Executions

Witnesses—Alabama Prisoner Still Moving 20 Minutes Into Execution With Controversial Drug

Alabama executed Torrey McNabb (pictured) on October 19, amid questions of state interference in the judicial process, resulting in another apparent failure by the drug midazolam to render a prisoner insensate during an execution. Alabama prison officials defended the execution—which took 35 minutes—as conforming with state protocol, most of which has been withheld from the public. Montgomery Advertiser execution witness Brian Lyman reported that at 9:17 p.m., twenty minutes into the execution and after two consciousness checks, "McNabb raised his right arm and rolled his head in a grimace" and then fell "back on the gurney." Associated Press reported that his “family members and attorneys who witnessed the execution expressed repeated concerns to each other that he was still conscious during the lethal injection.” Alabama Department of Corrections Commissioner Jeff Dunn dismissed McNabb's responses as "[i]nvoluntary movement," which he said were not unusual. "I’m confident he was more than unconscious at that point," he said. McNabb had been challenging the state's execution protocol in court for more than a year at the time Alabama issued a warrant for his execution. He had won an appeal permitting his case against the state's use of midazolam to move forward to trial, and the Alabama federal courts had issued an injunction stopping the execution so that judicial review of the state's execution process could take place. However, on October 19, the U.S. Supreme Court, over the dissents of Justices Breyer and Sotomayor, lifted the injunction, vacating the stay and permitting the execution to proceed. Two-and-a-half hours after the execution was scheduled to begin, the Supreme Court denied another last-minute stay application, without dissent, and the execution proceeded. The execution capped a dramatic 48 hours during which Texas courts halted two other executions that had been scheduled for October. On October 18, the Texas Court of Criminal Appeals had stayed Clinton Young's October 26 execution to permit an evidentiary hearing on his challenge that newly discovered gunshot residue evidence showed that the state's lead witness was the actual killer in his case, and a Texas trial court had stayed the execution of Anthony Shore to investigate allegations that he may have colluded with another death-row prisoner to falsely confess to the murder for which that prisoner had been condemned. McNabb's execution was Alabama's third and the 21st in the United States in 2017.

Former Arkansas Death-Row Prisoner Rickey Dale Newman Exonerated After Nearly 17 Years in Prison

An Arkansas trial judge has dismissed all charges against former death-row prisoner, Rickey Dale Newman (pictured), setting him free on October 11 after having spent nearly 17 years in custody following the February 2001 murder of a transient woman in a "hobo park" on the outskirts of Van Buren, Arkansas. Newman became the 160th person since 1973 to be exonerated after having having been wrongly convicted and sentenced to death. Newman, a former Marine with major depression, chronic posttraumatic stress disorder from childhood abuse, and an IQ in the intellectually disabled range, was seriously mentally ill and homeless at the time he was charged with murdering Marie Cholette. He was convicted and sentenced to death in June 2002 after a one-day trial in which the court permitted him to represent himself. No physical evidence linked Newman to the murder, but at trial a prosecution expert falsely testified that hair found on Newman's clothing came from the victim. Newman also told the jury he had committed the murder and asked them to impose the death penalty. He subsequently sought to waive his appeals and be executed. The Arkansas Supreme Court initially held that Newman had been mentally competent and granted his request to drop his appeals. However, four days before his scheduled execution on July 26, 2005, Newman permitted federal public defenders, including his current counsel, Julie Brain, to seek a stay of execution. DNA evidence on the blanket on which the victim was found excluded Newman, and the federal defenders obtained DNA testing of the hair evidence that disproved the prosecution's trial testimony. They also discovered that prosecutors had withheld from the defense evidence from the murder scene that contradicted what Newman had described in his confession. A federal court hearing disclosed that the state mental health doctor had made significant errors in administering and scoring tests he had relied upon for his testimony that Newman had been competent to stand trial. The Arkansas Supreme Court subsequently ordered new hearings on Newman's competency and on the evidence the prosecution had withheld from the defense. After those hearings, it wrote that "the record overwhelmingly illustrates that Newman’s cognitive deficits and mental illnesses interfered with his ability to effectively and rationally assist counsel" and overturned Newman's conviction. In September, it issued another ruling barring the use of Newman's incompetent confessions in any retrial. On October 2, Brain submitted a letter to the court saying that “Mr. Newman has now been incarcerated for over 16 years for a murder that he did not commit” and that the Arkansas Supreme Court had found that the invalid statements he had given while mentally incompetent were "the only meaningful evidence against him." In response, special prosecutor Ron Fields submitted letter to the court asking that charges be dismissed. Fields wrote that, without the confessions, prosecutors lacked sufficient evidence to obtain a conviction and "it would be a waste of tax payers money to retry [Newman]."

Texas Appeals Court Orders Hearing on False Forensic Testimony, Extends Stay of Execution

After staying Tilon Carter's execution in May to consider allegations that his conviction and death sentence were the product of false or misleading forensic testimony, the Texas Court of Criminal Appeals has now ruled that Carter (pictured) is entitled to an evidentiary hearing on two of his claims. In a September 27 order, the appeals court directed the Tarrant County (Fort Worth) trial court to conduct a hearing on whether Texas "presented false or misleading testimony by the State Medical Examiner," in violation of Carter's right to due process and whether "new scientific evidence, which was unavailable at the time of his trial, contradicts scientific evidence the State relied on at this trial." The order leaves the prior stay of execution in place. Carter was convicted and sentenced to death in November 2006 based upon testimony by Tarrant County Medical Examiner Nizam Peerwani that he had smothered 89-year-old James Tomlin during the course of a robbery. In fact, the autopsy listed Tomlin's cause of death as "smothering with positional asphyxia," which could have been unintentional. Carter's lawyers argued that scientific evidence that was unavailable at the time of trial contradicts Peerwani's testimony, and he presented statements from three forensic pathologists who concluded that the autopsy findings contradict the state's theory that Tomlin was intentionally smothered. Carter's attorney, Raoul Schonemann, wrote in a court filing, “While the experts disagreed on the ultimate cause—whether Mr. Tomlin’s death was caused by positional asphyxiation or a cardiac event—they unanimously agreed that the evidence does not show that Mr. Tomlin’s death was the result of intentional smothering." Carter would not be subject to the death penalty if he did not intentionally kill Tomlin. Carter's lawyers also alleged that his trial counsel had provided ineffective assistance by failing to investigate and present available evidence that Carter had not intentionally killed Tomlin. However, the Court of Criminal Appeals did not grant an evidentiary hearing on that claim.

Supreme Court Stays Execution in Georgia Case Raising Issue of Jury Racism

Three hours after his execution was scheduled to begin, the U.S. Supreme Court stayed the execution of Keith Tharpe (pictured), a Georgia death-row prisoner who sought review of his claim that he was unconstitutionally sentenced to death because a juror whom Tharpe alleged "harbored profound racial animus against African Americans voted to impose the death penalty . . . because of his race.” Over the dissents of Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch, the Court issued a stay of execution on September 26, pending a final ruling on whether to review a decision of the U.S. Court of Appeals for the Eleventh Circuit that had denied Tharpe permission to appeal the issue. Tharpe, who had been convicted and sentenced to death for the murder of his sister-in-law, had challenged his death sentence after learning that Barney Gattie, a white juror in his case, had said that there were "two types of black people: 1. Black folks and 2. Ni**ers"; described Tharpe as "a ni**er"; doubted "if black people even have souls"; and said if the victim "had been the same type [of black person] Tharpe is, then picking between life of death wouldn't have mattered so much." The Georgia courts had refused to consider his biased-juror challenge, saying that state law prohibitted him from attempting to impeach the jury's verdict. However, after the U.S. Supreme Court ruled earlier this year that overt expressions of racial bias by a juror are not insulated from judicial review, Tharpe argued that he was entitled to have his claim heard and to have a new, fair sentencing hearing. The Eleventh Circuit disagreed, concluding that he had not “made a substantial showing of the denial of a constitutional right” and "had failed to demonstrate that Barney Gattie’s behavior had [a] substantial and injurious effect or influence in determining the jury’s verdict.” When Tharpe again attempted to raise the issue in the Georgia state courts, the Georgia Supreme Court ruled that the Supreme Court decision made no difference and his challenge was barred as "res judicata"—meaning that the issue had alrady been decided against him. His appeal from the state-court decision had just been filed in the U.S. Supreme Court when it stayed his execution based upon the federal litigation. The Court's order specified that the stay "shall terminate automatically" if the Court ultimately decides not to review the issue or if the Court ultimately rules against Tharpe. Under Supreme Court rules, the votes of four Justices are sufficient to decide to hear a prisoner's appeal. However, the votes of five Justices are required to stay an execution, effectively overriding the Court's rules for cases presented during an active death warrant. Brian Kammer, one of Tharpe’s attorneys, expressed gratitude that "the court understands this case merits thoughtful consideration outside the press of an execution warrant.” He said, “We are extremely thankful that the court has seen fit to consider Mr. Tharpe’s claim of juror racial bias in regular order.”

Ohio Executes Gary Otte as State and Federal Courts Decline to Review Use of Death Penalty Against Those Under Age 21

Ohio executed Gary Otte on September 13 after both the United States Supreme Court and the Ohio Supreme Court declined to review his challenge to the constitutionality of applying the death penalty against people who were younger than age 21 at the time of the offense. Otte's lawyer, supervisory assistant federal public defender Carol Wright, said Otte exhibited "abnormal" chest and stomach movements when he was injected with the execution drug, midazolam, showing signs of struggling for air and what she described as "air hunger." Wright attempted to leave the witness room to reach a phone to alert a federal judge to possible problems with the execution, but prison officials delayed her exit for several minutes and it took several more minutes to reach the court. By that time, Otte's stomach movements had ceased and the court declined to intervene. Corrections spokesperson, JoEllen Smith, said the prison "followed proper security protocol, and once [Wright's] identity and intention was verified she was given permission to exit the room." Smith said the execution was "carried out in compliance with the execution policy and without complication." Otte had sought stays of execution from the state and federal courts, asking them to review his claim that his death sentence should be overturned because he was only 20 years old at the time he killed Robert Wasikowski and Sharon Kostura in 1992. Otte's lawyers cited an August 2017 decision by a Kentucky trial court that had found the brain development and maturation of individuals aged 18-20 to be similar in critical respects to that of adolescents under age 18, and had declared the death penalty unconstitutionally cruel and unusual for defendants under age 21. They argued that "[t]he current scientific understanding of adolescent development underscores [that] their moral culpability is reduced making them categorically exempt from the death penalty." The Kentucky trial court issued a second ruling on September 6 that barred prosecutors from seeking the death penalty against an 18-year-old defendant in another case. On Tuesday night, September 12, the United States Supreme Court declined to review the issue and denied a stay of execution. The Ohio Supreme Court followed suit on the morning of September 13. Otte was pronounced dead shortly before 11:00 a.m.

Texas Execution Stayed to Permit Proper Consideration of Intellectual Disability Claim

A Texas appeals court has stayed the August 30 execution of Steven Long (pictured) to provide him an opportunity to litigate a claim that he is ineligible for the death penalty because of intellectual disability. On August 21, the Texas Court of Criminal Appeals issued the stay and remanded Long's case to a Dallas County trial court, directing the court to reconsider his claim of intellectual disability in light of the U.S. Supreme Court's March 2017 ruling in Moore v. Texas. The Texas courts had previously rejected Long's intellectual disability claim, but had applied an overly harsh definition of intellectual disability that was declared unconstitutional in Moore. Long was convicted and sentenced to death in Dallas for the rape and murder of an 11-year-old girl in 2005. Although the U.S. Supreme Court had ruled in Atkins v. Virginia in 2002 that it was unconstitutional to apply the death penalty to a person with Intellectual Disability—then known as mental retardation—and had previously ruled in a Texas case in 1989 that juries must consider a defendant's mental retardation as a potential basis to spare his or her life, Long's trial lawyer did not have him evaluated for mental retardation. In May 2008, his post-conviction lawyers raised the issue in his state habeas corpus proceedings, and the state courts rejected his claim, analyzing the issue under the "Briseño factors," a non-scientific series of questions developed by the state court in the case of Jose Garcia Briseño. Mr. Long then raised—and lost—the issue in the Texas federal district court, with the U.S. Court of Appeals for the Fifth Circuit refusing to consider his appeal. However, on March 28, 2017, the U.S. Supreme Court struck down Texas's use of the Briseño factors, and less than one month later Long filed a petition in the U.S. Supreme Court asking the Court to apply its ruling in Moore to his case. While that appeal was pending and briefing was ongoing, Texas scheduled an execution date for Long during a period in which the Court was in summer recess. Long filed an application for a stay of execution in the Supreme Court. He then filed a new habeas petition in state court on August 3, 2017, reasserting the intellectual disability claim the state courts had initially denied and sought a stay of execution in the Texas Court of Criminal Appeals. The state court wrote, "In light of this new law and the facts of applicant’s application, we have determined that applicant’s execution should be stayed pending further order of this Court." Briefing has been completed on his petition seeking U.S. Supreme Court review, and a decision is expected in early October on whether the Court will review his case. 

Arkansas, Nevada Obtain New Supplies of Drugs, Plan to Carry Out Two Questionable Executions

The states of Arkansas and Nevada have announced that they have obtained new supplies of execution drugs that will permit them to carry out two executions in what critics have called questionable circumstances. On August 4, Arkansas obtained a supply of midazolam—the controversial drug used in botched executions in at least four states—paying $250 in cash to an undisclosed supplier for 40 vials of the drug. Then, on August 17, Attorney General Leslie Rutledge asked Governor Asa Hutchinson to set an execution date for Jack Greene (pictured), described by his lawyers as “a severely mentally ill man [with] well-documented brain damage.” Also on August 17, Nevada—which does not currently have an execution protocol in place—announced that it had obtained drugs to execute Scott Dozier, using a three-drug formula that no state has ever tried before. Dozier—who has waived his appeal rights and volunteered to be executed—is scheduled to die on November 14. In a press statement, Greene’s lawyer, John C. Williams, said “[c]apital punishment should not be used on vulnerable people like the severely mentally ill.” Greene, he said, is mentally incompetent and suffers from delusions that “his spinal cord has been removed and his central nervous system has been destroyed.” Responding to this delusion, Williams said, Greene “constantly twist[s] his body and stuff[s] his ear and nose with toilet paper to cope with the pain,” often causing himself to bleed. A spokesperson for Hutchinson—who authorized Arkansas’s unprecedented attempt to execute eight prisoners over an eleven-day span in April—has indicated that the governor will set an execution date for Greene. To execute Dozier, Nevada has indicated that it will use an untried combination of diazepam (Valium), fentanyl (an opiod), and cisatracurium (a paralytic). The state has not yet announced how the drugs will be administered. All but one of the prisoners executed in Nevada since 1977 were found to have waived their appeals; Dozier would be the state's 12th death-row prisoner to volunteer to be executed. Nevada recently spent nearly $900,000 on building a new execution chamber.  

Journal of Psychiatrist Who Presided Over 14 Texas Executions Reveals Mental Toll That May Have Contributed to Suicide

As a psychiatrist in the Wayne Unit of Texas' Huntsville prison from 1960 to 1963, Dr. Lee Hartman presided over 14 electric-chair executions. When his grandson, Ben Hartman, a journalist, began investigating Dr. Hartman's life, he discovered journals that chronicle those executions and the psychological toll they took, possibly contributing to Dr. Hartman's suicide in 1964. Dr. Hartman's journals contain basic data on the men who were executed, including their names, race, a summary of the crime, and notes on the execution itself. More profoundly, though, they capture Dr. Hartman's reactions to his experiences and how they shaped his views on the death penalty, leaving him—in his grandson's words—"a determined opponent of capital punishment." In 1962, Dr. Hartman wrote, "The death penalty is irreparable." After the highly-publicized execution of Howard Stickney, a 24-year old who professed his innocence, Dr. Hartman wrote, "Very shook up and angry over whole cruel mess." He had been with Stickney on his scheduled November 10, 1961 execution date as they neared the door to the execution chamber. The journal reports that the phone rang at 12:32 a.m. with news that a judge had granted a 10-day stay of execution. This was "[a]pparently a complete surprise to Stickney," the journal entry says, "who broke down, prayed and wept.” In May of 1962, still professing his innocence, Stickney exhibited "[d]ignity and grace, shook hands with several guards while waiting, didn’t want to take coat off.” The journal reports: "At 12:24, warden returned–no stay, Stickney quietly sat in chair." Three separate jolts of electric current were sent through his body, "1st shock at 12:25–dead at 12:30.” Elsewhere in the journal, Dr. Hartman wrote 19 pages on arguments for and against capital punishment, clearly setting out his views. “The death penalty has a brutalizing and sadistic influence on the community that deliberately kills a member of its group,” he wrote, permitting the public “to vicariously indulge in vicious and inhumane fantasies under socially-acceptable guises.” He wrote: "The death penalty is not applied impartially. There is such surfeit of these cases that to mention them would be redundant. The poor defendant is obviously at a disadvantage and frequently receives the extreme penalty while the wealthier accused escapes a prison term. There is well known discrimination on racial or class lines." Dr. Hartman struggled with depression for many years, spending several months in a mental hospital after working in the prison. In 1964, he committed suicide by taking an overdose of pentobarbital, a drug now used to execute prisoners in Texas.

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