Arbitrariness

Washington Supreme Court Unanimously Finds Reversible Error, But Upholds Prisoner’s Conviction and Death Sentence

A fractured Washington Supreme Court unanimously found that a death-row prisoner’s constitutional rights had been violated under circumstances that had always before required overturning a conviction and granting a new trial, but nevertheless voted to uphold his conviction and death sentence. In five opinions spanning 254 pages published on April 12, 2018, the nine justices agreed that Conner Schierman’s (pictured) rights to be present and to a public trial were violated during the jury selection process in his case when the court discussed potential challenges for cause related to six prospective jurors in the judge’s chambers outside the presence of the defendant and the public without making a record of the proceedings. Under long-established Washington law, such constitutional violations had long been considered “structural error” requiring that a new trial automatically be granted. In the lead opinion in the case, Justice Sheryl Gordon McCloud wrote that the 10-minute proceeding could not have had any effect on the trial and did not undermine public confidence in the justice system. In a concurring opinion, Justice Mary Yu, joined in by three other justices, wrote: “A majority of this court agrees that justice demands we affirm Schierman’s convictions, but every member of the court unanimously agrees that our precedent precludes us from doing so. In this direct conflict between justice and precedent, justice must prevail.” Four justices dissented from the majority’s decision to change exisiting law to uphold Schierman’s convictions. Two other justices, and one of the guilt-stage dissenters, also believed that Schierman’s death sentence had been unconstitutionally imposed, for a total of six justices who had determined that the constitutional violations in the case required that Schierman be granted a new trial or that his death sentence be overturned. But rather than ruling that a death sentence cannot be imposed for an unconstitutionally obtained conviction, three of the guilt-stage dissenters—Justices Debra Stephens, Charles Johnson, and Susan Owens—joined with the remaining justices to uphold Schierman’s death sentence by a vote of 6-3. Schierman was convicted and sentenced to death in King County in 2010 for stabbing to death four members of Leonid Milkin’s family while the National Guardsman was deployed to Iraq. He is the last person to have been sentenced to death in King County, which includes the city of Seattle. King County Prosecuting Attorney Dan Satterberg has advocated abolishing Washington’s capital-punishment statute, writing that “the death penalty law in our state is broken and cannot be fixed. It no longer serves the interests of public safety, criminal justice, or the needs of victims.” He testified before a state senate committee, “If you look at it carefully and take away the politics and the emotion, by any measure this doesn’t work. Our criminal justice system would be stronger without the death penalty.” Satterberg said Leonid Milkin “is supportive of the death penalty in this matter and we continue to pursue it, as it continues to be the law of the state.” The bi-partisan abolition bill, which has the support of Governor Jay Inslee and the state’s last two attorneys general, passed the state senate and a house committee in the 2018 legislative session that ended in March, but never received a vote before the full house. Governor Inslee imposed a moratorium on executions in Washington in February 2014.

New Mexico Supreme Court Hears Argument on Whether State May Execute Last Two Men on Its Death Row

Nine years after New Mexico prospectively abolished capital punishment, lawyers for the state’s two remaining death-row prisoners argued to the New Mexico Supreme Court that the death penalty was unconstitutionally disproportionate punishment as applied to Timothy Allen (pictured, left) and Robert Fry (pictured, right), and that they should not be executed. The lengthy oral argument on April 10 turned on how the court should go about determining whether a death sentence is arbitrary and disproportionate. State prosecutors urged the court to follow a 1983 decision that would limit the court’s review to cases involving the same aggravating factors that were present in the prisoners’ crimes. “[T]he ultimate question,” said Assistant Attorney General Victoria Wilson, “is: ‘Was this sentence imposed arbitrarily?’” On the other hand, the prisoners’ lawyers argued that executing the men would be disproportionate punishment and unconstitutionally arbitrary when compared to all the cases in which New Mexico could have imposed the death penalty. Between 1979 and 2009, when New Mexico authorized capital punishment, prosecutors sought the death penalty more than 200 times. The sentence was imposed in only 15 cases, leading to a single execution in 2001, when Terry Clark waived his appeals. During the argument, Justice Charles Daniels questioned whether New Mexico had applied the death penalty in an “evenhanded” manner. “In the first 47 years of our existence as a state, we executed 27 people with fairly regular frequency,” Daniels said. “In the next 57 years, we executed one—at a time when there were horrible murders and over 200 where the death penalty was sought.” Given that history, he asked, “[c]an we really look in the mirror and say we’ve walked the talk and imposed the death penalty consistently in New Mexico?” Allen, who suffers from schizophrenia and auditory hallucinations, was sentenced to death in connection with the kidnapping, attempted rape, and murder of a 17-year-old girl in 1994. His lawyer had never tried a capital case, conducted no mental health investigation, and presented no witnesses in the penalty phase of Allen’s trial. Fry was sentenced to death for stabbing and bludgeoning a mother of five to death in 2000. Fry’s lawyer, Kathleen McGarry, argued: “What we’re looking at are cases that are far worse than Mr. Fry’s case and yet those persons are not going to be … sentenced to death. How does that make Mr. Fry’s death sentence be the poster child of what we’re going to do here in New Mexico?” 

OUTLIER COUNTIES: Death Sentences, Executions More Likely in Hamilton County Than Elsewhere in Ohio

With 24 prisoners currently condemned to die, Hamilton County—home to Cincinnati—has the largest death row of any county in Ohio, despite a smaller population and a lower murder rate than other parts of the state. Ten of the 55 prisoners executed in the state since the 1970s were sentenced to death in Hamilton County, again more than any other Ohio county. In a recent pair of articles in The Cincinnati Enquirer, reporter Dan Horn describes the county's long history with the death penalty and reports that the county's current aggressive use of the death penalty stems from the county's culture and politics. According to Horn's analysis of Death Penalty Information Center data, Hamilton County's death row is currently the 22nd largest county death row in the country. While Hamilton is not among the nation's seventy largest counties, it ranks among the fewer than 1 percent of U.S. counties that the Enquirer found now account for 40 percent of all death-row prisoners in the country. Of counties with 20 or more death-row prisoners, Hamilton has the seventh largest death row, per capita. “There’s no question Hamilton County is and definitely was a conservative county,” said Andrew Welsh-Huggins, the author of the book No Winners Here Tonight—a comprehensive analysis of Ohio's death penalty. “A conservative county is going to elect conservative prosecutors, and they’re going to take their cues from that," Welsh-Huggins told Horn. Hamilton County prosecutor Joe Deters exemplifies that characterization, saying, "People in really bad cases want the death penalty. There are certain cases that are so hideous they are just evil." Welsh-Huggins's book—and his earlier 2005 capital punishment study for Associated Press—documented Ohio's on-going unequal application of the death penalty, with race-of-victim, geography, and plea-bargains all affecting death sentencing. The AP study showed that while 8.5% of capitally charged defendants had received death sentences in Cuyahoga County (including the city of Cleveland), 43% had been sentenced to death in Hamilton. Today, two other Ohio counties with larger populations and more murders than Hamilton have fewer people on death row: Cuyahoga has 21 and Franklin County 11. Welsh-Huggins summarized the cause of such geographic disparities, telling Horn: “The law is prosecuted differently depending on who is the elected prosecutor. Your chances of going to death row depend on where you committed the crime.”

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.

Wake County, North Carolina Jury Rejects Death Penalty in Ninth Consecutive Case

A Wake County, North Carolina jury has rejected the death penalty for 24-year-old Donovan Jevonte Richardson (pictured) and sentenced him to two life sentences, marking the ninth consecutive Wake County capital trial to result in a life verdict. No jury has imposed the death penalty in the county since 2007. “The reality," said Gretchen Engel, Executive Director of the Durham-based Center for Death Penalty Litigation, is that "it just doesn’t make sense to pursue the death penalty in Wake County. Juries have made it crystal clear that they no longer want to impose death sentences, and these costly protracted trials benefit no one.” The jury voted on January 24 to spare Richardson's life, finding that 11 mitigating circumstances—including his age, lack of premeditation, and mental duress at the time of the crime—outweighed the aggravating factors of burglary and robbery during a 2014 home break-in that ended in the murders of Arthur Lee Brown, 74, and David Eugene McKoy, 66. The jury also found as mitigating circumstances that Richardson's father had abandoned him, refusing to acknowledge that Richardson was his son until after a paternity test; that sentencing Richardson to death could harm his two young sons, aged 3 and 7; and that Richardson’s family had offered assurances that Richardson would have a relationship with his sons while he is imprisoned. Wake County District Attorney Lorrin Freeman characterized the case as "everybody's worst nightmare[,] ... two men who worked hard (and) loved their families (but) were murdered in the sanctity of their home at night." She said, "This was a case that we felt strongly (that) under the law (and) under the facts of the case, it was appropriate to go to a jury on that issue." Engel disagreed. “Donovan Richardson wasn’t the most culpable murderer in Wake County, or even in this case. He was just the one who refused to accept the plea bargain," she said. "That’s why he ended up facing the death penalty. It’s a system that makes no sense. It’s entirely arbitrary and goes against our ideas about justice and a death penalty reserved only for a carefully selected few.” The evidence in the case showed that another man Gregory Crawford, committed at least one of the killings and may have shot both men. He pleaded guilty in May 2016 to charges of first-degree murder, robbery with a dangerous weapon, and burglary and was sentenced to life in prison without parole. A third man, Kevin Britt, was charged with two counts of first-degree murder, robbery with a dangerous weapon and burglary, but was permitted to plead guilty to being an accessory to murder after agreeing to testify against Richardson. He is expected to serve less than two years in prison. A 2013 study by DPIC showed that Wake County had the 50th largest county death row in the United States and was among the 2% of U.S. counties accounting for 56% of all prisoners then on death row in the country. In February 2016, after jurors had returned the sixth consecutive life sentence in Wake County, District Attorney Freeman said it might be time to reassess whether to seek the death penalty in future cases. The county nonetheless has sought the death penalty in at least one capital trial in each of the last three years, a time period in which there have been only ten capital trials in the state's 100 counties and only one death sentence.

Alabama Cancels Cancer Surgery, Sets Execution Date for Terminally Ill Prisoner

Alabama has set an execution date for Doyle Lee Hamm (pictured), a 60-year-old man with terminal cranial and lymphatic cancer that his lawyer says has rendered his veins unusable for lethal injection. Hamm has received radiation and chemotherapy, and was scheduled for surgery to remove a cancerous lesion on December 13, but Alabama prison officials cancelled the surgery and instead informed Hamm that a death warrant had been issued scheduling his execution for February 22, 2018. In September, Hamm's attorney, Bernard Harcourt, asked anesthesiologist Dr. Mark Heath to examine Hamm to determine whether his veins would be suitable for the execution protocol. Dr. Heath found that Hamm has virtually "no accessible veins" in his arms and legs, and that his lymphatic cancer would complicate any attempts at the already challenging procedure of obtaining central vein access. Heath concluded, “the state is not equipped to achieve venous access in Mr. Hamm’s case.” In a commentary in The New York Times, Harcourt wrote that Hamm "will suffer an agonizing, bloody, and painful death” if prison officials proceed with the execution as planned. "Our justice is so engrossed with how we kill that it does not even stop to question the humanity of executing a frail, terminally ill prisoner," Harcourt wrote. “Mr. Hamm’s serious and deteriorating medical condition poses an unacceptable risk that he will experience significant pain.” Andrew Cohen of the Brennan Center for Justice wrote in a December 15 commentary that Hamm's case "has come to symbolize the injustice of [Alabama's death-penalty] system. The idea that executioners want to make sure they kill Hamm before he dies of cancer, the fact that it is likely the lethal injection itself will cause him 'needless pain' before he dies, may be abhorrent but it's entirely consistent with the way state officials have handled Hamm's case for years." When Hamm was sentenced to death in September 1987, his jury did not unanimously agree on his sentence, but Alabama law permitted the trial judge to impose a death sentence based upon a jury's non-unanimous sentencing recommendation. At that time, Alabama was one of only three states to permit that practice; and now it is the only state to do so. Cohen wrote that Hamm's constitutional rights "were ignored in virtually every way" during the trial. "Witnesses changed their stories, ultimately testifying against him only after they were charged as co-defendants and made sweetheart plea deals. His trial lawyer did a miserable job during the mitigation phase, failing utterly to give jurors a fair sense of the intellectual disability, or perhaps brain damage, from which Hamm has suffered his whole life." During state post-conviction review of Hamm's case, the trial court denied his appeal by adopting verbatim an order written by the state attorney general's office, without even removing the word "proposed" from the title. In 2016, Hamm sought review of that practice from the U.S. Supreme Court, but the court declined to review his case.

DPIC Year End Report: New Death Sentences Demonstrate Increasing Geographic Isolation

Nearly one-third (31%) of the 39 new death sentences imposed in the United States in 2017 came from just three counties, Riverside, California; Clark, Nevada; and Maricopa, Arizona, according to statistics compiled for DPIC's annual year end report. In a press release accompanying the annual report, DPIC said that the year's sentences reflect "the increasing geographic isolation and arbitrary nature of the death penalty." Riverside imposed five death sentences in 2017, Clark four, and Maricopa three, and no other county imposed as many as two. The other 3,140 counties and parishes in the country imposed 27 new death sentences, fewer than the record low total of death sentences imposed in the country last year. These three counties were featured in a 2016 report by Harvard University's Fair Punishment Project of the most prolific death sentencing counties in the country. That report found that the death penalty high-use counties tended to share "a history of overzealous prosecutions, inadequate defense lawyering, and a pattern of racial bias and exclusion," among other criminal justice issues. In a recent article about DPIC's year end report published in the Desert Sun, Dunham said, "You don’t see counties that overproduce death penalties and are model citizens in the administration of justice as a whole." Current Riverside County District Attorney Mike Hestrin told the paper that he “strenuously” objected to that characterization, which he called "a bunch of nonsense." Riverside County Public Defender Steven Harmon said that while the county has historically overused the death penalty, Hestrin, who took office in 2015, "has taken a far more measured approach to deciding in which cases he should seek the death penalty.” The Desert Sun reported in 2016 "an astronomical rise in wiretaps" in Riverside county that was "so vast it once accounted for nearly a fifth of all U.S. wiretaps," including triple the number issued by any other state or federal jurisdiction in 2014. Riverside police ranked 9th in the nation in killings of civilians. 76% of those sentenced to death in Riverside between 2010 and 2015 were defendants of color, and during that time frame it imposed death sentences at a rate that was 9 times greater per homicide than the rest of the state. All six defendants sentenced to death in Riverside in 2016 or 2017 were black or Latino. Riverside has imposed more death sentences than any other county in the country over the last five years, and 2017 was the second time in the last three years that it sentenced more people to death than any other county. Its five death sentences constituted 45% of the death sentences imposed in California this year, and more than were imposed by any other state. Four other southern California counties (Los Angeles, Kern, Orange, and San Bernardino) are also among the ten most prolific death sentencers in the past five years, and the region has been dubbed "the buckle of a new death belt." Riverside County alone has imposed 8.5% of all new death sentences in the country since 2013, and the five-county "death belt" has imposed 21.8%. By contrast, Harris County, Texas, which has executed more people than any other county, produced no executions or death sentences this year. Only 15% of all counties in the U.S. have ever imposed a death sentence that resulted in an execution. (Click image to enlarge.)

State Attorney Aramis Ayala's First Capital Prosecution Ends in Deal for Life in Prison

There will be no death penalty in the first capital prosecution authorized under the administration of Orange and Osceola County, Florida, State Attorney Aramis Ayala. In a case that rekindled the political confrontation between State Attorney Ayala and Governor Rick Scott over the use of the death penalty, Emerita Mapp (pictured) pleaded no contest on December 8 to one count of murder and a second count of attempted murder in exchange for a sentence of life without parole. The plea deal came just three days before the trial judge was scheduled to rule on Mapp’s motion arguing that the court should bar the death penalty in her case because the state attorney’s office had missed the filing deadline for seeking the death penalty. In March, State Attorney Ayala announced that her office would not seek the death penalty, saying that the use of the punishment was “not in the best interests of this community or in the best interests of justice." Scott responded by removing Ayala’s office from more than two dozen potential death-penalty cases over the course of several months, and replacing her with Lake County State Attorney Brad King. The move, which was opposed by civil rights groups and the Florida black legislative caucus, had unspoken racial undertones: Ayala, a Democrat, is Florida's only black elected state attorney; King, a Republican, is white and a vocal proponent of capital punishment. Ayala sued Scott, alleging that he had overstepped his powers, but in August 2017, the Florida Supreme Court upheld his actions, holding that Scott had acted “well within the bounds of the Governor’s broad authority.” Ayala said she respected the ruling and announced the formation of a panel to decide in which cases to pursue capital punishment. Mapp’s case was the first in which the panel had authorized the death penalty, but that authorization came 22 days after the deadline for providing notice of capital prosecution. That prompted another round of criticisms traded between Scott and Ayala as to who was to blame for missing the deadline.

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