Arbitrariness

30 Years After Murder, 14 Years After Supreme Court Ruling, Pennsylvania Drops Death Penalty At Request of Victim's Family

Thirty years after the crime that sent him to Pennsylvania's death row and 15 years after his case was argued in the U.S. Supreme Court, David Sattazahn was resentenced to life without parole—the sentence he initially received in his first trial in 1991. Prosecutors, defense attorneys, and the victim's family all agreed that a life sentence was the best outcome at this point in the case. Sattazahn was convicted of first-degree murder and the court sentenced him to life in prison in 1991 when his Berks County sentencing jury split 9-3 in favor of a life sentence. After his life sentence, Sattazahn pled guilty to several unrelated felony charges. His murder conviction was then overturned as a result of prejudicially inaccurate jury instructions, and in his retrial, prosecutors again sought the death penalty, using his guilty pleas as a new aggravating circumstance. In 1999, he was retried and sentenced to death, becoming the first death-after-life-sentenced defendant under Pennsylvania's death penalty statute. His appeal in that trial reached the U.S. Supreme Court (argument, pictured), which ruled 5-4 in 2003 that the non-unanimous jury vote in his case did not constitute a finding rejecting the death penalty, even though it had resulted in a life sentence. As a consequence, the Court wrote, subjecting Sattazahn to a second capital prosecution did not violate the Double Jeopardy clause of the U.S. Constitution. Sattazahn's 1999 death sentence was overturned in 2006 because of ineffective assistance of counsel. Faced with the possibility of a third sentencing hearing and additional appeals, the family of murder victim Richard Boyer, Sr. agreed that dropping the death penalty in favor of life without parole would help bring them closure. “Every time we try to get on with our lives, we're back in court, reliving that night again and again. There has to be an end to this madness,” said Barbara Spatz, Boyer's sister. Senior Deputy Attorney General Anthony Forray said his office consulted with Boyer's four children and four siblings before deciding to drop the death penalty. “No family should have to go through this,” Forray said. “The commonwealth believes that what is occurring today is the appropriate thing to occur if this family is ever going to have closure and if this is ever going to come to an end.” At a May 24, 2017 hearing in Reading, Pennsylvania, the Berks County Court of Common Pleas formally resentenced Sattazahn to life.

Alabama Prisoner Facing Eighth Execution Date Claims Innocence, Challenges Execution Procedures

Tommy Arthur (pictured), an Alabama death-row prisoner whose 35-year journey through the court system has frustrated both proponents and opponents of the death penalty, is scheduled to be executed on May 25, 2017, the eighth time Alabama has set an execution date in his case. Arthur—whose conviction and death sentence has twice been overturned by the courts and was sentenced to death by his trial judge based upon a non-unanimous jury sentencing recommendation—has steadfastly maintained his innocence in the 1982 murder of Troy Wicker. Most recently, an evenly divided U.S. Supreme Court issued a stay of execution four hours after Arthur's execution was set to begin on November 3, 2016, so the Court could consider whether to review Arthur's challenge to Alabama's use of the controversial drug midazolam and his request to be executed by firing squad. The Court ultimately declined to review both that claim and Arthur's separate challenge to the constitutionality of Alabama's non-unanimous sentencing practices. Arthur has repeatedly raised innocence claims, seeking new forensic testing of evidence from his case. Judy Wicker, the wife of Troy Wicker, who was charged with hiring Arthur to kill her husband, testified at her trial that her husband had been murdered by a burglar who beat and raped her. After Ms. Wicker's conviction, she changed her testimony when a prosecutor, who had previously represented her at a parole hearing, offered her early release if she testified against Arthur. The rape kit taken from Ms. Wicker at the time of the murder was lost or destroyed without being tested for DNA and, according to Arthur's current lawyer, Suhana Han, “[n]either a fingerprint or a weapon, nor any other physical evidence connects Arthur to the murder of Troy Wicker.” Hairs found near the victim have also never been tested with modern DNA technology. Arthur has also argued that his trial counsel was ineffective, and continues to litigate issues relating to Alabama's lethal injection protocol. He currently has an emergency motion pending before the U.S. Court of Appeals for the 11th Circuit, challenging the state's planned use of midazolam, a drug that has been linked to many problematic executions, including that of Ron Smith in Alabama in December 2016. He has also challenged the state's refusal to disclose records related to the Smith execution, which his lawyers say may provide critical evidence for his lethal-injection challenge. The Alabama Court of Criminal Appeals issued a preliminary ruling in Arthur's favor on a separate issue on May 23, reversing a Montgomery Circuit judge's order rejecting Arthur's claim that the legislature, rather than the Department of Corrections, should determine the state's execution method. But that procedural ruling will not delay his execution. His motion stated, "The role of the legislature is particularly critical given the controversial nature of the ADOC's current midazolam-based execution protocol. ...The choice of the first drug (midazolam) to be used is critical, because without an effective anesthetic, the second and third drugs would cause unbearable pain. But the drug the ADOC chose (in secret), midazolam, is not used in medical practice as a general anesthetic; rather, it is an anti-anxiety sedative in the same drug family as Valium and Xanax, and its use in lethal injection has been extremely problematic." [UPDATE: Alabama executed Thomas Arthur near midnight on May 25. He was pronounced dead at 12:15 a.m. on May 26. Media witnesses reported no visible indicators that the drugs had failed.]

Death-Row Exoneree, Law Professor, Attorney Voice Opposition to Alabama's "Fair Justice Act"

Soon after passing legislation to make death penalty trials fairer by preventing judges from overriding jury recommendations of life sentences, the Alabama legislature is taking steps to enact a bill that critics say would make capital appeals far less fair. The bill, denominated the "Fair Justice Act," would constrict the amount of time death-row prisoners have to file appeals, impose deadlines for judges to rule on appeals, and require prisoners to pursue their direct appeal and post-conviction appeal simultaneously. Critics of SB 187/HB 260, which has passed the Senate and been approved by the House Judiciary Committee, include Harvard Law School Professor Ronald Sullivan Jr., Alabama death-row exoneree Anthony Ray Hinton, and Birmingham attorney Lisa Borden, who say the proposal is neither fair nor just. They argue that the bill would reduce the quality of appellate representation, insulate trial errors from appellate review, and increase the risk of executing innocent people. Sullivan called the bill "deceitfully named" and wrote it would "undermine much of the progress" made when Alabama recently became the last state in the U.S. to end judicial override. Hinton, who spent 30 years on Alabama's death row before being exonerated, said, "If proposed changes to Alabama's postconviction procedures under consideration by the state legislature had been enacted, I would have been executed despite my innocence." Hinton explains that he spent 14 years looking for volunteer lawyers who could help him prove his innocence, saying, "Because the so called "Fair Justice Act" now pending before the state legislature puts time restrictions on how long death row prisoners have to prove their innocence or a wrongful conviction, this legislation increases the risk of executing innocent people and makes our system even less fair." Borden raises concerns that the poor quality of trial-level representation will spill over into the proposed shortened appeals process. "The average trial of a capital case with appointed counsel takes just a few days, given appointed counsel's frequent lack of preparation and failure to challenge the State's case. ...The attorneys and experts who will try to uncover and correct the injustices done to poor defendants must not be forced to rush through the process too." She suggests, "If Alabama wants to save taxpayers millions of dollars, and provide certainty and finality for the peace of mind of the victim's families, it could do so by abolishing the death penalty, or by limiting its use to only the most egregious cases and providing real, effective representation for those charged with capital crimes."

Virginia Governor Commutes Death Sentence of Ivan Teleguz

On April 20, Virginia Governor Terry McAuliffe commuted the death sentence of Ivan Teleguz (pictured), whom the Commonwealth had scheduled to be executed on April 25. Teleguz will now serve a sentence of life without parole. It was the first  death-penalty clemency ever issued by Gov. McAuliffe. The official statement released to the media in conjunction with the commutation outlined several of the factors that influenced the Governor's decision, including the prosecution's use of false evidence that tainted the jury's choice to sentence Teleguz to death. "[D]uring the trial, evidence was admitted implicating Mr. Teleguz in another murder in a small Pennsylvania town," McAuliffe said. "In arguing for the death penalty, the prosecutor made explicit reference to this evidence in arguing that Mr. Teleguz was so dangerous that he needed to be put to death. We now know that no such murder occurred, much less with any involvement by Mr. Teleguz. It was false information, plain and simple, and while I am sure that the evidence was admitted in a good-faith belief in its truthfulness at the time, we now know that to be incorrect." McAuliffe also cited the disproportionality of sentencing Teleguz to death when Michael Hetrick, the admitted killer, received a sentence of life without parole in exchange for his testimony against Teleguz. "To allow a sentence to stand based on false information and speculation is a violation of the very principles of justice our system holds dear," McAuliffe said. Teleguz maintains that he is innocent of the crime, and his clemency petition received support from numerous political, religious, and business leaders.

State and Federal Courts Grant Stays, Preliminary Injunctions Blocking 8 Arkansas Executions

In legal challenges filed separately by Arkansas death-row prisoners and a company involved in the distribution of pharmaceuticals, the Arkansas state and federal courts issued preliminary injunctions putting on hold the state's plan to carry out an unprecedented eight executions in the span of eleven days. After a four-day evidentiary hearing that ended late in the evening on Thursday, April 13, the United States District Court for the Eastern District of Arkansas issued a preliminary injunction barring Arkansas from carrying out the eight scheduled executions with a three-drug cocktail of midazolam, vecuronium bromide, and potassium chloride. The District Court issued its opinion and order early Saturday, April 15, finding "a significant possibility” that the prisoners' challenge to the lethal injection protocol will succeed and that Arkansas' execution plan denies the prisoners meaningful access to counsel and to the courts during the course of the executions themselves. In granting the preliminary injunction, Judge Kristine G. Baker wrote, "The threat of irreparable harm to the plaintiffs is significant: If midazolam does not adequately anesthetize plaintiffs, or if their executions are ‘botched,’ they will suffer severe pain before they die." The ruling came a week after the U.S. Court of Appeals for the Sixth Circuit upheld a preliminary injunction granted by an Ohio federal district court barring that state from using midazolam in a three-drug execution process. Arkansas has appealed the decision to the U.S. Court of Appeals for the Eighth Circuit.

In another lawsuit filed in state court by McKesson, the company that distributed vecuronium bromide to the Arkansas Department of Corrections, an Arkansas circuit judge issued an order in the late afternoon on Friday, April 14, temporarily blocking the state from using the drug. McKesson had filed a complaint alleging that Arkansas misled them about the intended use of the drug and refused to return it even after being issued a refund. Arkansas appealed the court's order, but after the federal injunction was issued, McKesson asked the Arkansas Supreme Court to vacate the state-court order because it would not be necessary as long as the federal injunction is in place.

Two prisoners separately received individual stays of execution. The Arkansas Supreme Court stayed the execution of Bruce Ward, scheduled for April 17, to allow consideration of his claim that he is incompetent to be executed. A federal district court stayed the execution of Jason McGehee, scheduled for April 27, to comply with the required 30-day public comment period after the Arkansas Parole Board's 6-1 recommendation for clemency.  [UPDATE: The U.S. Court of Appeals for the 8th Circuit reversed the District Court's ruling staying the Arkansas executions based upon its use of midazolam and the U.S. Supreme Court declined to review the issue. The Arkansas Supreme Court lifted the temporary restraining order against the state's use of medicines obtained from the McKessen Corporation to carry out executions.]

In Expanding Dispute Over Death Penalty, Florida Governor Orders Replacement of Local Prosecutor in 21 Murder Cases

Florida Governor Rick Scott issued a series of executive orders on April 3 removing locally elected 9th Judicial Circuit State Attorney Aramis Ayala (pictured) from 21 first-degree murder cases and replacing her with 5th Judicial Circuit State Attorney Brad King. The removal comes two weeks after Ayala announced a policy that her office would not pursue the death penalty in murder prosecutions. The cases include a number of potential capital resentencings resulting from the Florida Supreme Court's 2016 decision declaring non-unanimous death sentences to be unconstitutional. Ayala, a Democrat whose district encompasses Orange and Osceola Counties in and around Orlando, said on March 16 that, after conducting "an evidence-based review" of the issue, she had concluded that seeking the death penalty was not cost-effective and "is not in the best interests of this community or in the best interests of justice." Ayala is the only African-American elected prosecutor in Florida. Gov. Scott previously removed her from the high-profile trial of Markeith Loyd, a defendant accused of killing his pregnant ex-girlfriend and an Orlando police officer, also appointing King to handle that case. That decision prompted opposition from the Florida Legislative Black Caucus and the victim's parents. Democratic state Rep. Sean Shaw of Tampa called Scott's action in the 21 cases a "gross abuse of his power." Louis Virelli, a law professor at Stetson University, warned that Gov. Scott's actions set a dangerous precedent, saying, "this opens the door for governors of all political parties to cherry-pick cases away from prosecutors." Ayala has hired Roy L. Austin, Jr., a former civil rights attorney at the U.S. Department of Justice, to challenge Scott's authority to issue the executive orders. Ayala's spokesperson, Eryka Washington, said Scott had not notified the State Attorney that he was issuing the executive orders and that Ayala first learned of the orders from the media. “Ms. Ayala remains steadfast in her position that the Governor is abusing his authority and has compromised the independence and integrity of the criminal justice system,” Washington said. Orange and Osceola Counties imposed a total of one death sentence from 2012-2016. Citrus, Hernando, Lake, Marion, and Sumpter Counties—the predominantly Republican counties that make up the judicial circuit in which State Attorney King was elected—imposed six death sentences during that period.

LAW REVIEWS: Predictions of Future Dangerousness Contribute to Arbitrary Sentencing Decisions

In a new article for the Lewis & Clark Law Review, author Carla Edmondson argues that the future dangerousness inquiry that is implicit in capital setencing determinations "is a fundamentally flawed question that leads to arbitrary and capricious death sentences" and because of the "persistent influence of future dangerousness ... renders the death penalty incompatible with the prohibitions of the Eighth and Fourteenth Amendments on cruel and unusual punishment." Edmonson's article, Nothing is Certain but Death: Why Future Dangerousness Mandates the Abolition of the Death Penalty, reviews the pervasive influence of future dangerousness in capital sentencing decisions throughout the U.S., either as a statutory aggravating factor, or as a permissable line of argument that prosecutors may use to encourage a jury to impose a death sentence. Edmondson argues that the practice of considering future dangerousness "impermissibly asks jurors to function as fortune tellers, basing their sentencing determination on the likelihood of some future, unascertained event." The article examines the history of the future dangerousness question, its use in various states, and empirical evidence documenting its inaccuracy, randomness, and powerful impact. Edmonson cites seminal studies conducted in Texas and Oregon, two states in which capital sentencing juries are required to find that defendants pose a continuing threat to society before they may impose the death penalty. Those studies, she writes, demonstrate both the unreliability of expert testimony on future dangerousness and the inaccuracy of jury determinations on the subject. Experts in psychology have long argued that predictions of future dangerousness are junk science, and their use in capital sentencing proceedings continues to create serious constitutional concerns. On February 22, 2017, the U.S. Supreme Court overturned the death sentence imposed in Texas on Duane Buck (pictured), whose trial was tainted by racial bias when the defense's own psychologist testified that Buck posed a future danger because he was black. On August 19, 2016, the Texas Court of Criminal Appeals stayed the execution of Jeffery Wood to permit him to litigate claims that the future dangerousness predictions of the state's expert—who had been expelled from state and national professional associations for his unscientific and unethical future dangerousness predictions in the past—constituted false scientific evidence whose use violated due process. "Often based on unreliable and prejudicial evidence, predictions of future dangerousness undermine the efficacy of any imposed sentence," Edmondson argues. "Its unavoidable influence on life-or-death decisions, and the irremediableness of the problems associated with inaccurate predictions of future behavior, demonstrates why any system of capital punishment is unconstitutional and cannot be applied consistent with the Eight Amendment’s prohibition on cruel and unusual punishment."

Exoneree Urges Dallas Prosecutor to Drop Death Penalty Against Veteran With PTSD

Texas capital murder exoneree Christopher Scott (pictured) has urged Dallas County's new District Attorney, Faith Johnson, to drop the death penalty from murder charges pending against Erbie Bowser. Bowser, who is black, is a seriously mentally ill Marine veteran who was discharged from military service after having been diagnosed with Post-Traumatic Stress Disorder. He faces four capital charges in the killings of his girlfriend, his estranged wife, and their daughters. When police found him, he was reportedly reciting his name, rank, and serial number, and the medical staff at the hospital to which he was taken him described him as delusional. In a guest column for the Dallas News, Scott—who served 12 years of a life sentence for a murder he did not commit—writes that the Dallas DA's office "has failed the African-American community for generations," and says that "[t]he Bowser case offers an opportunity for Johnson to change the way her office has historically treated African Americans accused of committing capital crimes." He notes that in 2013, the Dallas District Attorney's office "agreed not to seek the death penalty in a nearly identical case involving a white defendant, William Palmer[, who had] stabbed his wife and both her parents to death while his wife's sister and her six-year-old hid in a closet." Dallas has long been criticized for its history of racial bias in enforcing its criminal laws, including bias in jury selection and the application of the death penalty. During the 30-year administration of Henry Wade, the office produced a training manual instructing prosecutors to exclude people of color from juries, and in a death penalty decision in 2005, the U.S. Supreme Court found that black people in Dallas County had been "almost categorically ... excluded from jury service." The racially disproportionate use of the death penalty has continued in subsequent prosecutorial administrations. A report from the Fair Punishment Project identified Dallas is one of only 16 U.S. counties that imposed five or more death sentences between 2010 and 2015; seven of the eight people sentenced to death in that period were black. Johnson, whom Wade hired in 1982, is the first African-American woman to serve as District Attorney and Bowser's case is considered a barometer of the path she will follow in capital prosecutions. In addition to the issue of racial fairness, Bowser's case presents serious questions about the appropriateness of the death penalty for defendants with severe mental illness, and in particular, veterans with PTSD. Bowser has a history of hallucinations and psychosis stretching back to his adolescence, and reportedly was on more than a dozen medications, including sedatives and antipsychotics, at the time of his arrest. So far this year, seven states have proposed legislation to exempt people with serious mental illness, including PTSD, from the death penalty. 

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