Capital Case Round Up

A fed­er­al dis­trict court has over­turned the death sen­tence of an Alabama death-row pris­on­er whose aban­don­ment by his state post-con­vic­tion coun­sel led to a U.S. Supreme Court deci­sion on the right of access to fed­er­al habeas cor­pus review. On January 27, 2022, Judge Karon O. Bowdre of the United States District Court for the Northern District of Alabama over­turned Cory Maples’ death sen­tence, hold­ing that his tri­al coun­sel had pro­vid­ed prej­u­di­cial­ly defi­cient rep­re­sen­ta­tion dur­ing the penal­ty phase of his cap­i­tal tri­al in 1997. 

Bowdre found that Maples’ tri­al lawyers con­duct­ed an unrea­son­ably lim­it­ed mit­i­ga­tion inves­ti­ga­tion, only briefly speak­ing to Maples’ father, step­moth­er, and a men­tal health expert who was not pro­vid­ed vital infor­ma­tion about Maples. Counsel failed to inter­view any oth­er fam­i­ly mem­bers, failed to obtain edu­ca­tion­al records, failed to inves­ti­gate evi­dence of Maples’ sui­ci­dal­i­ty and depres­sion, and as a result failed to pro­vide the jury with crit­i­cal mit­i­gat­ing evi­dence about Maples’ chron­i­cal­ly abu­sive and trau­mat­ic back­ground and the resul­tant men­tal health issues. The court found that, had coun­sel per­formed a rea­son­able inves­ti­ga­tion, there was a rea­son­able prob­a­bil­i­ty that at least one more mem­ber of his jury, which made a non-unan­i­mous 10 – 2 rec­om­men­da­tion for death at tri­al, ​“would have been swayed to vote for life.”

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On January 13, 2022, the Florida Supreme Court grant­ed new tri­als to two Florida death-row pris­on­ers. The court over­turned Joe Simpson​’s 2007 con­vic­tion and death sen­tence because of pros­e­cu­to­r­i­al mis­con­duct. It also over­turned Peter Avsenew​’s 2018 con­vic­tion and death sen­tence because of the improp­er pre­sen­ta­tion of remote­ly-record­ed testimony. 

Simpson was sen­tenced to death in 2007 for the mur­ders of Archie Howard Crook, Sr. and his preg­nant girl­friend, Kimberli Kimbler in 1999. In a 5 – 1 deci­sion, the Florida Supreme Court over­turned Simpson’s con­vic­tion and sen­tence because pros­e­cu­tors uncon­sti­tu­tion­al­ly with­held from the defense evi­dence that one of the state’s lead wit­ness­es, Crook’s son ​“Little Archie,” was a con­fi­den­tial infor­mant for the state. 

Another state wit­ness, George Durrance, told police that Simpson con­fessed to the killings to him. The pros­e­cu­tion also did not inform the defense that Crook’s son had been an infor­mant against Durrance in an unre­lat­ed case. The Florida Supreme Court held that this should have been dis­closed to Simpson.

In rul­ing that the sup­pres­sion of this evi­dence was prej­u­di­cial, the major­i­ty wrote that the ​“rela­tion­ship between Simpson, Little Archie, and Durrance was of crit­i­cal impor­tance in this case, and the infor­ma­tion Little Archie pro­vid­ed to law enforce­ment per­tain­ing to Durrance casts a dif­fer­ent light on this rela­tion­ship.” The major­i­ty deter­mined that ​“Little Archie’s tes­ti­mo­ny and cred­i­bil­i­ty were of sig­nif­i­cant con­se­quence when we con­sid­er the lack of evi­dence link­ing Simpson to the scene of the crime.” 

Chief Judge Charles Canady dis­sent­ed, argu­ing that the evi­dence with­held by the pros­e­cu­tion was imma­te­r­i­al to Simpson’s case, writ­ing: ​“The fact that Little Archie had been a source to law enforce­ment in unre­lat­ed mat­ters is of lit­tle, if any, relevance.” 

Avsenew was sen­tenced to death in 2018 for the mur­ders of Steven Adams and Kevin Powell in 2010. At tri­al, because of her health prob­lems, pros­e­cu­tors pre­sent­ed tes­ti­mo­ny from Avsenew’s moth­er via a video record­ing. The Florida Rules of Criminal Procedure per­mit the use of pre-record­ed video tes­ti­mo­ny in cer­tain lim­it­ed cir­cum­stances in which a wit­ness is unavail­able to attend tri­al. The rules man­date that, when this occurs, the court must ​“keep the defen­dant in the pres­ence of the wit­ness.” The tes­ti­mo­ny in the case estab­lished that Ms. Avsenew could not see her son as she was testifying. 

The court unan­i­mous­ly reversed Avsenew’s con­vic­tion. In assess­ing the prej­u­di­cial effect of the rules vio­la­tion, the jus­tices wrote: ​“Without ques­tion, the impact of Ms. Avsenew’s incrim­i­nat­ing tes­ti­mo­ny on the jury would have been even greater because she is Avsenew’s mother.” 

The Florida Supreme Court remand­ed the two cas­es to coun­ty tri­al courts to con­duct new trials. 

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James Coddington, the last of the sev­en death-row pris­on­ers sched­uled to be put to death in Oklahoma​’s five-month exe­cu­tion spree, has received a stay of execution. 

On December 23, 2021, U.S. District Court Judge Stephen Friot, who is pre­sid­ing over a chal­lenge brought by Oklahoma death-row pris­on­ers to the con­sti­tu­tion­al­i­ty of the state’s lethal-injec­tion pro­to­col, stayed Coddington’s March 10, 2022 exe­cu­tion date ​“until a final judg­ment on Mr. Coddington’s claims in this case has been entered by this Court.” The Oklahoma Attorney General’s office con­sent­ed to the stay.

On August 11, 2021, Judge Friot ordered a tri­al in the prisoner’s law­suit, sched­uled to begin in late February 2022. At the same time, he dis­missed six pris­on­ers — includ­ing Coddington — from the law­suit, say­ing they could not pre­vail on their con­sti­tu­tion­al chal­lenges because they had not des­ig­nat­ed an alter­na­tive method by which they could be exe­cut­ed. Although then-Oklahoma Attorney General Mike Hunter had assured the court the state would not seek exe­cu­tion dates while the law­suit remained unre­solved, his suc­ces­sor, John O’Connor, dis­re­gard­ed that rep­re­sen­ta­tion and sought death war­rants against the six and a sev­enth pris­on­er who was not a par­ty to the lethal-injec­tion challenge.

Later, on October 12, 2021, Friot rein­stat­ed Coddington as a par­ty to the law­suit, find­ing ​“cred­i­ble cor­rob­o­ra­tion from an inde­pen­dent evi­den­tiary source” that Coddington mis­tak­en­ly believed that ​“he had already effec­tive­ly com­mu­ni­cat­ed his choice of a fir­ing squad” as his ​“alter­na­tive method of execution.”

Citing ​“the unique cir­cum­stances of this sit­u­a­tion,” Coddington’s lawyers and the Oklahoma attor­ney general’s office stip­u­lat­ed that Coddington’s exe­cu­tion should be stayed. 

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Florida death-row pris­on­er Paul Durousseau was re-sen­tenced to life in prison with­out pos­si­bil­i­ty of parole December 10, 2021, when a sec­ond cap­i­tal sen­tenc­ing jury reached a non-unan­i­mous sen­tenc­ing verdict.

Durousseau was con­vict­ed and sen­tenced to death in 2007 on charges that he had raped and mur­dered a 24-year-old woman in Jacksonville in 1999. The tri­al court imposed the death penal­ty in that case after the jury split 10 – 2 in favor of death. At the time, Florida was one of three states that per­mit­ted judges to impose death sen­tences based upon non-unan­i­mous jury rec­om­men­da­tions for death.

The Florida Supreme Court over­turned Durousseau’s death sen­tence in January 2017 fol­low­ing a U.S. Supreme Court rul­ing that the state’s sen­tenc­ing pro­ce­dures, which reserved for the tri­al judge the final find­ing of facts nec­es­sary to impose a death sen­tence, vio­lat­ed cap­i­tal defen­dants’ rights to a jury tri­al. Citing the non-unan­i­mous jury sen­tenc­ing rec­om­men­da­tion in that tri­al — also a 10 – 2 vote — the Florida court ruled that the con­sti­tu­tion­al vio­la­tion in Durousseau’s case could not be con­sid­ered harm­less error.

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A sec­ond Ohio death-row pris­on­er has been resen­tenced to life with­out parole under a new state law that makes indi­vid­u­als who were seri­ous­ly men­tal­ly ill at the time of their crime inel­i­gi­ble for the death penalty. 

Donald Ketterer, who was sen­tenced to death in Butler County in February 2004, was trans­ferred from death row in Ohio’s Chillicothe Correctional Institution on October 6, 2021 to a state prison in Warren County after a Butler County Court of Common Pleas rul­ing in September that vacat­ed his death sen­tence. ​“Ketterer suf­fered from bipo­lar dis­or­der on Feb. 24, 2003, when Lawrence Sanders was mur­dered,” vis­it­ing Judge James Brogan wrote, ​“and because of his bipo­lar dis­or­der, lacked sub­stan­tial capac­i­ty to con­form his con­duct to the require­ments of law.”

The Ohio leg­is­la­ture vot­ed in December 2020 to exempt indi­vid­u­als whose seri­ous men­tal ill­ness ​“sig­nif­i­cant­ly impaired the person’s capac­i­ty to exer­cise ratio­nal judg­ment” at the time of the mur­der in either ​“con­form­ing [his] con­duct to the require­ments of law” or ​“appre­ci­at­ing the nature, con­se­quences, or wrong­ful­ness of [his] con­duct.” The pro­pos­al des­ig­nat­ed cer­tain ill­ness as seri­ous men­tal ill­ness­es, includ­ing schiz­o­phre­nia, schizoaf­fec­tive dis­or­der, bipo­lar dis­or­der, and delu­sion­al disorder. 

Governor Mike DeWine signed the bill on January 9, 2021 and it became law on April 12. Ketterer’s lawyers then filed a post-con­vic­tion motion in July seek­ing to over­turn his death sen­tence, detail­ing his long his­to­ry of men­tal ill­ness. On June 23, 2021, David Braden became the first Ohio death-row pris­on­er to have his death sen­tence vacat­ed because of seri­ous men­tal illness.

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