U.S. Supreme Court

In Georgia Death-Penalty Case, Supreme Court Rebuffs Effort to Further Limit Habeas Corpus Review

In a decision most significant for what it declined to do, the U.S. Supreme Court has rebuffed efforts by state prosecutors to further limit the scope of federal habeas corpus review of state criminal cases. In a 6-3 vote with Justice Breyer writing for the majority, the U.S. Supreme Court ruled in favor of Georgia death-row prisoner Marion Wilson (pictured), saying that he was entitled to federal-court review of the reasons why the Georgia state courts had rejected his claim that he had been provided ineffective penalty-phase representation. Justice Neil Gorsuch, joined by Justices Clarence Thomas and Samuel Alito, dissented. The Court reversed a decision of the U.S. Court of Appeals for the Eleventh Circuit that had denied Wilson's ineffective assistance claim based upon speculation as to why the state appeals court—which had issued only a one-sentence decision—had earlier denied the claim, rather than considering the reasons the trial court had actually done so. The technical legal issue in the case was how a federal court should handle a habeas corpus case filed by a state prisoner when the state appellate court, without explanation, summarily affirmed a reasoned lower-court ruling against the prisoner. Wilson had been sentenced to death in Baldwin County, Georgia in 1997. In his state post-conviction proceedings, he alleged that he had been denied the effective assistance of counsel in his penalty-phase proceedings when his lawyer failed to investigate and present available mitigating evidence that could have spared his life. The state post-conviction court conducted an evidentiary hearing, after which it denied relief, issuing a written order that explained the court's reasoning. Wilson then asked the Georgia Supreme Court for permission to appeal the order but the court summarily turned him down saying only that "it be hereby denied." Wilson next filed a habeas corpus petition asking the federal courts to review his ineffective assistance of counsel claim, arguing that, under the federal habeas statute, he was entitled to relief because the state court had unreasonably determined the facts and unreasonably applied the law when it rejected his claim. The federal district court agreed that Wilson had been ineffectively represented, but ruled against him nonetheless, deferring to the state court's conclusion that his trial counsel's failures had not been prejudicial. In an opinion that would have created a nearly insurmountable bar for a habeas petitioner to meet, the Eleventh Circuit held that federal courts should "not 'look through' a summary decision on the merits to review the reasoning of the lower state court," but should limit their review to whether any possible rationale could support the state appeals court judgment. The Supreme Court disagreed. Rather than adopting "an approach ... that would require a federal habeas court to imagine what might have been the state court’s supportive reasoning," Justice Breyer said that the habeas court should "look through" an unexplained state court decision on the merits and "presume that the unexplained decision adopted the same reasoning" as that employed by the lower court. That presumption, he wrote, may be rebutted if the state is able to show that the unexplained decision most likely rested on other grounds. The Court returned Wilson's case to the Eleventh Circuit with instructions to review his ineffectiveness claim under the correct standard. The ruling is the second time this Term the Court has sided with death-row prisoners on procedural issues affecting access to federal review of their cases. In March, the Court issued a ruling preserving indigent death-row prisoners' access to investigative funds "reasonably necessary" to develop their habeas corpus claims, overturning a ruling by the Fifth Circuit that had required habeas petitioners to meet a harsher standard.

Black Prisoner on Georgia’s Death Row, Sentenced by Racist Juror, Denied Federal Court Appellate Review

Less than three months after the U.S. Supreme Court directed a federal appeals court to reconsider whether Georgia death-row prisoner Keith Tharpe (pictured) is entitled to federal-court review of his claim that he was unconstitutionally sentenced to death because he is Black, the U.S. Court of Appeals for the Eleventh Circuit has declined to review Tharpe’s appeal, saying he had never presented the issue to the state courts. Citing “principles of comity and federalism,” the court denied Tharpe’s application for a certificate of appealability—a federal court prerequisite for a habeas petitioner to appeal—on the grounds that the Georgia state courts “have yet to examine” Tharpe’s juror-misconduct claim. Tharpe was sentenced to death by a Georgia jury that included a racist White juror who called him a “ni***er,” and questioned “if black people even have souls.” The juror, Barney Gattie, signed an affidavit saying that there were “two types of black people: 1. Black folks and 2. Ni**ers.” Tharpe, Gattie said, “wasn’t in the ‘good’ black folks category [and] should get the electric chair for what he did.” Gattie’s affidavit also said “[s]ome of the jurors voted for death because they felt Tharpe should be an example to other blacks who kill blacks,” but denied that race influenced his own vote. When Tharpe first presented the claim to the state and lower federal courts, it was denied based on a state-court rule prohibiting courts from considering evidence questioning why jurors reached their verdict. However, after Tharpe’s claim was rejected, the U.S. Supreme Court decided a case in 2017, Pena-Rodriguez v. Colorado, that made clear a state rule cannot insulate a juror’s overt expressions of racial bias from judicial review. While Tharpe faced imminent execution in September 2017, he asked the state and federal courts to review the issue again in light of Pena-Rodriguez. The Georgia Supreme Court and the Eleventh Circuit both denied his request. Three hours after his execution was scheduled to start, the U.S. Supreme Court issued a stay of execution based upon his federal appeal. On January 8, 2018, the Court granted Tharpe’s petition for certiorari and vacated the judgment of the Eleventh Circuit. The Court said the fact that Gattie had never retracted his “remarkable affidavit” strongly suggested that “Tharpe’s race affected Gattie’s vote for a death verdict.” Tharpe is expected to ask the Supreme Court to review the circuit court’s latest ruling. On April 2, he filed a separate petition asking the Court to review the Georgia state court’s denial of the issue.

NEW PODCAST—Racial Discrimination in Death-Penalty Jury Selection: A Conversation with Steve Bright

Race discrimination exists at every stage of the death-penalty process, says veteran death-penalty and civil-rights lawyer Stephen B. Bright (pictured), but “the most pervasive discrimination that is going on is in jury selection.” In a new Discussions With DPIC podcast, Bright—the former President of the Southern Center for Human Rights who has argued jury discrimination cases three times in the U.S. Supreme Court—calls the “rampant” racial discrimination in jury selection “a matter of grave urgency.” In an interview with DPIC’s Anne Holsinger, Bright speaks about the most recent of those cases, Foster v. Chatman, a Rome, Georgia case in which the Court granted Timothy Foster a new trial as a result of intentional discrimination by prosecutors. New evidence, Bright says, now shows that prosecutors in Columbus, Georgia systematically struck African-American jurors in at least seven other capital cases, including three in which defendants have already been executed. Bright explains how jury-selection notes were critical in proving that prosecutors had unconstitutionally targeted African-American jurors in Foster’s case because of their race. Those notes, he says, allowed defense attorneys to “pull back the cloak of secrecy” that usually shrouds decisions on jury strikes. Jury-selection notes recently uncovered from the files of Columbus prosecutors—including the same prosecutor found to have discriminated against Foster—showed the systemic and long-standing nature of this unconstitutional practice. In 1986, in Batson v. Kentucky, the Supreme Court declared the intentional striking of any juror on the basis of race to be unconstitutional. “Thirty years after [Batson] was decided,” Bright says, “it’s pretty clear that it has failed completely to prevent race discrimination in jury selection.” Batson “doesn’t really have any teeth,” he says, because it permits prosecutors to evade clear inferences of discrimination by providing race-neutral pretextual explanations for striking jurors of color that the trial courts routinely accept. To address the problem, Bright proposes a new legal standard for finding discrimination, moving away from ;a subjective assessment of whether the prosecutor intentionally discriminated to an objective assessment of whether “a reasonable person knowing all of the facts” would think the jurors had been stricken on the basis of race. Increasing the representation of people of color on juries would result in “much more faith in the courts and the integrity of the courts,” Bright says, because trials with all-white juries, judges, prosecutors, and defense attorneys erode the community’s confidence in the legal system. “People do not think that ... those trials are legitimate, because a big portion of the community has been completely excluded from participating in the judicial process.”

U.S. Supreme Court Rules in Favor of Texas Death-Row Prisoner Denied Investigative Funding

In a decision that clarifies the showing indigent prisoners must make to obtain investigative services, the U.S. Supreme Court has ruled in favor of a Texas death-row prisoner who was denied funding to challenge the death sentence imposed in his case. In Ayestas v. Davis, the Court unanimously ruled that the Texas federal courts had applied an overly restrictive legal standard in denying Carlos Ayestas (pictured) funding to investigate and develop his claim that his lawyer had provided ineffective representation in the penalty phase of his trial. Federal law requires habeas-corpus courts in death-penalty cases to provide funding that is "reasonably necessary" to the petitioner's case. The U.S. Court of Appeals for the Fifth Circuit, however, has instead required indigent applicants to demonstrate a "substantial need" for funding. The Court returned the case to the federal appeals court to reconsider Ayestas's request for funding using the proper standard. Ayestas, a 48-year-old Honduran national, was sentenced to death in Harris County, Texas in 1997. His trial counsel conducted virtually no life-history investigation and presented a case for life to the jury that lasted just two minutes and included only a single letter from an English teacher in prison. Both his trial and state post-conviction lawyers overlooked available evidence of mental illness and brain damage—including head trauma and substance abuse—and failed to develop a record of the mitigating evidence that his federal habeas lawyers argued should have been presented in his case. The lawyers appointed to represent Ayestas in federal court sought funding to investigate his background, upbringing, and mental health history, without which, they argued, he would be unable to discover mitigating evidence indispensable to presenting a meaningful case to spare his life. The Texas federal district court, applying the Fifth Circuit's "substantial need" test, denied him funding and dismissed his habeas corpus petition, and the Fifth Circuit affirmed. Justice Samuel Alito, writing for a unanimous Supreme Court, reversed and ordered the federal appellate court to reconsider Ayestas's request for funding. In determining whether a funding request is "reasonably necessary" to the petitioner's case, Justice Alito wrote, federal courts courts should assess "whether a reasonable attorney would regard the services as sufficiently important." This standard "requires courts to consider the potential merit of the claims that the applicant wants to pursue, the likelihood that the services will generate useful and admissible evidence, and the prospect that the applicant will be able to clear any procedural hurdles standing in the way." In a concurring opinion, Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, wrote "to explain why, on the record before this Court, there should be little doubt" that Ayestas had already made a showing sufficient to obtain funding. Trial counsel's obligation to thoroughly investigate possible mental illness, she wrote, "exists in part precisely because it is all too common for individuals to go years battling an undiagnosed and untreated mental illness. ... [T]he troubling failures of counsel at both the trial and state postconviction stages of Ayestas’ case are exactly the types of facts that should prompt courts to afford investigatory services, to ensure that trial errors that go to a 'bedrock principle in our justice system' do not go unaddressed." 

Supreme Court Declines to Review Arizona Case Challenging Constitutionality of Death Penalty

The U.S. Supreme Court has declined to review a sweeping challenge to the constitutionality of capital punishment brought by Arizona death-row prisoner Abel Hidalgo (pictured). After scheduling consideration of Hidalgo v. Arizona for ten separate court conferences, the Court on March 19 unanimously denied Hidalgo’s petition for writ of certiorari. In a statement issued in conjunction with the Court’s ruling, however, Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, expressed concern about a second issue raised by Hidalgo—the constitutionality of Arizona’s method of deciding which defendants are eligible for the death penalty. The four justices said that the Arizona Supreme Court had misapplied Supreme Court precedent on that “important Eighth Amendment question,” but believed the factual record was insufficiently developed to warrant the court’s review of the case at this time. Hidalgo had presented records from more than 860 first-degree murder cases over an eleven-year period in Maricopa County—where he was charged—showing that 98% of first-degree murder defendants in that county were eligible for the death penalty, but had been denied an evidentiary hearing to further develop the issue. This “evidence is unrebutted,” the four justices said, and “would seem to deny the constitutional need to ‘genuinely’ narrow the class of death-eligible defendants.” Although “[e]vidence of this kind warrants careful attention and evaluation,” they wrote, the absence of an evidentiary hearing had left the Court with a factual record that “is limited and largely unexamined by experts and the courts below.” With an “opportunity to fully develop a record with the kind of empirical evidence that the petitioner points to here,” the four justices said, “the issue presented in this petition [would] be better suited for certiorari.” The court declined without comment to review a broader challenge Hidalgo presented to the constitutionality of capital punishment itself. Hidalgo is one of many death-row prisoners to raise that issue in the wake of a 2015 dissent by Justices Breyer and Ginsburg in Glossip v. Gross in which they said it is “highly likely that the death penalty violates the Eighth Amendment” prohibition against cruel and unusual punishments.

After Supreme Court Denies Them Relief, Pennsylvania Death-Row Prisoners Resentenced to Life

Two former Pennsylvania death-row prisoners, whose death sentences were overturned by federal courts after the United States Supreme Court had ruled against them, have been resentenced to life without parole. On February 28, 2018, Scott Blystone (pictured) was resentenced to life by the Fayette County Court of Common Pleas in southwestern Pennsylvania, 34 years after being sentenced to death and 27 years after the U.S. Supreme Court heard his case. Two days later, on March 2, Joseph Kindler was also resentenced to life after the Philadelphia District Attorney's Office agreed to drop the death penalty in his case. Nearly 35 years had passed since Kindler had been sentenced to death and eight since the Supreme Court had ruled against him. Blystone's case was the first from Pennsylvania to challenge the state's law requiring the jury to sentence a defendant to death if it finds any aggravating circumstance present, but no mitigating circumstances. Blystone had been represented by a part-time public defender who had been practicing law for less than a year and had never tried a homicide case. The lawyer presented no defense at the guilt stage of trial and had no evidence to present in the penalty phase except for testimony from Blystone's parents. When Blystone refused to have his parents take the stand to beg for his life, the lawyer presented no case in mitigation. Even then, the jury asked the court whether it had to impose the death penalty if it found no mitigating evidence. The court answered in the affirmative, and the jury sentenced Blystone to death. In 1990, a divided U.S. Supreme Court upheld Pennsylvania's death-penalty statute by a 5-4 vote. The federal district court subsequently overturned Blystone's death sentence because of his lawyer's failure to investigate and present mitigating evidence of Blystone's brain damage, mental health diagnoses, and extreme mental and emotional disturbance at the time of the murder. Kindler also overturned his death sentence in the federal courts, after the Pennsylvania state courts had refused to consider Kindler's constitutional challenges to his conviction and sentence because he had escaped to Canada. The federal courts found multiple constitutional violations in Kindler's case, including that his lawyer had failed to investigate and present available mitigating evidence and that the jury had been given an instruction that unconstitutionally limited its ability to consider the mitigating evidence that had been presented. In a unanimous U.S. Supreme Court decision in 2009 dealing with federal review of state procedural rules, the Court overturned the grant of a new penalty hearing and sent the case back to the federal court of appeals. The appeals court again ruled in Kindler's favor, and this time the Supreme Court let that decision stand. 

U.S. Supreme Court to Decide if Alabama Can Execute Prisoner With Vascular Dementia and No Memory of the Crime

Less than a week after Alabama halted the failed execution of a terminally ill prisoner whose veins were not suitable for intraveneous injection, the U.S. Supreme Court has decided to hear the case of another Alabama prisoner whose medical condition, his lawyers say, make him constitutionally unfit for execution. Strokes have slurred Vernon Madison's speech and left him legally blind, incontinent, unable to walk independently, and with no memory of the offense for which he was sentenced to death. Madison's vascular dementia, his lawyers argue, make him incompetent to be executed. This is the third time since 2016 that Madison's case has come before the Court. In May 2016, the U.S. Court of Appeals for the Eleventh Circuit granted Madison a stay of execution to consider his competency claim. At that time, state prosecutors asked the Court to lift the stay, but with one seat vacant from the death of Justice Scalia, the Court split 4-4, leaving the stay in place. Ten months later, citing uncontroverted evidence that Madison has "memory loss, difficulty communicating, and profound disorientation and confusion," the Eleventh Circuit ruled in Madison's favor, finding him incompetent to be executed. Alabama prosecutors again asked the Supreme Court to intervene. On November 6, 2017, the Court agreed to review the case and in a unanimous unsigned opinion reversed the circuit court's decision. The Court explained that, under restrictions on federal habeas corpus review of state decisions imposed by the Congress in the Anti-Terrorism and Effective Death Penalty Act (AEDPA), the federal courts were required to defer to state-court decisions under most circumstances. While expressing "no view on the merits of the underlying question outside of the AEDPA context," the Court ruled that "the state court’'s determinations of law and fact were not “so lacking in justification” as to give rise to error “beyond any possibility for fairminded disagreement." Justice Ginsburg, joined by Justices Breyer and Sotomayor, concurred. However, they believed "[t]he issue whether a State may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense is a substantial question not yet addressed by the Court." If the issue reached the Court in an appropriate procedural posture, they wrote, "the issue would warrant full airing." The Court's ruling cleared the way for Madison to be executed, and the State of Alabama set a January 25, 2018 execution date. In response, Madison's lawyers, led by Bryan Stevenson of the Equal Justice Initiative, presented the state court with additional evidence of Madison's deteriorating condition and new evidence that the doctor whose medical opinion had provided the court's basis for finding Madison competent had been addicted to drugs, was forging prescriptions, and had since been arrested. The state court denied relief without an evidentiary hearing and Madison's lawyers—emphasizing that this was no longer a habeas corpus case—asked the Supreme Court to grant a stay of execution to review the case. On the evening of the 25th, the Supreme Court issued a stay of execution, halting Madison's execution so it could decide whether to review his claim. On February 26, the Court voted to review the case to determine whether the Eighth Amendment prevents a state from executing a prisoner whose mental and physical condition prevents him from having memory of the crime for which he was convicted. The Court may now review the issue unencumbered by the limitations on habeas corpus cases. The Court will likely hear argument in the fall and a decision is expected by June 2019. 

Three Controversial Executions Turn Into A Commutation, An Execution, and an Execution Failure

Three states—Alabama, Florida, and Texas—prepared to carry out controversial executions on Thursday, February 22, all scheduled for 7 PM Eastern time, but by the end of the night, two had been halted. Less than an hour before his scheduled execution, and after having said a final good-bye to his anguished father, Texas death-row prisoner Thomas "Bart" Whitaker (pictured, left) learned that Governor Greg Abbott had commuted his death sentence to life in prison. Minutes later, Florida executed Eric Branch (pictured, center), despite undisputed evidence that he had been unconstitutionally sentenced to death. He was pronounced dead at 7:05 p.m. And nearing midnight Central time, two-and-one-half hours after a divided U.S. Supreme Court had given Alabama the go-ahead to execute terminally ill Doyle Hamm (pictured, right) corrections commissioner Jeff Dunn called off the execution saying prison personnel did not have "sufficient time" to find a suitable vein in which to place the intravenous execution line before the death warrant expired. For Texas, it was the first time in more than a decade and only the third time since the death penalty was reinstated in 1976, that any governor had granted clemency to a condemned prisoner. The Texas commutation came after a unanimous recommendation by the parole board, support from the only living victim, Whitaker's father, and various state lawmakers. In explaining his grant of clemency—the first time Gov. Abbott had commuted any death sentence—the Governor cited the fact that Whitaker's codefendant, the triggerperson, did not get the death penalty, the victim "passionately opposed the execution," and Whitaker had waived any possibility of parole and would spend the remainder of his life in prison. The final-hour commutation was relayed to Whitaker in the holding cell next to the death chamber, as he was preparing to be executed. Florida executed Eric Branch despite the fact that a judge sentenced him death after two of his jurors had voted for life and the jury had been told not to record the findings that would make Branch eligible for the death penalty. Both of those practices have now been found unconstitutional. In Hurst v. Florida, decided in 2016, the U.S. Supreme Court reiterated that a capital defendant's right to a jury trial includes the right to have a jury find all facts necessary for the state to impose the death penalty, and later that year, the Florida Supreme Court declared that the Sixth Amendment and the Florida constitution require jury sentencing verdicts to be unanimous. Alabama had been warned that, because of his terminal cancer and prior history of drug use, Doyle Hamm's veins were not accessible and therefore an attempt to execute him via intravenous injection would be cruel and unusual. After the U.S. Supreme Court issued a temporary stay at 6:00pm CT, followed by a full denial of a stay with dissents from Justices Breyer, Ginsburg, and Sotomayor around 9:00pm CT, Alabama started preparing to carry out Hamm's execution. After more than two-and-a-half hours, the state called it off. At a news conference immediately thereafter, Commissioner Dunn repeatedly asserted the state had followed its execution protocol, and said "I wouldn’t characterize what we had tonight as a problem.” Dunn was unable to describe what the state had been doing during the time that Hamm was being prepared for the lethal injection and dismissed questions about failed attempts to set the IV lines saying he was not qualified to answer medical questions. He said he could not tell reporters how long the medical personnel had attempted to establish IV access because "I am not back there with the staff." Alabama keeps its protocol secret, making it impossible to verify the state's assertions. Hamm's attorney Bernard Harcourt, who—like all witnesses—was not permitted to view the IV insertion portion of the execution, speculated that prison personnel could not find a vein and called the process "[s]imply unconscionable." On the morning of February 23, Harcourt filed an emergency motion saying that Hamm had "endured over two-and-a-half hours of attempted venous access" and seeking a hearing to "establish exactly what happened" during that time frame. The federal district court scheduled a hearing on the issue for Monday, February 26.

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