Capital Case Round Up

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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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The Ohio Supreme Court has upheld the state’s exe­cu­tion process against a pro­ce­dur­al chal­lenge by two of the state’s death-row pris­on­ers that sought to inval­i­date Ohio’s lethal-injec­tion pro­to­col. A unan­i­mous Ohio Supreme Court ruled on October 19, 2021 that the Ohio Department of Rehabilitation and Correction (ODRC) did not vio­late state law when it adopt­ed a lethal-injec­tion pro­to­col with­out going through the state’s for­mal rule­mak­ing process. 

In their suit, death-row pris­on­ers Cleveland Jackson and James D. O’Neal had argued that ODRC’s fail­ure to com­ply with Ohio’s for­mal pro­ce­dures for admin­is­tra­tive rule­mak­ing, includ­ing pro­vi­sions for pub­lic notice and com­ment and fil­ing the pro­to­col with an appro­pri­ate state enti­ty, inval­i­dat­ed the exe­cu­tion pro­to­col. Without a valid pro­to­col, Ohio would have had no legal means to car­ry out executions.

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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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