U.S. Supreme Court

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.

Nevada Prisoner Whose Case Confirmed Unconstitutionality of Mandatory Death Sentences Dies 

Raymond Wallace Shuman (pictured), whose case led to a 1987 U.S. Supreme Court decision affirming the unconstitutionality of mandatory death sentences, has died in a Nevada prison at age 83. Shuman, one of the longest-incarcerated prisoners in Nevada history, was serving a life sentence for a 1958 murder when he was convicted of killing a fellow prisoner in 1973. At that time, Nevada law mandated the death penalty for life-sentenced prisoners convicted of another first-degree murder. Then, in 1976, the U.S. Supreme Court issued a series of decisions upholding the constitutionality of capital punishment, but overturning mandatory death-penalty statutes in North Carolina and Louisiana. The 1976 cases established an individualized-sentencing requirement pursuant to which no one could be sentenced to death without first having the opportunity to present reasons to spare his or her life. Shortly thereafter, Nevada repealed its mandatory death sentencing law. Shuman, who was the first prisoner to face execution in Nevada after the 1976 rulings, challenged the constitutionality of his sentence as violating the Eighth and Fourteenth Amendments. The Nevada Supreme Court upheld Shuman's death sentence. Shuman's lawyers then presented the issue to the Nevada federal courts, which declared the state's mandatory capital-punishment statute unconstitutional. The prosecution appealed, arguing that the Supreme Court's 1976 decisions had left open the question of whether the death penalty could be mandated in certain extremely narrow classes of cases such as prison killings by life-sentenced prisoners. The U.S. Supreme Court agreed to review the case and, in a 6-3 ruling in Sumner v. Shuman, issued on June 22, 1987, the Court declared the statute unconstitutional. In his opinion for the Court, Justice Harry Blackmun wrote: "Although a sentencing authority may decide that a sanction less than death is not appropriate in a particular case, the fundamental respect for humanity underlying the Eighth Amendment requires that the defendant be able to present any relevant mitigating evidence that could justify a lesser sentence." That evidence included the nature of the defendant's prior conviction—Blackmun noted that Shuman had not been the triggerman in the 1958 murder—the defendant's background, life history, upbringing, and mental health, and any mitigating aspect of the circumstances of the offense. Shuman died around 2:25 p.m. on February 4 at the Carson Tahoe Regional Medical Center in Carson City, according to the Nevada Department of Corrections. 

U.S. Supreme Court Stays Alabama Execution to Consider Vernon Madison's Competency to Be Executed

The United States Supreme Court has stayed the execution of Vernon Madison to consider for a second time questions related to his competency to be executed. In a 6-3 vote, with Justices Thomas, Alito, and Gorsuch dissenting, the Court halted Alabama's scheduled January 25 execution of Madison "pending the disposition of the petition for a writ of certiorari" he had filed seeking review of his competency to be executed. That petition was based upon new evidence of his deteriorating mental condition and that the doctor whose opinion state courts had relied upon in finding him competent had been addicted to drugs, was forging prescriptions, and was subsequently arrested. Madison—who has no memory of the crime he committed as a result of a succession of strokes that have caused dementia—has been challenging his competency to be executed for more than two years. In May 2016, the U.S. Court of Appeals for the Eleventh Circuit granted Madison a stay of execution to consider his competency claim, and the Supreme Court deadlocked at 4-4 on whether to vacate that stay. The Eleventh Circuit subsequently ruled in March 2017 that Madison was incompetent to be executed, saying that the Alabama state courts had acted unreasonably in finding him competent. The U.S. Supreme Court overturned that decision in November 2017, reinstating the state-court ruling and clearing the way for Alabama to issue the latest death warrant. After the Supreme Court's ruling, Madison's attorneys returned to the state courts with the new evidence. The state court, once again, denied him relief, leading to Madison's request to the Supreme Court for a stay. The stay will provide the Court time to review two separate petitions filed by Madison's lawyers. The first affords the Court the opportunity to address whether the Eighth Amendment permits "the State to execute a prisoner whose mental disability leaves him without memory of his commission of the capital offense." The second petition challenges the constitutionality of Madison's death sentence itself. Madison was sentenced to death by an Alabama trial judge despite the jury's recommendation that he receive a life sentence. Since the time of his sentence, Alabama has repealed the portion of its law permitting "judicial override" of a jury's life recommendation, and no state now authorizes that practice. Madison's execution date has attracted international attention because of his severely impaired mental condition. On January 24, David O'Sullivan, the European Union's Ambassador to the United States, wrote to Alabama Governor Kay Ivey with "an urgent humanitarian appeal" for her to reconsider the state's decision to execute Madison, citing "his major neurocognitive disorder." The letter "note[d] with concern that there is undisputed evidence that Mr. Madison has suffered multiple strokes, including a thalamic stroke resulting in encephalomalacia, that have damaged multiple parts of his brain, including those responsible for memory." It also reminded Alabama that "[t]he execution of persons suffering from any mental illness or having an intellectual disability is in contradiction to the minimum standards of human rights, as set forth in several international human rights instruments." Madison's lead counsel, Bryan Stevenson, said that he was "thrilled" by the Court's decision to grant a stay and that "[k]illing a fragile man suffering from dementia is unnecessary and cruel."

Justices Appear Sympathetic to Louisiana Death-Row Prisoner Whose Trial Lawyer Conceded Guilt

The justices of the U.S. Supreme Court appeared to be favoring arguments presented by Louisiana death-row prisoner Robert McCoy (pictured), who was convicted and sentenced to death after his lawyer, in the face of repeated instructions from his client to argue his innocence, instead told the jury that McCoy had killed three family members. McCoy's trial lawyer, Larry English, said he ignored his client's instructions and conceded guilt hoping jurors would then vote against the death penalty because McCoy had "serious emotional issues" that prevented him from "function[ing] in society" or "mak[ing] rational decisions." News coverage of the January 17 oral argument in McCoy v. Louisiana reports that the justices were in "broad agreement" with McCoy's position and "seemed sympathetic to his plight." The question debated during the hour-long Supreme Court argument was "whether the right to a lawyer that’s guaranteed by the Constitution is meaningful if, even with the best intentions, he can ignore his client’s wishes." Seth Waxman, former U.S. Solicitor General under the Clinton Administration, argued on behalf of McCoy, saying that "when a defendant maintains his innocence and insists on testing the prosecution on its burden of proof" then the Sixth Amendment right to counsel "prohibits a trial court from permitting the defendant's own lawyer, over the defendant's objection, to tell the jury that he is guilty." The state's attorney, Louisiana Solicitor General Elizabeth Murrill, argued for what the state charcterized as a "narrow exception" that would allow a defense lawyer in a capital case to override the client's wishes and admit the client's guilt if the lawyer believed that was necessary to save the client's life. But even Justices Gorsuch and Alito—two of the Court's most conservative justices—seemed to agree in some respects with McCoy's position. Justice Gorsuch asked Murrill why the error at trial was not "a total denial of the assistance of counsel" and said that the right to counsel included "not to have an agent of the state assist the state in prosecuting you." Justice Alito expressed exasperation that the case had even reached this point, questioning the trial court decisions finding McCoy competent to stand trial and refusing to allow English to withdraw from the case. "[I]f somebody like McCoy really sincerely believes that he did not commit these physical acts, but it was all done by—as part of an elaborate conspiracy, is he—is he capable of assisting in his own defense?," Alito asked. Justices Breyer and Kagan voiced sympathy for English, who they believed was trying to save McCoy's life. Justice Kennedy, often the swing vote in death-penalty cases, asked the Louisiana Solicitor General a single line of questions: was it Louisiana's position that, if "a defendant [in a capital case] wants to plead not guilty, the defense attorney can plead guilty if the defense attorney thinks that's the best way to avoid the death penalty?" When the solicitor general said that a lawyer could not do that, Kennedy followed up, asking "How is that proposition any different from what really happened in this case?" A decision is expected by the end of June 2018.

U.S. Supreme Court Orders Federal Appeals Court to Reconsider Case Involving Racially Biased Juror

The U.S. Supreme Court has 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. On January 8, the U.S. Supreme Court issued a 6-3 opinion sending Tharpe's case—in which a racist juror used an offensive slur to describe the defendant and doubted whether African Americans have souls—back to the U.S. Court of Appeals for the Eleventh Circuit for further consideration whether the federal courts should hear his claim of juror bias. Seven years after Tharpe was sentenced to death, his attorneys obtained a sworn affidavit reviewed and initialed by Barney Gattie, a white man who served as a juror at Tharpe's trial. In his statement, Gattie said, "After studying the Bible, I have wondered if black people even have souls," and, "there are two types of black people: 1. Black folks and 2. Ni[**]ers." Gattie also expressed his belief that Tharpe "wasn’t in the ‘good’ black folks category in my book, [and] should get the electric chair for what he did." According to Gattie, the victim was one of the "nice black folks," but "[i]f [the victim] had been the type Tharpe is, then picking between life and death for Tharpe wouldn’t have mattered so much." Despite these statements, the Georgia state courts rejected Tharpe’s racial-bias claim after prosecutors obtained a second affidavit from Gattie asserting that he was not a bigot. State prosecutors have not denied that Gattie made these statements, but have attempted to defend them by saying that Gattie had been drinking when he signed the affidavit. The Georgia federal courts had also denied Tharpe relief on the claim, deferring to the fact-finding of the state courts that Gattie's bigoted statements were not prejudicial. However, in 2017, the U.S. Supreme Court decided two major cases that Tharpe said required the federal courts to reconsider his claim:  Buck v. Davis, a Texas death-penalty case in which the racially biased testimony of an expert witness created an unacceptable risk that Buck was sentenced to death because he was black, and Pena-Rodriguez v. Colorado, a case that overturned a state-court rule that prevented defendants from using racially biased statements made by a juror as evidence of juror misconduct during deliberations. Georgia was scheduled to execute Tharpe in September 2017, but the Supreme Court granted him a last-minute stay to decide whether to review his case. The Court ultimately accepted review of the case, issued a per curiam ruling in Tharpe v. Sellers  without further briefing or argument, and returned the case to the Eleventh Circuit, which must now consider whether to issue a Certificate of Appealability—a procedural prerequisite to considering an issue on appeal. Brian Kammer, Tharpe's attorney, said, "We are thankful that the U.S. Supreme Court recognized the serious implications for fundamental fairness of the clear evidence of racial animus on the part of one of the jurors who sentenced Mr. Tharpe to death." Justice Clarence Thomas dissented, joined by Justices Alito and Gorsuch, criticizing the Court for interfering in the case and failing to respect the lower courts' judgments.

Court Rulings Raise Questions of What Constitutes Incompetency and How is it Determined

Two recent high court rulings have raised questions of whether death-row prisoners are sufficiently mentally impaired to be deemed incompetent to be executed and who gets to make that determination. On November 7, the Arkansas Supreme Court issued an order staying the execution of death-row prisoner Jack Greene (pictured, left) to resolve whether that state's mechanism to determine competency—giving the director of the Arkansas Department of Correction ("ADC") sole discretion to make the decision—violates due process. One day earlier, a unanimous United States Supreme Court permitted the execution of Alabama death-row prisoner, Vernon Madison (pictured, right), to go forward—despite evidence that strokes have left him legally blind, incontinent, unable to walk independently, and with no memory of the offense for which he was sentenced to death—saying that the Alabama Supreme Court's ruling that Madison had a rational understanding of his execution was not contrary to or an unreasonable application of clearly established federal constitutional law. Greene's lawyers had argued to the Arkansas Supreme Court that Arkansas had violated his right to due process when corrections director Wendy Kelley ruled him competent to be executed without having conducted any independent mental health evaluation or providing Greene's lawyers any opportunity to contest her determination. According to court filings, Greene is severely mentally ill and psychotic, delusionally believes that the ADC has destroyed his central nervous system, engages in "extreme physical contortions and self-mutilations" to attempt to combat the pain, and thinks the state and his lawyers are colluding to execute him to prevent disclosure of the injuries he believes have been inflicted by the state. In his Last Will and Testament, signed on November 1, he asked that his head be surgically removed after the execution and examined by a television reality show doctor in an effort to prove that he has been subjected to "percussion concussion brain injuries . . . inflicted by the Arkansas Department of Corrections since July 5, 2004." His lawyers have been seeking a court hearing on Greene's mental status to determine his competency. In ther Alabama case, the Supreme Court reversed a decision of the U.S. Court of Appeals for the 11th Circuit that had found Madison incompetent to be executed. The federal appeals court had rejected the state court's finding that Madison was aware of the reasons for his impending execution, saying that because of his stroke-induced "memory loss, difficulty communicating, and profound disorientation and confusion," he lacked an understanding of the "connection between his crime and his execution." The Supreme Court reversed the lower court's decision, holding that there was no clearly established law concerning when "a prisoner is incompetent to be executed because of a failure to remember his commission of the crime," as "distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case." Prosecutors in Arkansas said that they will not seek rehearing of the decision in Greene's case, and state attorneys in Alabama have not yet asked for an execution date for Madison.

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