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Texas Appeals Court Rules State Must Disclose Identity of 2014 Execution Drug Supplier

Posted: May 26, 2017

The Texas 3rd District Court of Appeals has rejected claims made by state corrections officials that disclosure of the identity of its supplier of the execution drug pentobarbital would expose the company to a "substantial threat of physical harm." Finding these claims to be “mere speculation,” the appeals court ruled on May 25, 2017, that Texas must disclose the identity of the compounding pharmacy that supplied execution drugs to the state in 2014. The ruling upholds a Travis County District Court order in a suit that was filed on behalf of two death-row prisoners under the state's Public Information Act. The prisoners' attempt to litigate a challenge to the state's lethal injection practices failed to halt their executions, but the district court later determined that the identity of the drug supplier was "public information" subject to disclosure under the state public records law. The Texas Department of Criminal Justice (TDCJ) had argued that information concerning the identity of the compounding pharmacy that provided execution drugs fell within a safety exemption in the act, which shields release of otherwise public information where disclosure would create a "substantial threat of physical harm." The court found that TDCJ had shown nothing more than the risk of public criticism, which it said was not enough to block the supplier's identity from disclosure. The court recognized that "[t]here are myriad reasons why a private business or professional involved in the [execution] process would not want that fact known publicly—potential adverse marketplace effects, unwanted publicity, critical written or oral communications from members of the public, or protests, to name but a few of the unpleasantries that can accompany one’s association with such a controversial public issue." But under the law, the "sole permissible focus" is the "threat of physical harm from disclosure of the pharmacy’s or pharmacist’s identity—not, in themselves, any threats of harm to privacy or economic interests, threats of media or political 'firestorms,' or even threats of harm to property short of harm to persons." In 2016, a BuzzFeed News review of FBI records found that state claims that execution drug suppliers have been the subject of threats by anti-death penalty activists were largely unsubstantiated and exaggerated. Maurie Levin, one of the defense lawyers who filed the public records lawsuit, praised the court's ruling, saying: "They stuck to the law … and the law affirms that those who are involved in government actions don’t get to be anonymous and might be subject to criticism and protest." And she added, "That’s the nature of the beast. That is how our government works. I think the affirmation of those principles is really important." The decision is limited to the source of the state's execution drugs in 2014, because the state passed a broader secrecy law after the suit was filed. TDCJ has said it will appeal the ruling to the Texas Supreme Court. Texas is also suing the federal Food and Drug Administration over its seizure of execution drugs the FDA has said Texas attempted to illegally import from India. The FDA seized the drugs in October 2015, and issued a final order in April 2017 refusing to release the drugs.

 
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30 Years After Murder, 14 Years After Supreme Court Ruling, Pennsylvania Drops Death Penalty At Request of Victim's Family

Posted: May 25, 2017

Thirty years after the crime that sent him to Pennsylvania's death row and 15 years after his case was argued in the U.S. Supreme Court, David Sattazahn was resentenced to life without parole—the sentence he initially received in his first trial in 1991. Prosecutors, defense attorneys, and the victim's family all agreed that a life sentence was the best outcome at this point in the case. Sattazahn was convicted of first-degree murder and the court sentenced him to life in prison in 1991 when his Berks County sentencing jury split 9-3 in favor of a life sentence. After his life sentence, Sattazahn pled guilty to several unrelated felony charges. His murder conviction was then overturned as a result of prejudicially inaccurate jury instructions, and in his retrial, prosecutors again sought the death penalty, using his guilty pleas as a new aggravating circumstance. In 1999, he was retried and sentenced to death, becoming the first death-after-life-sentenced defendant under Pennsylvania's death penalty statute. His appeal in that trial reached the U.S. Supreme Court (argument, pictured), which ruled 5-4 in 2003 that the non-unanimous jury vote in his case did not constitute a finding rejecting the death penalty, even though it had resulted in a life sentence. As a consequence, the Court wrote, subjecting Sattazahn to a second capital prosecution did not violate the Double Jeopardy clause of the U.S. Constitution. Sattazahn's 1999 death sentence was overturned in 2006 because of ineffective assistance of counsel. Faced with the possibility of a third sentencing hearing and additional appeals, the family of murder victim Richard Boyer, Sr. agreed that dropping the death penalty in favor of life without parole would help bring them closure. “Every time we try to get on with our lives, we're back in court, reliving that night again and again. There has to be an end to this madness,” said Barbara Spatz, Boyer's sister. Senior Deputy Attorney General Anthony Forray said his office consulted with Boyer's four children and four siblings before deciding to drop the death penalty. “No family should have to go through this,” Forray said. “The commonwealth believes that what is occurring today is the appropriate thing to occur if this family is ever going to have closure and if this is ever going to come to an end.” At a May 24, 2017 hearing in Reading, Pennsylvania, the Berks County Court of Common Pleas formally resentenced Sattazahn to life.

 
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Alabama Prisoner Facing Eighth Execution Date Claims Innocence, Challenges Execution Procedures

Posted: May 24, 2017

Tommy Arthur (pictured), an Alabama death-row prisoner whose 35-year journey through the court system has frustrated both proponents and opponents of the death penalty, is scheduled to be executed on May 25, 2017, the eighth time Alabama has set an execution date in his case. Arthur—whose conviction and death sentence has twice been overturned by the courts and was sentenced to death by his trial judge based upon a non-unanimous jury sentencing recommendation—has steadfastly maintained his innocence in the 1982 murder of Troy Wicker. Most recently, an evenly divided U.S. Supreme Court issued a stay of execution four hours after Arthur's execution was set to begin on November 3, 2016, so the Court could consider whether to review Arthur's challenge to Alabama's use of the controversial drug midazolam and his request to be executed by firing squad. The Court ultimately declined to review both that claim and Arthur's separate challenge to the constitutionality of Alabama's non-unanimous sentencing practices. Arthur has repeatedly raised innocence claims, seeking new forensic testing of evidence from his case. Judy Wicker, the wife of Troy Wicker, who was charged with hiring Arthur to kill her husband, testified at her trial that her husband had been murdered by a burglar who beat and raped her. After Ms. Wicker's conviction, she changed her testimony when a prosecutor, who had previously represented her at a parole hearing, offered her early release if she testified against Arthur. The rape kit taken from Ms. Wicker at the time of the murder was lost or destroyed without being tested for DNA and, according to Arthur's current lawyer, Suhana Han, “[n]either a fingerprint or a weapon, nor any other physical evidence connects Arthur to the murder of Troy Wicker.” Hairs found near the victim have also never been tested with modern DNA technology. Arthur has also argued that his trial counsel was ineffective, and continues to litigate issues relating to Alabama's lethal injection protocol. He currently has an emergency motion pending before the U.S. Court of Appeals for the 11th Circuit, challenging the state's planned use of midazolam, a drug that has been linked to many problematic executions, including that of Ron Smith in Alabama in December 2016. He has also challenged the state's refusal to disclose records related to the Smith execution, which his lawyers say may provide critical evidence for his lethal-injection challenge. The Alabama Court of Criminal Appeals issued a preliminary ruling in Arthur's favor on a separate issue on May 23, reversing a Montgomery Circuit judge's order rejecting Arthur's claim that the legislature, rather than the Department of Corrections, should determine the state's execution method. But that procedural ruling will not delay his execution. His motion stated, "The role of the legislature is particularly critical given the controversial nature of the ADOC's current midazolam-based execution protocol. ...The choice of the first drug (midazolam) to be used is critical, because without an effective anesthetic, the second and third drugs would cause unbearable pain. But the drug the ADOC chose (in secret), midazolam, is not used in medical practice as a general anesthetic; rather, it is an anti-anxiety sedative in the same drug family as Valium and Xanax, and its use in lethal injection has been extremely problematic." [UPDATE: Alabama executed Thomas Arthur near midnight on May 25. He was pronounced dead at 12:15 a.m. on May 26. Media witnesses reported no visible indicators that the drugs had failed.]

 
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U.S. Supreme Court Lets Stand Florida Decision Barring Death Sentences Based on Non-Unanimous Jury Votes

Posted: May 23, 2017

On May 22, the U.S. Supreme Court denied Florida's petition for a writ of certiorari in Florida v. Hurst, refusing to disturb a decision of the Florida Supreme Court that had declared it unconstitutional for judges to impose death sentences after one or more jurors in the case had voted for life. The ruling effectively ends Florida prosecutors' efforts to reverse the state court ruling—which could overturn approximately 200 death sentences in the state—requiring that capital sentencing juries unanimously recommend death before the trial judge may impose a death sentence. Florida Attorney General Pam Bondi had asked the high court to consider the Florida decision, arguing that the state court's "expansive reading" of the U.S. Supreme Court's 2016 decision in Hurst v. Florida was erroneous. In January 2016, the U.S. Supreme Court struck down Florida's capital sentencing scheme, saying, "The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death." The Florida legislature rewrote the law to require that juries unanimously find at least one aggravating factor, making a case eligible for a death sentence, and raising the threshold for a jury recommendation of a death sentence from a simple 7-5 majority to at least 10 of the 12 jurors. The Florida Supreme Court held in October 2016 that the new law violated both the state and federal constitutions because it did not require jury unanimity before the court could impose a death sentence. Most of the 386 prisoners currently on Florida's death row were sentenced to death in violation of Hurst. However, the state court has ruled that it will not apply its decision to cases that had completed the direct appeal process before June 2002, when the U.S. Supreme Court announced that the Sixth Amendment gives capital defendants the right to have a jury find all facts that are necessary to impose the death penalty in their case. The Florida Supreme Court has already ordered more than a dozen new sentencing hearings in cases involving non-unanimous jury recommendations for death, and local prosecutors are faced with the prospect of a flood of expensive retrials in cases in which one or more jurors have already rejected the death penalty. Dave Davis, who represented Hurst, said “'[p]rosecutors are going to have to decide is it worth the effort to try to get death again. They're going to have to examine their evidence … and decide what the likelihood is that they're going to get 12 jurors to decide death.”

 
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EDITORIALS: Seattle Times Urges End to Washington's "Zombie" Death Penalty

Posted: May 22, 2017

"The death penalty in Washington is like a zombie, not alive or dead, yet continuing to eat its way through precious resources in the criminal-justice system," The Seattle Times editorial board declared on May 21, urging the state legislature to end capital punishment. Washington currently has a moratorium on executions, imposed by Governor Jay Inslee in 2014, leading the Times to declare the practice "effectively dead." But because death sentences can still be imposed, and appeals continue for the eight men on death row, capital punishment is "still alive on the books." The editorial says this "limbo...gives no peace to victims’ families." It also leaves prosecutors to decide whether to continue seeking the death penalty, which they have done less often in recent years, "perhaps influenced by the legal uncertainty, the apparent reluctance of some juries and the extra $1 million or more that a death-penalty sentence adds to a murder case." The editorial calls the death penalty, "overly expensive, ineffective and immoral," joining current and former Attorneys General in asking the legislature to take up a repeal bill. The chair of the Senate Judiciary Committee has agreed to hold a hearing on an abolition bill if the House takes action first. Attorney General Bob Ferguson believes a House vote may uncover hidden support for repeal: “You don’t know that reaction if you don’t take a vote,” he said. The Seattle Times agrees: "The public wants bold leadership on important issues. A path to repeal is through the Legislature, either this year or next — if they have the courage to act."

 
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STUDY: Juries Have Never Found Anyone Intellectually Disabled Under Georgia's Insurmountable Standard of Proof

Posted: May 19, 2017

No death penalty jury has ever found a defendant charged with intentional murder to be ineligible for the death penalty under Georgia's intellectual disability law, according to a new empirical study published in Georgia State University Law Review. The study, by Georgia State Law Professor Lauren Sudeall Lucas, examined 30 years of jury verdicts under the state's Guilty But Mentally Retarded statute, which has the most onerous standard in the nation for proving intellectual disability. “Georgia is an outlier," Lucas says. It is the only state to require a capital defendant to prove his or her intellectual disability beyond a reasonable doubt, and the only state to require that this determination be made at the same time that the jury is considering the defendant's guilt. “This study provides, for the first time, an accounting of how Georgia defendants have been unable to overcome the very high burden of establishing intellectual disability before a jury at the guilt phase of a capital trial—a finding that," Lucas says, "has never occurred in a case of intentional murder.” In 2002, the U.S. Supreme Court ruled in Atkins v. Virginia that defendants with intellectual disability—then known as mental retardation—cannot be executed. The ruling, however, left states with discretion in establishing procedures for determining which defendants have intellectual disability. Some states responded by adopting practices that made it more difficult to prove intellectual disability. In two recent cases, Hall v. Florida (2014) and Moore v. Texas (2017), the Supreme Court struck down other outlier intellectual disability standards that deviated from accepted clinical definitions of intellectual disability. It has never ruled on Georgia's standard of proof. To illustrate the effect of Georgia's outlier practice, Lucas explores the case of Warren Hill (pictured), whom Georgia executed in 2015 even though every mental health expert who had evaluated Hill agreed he had intellectual disability. A state court judge found that Hill had proven his intellectual disability by a "preponderance of the evidence" (more likely than not), the standard employed in nearly every death penalty state. However, the state courts ruled that Hill had not proven his intellectual disability "beyond a reasonable doubt." The U.S. Court of Appeals for the Eleventh Circuit upheld the use of that standard, the U.S. Supreme Court declined to review the cae, and Hill was executed. Lucas concludes, "The absence of a single jury finding of intellectual disability in an intentional murder death penalty case in the nearly three decades of the statutory exemption, and the absence of a single jury finding of intellectual disability in any murder case post-Atkins, leaves little question that Georgia’s statute has failed to protect those with intellectual disability from execution as promised, and as required by the U.S. Constitution and Georgia constitution."

 
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NEW VOICES: Cosmetics Company Launches Death Penalty Documentary, Abolition Campaign

Posted: May 18, 2017

Lush Cosmetics announced on May 15 it has launched a commercial effort to raise awareness about capital punishment and support the abolition of the death penalty. The company's "Death ≠ Justice" campaign includes the release of a short documentary, "Exonerated," which tells the story of Ohio death-row exoneree Kwame Ajamu. Ajamu (then 17 years old), his brother Ronnie Bridgman, and Ricky Jackson were wrongfully convicted and sentenced to death in 1975. They were exonerated 39 years later in 2014, after the single eyewitness in the case — a 13-year-old boy who later said he had been coerced by police into falsely implicating them — recanted. Lush is hosting events across the country featuring exonerees and activists, with the goal of educating their customers about the issue. Carleen Pickard, the Ethical Campaigns Specialist at Lush, said, "In 2016, death sentences, executions and support for capital punishment were at an historic low, making flaws and failures of the death penalty more apparent than ever. It’s an important time to continue the momentum that 90 million Americans have built. The more people learn about the death penalty, the less they like it, and we’re excited to bring this important issue to our customers." As part of the campaign, Lush has introduced a new product it calls "31 States," an almond- and- rosewood-infused bath bomb whose name reflects the fact that 31 states currently have the death penalty. Lush says it hopes to change that by donating 100% of the product's profits to organizations such as Witness to Innocence, Death Penalty Focus, and the National Coalition to Abolish the Death Penalty that, the company says "are working to mobilize and engage Americans and empower exonerees to abolish capital punishment in the United States." Earlier this year, as part of the company's social justice initialtives, Lush donated profits from a limited-edition shampoo bar to fight animal cruelty and released a Valentine’s Day ad that featured same-sex couples.

 
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Reform Candidate Who Opposes Death Penalty Wins Democratic Nomination for Philadelphia District Attorney

Posted: May 17, 2017

In a repudiation of the city's past history as one of the nation's leading producers of death sentences, Philadelphia has joined the trend of major national jurisdictions to select reform candidates who have pledged to limit or eliminate use of the death penalty. On May 16, primary voters in the overwhelmingly Democratic city selected long-time civil rights lawyer Lawrence Krasner (pictured) as the Democratic nominee for District Attorney. Krasner, a defense attorney who entered the public's eye representing protesters from Occupy Philadelphia and Black Lives Matter, ran on a platform of sweeping criminal justice reform, including a vow never to seek the death penalty. His campaign website states, "He knows that capital punishment is expensive, ineffective, and racially biased. Since its reinstatement by the U.S. Supreme Court in 1976, it has cost Pennsylvania taxpayers over $1 billion, yet no one on Pennsylvania’s death row has been put to death involuntarily since 1962. Meanwhile six people on death row have been exonerated." Because Democrats hold a 7-1 registration edge over Republicans, Krasner is considered a prohibitive favorite to defeat Republican nominee Beth Grossman, a former assistant district attorney, in November's general election. Philadelphia is among the 2% of U.S. counties responsible for 56% of the nation's death row population, and its former longtime District Attorney Lynne Abraham was named one of "America's Five Deadliest Prosecutors" for overseeing the imposition of 108 death sentences. Krasner's nomination continues a trend among voters in major cities replacing prosecutorial regimes perceived as overaggressively pursuing the death penalty. In November 2015 runoff election, voters in Caddo Parish (Shreveport), Louisiana elected their first African American District Attorney, James Stewart, after acting District Attorney Dale Cox said the state should use "kill more people" with the death penalty. Last August, in a landslide election described as reshaping the political landscape of Northeast Florida, Republican primary voters in Duval County (Jacksonville) replaced controversial State Attorney Angela Corey with reform candidate Melissa Nelson. Then, in the November general election, voters in three more counties known for their outlier practices on the death penalty—Harris County (Houston), Texas, Hillsborough County (Tampa), Florida; and Jefferson County (Birmingham), Alabama—replaced incumbents with challengers running on reform platforms. Among Krasner's other reform proposals are reviewing past convictions for accuracy and ensuring that potentially exculpatory evidence is never withheld from defendants, taking a stronger stance against police misconduct, and ending stop-and-frisk.

 
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Two Philadelphia Detectives, Three Wrongful Capital Prosecutions

Posted: May 16, 2017

On May 13, 2017, James "Jimmy" Dennis (pictured, center, with some of his defense team) was released from prison after more than 25 years on Pennsylvania's death row. His release marked the culmination of three unrelated wrongful capital prosecutions in Philadelphia in the early-1990s, with the common thread a pattern of misconduct by the same two Philadelphia homicide detectives. Dennis, Anthony Wright, and Percy St. George were all capitally charged for murder in cases investigated by Detectives Manuel Santiago and Frank Jastrzembski. Dennis was convicted and sentenced to death, Wright was convicted and sentenced to life without parole when his death penalty jury could not agree on a sentence, and capital charges against St. George were dismissed before he went to trial. Misconduct in Wright and Dennis' trials led courts to overturn their convictions decades later. The detectives' misconduct came to light in the St. George case when one supposed eyewitness told St. George's attorneys that he had identified St. George only because "[Santiago] told me that I could get locked up, so I was scared, because I had never been locked up before." As other questionable conduct was discovered, Detectives Santiago and Jastrzembski invoked their Fifth Amendment right against self-incrimination and the charges against St. George were dropped. Wright was initially convicted of rape and murder based upon an unrecorded fabricated confession that Santiago purported to have taken and clothing matching those Wright supposedly had admitted to have worn during the crime. Jastrembski claimed to have found those clothes hidden under Wright’s bed. DNA testing later established that the clothes had actually been worn by the victim, not Wright, suggesting that police had fabricated the confession and planted the clothing to incriminate Wright. Jastrembski and Santiago were also implicated in misconduct in Dennis' case, suppressing evidence that Dennis was not the killer. The two detectives had been asked to follow up on a statement a county prisoner named William Frazier had given to police saying that a friend of his had confessed to committing the murder with two other men. The detectives spoke to one of the three potential suspects, who fit the description offered by another eyewitness, but contradicted the prosecution's case against Dennis. That information was withheld from Dennis' defense. Jastrembski also claimed to have seized clothes from Dennis' house that fit the description of the clothes eyewitnesses said the killer had worn, but told the state post-conviction court that the clothes had since been thrown in the trash by cleaners. Even after courts overturned Wright's and Dennis' convictions, the Philadelphia District Attorney's Office continued to pursue charges against them. Even after Wright was acquitted in August 2016, a prosecution spokesperson continued to assert that "the evidence was sufficient to prove Anthony Wright participated in the murder of Louise Talley." In December 2016, facing a capital retrial, Dennis made the difficult decision to plead no contest to lesser charges. He was resentenced to time served, but his release was delayed as he awaited parole on unrelated charges. The Innocence Project and a Philadelphia civil rights law firm have filed a lawsuit against the city and 11 police officers, including Detectives Santiago and Jastrzembski, alleging a pervasive pattern of unconstitutional misconduct, including in the cases of Wright, Dennis, and St. George.

 
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Texas Execution Stayed to Permit Challenge Alleging Prosecution Misled Jury on Cause of Death

Posted: May 15, 2017

The Texas Court of Criminal Appeals on May 12 granted a stay of Tilon Carter's May 16 execution to consider his claim that he was convicted based on "false or misleading testimony by the State Medical Examiner" concerning the cause of the victim's death. Carter (pictured) was convicted and sentenced to death based upon testimony by a local medical examiner that the 89-year-old victim, James Tomlin, had died of suffocation. His lawyers say that new scientific evidence that was unavailable at the time of trial contradicts that testimony and supports Carter's claim that he did not intentionally kill Tomlin. According to a filing by Carter's attorney, Carter was denied due process because Nizam Peerwani, the Tarrant County Medical Examiner, presented misleading testimony implying that Tomlin was intentionally smothered, though his cause of death was listed as "smothering with positional asphyxia," which could have been unintentional. In addition, three other experts who have reviewed the evidence offered opinions contradicting the finding that Tomlin was smothered. Raoul Schonemann, Carter's attorney, wrote in a court filing, “While the experts disagreed on the ultimate cause—whether Mr. Tomlin’s death was caused by positional asphyxiation or a cardiac event—they unanimously agreed that the evidence does not show that Mr. Tomlin’s death was the result of intentional smothering." Carter would not be eligible for a death sentence if he did not intentionally kill the victim. Schonemann also alleged that Carter's trial counsel provided ineffective assistance by failing to seek evidence on whether Tomlin's death was intentional.

 
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