The failed capital prosecution of Scott Dekraai for the worst mass murder in Orange County, California history has cost taxpayers more than $2.5 million—more than double the average cost of a California death-penalty case—and the pricetag for continuing investigations into official misconduct by the county district attorney's and sheriff's offices continues to rise. Unlike most capital cases, the costs were not primarily for the trial itself, but the product of a multi-year investigation and court hearings into decades-long abuses by Orange County law enforcement involving the deliberate misuse of jailhouse informants to obtain incriminating statements from targeted prisoners, including Dekraai. “The price of misconduct is steep,” said Seattle University criminal justice professor Peter Collins, an expert on death penalty costs. Dekraai pleaded guilty to eight counts of murder in May 2014, and in normal circumstances, the penalty phase of the case would have been completed later that year. However, for the past three years, the case has been dominated by the informant scandal. In May 2015, Judge Thomas Goethals disqualified the entire Orange County District Attorney's Office from involvement in the case after finding that prosecutors had engaged in widespread misconduct, failed to disclose the improper practices, and repeatedly lied to the court about it. Additional failures by the county sheriff's office to comply with court orders to produce records related to the scandal extended the length of the court's investigation, and ultimately led to the court barring the state from pursuing the death penalty. According to an analysis by the Southern California News Group, taxpayers had already spent more than $2.5 million on the case, not including costs incurred by the Orange County District Attorney's office—which said it did not track what it spent on the case—or by the state attorney general's office after it took over the case. Known costs include approximately $1 million for defense costs over the nearly six years the case has been pending; an estimated $743,000 in costs for court time and personnel; more than $370,000 in costs for a grand jury investigation; $290,000 in pretrial incarceration costs; and more than $100,000 for the county to provide legal representation to the sheriff's department during the investigation. In addition to prosecutor salaries and other prosecution costs, the $2.5 million estimate does not include the costs of the Orange County District Attorney's appeal of the order removing it from the case; any state money spent on the ongoing investigation into the county's informant abuses; nor the costs of a U.S. Department of Justice civil rights investigation into the informant scandal. Dekraai is scheduled to be sentenced on September 22 to eight terms of life without parole.
Two professors of sociology and criminology who reviewed more than 1500 cases in which convicted prisoners were later exonerated have found a direct relationship between the seriousness of the crime and miscarriages of justice: "the 'worst of the worst crimes,'” they say, "produce the 'worst of the worst evidence.'" In their research—reported in the law review article, The Worst of the Worst: Heinous Crimes and Erroneous Evidence—University of Denver professors Scott Phillips (pictured) and Jamie Richardson found that "as the seriousness of a crime increases, so too does the chance of a wrongful conviction." Prosecutions for the most serious crimes tend to involve the most inaccurate and unreliable evidence, they said, and the risks are greatest in cases producing murder convictions and death sentences. "The types of vile crimes in which the state is most apt to seek the death penalty are the same crimes in which the state is most apt to participate in the production of erroneous evidence..., from false confession to untruthful snitches, government misconduct, and bad science." Delving into the phenomenon of false confessions, the professors found that "[a]s the seriousness of a particular crime increases, or the seriousness of the general crime problem increases, police interrogation becomes more aggressive. In turn, aggressive interrogation produces more true confessions and more false confessions." They say police officers are under institutional pressures to solve high-profile cases and the "most heinous" and serious crimes, which leads them to use more aggressive tactics to obtain a confession. Phillips and Richardson divided cases with false confessions into two categories: general-population exonerees convicted in murder and other cases; and the cases of death-row exonerees, examined by the level of heinousness of the murder. According to the National Registry of Exonerations, 234 of those 1535 exonerated from 1989 through 2014 falsely confessed, 22 of whom were sentenced to death. The sociologists found that 21% of those convicted of murder falsely confessed, as compared with only 7% of those convicted of less serious crimes. In exoneration cases in which DNA evidence bolstered claims of innocence, 41% of those wrongly convicted of murder had confessed, a false confessions rate that was seven times higher than those convicted of crimes other than murder. As for death-row exonerees, 39% of people who were convicted of the most heinous murders confessed, five times the false confession rate (7%) of those who convicted of murders the researchers had determined were less heinous. Phillips and Richardson also found that the heinousness of the murder predicts "the government's reliance on an untruthful snitch, government misconduct, and bad science." Of the death-row exonerations, the state committed misconduct in 86% percent of high-heinous murders, compared to 66% percent of low-heinous murders; the state used prison informant testimony implicating the wrong suspect in 42% of high-heinous murders, as compared to 15% of low-heinous murders; and bad science was presented in 39% of high heinous murders, compared to 23% of low heinous murders.
Texas prosecutors have dropped their pursuit of the death penalty against a severely mentally ill capital defendant charged with what they characterized as the "ambush murder" of a Harris County sheriff’s deputy. Special prosecutor Brett Ligon (pictured, left)—the Montgomery County District Attorney who was handling the prosecution because Houston prosecutors had a conflict that prevented them from participating in the case—announced on September 13 that he had agreed to a plea deal in which Shannon Miles (pictured, right) would be sentenced to life without possibility of parole in the killing of Sheriff’s Deputy Darren Goforth. Miles’s lawyers say that he has schizophrenia and episodic psychosis when he is not on psychiatric medication, that he has no memory of the murder, and that they intended to pursue an insanity defense in the case. In 2012, the trial court had declared Miles incompetent to be tried. In March of 2017, after treatment at a state mental hospital that had been delayed by a shortage of available beds, the court found Miles competent to stand trial. In explaining the plea deal, Ligon said "[t]he state's experts all came to the same conclusion, the likelihood of executing a mentally incompetent man was almost zero." The victim’s widow, Kathleen Goforth, said she supported to deal because her two children “have been spared” the ordeal of extended death-penalty proceedings. She said, “They will not have the backdrop of their lives, for the next 10 to 25 years, being court dates, trials and appeals…. They won't have that inflicted upon them and that is merciful. It's compassionate and it's the right thing to do." Harris County Sheriff Ed Gonzalez and Donald Cuevas, president of the Harris County Deputies Organization, said justice had been served by the plea deal. The plea had been entered against the backdrop of an emerging sex scandal. The sole grounds on which prosecutors could seek the death penalty in the case was if Officer Goforth had been killed in the performance of his duties. However, evidence had come to light that Goforth was at the gas station to meet his mistress, who was a witness to the murder and would be called upon to testify in the case. Two sheriff’s officers—one who was assigned to investigate the case—had been fired for having sexual relations with the woman, and a third had been fired for sending her an email soliciting sex. The Goforth murder once again focused attention on the role of mental illness in premeditated murders of police officers. In July 2016, in unrelated incidents, mentally ill Gulf War veterans who exhibited symptoms of Posttraumatic Stress Disorder fatally shot five police officers in Dallas, Texas and three in Baton Rouge, Louisiana. In July 2015, a Washington jury sentenced a mentally ill and delusional capital defendant, Christopher Monfort, to life without parole for the ambush murder of a Seattle police officer.
Human Rights Groups Urge U.S. Government To Sanction Officials Accused Of Torture, Executions Under New LawPosted: September 14, 2017
A coalition of 23 human rights groups, including Human Rights First, Human Rights Watch, and Reprieve, has urged the United States government to issue sanctions against foreign government officials who they say have used the death penalty to repress political dissent by torturing peaceful protesters into confessing to capital offenses they did not commit. In a September 12, 2017 letter to Secretary of State Rex Tillerson and Treasury Secretary Steven Mnuchin, the non-governmental organizations ("NGOs") asked the United States to invoke provisions of the Global Magnitsky Act, a new law that "authorizes the President to impose financial sanctions and visa restrictions on foreign persons in response to certain human rights violations and acts of significant corruption." The law, enacted in 2012 and expanded in 2016, was named after Sergei Magnitsky (pictured), a Russian lawyer and whistleblower who was beaten and died in a Moscow prison in 2009. The letter called the sanctions available under the act “a potentially revolutionary tool” to deter human rights abuses by "those that would use violence to silence dissent and maintain their grip on power." The NGOs requested that the State Department and U.S. Treasury investigate 15 cases "from every region of the world" that, they say, "involve horrific stories of torture, enforced disappearance, murder, sexual assault, extortion and bribery.” They ask the U.S. to investigate Bahrain's Chief of Public Prosecution, Ali bin Fadhul Al Buainain, for his alleged involvement in the torture of Shia political activist Ali al-Singace and two others, and their execution on January 15, 2017. The rights groups say Bahraini prosecutors "sought and obtained the harshest possible punishment, the death sentence, with full awareness that the defendants claimed their confessions had been coerced and that the case had been marred from the start by this and other grave violations of due process." They also seek investigation of judges on Saudia Arabia's Specialized Criminal Court, who "repeatedly rel[ied] on confessions allegedly obtained through torture" in convicting members of religious minorities for participating in pro-democracy protests in 2011. The NGOs say the judges also "sentenced several of the defendants to death for conduct allegedly undertaken while they were minors," in violation of international law and the International Convention on the Rights of the Child. Reprieve's Director, Maya Foa, who oversees the organization's strategic initiatives on the death penalty and extreme human rights abuses, called the use of torture to force confessions, executing children, and using the death penalty to suppress free speech "grotesque rights abuses that fly in the face of American values." She said the U.S. should use the powers of the Global Magnitsky Act "to hold to account the individuals responsible for gross human rights abuses, and to save the lives of innocent young [protesters]." Senator John McCain, one of the authors of the Global Magnitsky Act and its amendments, said the involvement of non-governmental human rights organizations is crucial to the success of the Act. In a statement to Reuters, he said he "will continue working to ensure the administration enforces the law and utilizes this powerful tool to advance freedom and justice around the world.” Rob Berchinski, Senior Vice President of Policy at Human Rights First, said “[o]ur process is designed to assist the government.... Now the question is simply one of political will.” The Act requires the White House to report to Congress by December 10 on sanctions it has imposed under the law.
Ohio Executes Gary Otte as State and Federal Courts Decline to Review Use of Death Penalty Against Those Under Age 21Posted: September 13, 2017
Ohio executed Gary Otte on September 13 after both the United States Supreme Court and the Ohio Supreme Court declined to review his challenge to the constitutionality of applying the death penalty against people who were younger than age 21 at the time of the offense. Otte's lawyer, supervisory assistant federal public defender Carol Wright, said Otte exhibited "abnormal" chest and stomach movements when he was injected with the execution drug, midazolam, showing signs of struggling for air and what she described as "air hunger." Wright attempted to leave the witness room to reach a phone to alert a federal judge to possible problems with the execution, but prison officials delayed her exit for several minutes and it took several more minutes to reach the court. By that time, Otte's stomach movements had ceased and the court declined to intervene. Corrections spokesperson, JoEllen Smith, said the prison "followed proper security protocol, and once [Wright's] identity and intention was verified she was given permission to exit the room." Smith said the execution was "carried out in compliance with the execution policy and without complication." Otte had sought stays of execution from the state and federal courts, asking them to review his claim that his death sentence should be overturned because he was only 20 years old at the time he killed Robert Wasikowski and Sharon Kostura in 1992. Otte's lawyers cited an August 2017 decision by a Kentucky trial court that had found the brain development and maturation of individuals aged 18-20 to be similar in critical respects to that of adolescents under age 18, and had declared the death penalty unconstitutionally cruel and unusual for defendants under age 21. They argued that "[t]he current scientific understanding of adolescent development underscores [that] their moral culpability is reduced making them categorically exempt from the death penalty." The Kentucky trial court issued a second ruling on September 6 that barred prosecutors from seeking the death penalty against an 18-year-old defendant in another case. On Tuesday night, September 12, the United States Supreme Court declined to review the issue and denied a stay of execution. The Ohio Supreme Court followed suit on the morning of September 13. Otte was pronounced dead shortly before 11:00 a.m.
A Death Penalty Information Center analysis of U.S. murder data from 1987 through 2015 has found no evidence that the death penalty deters murder or protects police. Instead, the evidence shows that murder rates, including murders of police officers, are consistently higher in death-penalty states than in states that have abolished the death penalty. And far from experiencing increases in murder rates or open season on law enforcement, the data show that states that have abolished the death penalty since 2000 have the lowest rates of police officers murdered in the line of duty and that killings of police account for a much smaller percentage of murders in those states. In a new Discussions With DPIC podcast, "Does Capital Punishment Deter Murder?," DPIC Fellow Seth Rose and Executive Director Robert Dunham explore the assertions long made by death-penalty proponents that capital punishment advances public safety by deterring murders and by protecting police officers. Dunham said the short answer—after analyzing twenty-nine years of annual murder data from FBI Uniform Crime Reports ("UCR") and FBI annual data on Law Enforcement Officers Killed & Assaulted, Officers Feloniously Killed ("LEOKA reports")—is no. "There's no evidence that the death penalty deters murder and there's no evidence that it protects the police," Dunham says. "Murder rates may be affected by many things, but the death penalty doesn't appear to be one of them." DPIC divided the states into three categories to analyze murders and murder trends: states that have long had the death penalty ("death-penalty states"), states that have long abolished capital punishment ("non-death-penalty states"), and states that have abolished capital punishment since 2000 ("transitional states"). The data show that the death-penalty states had an overall UCR murder rate that was 1.39 times higher than the non-death penalty states and accounted for 12 of the 16 states with the highest murder rates. Police officers were murdered in death-penalty states at a rate that was 1.37 times higher than in non-death-penalty states, and accounted for 22 of the 25 states with the highest LEOKA rates of officers feloniously killed. Killings of police were lowest, however, in the transitional states that most recently abolished the death penalty. And while killings of officers accounted for 33 of every 10,000 murders in both death-penalty and non-death-penalty states, they were 1.6 times lower in transitional states. What the numbers show, Dunham says, is that "the death penalty doesn't drive murder rates; murder rates drive the death penalty." While the death penalty, he says, "makes no measurable contribution" to police safety, "the rate at which police officers are killed drives the political debate about the death penalty."
Sixteen years later, the alleged perpetrators of the September 11, 2001 hijackings and attacks on the Pentagon and World Trade Center, and the downing of Flight 93, have yet to be tried, and issues relating to the use of evidence obtained by torture, the appropriateness and legality of trials by military commission, and where and how they should be tried raise questions as to whether and when a trial may take place. The five men charged in the attack—alleged mastermind Khalid Sheikh Mohammed and alleged co-conspirators Walid bin Attash, Ramzi bin al-Shibh, Ammar al-Baluchi and Mustafa al-Hawsawi—remain detained in Guantánamo Bay, Cuba, facing 2,973 individual counts of murder. Mohammed was captured in Pakistan in 2003 and turned over to the CIA, charged in 2008, and arraigned in 2012. A 2014 report on CIA interrogations by the U.S. Senate Select Committee on Intelligence—known as “The Torture Report”—documents that Mohammed was subjected to numerous acts of torture, including sleep deprivation, "rectal rehydration," and being waterboarded 183 times in a single month. As with the case of accused USS Cole bombing suspect, Abd al Rahim al Nashiri, the five defendants have accused the government of continuing misconduct and are challenging the legality of the military commissions that have been established to conduct the terrorism trials, the use of evidence obtained by means of torture, and the destruction of evidence they say is vital to defend the case. Military prosecutors have requested a January 2019 trial date, with fast-tracked briefing deadlines that trial judge Army Col. James L. Pohl has already said he will not adopt. But given the numerous pre-trial issues that need to be resolved, defense lawyers say it could be years before the men face trial. These issues include whether the judge and his staff have a high enough level of security clearance to review top secret documents that are critical to defense motions challenging the reliability of confessions made to FBI agents by defendant Ammar al-Baluchi in post-torture interrogations conducted shortly after al-Baluchi arrived at Guantánamo in 2006. Another issue is whether the defendants should be tried in civilian court or by a military commission. In 2011, then-Attorney General Eric Holder warned that Mohammed’s case could take years to bring to trial unless it were transferred to a civilian court. Michael Bachrach, an attorney who represented Ahmed Ghailani, the Tanzanian al-Qaida terrorist convicted in New York in 2010 for his part in the 1998 bombings of US embassies in Kenya and Tanzania, says that Ghailani’s case proved that a fair civilian trial is possible. “We had classified and unclassified material involved, torture involved, and the jury saw what was necessary for them to see," Bachrach said. "Can Mohammed get a fair trial by military commission? I’m not as confident about that.” Mohammed's lawyer, David Nevin, told The Guardian that, once it gets started, the trial itself could last for more than a year, followed by appeals that could take nearly two decades. “There’s every possibility that [Mohammed] will die in prison before this process is completed,” he said. With the reduced life expectancy of "someone who’s been tortured," he said, "you have to ask, why exactly are we doing this, or doing it in this way? We are spending millions and millions of [public] dollars every week for something that could be pointless.”
Virginia, Pennsylvania Death Rows Smallest in a Quarter Century as Death Sentences Show Long-Term DeclinePosted: September 8, 2017
Death rows are shrinking nationwide, and the experience in states like Virginia and Pennsylvania helps explain why. Virginia's death row has fallen from a reported high of 58 in 1995 to four in September 2017, the lowest it has been since 1979. Pennsylvania's death row of 160 prisoners is its smallest in nearly 25 years—down from 175 last December and from a reported 247 in April 2002. These declines mirror the national trends, as the number of prisoners removed from death row continues to outstrip the number of new death sentences imposed. In May 2017, a Bureau of Justice Statistics report showed that the population of death row nationwide had decreased for 15 consecutive years. Although Virginia has executed more prisoners since 1976 than any other state but Texas, executions do not by themselves account for the magnitude of the decline, and Pennsylvania's death row has shrunk despite not having executed anyone this century. A combination of exonerations, court decisions overturning death sentences, commutations, and deaths while appeals were underway have also removed significant numbers of prisoners from the two Commonwealths' death rows. Moreover, as in states like Georgia and Missouri that have been among the nation's most prolific recent executioners, the increase in executions has been accompanied by a decrease in the number of new death sentences imposed by juries. State Delegate Robert B. Bell, a death-penalty proponent who chairs the Virginia State Crime Commission, said obtaining the death penalty has become “an arduous endeavor for prosecutors,” requiring expenditures of staff time and financial resources that small counties cannot afford. As in Georgia and Texas, which have experienced major declines in new death sentences, Virginia also has made trials fairer by creating regional capital defense offices that provide better representation to indigent defendants at trial and by informing juries that capital defendants who are sentenced to life in prison will not be eligible for parole. Low murder rates and historically low public support for the death penalty also have contributed to the decline in new death sentences. In Pennsylvania, more than fifty defendants have been removed from death row in the past decade as their convictions or death sentences were overturned and they were resentenced to terms of life or less, and more have had their sentences overturned in the interim. Recently, the removal of prisoners from the Commonwealth's death row accelerated after a federal appeals court struck down the state's long-standing practice of automatically keeping capital defendants in solitary confinement until they had completed their retrial or resentencing proceedings, even after courts had overturned their death sentences.
For Second Time in Two Years, Georgia Prepares to Execute Black Prisoner Whom White Juror Called N-WordPosted: September 7, 2017
For the second time in as many years, Georgia is preparing to execute an intellectually disabled African-American man, despite evidence that the death verdict in his case may have been tainted by a white juror's profound racial bias. Lawyers for Keith Leroy Tharpe (pictured), whose IQ has been measured in the 60s and whom Georgia has scheduled to be executed on September 26, say the courts should reconsider his case in light of the racial slurs a white juror made about him. They say new U.S. Supreme Court decisions clearly prohibit death sentences based on race and permit defendants to inquire into racist statements by jurors. While preparing his appeal, Tharpe's lawyers interviewed jurors from his case, including one who openly referred to Tharpe with the N-word while saying the victim, Tharpe's sister-in-law, had come from a family of "'good' black folks." The juror's affidavit also said that, if the victim "had been the type Tharpe is, then picking between life or death for Tharpe wouldn't have mattered so much." Under questioning by prosecutors, the juror, who is white, testified that he had been drinking on the day Tharpe's defense team had initially interviewed him and on a second day on which they asked him to sign a statement that they had prepared based upon the prior interview. The juror denied that he had intended his use of the N-word in a racist way and contended that race had not affected his deliberations. The state's lawyers successfully argued that the court should not reconsider Tharpe's legal challenge based upon the evidence of racial bias—which prosecutors characterized as "racially insensitive offhand remarks"—because the jurors statements did not constitute an "extraordinary circumstance" and Georgia law did not permit inquiry into the content of the jury's deliberations. They further argued that there was no evidence that the jury's sentencing deliberations had been tainted by racial animus. In April 2016, Georgia executed Kenneth Fults, another African-American prisoner, despite strikingly similar evidence that he was intellectually disabled and that his sentence may have been the product of racial animus. In Fults' case, a white juror submitted a written affidavit saying, “I don’t know if he ever killed anybody, but that (N-word) got just what should have happened. Once he pled guilty, I knew I would vote for the death penalty because that’s what that (N-word) deserved.” The Georgia state and federal courts deemed the issue procedurally defaulted and denied relief to Fultz, and the U.S. Supreme Court declined to review the issue and denied Fults a stay of execution. Subsequently, the Supreme Court overturned a death sentence in a Texas case, Buck v. Davis, in which a defense psychologist had testified that Buck was more likely to commit future acts of violence because he is Black. Chief Justice John Roberts declared "[s]ome toxins can be deadly in small doses," calling the testimony a "particularly noxious strain of racial prejudice." "[T]he law punishes people for what they do, not who they are," he wrote. Then, in March 2017, the Court ruled in Peña-Rodriguez v. Colorado that when clear evidence of racial bias during deliberations emerges after trial, the defendant's right to a verdict free of racial bias overcomes state rules insulating jury deliberations from judicial review. Justice Kennedy wrote, "discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice." Despite these decisions, a federal judge on September 5 declined to reopen Tharpe's case.
Federal Appeals Court Sides with Alabama Prisoners on Lethal-Injection Case, Sends Back to District CourtPosted: September 6, 2017
The U.S. Court of Appeals for the Eleventh Circuit has issued a ruling reviving a lawsuit brought by Alabama death-row prisoners that challenged the constitutionality of the state's three-drug execution protocol using the controversial lethal-injection drug midazolam. The unanimous decision by the three-judge federal appeals panel on September 1 reversed a federal district court ruling against several death-row prisoners who sued the Alabama Department of Corrections, alleging that the state's planned execution process created an unnecessary risk of a torturous death that could be eliminated if the state used other available drugs. The lower federal court had issued summary judgment for the state, finding that there was no feasible and readily implementable alternative drug protocol without having first determined whether Alabama's lethal-injection protocol created a substantial risk of pain. In reversing the district court's decision, the Eleventh Circuit held that the court failed to "first mak[e] a finding regarding the risk of pain, if any, the current three-drug protocol presents," saying that a court cannot evaluate whether an alternative reduces a risk if it does not know "what that risk is." The appellate court returned the case to the district court for further fact-finding proceedings, saying resolution of the issue "will require the presentation of expert opinion testimony" from both sides. The appeals court also rejected the lower court's finding that pentobarbital was not available as an alternative execution drug, noting that Texas, Georgia, and Missouri had conducted numerous recent executions with the drug. "From these facts it can reasonably be inferred that compounded pentobarbital was available" to Alabama, the court said. John Palombi, counsel for the prisoners, called the decision encouraging and said he was "very pleased that that the 11th Circuit has recognized that there are serious questions about the unconstitutionality of this protocol." He said the prisoners were "looking forward to finally getting to present evidence that we believe will demonstrate that the protocol is unconstitutional." That evidence is likely to include detailed accounts of botched executions that have used midazolam, including Alabama's execution of Ronald Bert Smith last December, during which Smith heaved, coughed, and clenched his fist for 13 minutes after receiving the injection of midazolam. Alabama currently has two executions scheduled for October—Jeffrey Borden on October 5 and Torrey McNabb on October 19. Neither of those prisoners is a party to this case, but both have similar challenges to the state's lethal-injection protocol pending on appeal before the Eleventh Circuit. Palombi has indicated that Borden and McNabb will ask the Alabama Supreme Court to vacate the scheduled execution dates in light of the Eleventh Circuit's ruling. [UPDATE: On September 6, Borden and McNabb filed emergency motions in the Alabama Supreme Court to vacate their execution dates. Later that day, the 11th Circuit overturned the district court's dismissal of their lethal injection challenges and remanded the case for further proceedings.]