Updated: Oct 23, 2021
Capital Case Round Up
The latest developments in capital cases around the U.S. This page includes brief updates about grants of relief, resentencings, and other important case developments.
Second Ohio Prisoner Taken Off Death Row Under New Serious Mental Illness Law
Oct 22, 2021
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 Oho death-row prisoner to have his death sentence vacated because of serious mental illness.
Oregon Appellate Court Grants New Trial to Death-Row Prisoner Jesse Johnson, Finding Trial Counsel Failed to Interview Witness Whose Testimony Could Potentially Exonerate Him
Oct 06, 2021
An Oregon appellate court has granted a new trial to death-row prisoner Jesse Johnson, finding his trial counsel ineffective for failing to interview a neighbor of the homicide victim whose eyewitness testimony could potentially exonerate him of the murder.
On October 6, 2021, a unanimous three-judge panel of the Oregon Court of Appeals ruled that Johnson’s trial lawyers deficiently investigated the murder, failing to speak with Patricia Hubbard, a neighbor who lived directly across the street from the victim, Harriet Thompson. Hubbard, the court said, heard and saw events that contradicted the prosecution’s version of Thompson’s murder and exposed racial bias in the Salem police’s investigation of the killing. The court also found that trial counsel had unreasonably failed to speak with another neighbor who had alerted police — and later Johnson’s post-conviction investigators — that Hubbard had important information about the murder.
Hubbard, who worked late at night, told Johnson’s appeal lawyers that she had been sitting on her porch at 3:45 a.m. on the night of the murder. At that time, she said, she saw a white man whom she recognized as a frequent visitor of the victim park his van in the victim’s driveway and go inside. “Seconds later,” the court wrote, “Hubbard heard screaming coming from [the victim’s] house, a thud and then silence” and then saw the white man exit the back door, leap off the back steps, and run “flying” away from the house. About a half-hour later, she saw a Black man, whom she later said did not look like Johnson, walking down the victim’s driveway. Hubbard was at work when the victim’s body was discovered, and her neighbor later brought a Salem police detective to Hubbard’s house to assist in the investigation. According to Hubbard, the detective refused to take a statement from her, telling her, “A n***r got murdered, and a n***r’s going to pay for it.”
The court wrote, “[a] reasonable investigation would likely have led to finding and interviewing Hubbard, which in turn would have led to evidence and testimony that could have tended to affect the outcome of the trial.”
“This was a case where there were a series of mistakes that led to this injustice,” Johnson’s post-conviction lawyer, Ryan O’Connor, told Oregon Public Broadcasting. “Systemically, it’s a recognition of the way police misconduct and racism cause wrongful convictions and injustice.” Marion County prosecutors have 35 days to decide whether to appeal the ruling to the Oregon Supreme Court. If they do not, they must decide whether to retry Johnson for the murder.
Federal Appeals Court Denies Reconsideration of Dylann Roof Appeal
Sep 24, 2021
In a one-page order on September 24, 2021, a panel of the U.S. Court of Appeals for the Fourth Circuit denied federal death-row prisoner Dylann Roof’s motion seeking to reargue his appeal in front of the full circuit. On August 25, 2021, a special panel of judges from outside the circuit affirmed Roof’s convictions and death sentences for the racially motivated murders of nine parishioners in an historic Charleston, South Carolina African-American church in 2017.
Roof can still ask the U.S. Supreme Court to review his case, the last stage of the direct appeal process. If the court declines to hear the case or agrees to hear it but affirms his convictions and sentence, the next stage of the federal death penalty process — habeas corpus review — will begin.
Florida Supreme Court Denies James Dailey’s Innocence Challenge to His Conviction and Death Sentence
Sep 23, 2021
Calling his evidence of innocence either immaterial or inadmissible, the Florida Supreme Court on September 23, 2021 denied death-row prisoner James Dailey’s post-conviction challenge to his conviction for the 1985 murder of a teenage girl.
Over a strong dissent by Justice Jorge Labarga, the Court ruled that a sworn declaration by Jack Pearcy, later recanted, that he alone had committed the murder, was inadmissible and could not provide a legal basis to overturn Dailey’s conviction. It also rejected Dailey’s claim that prosecutors knowingly elicited false testimony from their lead witness, Paul Skalnik, that he had never been charged with any crime of violence and then failed to correct Skalnik’s testimony that he had never faced charges of rape or murder and had “no physical violence in my life.” The court said that Dailey’s discovery that his prosecutor had written notes about Skalnik’s testimony in which he crossed out the words “sexual assault(s)” did not constitute new evidence because Dailey was previously aware of the notes, though not their author, and Skalnik had been impeached on other matters.
In dissent, Justice Labarga noted that “a significant component of the State’s case” rested on testimony from jailhouse informants that was unsupported by any forensic evidence. Dailey’s conviction and death sentence, he said, were compromised by “a cloud of unreliable inmate testimony.” Despite Pearcy’s subsequent refusal to repeat his confession in court or deposition testimony, Labarga said, his “admission to being solely responsible for the murder, coupled with the lack of substantial independent evidence to corroborate the testimony of the jailhouse informants,” sufficiently undermined the case against Dailey.
“While finality in judicial proceedings is important to the function of the judicial branch,” Labarga wrote, “that interest can never overwhelm the imperative that the death penalty not be wrongly imposed. Since Florida reinstated the death penalty in 1972, thirty people have been exonerated from death row [who] … would have eventually been put to death for murders they did not commit. This number of exonerations, the highest in the nation, affirms why it is so important to get this case right,” he said.
Alabama Federal Court Overturns Marcus Williams’ Death Sentence
Sep 23, 2021
The U.S. District Court for the Northern District of Alabama granted a new penalty hearing to death-row prisoner Marcus Williams on September 23, 2021, finding his counsel ineffective for failing to investigate and present “a constitutionally adequate mitigation case during the penalty phase of his trial.”
The ruling came following an evidentiary hearing ordered by the U.S. Court of Appeals for the Eleventh Circuit in 2015. The district court conducted that hearing on May 14 – 16, 2018 and initially denied relief on Williams’ ineffectiveness claims. However, on Williams’ motion for reconsideration, the court vacated its rulings, saying it had improperly assessed Williams’ future dangerousness in weighing aggravating and mitigating evidence.
The court found that counsel unreasonably failed to hire a mitigation specialist; investigate and obtain institutional records; adequately investigate Williams’ background and history, including that he was repeatedly sexually abused as a child; adequately interview and prepare the penalty phase witnesses; compile Williams’ history of abuse and neglect; and show how Williams’ background contributed to his committing the offense. But for these failures, the court said, there was a reasonable probability that Williams would have been sentenced to life.
