Innocence

After More Than Three Decades, Two Death-Row Prisoners Freed in California

Two former California death-row prisoners who had spent a combined 70 years in prison are now free men, after federal courts overturned their convictions and local prosecutors agreed to plea deals on non-capital charges. James Hardy (pictured, left) was freed on February 14, 2019 after pleading guilty to two counts of first-degree murder in exchange for a suspended sentence and release on probation. Freddie Lee Taylor (pictured, right) was released on February 20 after pleading guilty to manslaughter and a sentence of time served. Both men have claims of innocence, but their plea deals make them ineligible for DPIC’s Innocence List. Each spent more than 30 years on death row.

James Hardy was convicted and sentenced to death in Los Angeles in 1984 for the murder of Nancy Morgan and her son, Mitchell Morgan. Hardy was tried along with two co-defendants, Mark Reilly and Clifford Morgan, the husband and father of the victims. Clifford was convicted of hiring Reilly and Hardy to kill his family so he could collect insurance money. Prosecutors argued that Hardy was the actual killer and Reilly the middleman in the conspiracy. On appeal, Hardy argued that his trial attorney had been ineffective because he had failed to investigate or present evidence that the prosecution’s key witness was actually the killer. The California Supreme Court overturned Hardy’s death sentence, and a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit later overturned his conviction, writing, “Hardy’s attorney failed him, and the State of California failed Hardy by putting a man on the stand that it should have known committed the crime.” The court said, “there is a substantial likelihood that the jury would not have convicted Hardy had [his trial lawyer] performed effectively.” Rather than retry Hardy, the Los Angeles District Attorney’s office agreed to a plea deal.

Freddie Lee Taylor was convicted and sentenced to death in Contra Costa County in 1986. Taylor had experienced severe trauma and abuse as a child, started using drugs by the age of 10, and was housed from age 13 to 17 in a juvenile detention center that was described in court records as a “gruesome, dehumanizing and frightening world where rape, beatings and fear were constant.” He was arrested in 1984 during a “family dispute” and was sent to a mental institution, where he attempted suicide. Despite doctors’ recommendations that he be placed in a mental hospital because he was a danger to himself or others, he was released by hospital staff. He burglarized the home of 84-year-old Carmen Vasquez, leaving fingerprints in her home. When she was murdered days later, he was identified as a suspect because his fingerprints were at the crime scene. Taylor’s long history of mental illness was ignored at his trial, where his lawyer never requested and the court did not independently order a competency evaluation. His appeal lawyers argued that his conviction was invalid because he was not competent to stand trial. A federal judge reversed Taylor’s conviction in 2016 and the Ninth Circuit upheld that decision in 2018, saying there was insufficient evidence to accurately assess Taylor’s mental health at the time of the crime and his trial. The federal court gave Contra Costa County prosecutors 60 days to decide whether to retry him, but they instead agreed to the plea deal. “Had he not had the benefit of zealous appellate lawyers dedicated to his cause, Freddie Lee Taylor may well have been executed,” Chief Public Defender Robin Lipetzky said. “His is but one case. Others like him who have meritorious claims may not be so fortunate. There are over 700 more people on death row — many waiting for an attorney to be appointed to their case and others still waiting for their cases to be finally resolved by the courts.”

42 Years After Death Sentence, Federal Appeals Court Says Charles Ray Finch ‘Actually Innocent’

A federal appeals court has found 80-year-old Charles Ray Finch (pictured) “actually innocent” of the murder for which he was convicted and sentenced to death in North Carolina 42 years ago. The pronouncement came in a unanimous ruling issued by a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit on January 25, 2019. In that decision, Chief Judge Roger L. Gregory wrote that “Finch has overcome the exacting standard for actual innocence through sufficiently alleging and providing new evidence of a constitutional violation and through demonstrating that the totality of the evidence, both old and new, would likely fail to convince any reasonable juror of his guilt beyond a reasonable doubt.” The U.S. Supreme Court has never recognized innocence alone as grounds to overturn a conviction, so the appeals court could not set Finch free. Instead, the panel reversed a lower court’s denial of relief and sent the case back for adjudication of constitutional violations relating to Finch’s innocence claim. Jim Coleman, Finch’s lawyer and the co-director of the Duke Wrongful Convictions Clinic, said he now hopes to convince North Carolina Attorney General Josh Stein to “remedy the miscarriage of justice in joining us in a motion to overturn Ray’s conviction and release him without any further proceedings in court.”

Finch was convicted and sentenced to death in 1976 for the killing of Richard “Shadow” Holloman during a failed robbery attempt, but he has consistently maintained his innocence. In 1977, the North Carolina Supreme Court reduced his sentence to life in prison after the U.S. Supreme Court had declared the state’s then-mandatory death penalty law unconstitutional. The Fourth Circuit identified significant problems with the evidence used to convict Finch. He was subjected to “suggestive lineups,” in which he was the only suspect dressed in a three-quarter length jacket, the same style of clothing that the eyewitness, Lester Floyd Jones, said the perpetrator was wearing. Such lineups have since been declared unconstitutional. “These procedural issues support Finch’s allegations of constitutional error that he was misidentified by Jones,” Judge Gregory wrote. “No reasonable juror would likely find Finch guilty beyond a reasonable doubt if it knew the high likelihood that he was misidentified by Jones both outside and inside the courtroom as a murder suspect because of the impermissibly suggestive lineups.” The court also noted that Jones, who the court said “had cognitive issues, struggled with alcoholism and had issues with short-term memory recall,” told police that the killer was armed with a sawed-off shotgun and had never mentioned to the police that the shooter had any facial hair. At the time Holloman was killed, Finch had a long beard and distinctive sideburns. A new review of the autopsy evidence decades after the crime disclosed that Holloman had been killed with a pistol, not a shotgun and new ballistics evidence contradicted prosecution claims that the shells found at the crime scene matched a shotgun shell found in Finch’s car. Other witnesses also indicated they had been pressured into providing testimony implicating Finch. “This new evidence,” the court said, “not only undercuts the state’s physical evidence, but it also discredits the reliability of Jones.”

Citing Evidence of Innocence, Race Discrimination, Georgia Court Grants New Trial to Former Death-Row Prisoner

A Georgia judge has granted a new trial to Johnny Lee Gates (pictured recently, right, and at the time of trial, left) based on new evidence that excludes him as the source of DNA on implements used by the killer during the 1976 rape and murder for which Gates was sentenced to death. DNA testing disclosed that Gates’s DNA was not found on a necktie and the bathrobe belt the prosecution said were used by the killer to bind Kathrina Wright, the 19-year-old wife of a soldier stationed at Fort Benning during the murder. In a January 10, 2019, decision overturning Gates’s conviction, Senior Muscogee County Superior Court Judge John Allen credited the analysis of defense DNA expert Mark Perlin that Gates’s DNA was not present on the evidence. Judge Allen noted that Perline had trained the two Georgia Bureau of Investigation scientists the prosecution relied upon in the most recent court proceedings in the case and that the testimony of the GBI witnesses supported Perlin's conclusions. Judge Allen wrote that “[t]he exclusion of Gates’ profile to the DNA on the two items is material and may be considered exculpatory” and entitled Gates to a new trial.

Gates, who is African American, was convicted and sentenced to death by an all-white jury in a racially charged case. His death sentence was overturned in 2003 based upon evidence that he is intellectually disabled, and he was resentenced to life. Heightening the racial tensions of a black man accused of raping and murdering a young white woman, prosecutors deliberately excluded African American jurors from the case. Lawyers from the Georgia Innocence Project and Southern Center for Human Rights filed a motion in March 2018 arguing that Columbus, Georgia prosecutors engaged in a pattern and practice of systematically striking black prospective jurors because of their race in Gates’s case and six other capital cases with black defendants, discriminatorily empanelling all- or nearly-all-white juries in those cases. The prosecutors’ jury selection notes in those seven capital trials showed that the state attorneys in his case had carefully tracked the race of jurors, struck every black juror they could, and repeatedly wrote derogatory comments about blacks and black prospective jurors. A Georgia Tech mathematics professor provided expert testimony that the probability that black jurors were removed for race-neutral reasons was infinitesimally small – 0.000000000000000000000000000004 percent. In an opinion that excoriated local prosecutors for “undeniable ... systematic race discrimination during jury selection,” Judge Allen found that the prosecutors “identified the black prospective jurors by race in their jury selection notes, singled them out … and struck them to try Gates before an all-white jury.” However, the court said the race discrimination against Gates was not grounds to grant him a new trial because he had not shown that the lawyers who previously represented him did not have access to the evidence of systematic discrimination.

With Backing of New Governor, Florida Clemency Board Posthumously Pardons the “Groveland Four”

On January 11, 2019, the Florida Clemency Board unanimously granted posthumous pardons to the “Groveland Four,” four young African-American men falsely accused of raping a young white woman in Lake County, Florida in 1949. During the racist hysteria following the accusation, white mobs burned down black residences, a massive white posse lynched a black suspect, all-white juries condemned two innocent men to death and an innocent teen to a life sentence, and a racist sheriff murdered one of the men and attempted to kill another. Gov. Ron DeSantis, convening the board for the first time since his election, urged it to grant clemency, calling the notorious case a “miscarriage of justice.” The state legislature issued a formal apology to the family members of the men in 2017, but former Gov. Rick Scott had taken no action on a pardon.

The four black men – Charles Greenlee, Ernest Thomas, Walter Irvin and Samuel Shepherd – were accused of the 1949 rape of a 17-year-old white woman, Norma Padgett. Thomas escaped from custody but was hunted down and murdered by an angry mob. He was reportedly shot 400 times. White mobs burned and shot at the homes of black families, many of whom fled and never returned. Greenlee, Irvin, and Shepherd were beaten until they falsely confessed to the crime. All-white juries convicted them, sentencing World War II veterans Irvin and Shepherd (pictured, right) to death and Greenlee (pictured, left), who was only 16 years old, to life in prison. The NAACP took up the men’s case, and they were represented by Thurgood Marshall, among others. In 1951, the U.S. Supreme Court unanimously overturned Irvin and Shepherd’s convictions. Shortly after the reversal, Lake County Sheriff Willis V. McCall shot the two handcuffed men while he was driving them to a court appearance, and posed for a photo in front of their prone bodies. McCall claimed that he had acted in self-defense. Shepherd died. Irvin, who survived by playing dead until others arrived at the scene, was retried and once again sentenced to death by an all-white jury. He received a last-minute reprieve when the prosecutor expressed doubt as to his guilt and his sentence was commuted to life in prison. Greenlee and Irvin were both eventually paroled, but Irvin died just one year after his release. Greenlee died in 2012.

Carol Greenlee, Charles Greenlee’s daughter, testified in favor of the pardons. In an interview, she said, “I wanted two things to happen. I wanted the world to know the truth, and I wanted my daddy’s name cleared.” Governor DeSantis said, “I don’t know that there’s any way you can look at this case and think that [the] ideals of justice were satisfied. Indeed, they were perverted, time and time again.” In addition to the pardon and the legislature’s apology, the Groveland Four also received an apology from the Orlando Sentinel, which inflamed passions with its racist coverage of the case in 1949. In particular, the newspaper apologized for running a political cartoon as the grand jury convened, showing four empty electric chairs with the title “No Compromise!” A Sentinel editorial published the day before the pardons said, “We’re sorry for the Orlando Sentinel’s role in this injustice. We’re sorry that the newspaper at the time did between little and nothing to seek the truth. We’re sorry that our coverage of the event and its aftermath lent credibility to the cover-up and the official, racist narrative.”

A Special DPIC What's New—Christmas Memories from Death Row Forty Christmases Later

Death-row exoneree Ron Keine (pictured) reflects on spending the holidays on death row:

It is Christmas time on the row. At night I can hear the muffled sounds of a grown man crying in his pillow. His trusty pillow which is his only safe confidant as emotions are seen as weakness in prison and can even get you killed. Everywhere in the world it is a time for happiness, a time to rejoice, but here on death row it is depression and sadness in the very souls of us death row denizens.

I miss the excitement of the mythical but harmless prevarications and fibs employed to instill the concept of Santa Claus in the quizzical minds of children. Memories that will last a lifetime. The legacy of elves and fairies.

Awkward sadness permeates every molecule of the stone and steel that surrounds us. That stone and steel that separates us from our loved ones at this solemn time of year. While the children are opening presents on Christmas morning, reveling in bliss, miles away in some forgotten dungeon cell, a tear runs down my cheek. As the family sits down, heads bowed for the meal’s prayer, I sit alone on my steel bunk and try to picture the lone bare table setting that my mother arranged in my honor. There will be no Christmas dinner for me this year. My prison issued dinner looks sickening as it defiantly slides down the windows and walls outside of my cell as if it was trying to rejoin the steel tray laying on the floor beneath it.

Why must I suffer like this? Why am I here? It will be almost another year before I will be exonerated when it is discovered that the prosecutor hid the evidence of my innocence and manufactured the case against me. I have done nothing to deserve this, but I feel helpless to change the situation. That arrogant prosecutor is probably sitting next to a beautiful Christmas tree, opening the presents with his children while I sit in despair. Who is the real criminal here?

I must fight these emotions or they will drag me down even deeper in this pit of loneliness. I must cast them off before they become too much of a burden to bear. Before I get so mired down in this hopelessness that I become like Larry, down in cell 14 who succumbed to the pressures and hung himself yesterday.

Yes, the following year would bring both my exoneration, and that of my best friend Doc who had occupied the cell next to mine. It would also bring Doc’s suicide.

It’s 40 Christmases later now, and I still remember the pain, loneliness, and sense of helplessness of that place. I remember those who were with me on death row, often think of those there now, and never forget the families who are suffering alongside but apart from their incarcerated loved ones.

NEW PODCAST: DPIC’s 2018 Year End Report

In the latest podcast episode of Discussions with DPIC, members of the DPIC staff discuss key themes from the 2018 Year End Report. Robert Dunham, Ngozi Ndulue, and Anne Holsinger delve into the major death-penalty trends and news items of the year, including the “extended trend” of generational lows in death sentencing and executions, election results that indicate the decline will likely continue, and the possible impact of Pope Francis’s change to Catholic teaching on capital punishment. They explore the reasons for reduced death-penalty usage, highlighting the stories of people who were exonerated in 2018, the theme of executing people with characteristics that make them vulnerable to unfair legal proceedings, and the ongoing controversy surrounding execution methods.

DPIC Executive Director Robert Dunham noted the importance of the shrinking death-row population, saying, “Death row is declining in size even as the number of executions is declining, which suggests that the decline is a result of the erosion of capital punishment, as opposed to it actually being carried out.” He explains the lack of death sentences in several traditional death-penalty states, including Virginia, North Carolina, South Carolina, and Georgia. “The biggest change is the availability of quality indigent defense,” Dunham said, adding that the adoption of life without parole as a sentencing option has also been a major contributing factor.

Dunham addresses the theme of inadequate legal process, saying that the current system fails to ensure that prisoners’ constitutional rights are fully upheld. “If we want the death penalty in the United States, ... it’s imperative that it be able to accurately assess whether somebody was fairly tried, whether somebody was fairly sentenced, and whether the individual deserves to live or die,” he said. Those procedural failures, and the secrecy that surrounds executions, have created a “distrust” among the public that Dunham predicts with have a “prolonged and lingering effect.” “In 2018, death sentences were down, executions were down for a variety of reasons, but I think one of the reasons that’s going to last and contribute to a continued reduction in the future is that more and more people think that we can’t trust the states to carry it out,” Dunham concluded.

18 Years After Enacting DNA Law, Florida Death-Row Prisoners Are Still Being Denied Testing

Florida courts have refused death-row prisoners access to DNA testing seventy times, denying 19 men – eight of whom have been executed – any testing at all and preventing nine others from obtaining testing of additional evidence or more advanced DNA testing after initial tests were inconclusive. For a six-part investigative series, Blood and truth: The lingering case of Tommy Zeigler and how Florida fights DNA testing, Tampa Bay Times Pulitzer-prize winning investigative journalist Leonora LaPeter Anton reviewed more than 500 cases in which Florida’s defendants were sentenced to death. Her investigation disclosed that even after Florida adopted a DNA testing law in 2001, court rulings have continued to create barriers to obtaining testing that could potentially prevent wrongful executions. “Almost 20 years later,” she wrote, “some prosecutors routinely fight DNA requests, especially in high-profile death row cases, and the courts often fail to intervene.” According to Innocence Project of Florida executive director Seth Miller, “[i]n 2018, it is just as hard to get post-conviction DNA testing as it was before we had a post-conviction DNA testing law, and that’s completely upside down.” 

The investigative series focuses on the case of Tommy Zeigler (pictured), who has maintained his innocence throughout the 42 years in which he has been on Florida’s death row. On Christmas Eve in 1975, Ziegler was shot and his wife, her parents, and a man who served as Ziegler’s handyman were murdered in Ziegler’s furniture store in Winter Garden, Florida. Ziegler was charged with the murders. The Times series describes the controversial trial and questionable evidence in his case in detail. Ultimately, the jury convicted Zeigler but took less than half an hour to recommend that he be sentenced to life. The trial judge overrode their decision and sentenced Zeigler to death. 

Zeigler has sought DNA testing six times. In 2001, he was granted limited testing, which, Anton reports, “appeared to support his story that he was a victim of a robbery at his furniture store.” However, even though Ziegler’s lawyers have offered to defray the entire cost of DNA analysis, Florida’s courts have refused to grant him a more advanced type of DNA testing that is now routinely available in murder cases. Ziegler’s lawyers have already presented evidence discrediting some of the key prosecution witnesses and demonstrating the implausibility that Ziegler could have shot himself through the stomach to fake his own victimization. They argue that the DNA evidence would prove his innocence and, at a minimum, transform the rest of the prosecution’s case by proving that the testimony the prosecution presented was false. 

Twenty-eight Florida death-row prisoners have been exonerated, more than in any other state. In 90% of the more than twenty exonerations for which the jury vote is known, jurors had not unanimously recommended death and had in some cases – like Ziegler’s – recommended life. Former Republican state senator J. Alex Villalobos, who helped write Florida’s DNA statute, told Anton that the law was designed to remove doubts as to guilt and that the prisoners should be given access to DNA testing. Death Penalty Information Center executive director Robert Dunham agreed, telling the Times, “If we’re interested in the truth and interested in avoiding executing the innocent, we need to be allowing this kind of testing.”

Kentucky Joins States With No Executions for at Least Ten Years

On November 21, 2018, Kentucky marked 10 years since its last execution, becoming the eleventh current death-penalty state that has not carried out an execution in more than a decade. Another 20 states have legislatively or judicially abolished their death-penalty laws, bringing the number of states that do not actively use the death penalty to 31. On the day before Kentucky reached its 10-year milestone, a lawsuit filed in federal court highlighted some of the greatest dangers of capital punishment in the Commonwealth. On November 20, Nickie Miller—a military veteran and cancer patient who spent two years in jail facing a possible death sentence before murder charges against him were dropped in 2017—filed a lawsuit against Montgomery County, Kentucky and local and state law enforcement officials alleging that they had conspired to frame him for murder.

Miller’s complaint names six people involved in his investigation and prosecution as defendants: Montgomery County Sheriff Fred Shortridge, Assistant Commonwealth Attorney Keith Craycraft, Detectives Ralph Charles Jr. and Mark Collier, county jailer Eric Jones, and Kentucky State Police Polygraph Examiner John Fyffe. The complaint alleges that the defendants fabricated and destroyed evidence, testified falsely, and coerced a woman into falsely implicating Miller by threatening to take her children unless she provided the statement they wanted. It specifically claims that Fyffe and the sheriff’s officers “conspired to take [Miller’s] liberty by knowingly initiating false charges based on evidence that the Defendants fabricated.” According to the complaint, the alleged misconduct “had a profound impact” on Miller’s health, denying him “proper medical treatment [for his cancer], including chemotherapy, while incarcerated.” “The defendants succeeded in manipulating the justice system for several years, including falsely accusing Mr. Miller of capital murder and seeking the death penalty against a clearly innocent man,” defense investigator Joshua Powell said. “Mr. Miller has suffered tremendous damage, mental suffering, cancer recurrence and loss of a normal life, all caused by the defendants’ misconduct.”

Kentucky has imposed 97 death sentences since reinstating the death penalty in 1975. More than half (49) of those convictions or sentences have been overturned, including the conviction of Larry Osborne, who was exonerated in 2002. Two of the three men executed in Kentucky waived some or all of their appeals, “essentially committing legal suicide,” said Damon Preston, a Public Advocate at the Kentucky Department of Public Advocacy. Preston also said that Kentucky’s death penalty system deprives families of closure: “It’s hard to see how the family would get resolution when the cases go on for so long. But the reason cases go on for so long is because the death penalty in Kentucky doesn’t work. If a defendant is sentenced to life without parole, that defendant gets an appeal to the Kentucky Supreme Court and then the case is essentially over.” Executions in Kentucky have been under a judicial hold since 2010, as a result of challenges to the lethal-injection protocol. The Attorney General’s Office is scheduled to file its brief in the lethal-injection case on November 30, but additional hearings and briefing are expected before the court issues a ruling in the case.

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