Federal Death Penalty

USS Cole Lawyers Resign From Guantánamo Death-Penalty Defense, Say Government Spied on Client Communications

The U.S. Supreme Court has denied review of a petition filed by lawyers on behalf of Abd al Rahim al Nashiri—accused of orchestrating al-Qaida’s October 12, 2000 suicide bombing of the USS Cole warship off the coast of Yemen—challenging the legality of his death penalty trial before a Guantánamo Bay military commission. But in what has been described as "a stunning setback" to what would have been the first death-penalty trial held before the special military tribunals established in the wake of the 9/11 attacks, the entire civilian legal team has resigned from the case amid allegations that the government was illicitly listening in on their legal meetings. The Miami Herald reported on October 13, just three days before the Supreme Court decision, that the Chief Defense Counsel for the Military Commissions Defense Organization, Brigadier General John Baker (pictured) had “found good cause” to permit Nashiri's defense team to withdraw from the case as a result of ethical concerns created by alleged government spying on privileged attorney-client meetings. In June 2017, Gen. Baker advised war court defense attorneys that he had lost confidence in the integrity of “all potential attorney-client meeting locations” at Guantánamo, saying that he was “not confident that the prohibition on improper monitoring of attorney-client meetings” at the detention center was being followed. Attorney Rick Kammen, who has defended Nashiri since 2008, alleges in the Supreme Court petition that his team discovered classified information contradicting government assurances that the facilities in which they met with Nashiri were not being improperly surveiled. In the past, the spying has included, among other things, "microphones hidden in smoke detectors." Because the information relating to the violation of the right to counsel is classified, the defense lawyers have been ordered by the judge in the case, Air Force Colonel Vance Spath, not to share the information with the public or their client. Although Brig. Gen. Baker has released Kammen from representing Nashiri, the case cannot proceed until another experienced death-penalty defender is brought onboard. Two other civilian defense attorneys who are Pentagon employees—Rosa Eliades and Mary Spears—also quit the case with permission from Baker but remain on his staff. The only member of Nashiri's defense team who remains on the case is Lieutenant Alaric Piette—a former Navy SEAL who has never tried a murder case. “I am certainly not qualified as learned [death-penalty] counsel,” Lt. Piette told the Miami Herald, which he says Nashiri “is entitled to and should have ... since the government is trying to kill him.” Kammen says the defense team is "angry about being placed in an ethically untenable position, disappointed in not being able to see the case through, and devastated to leave Mr. Nashiri, whom we genuinely like and who deserves a real chance for justice.” The pretrial proceedings at the Guantánamo Bay that were scheduled to begin on October 30th are expected to be delayed for months, until learned death-penalty counsel who has received Top Secret security clearance to review the evidence in the case is appointed.

Prosecutors Seeking Death Sentences for Aging Defendants Despite Taxpayer Cost, Likelihood of Dying Before Execution

Two cases in which prosecutors have elected to pursue the death penalty against aging or infirm defendants who will almost certainly never be executed have raised questions about the costs and benefits of capital charges and the arbitrary exercise of prosecutorial discretion. Federal prosecutors in Missouri are seeking the death penalty against 61-year-old Ulysses Jones Jr., a man with terminal renal disease, for the 2006 killing of another prisoner at a federal prison hospital. At the same time, Philadelphia's judicially-appointed interim district attorney, filling the unexpired term of a district attorney convicted of public corruption charges, is pursuing the death penalty against 64-year-old Robert Lark in the retrial of a 1979 murder. Lark won a new trial in 2014, seven years after Philadelphia prosecutors appealed a lower federal court ruling that they had unconstitutionally struck African Americans from serving as jurors in Lark's case because of their race. Jones is currently facing a capital sentencing hearing in the United States District Court for the Western District of Missouri after having been convicted on October 4 of murdering 38-year-old Timothy Baker with a makeshift knife in January 2006 at the U.S. Medical Center for Federal Prisoners in Springfield, Missouri. Jones has been receiving dialysis for the last 30 years, and the medical center, known as Fed Med, houses the nation’s largest dialysis center. Two other prisoners, Wesley Paul Coonce Jr. and Charles Michael Hall, are on federal death row for another murder at Fed Med. Jones's lawyer, Thomas Carver, argues that the capital trial is senseless, both because Jones is already serving a life sentence for two unrelated robberies and murders, and because, if he is sentenced to death, he will likely die before his appeals process is complete, and almost certainly before an execution would be scheduled. "We're talking millions of dollars here," Carver said. Carver believes Jones—whom the defense says has significant intellectual and cognitive impairments—was not indicted until 2010 "because the government was hoping he would die.” In Lark's case, Interim Philadelphia District Attorney Kelley Hodge has decided to seek the death penalty even though Lark's appeals in his case, if he were sentenced to death, would not be completed before Lark was in his late-70s or his 80s, far beyond his expected survival on death row. Marc Bookman, a longtime Philadelphia public defender who now serves as Director of the Atlantic Center for Capital Representation, called the decision to seek death, made "by a prosecutor chosen by Philadelphia judges rather than one chosen by the community[,] ... a needless step backward" for Philadelphia. Quoting Lawrence Krasner—who overwhelmingly won the Democratic nomination for Philadelphia district attorney after campaigning on a promise not to seek the death penalty and is heavily favored in the November general election—Bookman says, “We have to stop lighting money on fire.” Krasner has said that the death penalty “has cost Pennsylvania taxpayers over $1 billion, yet no one on Pennsylvania’s death row has been put to death involuntarily since 1962,” and his Republican opponent, Beth Grossman has publicly "wonder[ed] whether [the death penalty] is at this point even economically feasible.” In February 2015, Pennsylvania Gov. Tom Wolf declared a moratorium on executions, noting that Pennsylvania’s failing death-penalty system forced “the families and loved ones of victims to relive their tragedies” with each reversed death sentence. The only certainty in the current system, he said, “is that the process will be drawn out, expensive, and painful for all involved.”

Newly Released Documents Show Dylann Roof Feared Being Labeled Mentally Ill More Than He Feared Death Sentence

Newly unsealed psychiatric evaluations and court transcripts in the case of Dylann Roof (pictured)—sentenced to death for the racially motivated killing of nine black churchgoers in Charleston, South Carolina—raise additional questions as to whether Roof was competent to waive representation in his death penalty proceedings and to forego presenting mental health evidence in his defense. The documents confirm that Roof represented himself in jury selection and in the penalty stage of his federal capital trial out of anxiety that his defense attorneys would present evidence that he was mentally ill. In his journals, Roof wrote, “I want state that I am morally opposed to psychology,” which he called "a Jewish invention [that] does nothing but invent diseases and tell people they have problems when they dont [sic].” The newly released documents show that Roof became irate when he realized his lawyers wanted to present a mental health defense that involved introducing evidence that he suffered from delusions, a crippling anxiety disorder, depression, and autism.  The unsealed transcripts reveal that defense counsel, David Bruck, told the court that Roof “firmly believes that there will be a white nationalist takeover of the United States within roughly six, seven, eight years, and when that happens, he will be pardoned. He also believes it probable, although not certain, that he will be given a high position, such as the governorship of South Carolina.” At a pretrial hearing, Roof told U.S. District Judge Richard Gergel, "If they say I have autism, it's like they are trying to discredit me. It discredits the reason why I did the crime." He also told the judge he believed being labeled autistic would be worse than receiving a death sentence, "Because once you've got that label, there is no point in living anyway." Dr. James Ballenger, a clinical psychiatrist who evaluated Roof, wrote, "The only thing that is important to him is to protect his reputation." Bruck argued to the court that Roof was not competent to represent himself, saying, "If he is incapable of cooperating with counsel, if the decisions that he is making are affected by delusions, by fixed false beliefs, if they are the product of mental illness … the mere fact that he has figured out how to sabotage his defense doesn't mean that he's competent. It is an illustration of why it is so terrible to try an incompetent defendant." Roof was ultimately found competent to stand trial and represent himself. He was convicted and sentenced to death on January 10, 2017.

President Obama Commutes Two Death Sentences

On January 17, 2017, President Barack Obama (pictured) commuted the death sentences of Abelardo Arboleda Ortiz, a federal death row prisoner, and Dwight Loving, a military death row prisoner. The two men were among 209 commutations and 64 pardons announced by the White House on the 17th. Ortiz's lawyers sought clemency from the President on the grounds that Ortiz was intellectually disabled, his right to consular notification under the Vienna Convention had been violated, he did not himself commit the murder and was not in the room when it occurred, and he had been denied effective assistance of counsel at trial. Loving's attorneys argued for clemency on the basis of ineffective assistance of counsel, racial and gender bias in the selection of members of his court-martial, and Supreme Court rulings that called into question the constitutionality of the process by which the military imposes the death penalty. In Loving's clemency petition, his lawyers state, "Issues of command influence, racial discrimination, and improper panel voting procedures – which were ignored by the courts based on technical legal evidentiary rules – will forever overshadow Loving’s death sentence. Executing him [will] not promote justice or ensure good order and discipline any more than a sentence of life imprisonment." Ortiz's lawyers said they were "incredibly grateful" to President Obama for the commutation. In a statement, Amy Gershenfeld Donnella said, "Mr. Arboleda Ortiz’s case highlights several of the glaring problems that plague the federal system no less than state systems: dreadful lawyering by defense counsel; disproportionate sentencing even among co-defendants; significant racial, economic and geographic disparities in the choice of those who will be tried capitally; and procedural constraints that make it virtually impossible to correct a conviction or sentence imposed, even in violation of the Constitution, when new evidence comes to light." His case, she said, "epitomizes the broken federal death penalty system." Although federal law and the U.S. Constitution both prohibit using the death penalty against persons who are intellectually disabled, Ortiz's trial lawyer never investigated his intellectual disability, Donnella said. As a result, the jurors made their decision on life or death "in a complete vaccuum" and "an intellectually disabled person of color with an IQ of 54 who was never able to learn to read, write, or do simple arithmetic, and could not even tie his shoes until he was ten years old" was sentenced to die. Both Ortiz and Loving will now serve sentences of life in prison without the possibility of parole.

Judge Finds Federal Death Penalty Arbitrary and Unreliable, But Leaves Constitutionality for Supreme Court to Decide

After a two-week long "extensive hearing regarding the unreliability and arbitrariness of the death penalty system, the excessive delay involved in executions, and the growing decline in the use of the death penalty," U.S. District Court Judge Geoffrey Crawford (pictured) ruled in the case of U.S. v. Donald Fell that the Federal Death Penalty Act ("FDPA") "falls short of the [constitutional] standard . . . for identifying defendants who meet objective criteria for imposition of the death penalty," but nonetheless allowed Fell's capital trial to move forward. Fell, who is awaiting retrial by federal prosecutors in Vermont, had filed a motion asking the judge to find the death penalty unconstitutional under the Fifth and Eighth Amendments. Judge Crawford wrote that, like the state statutes enacted after the U.S. Supreme Court declared the death penalty unconstitutional in 1972 in Furman v. Georgia, "the FDPA operates in an arbitrary manner in which chance and bias play leading roles." But while the court's order contained detailed findings suggesting the death penalty is arbitrarily and unreliably imposed, it stopped short of declaring the death penalty unconstitutional. "A federal trial judge is without authority to rewrite the law so as to overrule the majority position at the Supreme Court," Judge Crawford wrote. "Changing forty years of decisional law raises questions that can only be settled by the Supreme Court itself." Judge Crawford found significant problems in numerous aspects of capital proceedings. He found that instead of redressing questions of bias, death penalty jury selection procedures are "a substantial part of the problem" and create as "inherent jury bias" by selecting "jury populations which stack the deck against defendants" in both the guilt/innocence and penalty phases of the trial. He found that "the death penalty continues to be imposed in an arbitrary manner," noting that where the "crime occurs is the strongest predictor of whether a death sentence will result" and "whether the murder victim is white" is also a signficant predictor. Judge Crawford explained that "the arbitrary qualities of the death penalty are most clearly visible through the narrative comparison of crimes which do and those which do not receive death sentences." There is, he said, no principled way to distinguish between which is which.

Missouri is Disproportionately Producing Federal Death Sentences Amidst Pattern of Inadequate Representation

Federal capital defendants are disproportionately sentenced to death in Missouri compared to other states, with 14.5% of the 62 prisoners currently on federal death row having been prosecuted in Missouri's federal district courts. By contrast, a DPIC analysis of FBI Uniform Crime Reporting Statistics shows that Missouri accounted for only 2.26% of murders in the United States between 1988, when the current federal death penalty statute was adopted, and 2012. Not surprisingly, an article in The Guardian by David Rose reports that, since the 1990s, the chances that a defendant will be sentenced to death in a Missouri federal court are significantly greater than in other federal jurisdictions. Rose suggests that the questionable performance of defense counsel and repeated failures to investigate and present mitigating evidence relating to the backgrounds and life histories of Missouri federal capital defendants has significantly contributed to that disparity. Though federal funding for defense attorneys is more generous than state funding, Rose says the federal death penalty system shows evidence of the same failures in representation that so often appear in state death penalty cases. Four of the nine prisoners sentenced to death in Missouri were represented by the same lawyer, Frederick Duchardt. In the three cases of Duchardt's clients that have reached the appeals stage, all three raised claims of ineffective assistance of counsel. In each case, Duchardt failed to employ a mitigation specialist, in violation of American Bar Association guidelines. Mitigation specialists investigate a client's background to find evidence that may convince a jury to impose a sentence less than death. Duchardt's clients all suffered serious abuse during their childhoods. One had an IQ of 68, placing him on the threshold of intellectual disability. Another had been diagnosed with psychosis, bipolar disorder, and post-traumatic stress disorder. None of these issues were presented to the jury, a decision Duchardt later claimed was "strategic," but which his client's appeal attorneys argue was a result of failure to prepare or investigate. Professor Sean O'Brien of the University of Missouri Law School, described the appointment of counsel for indigent defendants as a "lottery," saying, "Many defendants lose that lottery, and they get a lawyer more worried more about pleasing the court and the prosecutor than about fighting for the client. Those are the ones who die. When one lawyer produces nearly half the federal death sentences in a state, there’s a problem."

Judge Grants Dylann Roof's Request to Represent Himself in Federal Death Penalty Trial

U.S. District Court Judge Richard M. Gergel granted a request on November 28 from Dylann Roof (pictured), the 22-year-old charged with the murders of  nine members of the Emanuel African Methodist Episcopal Church in Charleston, South Carolina, to represent himself in his federal capital trial. Judge Gergel described Roof's decision as “strategically unwise,” but said, “It is a decision you have the right to make.” A criminal defendant's right to self-representation was established by the Supreme Court in 1975 in Farretta v. California, a non-capital case where the Court held that a defendant may waive his right to counsel provided such waiver is knowing, voluntarily, and intelligent. In Roof's trial, the judge had temporarily halted jury selection in the trial on November 7, when Roof's attorneys requested a determination of Roof's mental competency to stand trial. After a two-day hearing, which was closed to the public because statements Roof made to a psychologist might taint the trial, Judge Gergel found Roof fit to stand trial. Jury selection is set to begin on November 28th, with 516 potential jurors reporting to the courthouse for questioning. After Roof's federal trial, the state of South Carolina also plans to try him. He faces a death sentence in both trials. While the Supreme Court has not addressed whether a capital defendant may waive his right to counsel, death penalty experts have argued that such defendants should not be allowed to represent themselves, because of the complexity of capital cases and the finality of the sentence. Cornell Law Professor John Blume wrote, "when it comes to a criminal defendant facing society's ultimate punishment, the defendant's more symbolic interests in dignity and autonomy are outweighed by the criminal justice system's interests, as well as society as a whole's interests, in accuracy and fairness." Last year, a Kansas judge permitted White Supremacist Frazier Glenn Cross to represent himself in a case in which he was charged with murders at a Kansas City Jewish Community Center. His lawyers had intended to present a mental health defense to the murders. After a controversial trial punctuated by outbursts by the defendant, the jury sentenced Cross to death.

Court Hearing Under Way on Constitutionality of Federal Death Penalty

A court hearing is under way in the capital trial of Donald Fell in a Vermont federal district court challenging the constitutionality of the federal death penalty. This week, death penalty experts testified for the defense about systemic problems Fell's lawyers say may render the federal death penalty unconstitutional. Fell was sentenced to death in 2006, but was granted a new trial because of juror misconduct. The hearing began on July 11 and is scheduled to continue until July 22. Judge Geoffrey W. Crawford, who is presiding over the hearing and is set to preside over Fell's second trial in 2017, said the hearing will, "create a rich, factual record for higher courts with broader authority to rule on the big questions." On Monday, Craig Haney, a psychology professor at the University of California Santa Cruz, discussed research on the effects of solitary confinement, the conditions under which Fell has been held on death row. "According to the National Commission on Correctional Health Care, anything greater than 15 days is inhumane, cruel and degrading treatment," Haney said. On Tuesday, Michael Radelet, a sociology professor at the University of Colorado, testified about the decline of the death penalty both in use and in public opinion, saying, "Attitudes toward the death penalty have changed more rapidly than any other social issue other than gay marriage." Radelet testified that research has disclosed no evidence that the death penalty deters murder or affects overall murder rates. He also emphasized the prevalence and causes of the 156 wrongful capital convictions as a major problem with capital punishment. “Last year six people were released, most having served 25 years. In 2014, seven were released from death row as innocent. One had been in for 30 years," he said. "The number one cause of error is prejudicial prosecutorial testimony. Prosecutorial misconduct, false confessions, fraudulent forensics.”

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