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.

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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. 

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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 Roofs 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. 

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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 Daileys 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. 

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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.