Capital Case Round Up

(ORDER LIST: 598 U.S.) FRIDAY, MAY 5, 2023 ORDER IN PENDING CASE 22A941 GLOSSIP, RICHARD E. V. OKLAHOMA The appli­ca­tion for stay of exe­cu­tion of sen­tence of death pre­sent­ed to Justice Kavanaugh and by him referred to the Court is grant­ed pend­ing the dis­po­si­tion of the peti­tions for writs of cer­tio­rari, Nos. 22 – 6500 and 22 – 7466. Should both peti­tions for writs of cer­tio­rari be denied, this stay shall ter­mi­nate auto­mat­i­cal­ly. In the event either peti­tion for a writ of cer­tio­rari is grant­ed, the stay shall ter­mi­nate upon the issuance of the man­date of this Court.

–Order of the U.S. Supreme Court

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On April 26, the Oklahoma Board of Pardons and Paroles declined to rec­om­mend clemen­cy for death-row pris­on­er Richard Glossip (pic­tured), who is sched­uled to be exe­cut­ed on May 18, 2023. The board’s 2 – 2 vote con­sti­tut­ed a denial of clemen­cy since the gov­er­nor can­not grant clemen­cy with­out the board’s recommendation.

Oklahoma Attorney General Gentner Drummond sent a let­ter to the board urg­ing them to grant clemen­cy for Glossip. ​“I am not aware of an Oklahoma Attorney General ever sup­port­ing a clemen­cy appli­ca­tion for a death row inmate,” Drummond wrote. ​“In every pre­vi­ous case that has come before this board, the state has main­tained full con­fi­dence in the integri­ty of the con­vic­tion. That is sim­ply not the case in this mat­ter due to the mate­r­i­al evi­dence that was not dis­closed to the jury.” He said exe­cut­ing Glossip would be a ​“grave injustice.”

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The Oklahoma Court of Criminal Appeals ruled against Richard Glossip (pic­tured) on April 20, 2023, despite a motion from the state’s Attorney General ask­ing the court to vacate Glossip’s con­vic­tion and remand the case to a low­er court. Glossip is sched­uled for exe­cu­tion on May 18 but has con­sis­tent­ly main­tained his inno­cence. In a state­ment react­ing to the rul­ing, Glossip’s attor­ney, Don Knight, said, ​“Since the State now agrees that the only wit­ness to allege that Mr. Glossip was involved in this crime can­not be believed, it is uncon­scionable for the court to attempt to force the State to move for­ward with his exe­cu­tion.” Knight plans to appeal the rul­ing to the U.S. Supreme Court.

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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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