauner has conditionally vetoed a gun-control initiative unless the legislature agrees to reinstate capital punishment in the state. Exercising an amendatory veto—a power some governors are granted that permits them to amend legislation in lieu of an outright veto—Rauner called for making the killing of a police officer or any murder in which more than one person was killed a new crime of "death penalty murder." In a May 14, 2018 news conference at the Illinois State Police forensic laboratory in Chicago, Rauner said "individuals who commit mass murder, individuals who choose to murder a law enforcement officer, they deserve to have their life taken." He attached his death-penalty plan and several other gun-control amendments to a bill that would have established a 72-hour waiting period for the purchase of assault rifles in Illinois. Legislative leaders and major Illinois newspapers blasted the action as diversionary political gamesmanship by a weakened governor facing a difficult re-election campaign, and said the death-penalty plan had little chance of enactment. Democratic state Rep. Jonathan Carroll, the gun-control bill's sponsor, said the governor had not consulted him about possible changes and had "hijacked my bill and put politics ahead of policy." Senate President John Cullerton said: “The death penalty should never be used as a political tool to advance one’s agenda. Doing so is in large part why we had so many problems and overturned convictions. That’s why we had bipartisan support to abolish capital punishment.” Thomas Sullivan, the co-chair of Commission on Capital Punishment in Illinois appointed by Republican Gov. George Ryan, said Rauner's plan was a “lousy idea.” He called the death penalty expensive and time-consuming, and said, "It doesn’t reduce crime." The Chicago Tribune editorial board characterized Rauner's amendatory veto as "cynical" and a "death penalty ploy" that the paper said was intended "to re-establish [Rauner's] bona fides with disgruntled conservative Republicans." A Chicago Sun-Times editorial said the governor knew he was "load[ing] up the bill with so many major new provisions that there is no way" the state legislature would approve it, enabling Rauner to claim he "didn’t technically kill the cooling off period ... without strictly telling a lie." In 2000, after a series of death-row exonerations, Ryan declared a moratorium on executions in Illinois and appointed the commission, and in 2003 commuted the sentences of everyone on the state's death row. Democratic Gov. Pat Quinn signed a bill to abolish the state's death penalty in 2011. The Tribune editorial said: "The death penalty issue in Illinois was examined and debated for years in light of notorious incidents of wrongly convicted defendants sent to death row. In Illinois, the legitimate sentiment of many that certain heinous criminals should be put to death was weighed against the risk of errors, and the decision was made to end capital punishment. ... [N]othing has changed to make Rauner’s [May 14] announcement worthy of consideration."

 

Supreme Court Sides With Death-Row Prisoner Whose Trial Lawyer Told Jury He Was Guilty

Posted: May 14, 2018

The United States Supreme Court has granted a new trial to Louisiana death-row prisoner Robert McCoy (pictured), whose lawyer admitted his guilt despite McCoy’s “adament” and “vociferous” insistence that he was innocent. Facing what counsel believed was overwhelming evidence of guilt and hoping to persuade the jury to spare McCoy’s life, defense lawyer Larry English told jurors his client had “committed three murders. . . . [H]e’s guilty.” In a 6-3 opinion for the Court on May 14, Justice Ruth Bader Ginsburg wrote: “With individual liberty—and, in capital cases, life—at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt.” Justices Alito, Thomas, and Gorsuch dissented. At trial, McCoy’s defense counsel informed the jury that it could reach no other conclusion but that McCoy—who was charged with murdering the son, mother, and stepfather of his estranged wife—“was the cause of these individuals’ death,” even though McCoy had consistently maintained his innocence and repeatedly objected to counsel’s strategy. The trial court denied McCoy’s objections. On appeal, the Louisiana Supreme Court affirmed the conviction, ruling that a lawyer has the authority to concede guilt against the wishes of his client because counsel “reasonably believed that admitting guilt” would be the “best chance” to avoid a death verdict. The U.S. Supreme Court reversed. Justice Ginsburg explained that “the ‘assistance’ of counsel” guaranteed by the Sixth Amendment does not require a defendant to “surrender control entirely to counsel. ... Some decisions,” she wrote, “are reserved for the client—notably, whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal.” Here, the Court found that McCoy’s objective—to maintain that he was innocent of murdering his family—was irreconcilable with trial counsel’s objective—to avoid a death sentence. “When a client expressly asserts that the objective of ‘his defence’ is to maintain innocence of the charged criminal acts,” the Court held, “his lawyer must abide by that objective and may not override it by conceding guilt.” The dissent disagreed that trial counsel had conceded McCoy’s guilt by telling the jury that his client killed the victims, saying that counsel had stressed that McCoy lacked the intent to kill necessary for first-degree murder and that McCoy therefore was guilty only of second-degree murder. It also minimized the need for the ruling, describing the problem as “a rare plant that blooms every decade or so” and one that was unlikely to recur. In April 2017, the Louisiana Association of Criminal Defense Lawyers had filed a brief supporting McCoy’s petition, pointing to a pattern of cases in which Louisiana state courts had resolved disagreements between capital defendants and their lawyers in whatever manner had been most detrimental to the defendant. “Rather than a principled and consistent commitment to the autonomy and dignity of capital defendants,” the defense lawyers wrote, “the Louisiana Supreme Court has adopted a set of rules that ameliorates always to the benefit of the state, and never to the defendant.” In a statement released to the media, McCoy’s lawyer, Richard Bourke, said “The ruling restores in Louisiana the constitutional right of every individual to present their defense to a jury. While rare in the rest of the country, ... Mr. McCoy’s was one of ten death sentences imposed in Louisiana since 2000 that have been tainted with the same flaw.”

 

STUDIES: Death-Penalty Jury Selection “Whitewashes” Juries and is Biased Towards Death

Posted: May 11, 2018

As support for the death penalty has declined in America, the process of "death-qualification"—which screens potential jurors in death-penalty cases based upon their views about capital punishment—produces increasingly unrepresentative juries from which African Americans are disproportionately excluded and, according to a new study by researchers at the University of California, increasingly biases juries in favor of conviction and death sentences. Death-qualification, the researchers say, "systematically 'whitewashes' the capital eligible pool [and] leaves behind a subgroup [of jurors] that does not represent the views of its community." Professor Mona Lynch (pictured, l.) of University of California-Irvine's Department of Criminology, Law, and Society, and Professor Craig Haney (pictured, r.) of University of California-Santa Cruz's Department of Psychology conducted two surveys of jurors in Solano County, California—which has the highest concentration of African Americans in the state—18 months apart to examine how racial differences in death-penalty opinions affect the composition of capital juries. As support for the death penalty has declined in recent years, the gap between the views of Whites (and particularly White males) and the views of African Americans and women has grown, exacerbating what the authors call "tension between the constitutionally sanctioned practice of death-qualification and a capital defendant’s constitutional right to be tried by a representative and unbiased jury." The researchers asked respondents about their views on the death penalty, and about whether those views would interfere with their ability to apply the law in a death-penalty trial, which would make them legally excludable from a jury. They found that the death-qualification process excluded a far greater percentage of people who said they opposed the death penalty than said they supported it, and that the rate of exclusion was even more disproportionate for African Americans. And while nearly equal percentages of White men and women were excluded by the process, the women who were excluded were much more likely to oppose capital punishment. The death-qualification process, they said, also contributed to racially disparate use of discretionary jury strikes by the prosecution by providing a facially race-neutral reason for disproportionately excluding African-American jurors. When the researchers asked jurors about their attitudes towards potentially aggravating and mitigating evidence, they found that a majority of White jurors—and particularly White male jurors—disregarded most mitigating evidence that would be offered to spare a defendant's a life and that a significant minority of these jurors inappropriately viewed many of these mitigating factors as reasons to impose a death sentence. They also found that White respondents "were significantly more receptive to aggravating evidence and were more inclined to weigh these specific items in favor of a death sentence compared to African American respondents." The process, they said, "creat[es] a jury whose members are unusually hostile to mitigation," which may "functionally undermine" the fair consideration of a capital defendant's case in mitigation. "This risk," the authors wrote, "is particularly high in cases involving African American defendants, especially where white men dominate the jury." The overall result, they said, is that, "[i]n a county in California where support for and opposition to capital punishment are beginning to approach parity, death qualification still has the potential to produce jury pools that are significantly more likely to favor the death penalty." 

 

Voters in Durham, North Carolina Expand Reach of National Reform Movement, Elect Anti-Death Penalty Prosecutor

Posted: May 10, 2018

Voters in North Carolina added their voices to an expanding movement for local criminal justice reform, ousting sheriffs who closely cooperated with federal authorities seeking to detain and deport immigrants and nominating reform candidates in local district attorney races. In Durham County, considered the state's most progressive county, voters in the Democratic primary opted for a candidate who advocated more rapid reform and said she would never pursue the death penalty, replacing incumbent Roger Echols with former defense attorney, Satana Deberry (pictured). With no Republican challenger in the Fall, the nomination virtually assures that Deberry will be elected district attorney. Durham County voters also unseated incumbent Sheriff Mike Andrews, who had honored constitutionally problematic immigration detainers, in favor of former Duke University police chief Clarence Birkhead, who vowed "to not cooperate with ICE." In an historic primary election in Mecklenburg County, Democratic voters ensured for the first time ever that African Americans would be elected to the offices of sheriff and district attorney in the county. Thirty-year Charlotte Mecklenburg Police Department veteran Garry McFadden said he would end incumbent sheriff Irwin Carmichael's controversial immigrant dentention policies and interim District Attorney Spencer Merriweather called his election "a beginning in the process of building trust in our criminal justice system." Neither of the candidates face opposition in the general election. During the Durham district attorney's campaign, Echols and Deberry both said they would work to reform policies that have contributed to over-incarceration, but Deberry challenged the pace at which Echols pursued reform and called for a "culture change" in the DA's office. The candidates' views on capital punishment typified their different approaches to reform. In responses to a candidate questionnaire from the Durham's People's Alliance Political Action Committee, Echols said he was "not a proponent of the death penalty" and favored its abolition, but "recognized[d] that it is allowable under the law" and should be considered "at most ... [on] rare occasions." By contrast, Deberry's questionnaire response was unequivocal: "I am morally, ethically, theologically, and in all other ways opposed to the death penalty [and] ... as District Attorney, I would not seek the death penalty in any case in Durham County." Deberry wrote that capital punishment "is irrevocably flawed and does not provide justice to victims nor society. I believe it suffers from racial and socioeconomic bias and there is no way to ensure that it is being ethically applied." She called the death penalty "a human rights violation" and said it "should be abolished." Deberry is one of a growing number of prosecutors, such as Denver's Beth McCann and Philadelphia's Larry Krasner, who have announced they will not use the death penalty. In another closely watched local election that is considered a bell-weather for the strength of reform efforts, San Diego district attorney challenger Geneviéve Jones-Wright recently committed to exercise her prosecutorial discretion to decline to seek the death penalty. "Although the death penalty is still legal in California, it is not mandatory that a District Attorney imposes it," she responded to an ACLU-sponsored California District Attorney candidate questionnaire. "The death penalty is discriminatory, costly, and ineffective as a deterrent. I am morally opposed to it," Jones-Wright said. Jones-Wright, whose campaign is supported by the progressive REAL Justice PAC and by philanthropist George Soros' California Justice & Public Safety PAC, is attempting to unseat incumbent interim DA Summer Stephan, whose campaign is backed by a PAC sponsored by the California deputy district attorney’s association. Stephan did not respond to the questionnaire.

 

Texas Judge Finds Prosecutors Lied That Victim's Family Supported Death Penalty, Recommends Resentencing to Life

Posted: May 9, 2018

Finding that prosecutors withheld evidence that the family of murder victim Jonas Cherry opposed the death penalty for his accused killer and then lied to jurors that Cherry’s family supported the death penalty, a trial judge in Tarrant County, Texas has recommended overturning the death sentence imposed on Paul David Storey (pictured) and replacing it with a sentence of life without parole. Storey was convicted and sentenced to death in 2008 for murdering Cherry during a 2006 robbery of a Fort Worth putt-putt golf course. The victim’s parents, Glenn and Judith Cherry, told prosecutors before the trial that they did not want any of the people charged with the murder sentenced to death. But in the penalty-phase closing argument in Storey’s trial, Assistant Tarrant County District Attorney Christy Jack told the jury "[i]t should go without saying that all of Jonas [Cherry’s] family and everyone who loved him believe the death penalty [is] appropriate.” In March 2017, Cherry’s parents sought clemency for their son’s killer. In a letter to Governor Greg Abbott, they wrote that, as a result of their “ethical and spiritual values,” they strongly oppose the death penalty, and said “[w]e do not want to see another family having to suffer through losing a child and family member.” Storey’s execution, they wrote, “will not bring our son back, will not atone for the loss of our son and will not bring comfort or closure.” On April 7, 2017, less than a week before Storey was scheduled for execution, the Texas Court of Criminal Appeals issued a stay and ordered the trial court to determine whether the prosecution had knowingly misled the jury about the family’s views. After hearing testimony from nineteen witnesses, Judge Everett Young found that the prosecutor’s argument was false, that Jack had “made the argument intending it to affect the jury's verdict,” and that she “was aware of [its] falsity” when she did so. Concluding that “the false argument was reasonably likely to affect the jury's verdict,” Judge Young held that the argument violated Storey’s right to due process and that the prosecutors’ suppression of evidence relating to the Cherry family’s views violated their duty to disclose evidence favorable to the defense. The court also ruled that “[t]he false argument ... had the effect of reducing the responsibility of jurors by inviting them to acquiesce to the falsely-asserted desire of the victim's family for death,” in violation of the Eighth Amendment. The Tarrant County District Attorney’s office had argued that even if the argument had been improper, Storey had not timely raised the claim in the Texas courts. The court ruled, however, that the state had “unclean hands due to its suppression ... and false use of the evidence and had forfeited that argument. It wrote: “Because the State secreted evidence it was legally required to disclose, it cannot benefit from its wrong-doing by faulting [defense] counsel for failing to discover its own misconduct.” The case now returns to the Texas Court of Criminal Appeals, which may accept or reject the judge’s findings and sentencing recommendation. “Basically, it is now up to the Court of Criminal Appeals,” said Keith Hampton, a member of Storey’s legal team. 

 

NEW RESOURCES: BJS Releases “Capital Punishment, 2016”

Posted: May 8, 2018

The nation's death rows continue to shrink more rapidly than new defendants are being sentenced to death, according to the Bureau of Justice Statistics (BJS) statistical brief, "Capital Punishment, 2016," released April 30, 2018. (Click image to enlarge.) The statistical brief, which analyzes information on those under sentence of death in the United States as of December 31, 2016, contains official government figures documenting continuing declines in executions, new death sentences, and death-row populations across the U.S. BJS reports that 2,814 prisoners remained under sentence of death in 32 states and the federal system at the end of 2016, representing a decrease of 58 prisoners and a 2% decline in the U.S. death-row population in 2016. It was the sixteenth consecutive annual decrease in the number of prisoners under sentence of death in the U.S., down 787 (22%) since the year-end high of 3,601 on December 31, 2000. BJS tracks the status of death-row prisoners from the date they are admitted to a state or federal correctional facility on capital charges, not the date they were actually sentenced. According to BJS, 32 prisoners were admitted to state or federal death rows in 2016. (DPIC uses a slightly different counting method that reported 31 new death sentences imposed in 2016.) The BJS data indicates that the decline in the size of death row is attributable to factors other than execution. BJS reports that 70 prisoners were removed from death row in 2016 by means other than execution, such as exoneration, the reversal of a conviction or death sentence, commutation, or death by other causes, as compared with 20 who were executed. Nineteen prisoners were reported to have died on death rows of natural causes; 11 prisoners were removed from Connecticut's death row when its state supreme court declared its death-penalty statute unconstitutional; and 40 were released from death rows when their convictions and/or death sentences were overturned in the courts.

 

Pressed on Execution Practices, Nebraska Obstructs Release of Information

Posted: May 7, 2018

As legislators and the media have pressed Nebraska for information on its secretive execution practices, the executive branch has responded—the state's leading newspapers say—with obfuscation and with a lawsuit that has created a state constitutional crisis. After adopting a new execution policy that the Lincoln Journal Star reported "was written in a single draft without input from the governor, attorney general, Corrections director, outside experts or other state officials," the state Department of Correctional Services has drawn harsh criticism and multiple lawsuits for refusing to disclose information about its execution process to lawmakers, the media, advocacy groups, and prisoners. And after the state legislature issued a subpoena that would require Director Scott Frakes (pictured) to testify about the Department's latest efforts to obtain execution drugs and to respond to allegations that it has not complied with federal drug laws on the handling of controlled substances, state Attorney General Doug Peterson sued the legislature to block Frakes from testifying. The Department's most recent refusals to release information—after having lost $54,400 in taxpayer money in a failed attempt to illegally import execution drugs from India—prompted lawsuits from legal advocacy groups, lawmakers, and prisoners demanding protocol transparency. Senator Ernie Chambers, a long-time opponent of capital punishment, filed a formal complaint with the legislature's Executive Board alleging, among other things, that the state's execution protocol violates federal requirements for handling controlled substances and that its refusal to provide information on the lethal-injection drugs violates the Nebraska Public Records Act. In an editorial, the Omaha World-Herald wrote: "The Nebraska news media and members of the Legislature have raised legitimate questions on that score. They’ve asked the state Department of Correctional Services for information involving its purchase of death penalty drugs and its planned procedure for carrying out an execution, to ensure the applicable laws and procedures were all followed. So far, the department has refused to provide answers. Its message, instead, has been: Just trust us. That’s not good enough." A Journal Star editorial criticized executive branch officials for "hypocritically refus[ing]" to subject themselves to public scrutiny. "We don’t know where the state obtained its lethal injection drugs," the editors wrote."We don’t know how the four-drug cocktail was tested. All we have ... is Corrections’ word that they were done in accordance with the law. Given the state’s costly failed attempts to illegally buy execution drugs overseas, that alone is not good enough." The editorial board said accountability means more than just punishing those convicted of murder. "Accountability must also extend to the state officials responsible for implementing and carrying out capital punishment. ... Before Nebraska can hold convicted killers accountable, it first must do so for itself – something it’s shown more interest in obfuscating than pursuing." The Omaha World-Herald encapsulated the issue as follows: "Is the state following the law in all respects regarding the death penalty, or isn’t it? State officials should stop trying to sidestep this central issue. For the sake of the public interest and respect for the law, they need to answer that question in full."

 

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