Innocence

Texas Schedules Back-to-Back Executions of Prisoners Who Claim Innocence

Texas has scheduled executions on consecutive nights of two prisoners who have long asserted their innocence. Troy Clark (pictured, left), who is scheduled to be executed on September 26, 2018, was convicted and sentenced to death based on the changing statements of a former girlfriend who could have faced the death penalty under the Texas law of parties but was tried as an accomplice and sentenced to 20 years in prison. Daniel Acker (pictured, right), scheduled to be executed September 27, was convicted and sentenced to death based upon since recanted forensic testimony that he had strangled his girlfriend. Clark was convicted of the 1998 kidnapping and murder of Christina Muse in Tyler Texas, and prosecutors have also accused him two other methamphetamine-related murders. He has no legal challenges pending and his clemency petition was turned down by the Texas Board of Pardons and Paroles on September 24. Clark alleges that he was set up by his girlfriend, who initially told police that another murder victim was responsible for Muse’s death and then later gave police a statement saying she had killed Muse out of jealousy and that Clark was not involved. Clark also argued in an unsuccessful habeas corpus petition that his court-appointed counsel at trial and in the post-conviction process failed to investigate and present mitigating evidence—including mental health evidence related to fetal alcohol syndrome—that he says could have persuaded the jury to spare his life. Acker, who also maintains his innocence, was convicted of strangling his girlfriend, Marquetta George, and dumping her body. He does not deny involvement in her death, but alleges that she jumped out of his moving car during an argument and died accidentally, likely having been struck and killed by a passing car. Acker's attorneys have filed appeals saying that his trial was tainted by the court's exclusion of evidence, and the inclusion of “false,” “misleading,” and erroneous forensic testimony. The prosecution changed its explanation for George’s death after a state medical examiner admitted in a 2011 evidentiary hearing that she had not been strangled. Instead, the prosecution argued for the first time that Acker pushed George from the truck. “He didn’t have the physical ability to strangle her while he was driving,” Acker’s attorney said, and had no motive to kill George. The Texas pardons board has also denied Acker’s application for clemency. On September 21, he filed a petition for review and a motion to stay his execution in the U.S. Supreme Court, arguing that due process is violated when “a State has repudiated a false theory of criminal liability on which it based a death sentence, but intends to carry out that sentence based on a new theory of liability” that was never presented to the jury. Texas has already executed eight people in 2018.

Questionable Ruling Grants Jeffrey Havard New Sentencing but Not New Trial in Controversial “Shaken Baby” Case

Sixteen years after a notorious and now-discredited forensic witness told a Mississippi jury that Jeffrey Havard had sexually abused and shaken his girlfriend's six-month-old daughter to death, Havard's death sentence—but not his conviction—has been overturned. On September 14, 2018, Adams County Circuit Judge Forrest Johnson ruled that state pathologist Steven Hayne's recantation of his diagnosis that infant Chloe Britt had been a victim of Shaken Baby Syndrome was "not sufficient to undermine this court's confidence in the conviction," but that "there is a cautious disturbance in confidence of the sentence of death, even if slight." Havard's co-counsel, Graham Carner, told the Mississippi Clarion Ledger, "With all due respect, we think the court got it wrong. We are disappointed, but we are not done." Washington Post columnist Radley Balko criticized Johnson's five-page ruling—which repeatedly misspells the expert's name as "Haynes"—as "gutless" and "sloppy." Balko, whose book The Cadaver King and the Country Dentist: A True Story of Injustice in the American South exposed rampant irregularities in forensic testimony in Mississippi murder cases, said, “It doesn’t seem like too much to ask that the judge correctly spell the name of the state’s expert whose testimony is the entire reason that the hearing took place.” During a 2002 trial that rocketed from jury selection to a death sentence in just two days, the state—supported by Hayne's testimony—argued that Havard had anally and orally raped the infant and shaken her sufficiently to cause injuries that would later kill her. The defense presented a single witness who provided all of three pages of testimony, failing to challenge the forensic testimony in the case. Defense counsel also failed to explain to the jury that, as Balko writes, Havard supposedly "anally raped the infant, orally raped her, shook her violently enough cause injuries that would later — but not immediately — kill her, then bathed and cleaned her" so thoroughly that "none of Havard’s hair, skin cells or semen was found on or inside the girl," "dressed her, and tucked her into bed as if nothing had happened" — all in the time it took Chloe's mother to go the store "to buy some burrito supplies." Since the trial, Hayne has recanted his testimony that Chloe was sexually assaulted and says he was wrong to attribute the child’s head injuries to SBS (Shaken Baby Syndrome). Hayne had testified under oath that he regularly performed 1,500 or more autopsies each year, nearly five times the maximum number recommended by the National Association of Medical Examiners. He had never been certified in forensic pathology by the American Board of Pathology and failed the certification exam in 1980. Three other reputable experts who reviewed Hayne’s autopsy report found no evidence of abuse on the infant. In 2008, he was barred from doing autopsies for Mississippi prosecutors and the U.S. Court of Appeals for the Sixth Circuit called his work declared "discredited." At least ten men and women have been exonerated from death rows across the United States after having been wrongly convicted for killing a child. In the cases of Rodricus Crawford and Sabrina Butler, the medical evidence also showed that no crime had occurred, but the defendants were convicted based on false forensic testimony. In April 2018, Vicente Benavides was exonerated from California’s death row after the prosecution presented false forensic testimony claiming that a toddler in his care had been sexually assaulted.

Death Off the Table for Four Former Death-Row Prisoners, as Death Row Continues to Shrink Nationwide

In a period of less than one week, four former death-row prisoners in four separate states learned that they no longer face execution, contributing to the continuing decline in the number of people on death rows across the U.S. The result of the unrelated court proceedings—a resentencing hearing in Pennsylvania, a non-capital grand jury indictment in Louisiana, a prosecutor’s decision to drop death in Indiana, and a court ruling on intellectual disability in Alabama—illustrate the ongoing erosion of the death-row population in America, which has fallen in size in each of the past 17 years. On September 10, 2018, Daniel Saranchak (pictured, left) was resentenced to life without parole in Schuylkill County, Pennsylvania, following the reversal of his death sentence by a federal court in October 2015. That court said Saranchak had been provided ineffective representation in the penalty phase of his original trial in 1994 and granted him a new sentencing hearing. In November 2000, Saranchak came within 45 minutes of being executed before receiving a stay. Three days after Saranchak’s resentencing, a Jefferson Parish, Louisiana grand jury returned a non-capital indictment against Teddy Chester (pictured, middle left), who had been sentenced to death in 1997. Chester was granted a new trial on June 11, 2018 based on evidence of his counsel’s failure to challenge the prosecution case against him and DNA evidence that had not been presented to Chester’s trial jury suggesting that he is not the killer. Chester and his co-defendant, Elbert Ratcliff, each claim that the other shot cab driver John Adams in order to rob him. The grand jury indicted Chester for second-degree murder, which carries an automatic life sentence if convicted. Ratcliff was previously convicted of second-degree murder. On September 14, a St. Joseph County, Indiana trial judge approved the prosecution’s motion to remove the death penalty as a possible punishment against Wayne Kubsch (pictured, middle right). Kubsch will face a maximum sentence of life without parole at his third trial in a 1998 triple homicide. Kubsch maintains his innocence, and his second conviction was overturned because “critical evidence” was withheld. The victims’ families supported the prosecution’s decision to seek a life sentence. “I believe this is the right decision,” said Diane Mauk, mother of victim Beth Kubsch. “I feel that in the state of Indiana it would be another 15 years or more before an execution would take place, if it ever happened. ... It’s time to get justice for our families.” And also on September 14, the Alabama Supreme Court found death-row prisoner Anthony Lane (pictured, right) ineligible for the death penalty because of intellectual disability, vacated his death sentence, and directed the trial court in Jefferson County to resentence Lane to life without parole. The Alabama state courts had previously rejected Lane's claim of intellectual disability, but had applied an unconstitutional and scientifically unsupported definition of intellectual disability in reaching that conclusion. The U.S. Supreme Court reversed that ruling in 2015 and returned the case to the state courts to decide the issue using an appropriate standard.

A Bureau of Justice Statistics brief on May 20, 2017 and DPIC's year end reports in 2016 and 2017 have shown that removals from death row—mostly in the form of resentencings—have outstripped new death sentences every year since 2001.

Jurors in Henry McCollum Case Reflect on How They Sentenced an Innocent Man to Death

Four years after intellectually disabled brothers Henry McCollum and Leon Brown were exonerated of the 1983 rape and murder of an 11-year-old girl in North Carolina, jurors in McCollum's case met with members of his defense team and reflected on how they sentenced an innocent man to death. In a September 6 op-ed in the Raleigh News & Observer, Kristin Collins—Associate Director of Public Information for North Carolina’s Center for Death Penalty Litigation and a former News & Observer reporter—writes that the jurors’ responses varied from relief, to shame, to fear of God’s wrath, to tears at he pain of even thinking about the case. “All [the jurors] were denied the information they needed to reach a fair verdict,” Collins observed. “I’ve been trying to figure out, where did we go wrong?,” one juror told Collins. “I feel like we got duped by the system,” he said. McCollum and Brown—age 19 and 15, respectively, at the time Sabrina Buie was raped and murdered—were convicted and condemned for her death in 1984. The main evidence against them were coerced confessions obtained during prolonged interrogations. Brown spent eight years on death row before the Supreme Court declared the death penalty unconstitutional for children under age 16, and his sentence was reduced to life imprisonment. But McCollum remained on North Carolina’s death row for more than 30 years, having lost of all his court appeals, until DNA evidence uncovered by the North Carolina Innocence Inquiry Commission disclosed that neither he nor Brown had raped and killed the young girl. At the time of his release in 2014, McCollum was North Carolina’s longest-serving death-row prisoner. The op-ed sheds light on how the gruesome facts of the case produced an unjust verdict and death sentence. Jurors recalled the graphic crime-scene photos and McCollum’s confession, which it turns out had been written by the police. “Even McCollum’s defense attorneys admitted his guilt, believing the jury would spare him if he accepted responsibility,” Collins writes. One juror believed that if McCollum was on trial, he’d probably done it: “his biggest regret,” Collins wrote, “is that he trusted prosecutors to tell the truth.” And what the jury did not know was of overwhelming importance. “No one told the jury that another, almost identical crime was committed just a month after the girl’s murder — and that the culprit was not McCollum, but a man who lived by the field where her body was found,” Collins writes. “The jury didn’t know fingerprints were found at the scene, and that none of them were McCollum’s. They didn’t know the case against McCollum started with a rumor from a teenage girl, who later admitted she made it up.” Collins reports that the jurors “remembered McCollum at the defense table, silent and unresponsive, like a confused and broken child.” One seemed especially remorseful. “I should have followed my conscience,” she said. “I hope he can forgive me.”

Filming Underway for Movie Adaptation of ‘Just Mercy’

Filming for the movie adaptation of Bryan Stevenson's best-selling book, Just Mercy, began August 27, 2018 in Montgomery, Alabama. The film will feature Michael B. Jordan (Creed, Black Panther) as Stevenson and Oscar-winner Jamie Foxx (Ray, Django Unchained) as wrongfully convicted death-row prisoner Walter McMillian. Stevenson, the founder of the Equal Justice Initiative, represented McMillian — a Black man framed for the 1986 murder of an 18-year-old White woman in Monroeville, Alabama — in McMillian's appeal of his conviction and death sentence. Like the book upon which it is based, the movie will tell the story of that representation and McMillian's exoneration from death row. McMillian was convicted in a trial that lasted only a day and a half. The prosecution presented three witnesses who falsely implicated McMillian in the murder. The jury — composed of eleven Whites and one African American — ignored the testimony of six African-American alibi witnesses who had been with McMillian at a church fish fry at the time of the murder. Although the jury convicted McMillian, the jurors recommended that he be sentenced to life. However, the trial judge overrode the jury’s sentencing verdict and instead sentenced McMillian to death. The Alabama Court of Criminal Appeals affirmed the conviction and death sentence on appeal, but Stevenson's investigation revealed that prosecution witnesses had lied and that prosecutors had illegally hidden evidence that proved McMillian's innocence. After Stevenson filed a motion for a new trial, the appeals court on February 23, 1993, reversed McMillian’s conviction and ordered a new trial. One week later, on March 2, 1993, prosecutors dismissed the charges against McMillian and he was released. After spending six years on death row, McMillian was exonerated. The film is expected to open in early 2020.

Congressional Black Caucus Asks Oklahoma Governor to Review Case of Julius Jones

The Congressional Black Caucus has urged Oklahoma Governor Mary Fallin to review the case of death-row prisoner Julius Jones (pictured) and to use her authority to correct what it characterized as his "wrongful conviction." In an August 21, 2018 letter to the Governor, the Black Caucus — an organization of African-American members of the U.S. House of Representatives — expressed its "deep concerns" about racial bias in the application of the death penalty in Oklahoma and the risk of executing an innocent person. Jones' case, it said, fell "[a]t the nexus" of those issues. Jones, an African-American honor student who was co-captain of his high school football, basketball, and track teams, was convicted and sentenced to death for the murder of a white businessman. His conviction relied heavily on the testimony of his co-defendant, Christopher Jordan, who avoided the death penalty and was given a substantially reduced sentence in exchange for his testimony against Jones. According to the letter, "[t]wo prisoners even heard Mr. Jordan bragging that he set-up Julius, and that he would get out of prison in 15 years in exchange for his testimony." Jones did not fit the description of the murderer given by the victim's sister, but Jordan did. However, Jones' lawyers, the letter emphasized, had no capital trial experience, "failed to show the jury a photograph of Mr. Jones, taken a few days before the shooting ... that [proved] he could not be the person who the victim's sister described," and "did not put on a single witness to testify during the guilt-innocence phase of his trial." The letter said Jones' case also "was plagued by a racially charged investigation and trial," and his sentence was tainted by the "profound inequity in the application of the death penalty based on race." Jones' current attorneys recently uncovered evidence that one of his jurors used a racial slur during the trial. "One juror reported telling the judge about another juror who said the trial was a waste of time and 'they should just take the [n-word] out and shoot him behind the jail,'" the letter states. The Oklahoma Court of Criminal Appeals has agreed to consider this new evidence, and Jones also has a petition pending before the U.S. Supreme Court. Relying on a 2017 study on race and death sentencing in the state, that petition argues that Oklahoma's death penalty unconstitutionally discriminates on the basis of race. One key finding of that study, the letter said, is that "a black defendant accused of killing a white male victim in Oklahoma is nearly three times more likely to receive a death sentence than if his victim were a non-white male." The congressmembers also urged Gov. Fallin to address a range of systemic reforms suggested by the Oklahoma Death Penalty Review Commission, including reforms to eyewitness identification procedures, forensic science reform, regulating the use of informants, and recording custodial interrogations. "Major reform is needed to the criminal justice system to ensure that the fair and impartial process called for by the Death Penalty Study Commission becomes a reality," they write. "Given this backdrop, we strongly urge you to use the power of your office to put these recommended reforms in place."

In Dissent, Judge Says Death Penalty Violates Arizona State Constitution

An Arizona appeals court judge has urged the state's supreme court to rule that the death penalty violates Arizona's state constitutional prohibition against cruel and unusual punishment. In an August 16, 2018 opinion dissenting from the Arizona Supreme Court's affirmance of death-row prisoner Jason Bush's conviction and sentence, Court of Appeals Judge Lawrence Winthrop (pictured)—sitting by designation in the case because of the recusal of one of the high court's justices—wrote that "[t]he death penalty not only inflicts unnaturally cruel punishment, but the application and implementation of the death penalty is, at best, arbitrary and capricious." According to Judge Winthrop, the dangers of wrongful convictions and death sentences, systemic "flaws in administering the death penalty, and our historic inability to devise a method to implement the death penalty free from human bias and error" require that the death penalty be declared unconstitutional. His opinion catalogued a range of problems in Arizona's application of capital punishment, including racial bias, wrongful convictions, and geographic disparities. The death penalty, he also wrote, "has been shown to ... impose unintended trauma on the victim’s family and friends, and to be cost prohibitive. ... [G]iven the continued reports that demonstrate defendants may be sentenced to death because of jurors’ inherent bias, and studies that demonstrate the death penalty has no identifiable deterrent effect, the answer to the question of whether the cost of the death penalty outweighs the societal benefit is a resounding, 'No.'” Judge Winthrop's dissent echoes many of the themes of—and frequently quotes from—U.S. Supreme Court Justice Stephen Breyer's dissent in Glossip v. Gross (2015), which questioned whether the death penalty, as applied today, violates the U.S. Constitution. "We simply can no longer ignore the seemingly inherent variants and problems associated with implementing the death penalty," Judge Winthrop wrote. "To continue to affirm the enforcement the death penalty, given what we now know, is to approve a punishment that is both cruel and unusual." The court majority in Bush's case upheld his conviction and death sentence, rejecting a variety of arguments that the trial and sentencing were constitutionally flawed. The majority "express[ed] no opinion ... [on] the validity of capital punishment under Arizona’s Constitution," reserving that judgment for a case in which "the issue [were properly] raised, developed, and argued." However, Bush's case, they wrote, was "not the appropriate case to address or decide" that issue.

Fox Commentator: Oklahoma “Frontier Justice” Has Produced “Wretched Record” of Wrongful Capital Convictions

Calling Oklahoma “the notorious home of ‘Hang ’Em High’ executions,” conservative commentator and Fox News contributor Michelle Malkin (pictured) has urged the state to adopt sytemic reforms to address its “wretched record on wrongful convictions.” Malkin says that despite 35 exonerations in the last 25 years—including 7 death-row exonerations—and a “reign of prosecutorial terror and forensic error by the late Oklahoma County District Attorney Bob Macy and rogue Oklahoma City police department crime lab analyst Joyce Gilchrist,” the state has failed to create a forensic science commission to investigates errors and professional misconduct by crime labs and forensic analysts and “not a single Oklahoma district attorney’s office has established an official mechanism to review tainted convictions.” In an August 8, 2018 commentary for the Creators Syndicate, Malkin warns that “‘Frontier justice’ costs too many citizens of all races, creeds, and backgrounds their freedom and their lives.” She says, “In the old days of the Wild West, vigilantes worked outside the judicial system to punish rivals regardless of their guilt or innocence. Today, outlaws operate inside the bureaucracy to secure criminal convictions at all costs.” In her commentary, Malkin highlights the death-penalty exonerations of Curtis McCarty and Robert Lee Miller, Jr., and current appeals attempting to free death-row prisoner Julius Jones. Notorious former Oklahoma County District Attorney Bob Macy withheld evidence from McCarty’s attorneys, and crime lab analyst Joyce Gilchrist, implicated in at least 11 wrongful convictions, falsified and destroyed forensic evidence. Gilchrist’s false testimony in the case included claims that hairs found at the crime scene matched McCarty’s and that his blood type matched the semen found on the victim’s body. They didn’t. Miller’s case was also tainted by bad forensics and a coerced false confession. Malkin points to the case of Julius Jones—recently featured in the documentary series The Last Defense—as emblematic of some of the ongoing problems in Oklahoma cases. Jones, who is seeking appellate review of evidence that supports his innocence claims, filed motions for discovery and a request for an evidentiary hearing in December 2017. Under instructions of a court clerk, they placed supporting evidence in a sealed envelope labeled “protected material.” That crucial evidence was not presented to the court and disappeared for six months until Jones’ investigator was able to uncover them herself in the clerk’s office. The court initially rejected Jones’ appeal, but will now reconsider, due to the clerk’s “mismanagement of the exhibits.” Another Oklahoma County death-row prisoner, Richard Glossip, was convicted and sentenced to death based on solely on the testimony of a 19-year-old who confessed to the murder and then implicated Glossip in exchange for a reduced sentence. No physical evidence linked Glossip to the crime, the teen gave investigators multiple contradictory descriptions of the murder before adopting police suggestions that Glossip was involved, and two witnesses who have come forward with evidence of Glossip’s innocence say they have been subjected to retaliation and intimidation by prosecutors. Oklahoma, Malkin says, “stands out for its decades of trampling due process, subverting public disclosure, perpetuating forensic junk science, manufacturing false accusations and enabling official misconduct.” She says that, given the state’s record and its recent “chilling” history of “horrific botched executions,” permitting the state to resume executions poses a “human rights crisis.” Silence in the face of that crisis, she says, “is complicity.”

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