Mental Illness

Federal Appeals Court Hears Argument in Case of Texas Death-Row Prisoner Who Gouged Out His Eyes

A severely mentally ill Texas death-row prisoner who gouged out his eyes and ate one of them has asked a federal appeals court to allow him to appeal a lower court decision that upheld his conviction and death sentence and found that he had been competent to stand trial. Andre Thomas (pictured, left when arrested; center, after gouging out his right eye prior to trial; right, after gouging out and eating his left eye while on death row); is seeking review of his claims that his conviction and sentence must be overturned because he is severely mentally ill, received inadequate representation at trial and at sentencing, and his jury was tainted by racial bias. On June 5, a panel of the U.S. Court of Appeals for the Fifth Circuit heard oral argument on whether Thomas is entitled to a “certificate of appealability” ("COA"), a procedural prerequisite to obtaining appellate review of the issues in his case. Thomas was sentenced to death in 2005 for the murders of his ex-wife, their son, and his ex-wife’s daughter. His lawyers did not contest that he had committed the murders, but argued he was incompetent to stand trial. Thomas began hearing voices at age nine and began smoking marijuana and using alcohol during his childhood. His condition sharply deteriorated shortly before the murders, as he heard voices, repeatedly mutilated himself, put duct tape over his mouth for days at a time because he believed God had told him not to talk, and attempted suicide. While in jail awaiting trial, Thomas gouged out his right eye. In 2008, while on death row, he then gouged out and ate his left eye. Three psychologists who evaluated Thomas before trial said he had paranoid schizophrenia and was incompetent to stand trial. However, after just six weeks of treatment, a state hospital psychologist claimed that Thomas had been exaggerating the symptoms, changed his diagnosis to "substance-induced psychosis," and judged Thomas competent to be tried. Thomas’s trial lawyers did nothing to contest the competency finding—allowing the trial to proceed—failed to retain an expert to challenge the state’s diagnosis of drug-related psychosis, and failed to present significant evidence of his mental illness. On appeal, Thomas challenged his lawyers’ performance on these issues. Appeal counsel also argued that, as a result of trial counsel’s failures, Thomas’s jury was impermissibly tainted by racial bias. Thomas is Black; his ex-wife was White. Written questionnaires submitted by several jurors suggested this raised serious concerns for several of the jurors. One juror wrote that he opposed interracial marriages because he believed “the bloodlines shouldn’t be mixed.” Another expressed concern that “any children” of an interracial marriage “would not have a specific race to belong to.” A third said “interracial relationships were contrary to God’s intent.” Although Thomas’s trial counsel were aware of these responses, they asked no follow-up questions of these jurors, and accepted them to serve on the jury. Finally, Thomas’s current lawyers argued that subjecting people like him, with severe mental illness, to the death penalty is categorically unconstitutional. “There is a growing consensus against the execution of the severely mentally ill,” they wrote in a brief. “The leading legal and mental-health professional organizations—including the American Bar Association, the American Psychiatric Association, and the American Psychological Association—oppose the death penalty for the severely mentally ill.” [UPDATE: The Fifth Circuit granted Thomas a certificate of appealability permitting him to appeal the denial of his claims that his lawyers were ineffective in failing to challenge his competency, failing to present mitigating evidence relating to his mental illness, and failing to take action to keep jurors who expressed clear racial animus off his jury. The court denied his request for a COA on the constitutionality of executing prisoners who are severely mentally ill.] 

STUDY: Pervasive Rubberstamping by State Courts Undermines Legitimacy of Harris County, Texas Death Sentences

State-court factfinding by judges in Harris County, Texas death-penalty cases is "a sham" that "rubberstamps" the views of county prosecutors, according to a study of the county's capital post-conviction proceedings published in the May 2018 issue of the Houston Law Review. In The Problem of Rubber Stamping in State Capital Habeas Proceedings: A Harris County Case Study, researchers from the University of Texas School of Law Capital Punishment Center examined factfinding orders in 191 Harris County capital post-conviction proceedings in which factual issues were contested, and found that in 96% of the cases, Harris County judges adopted the county prosecutors' proposed findings of fact verbatim. In the vast majority of cases, judges signed the state’s proposed document without even changing the heading. Looking at the 21,275 individual factual findings that county prosecutors had proposed, the researchers discovered that 96% of the judicial findings were word-for-word what prosecutors had written. The study's authors—Capital Punishment Center Director and Judge Robert M. Parker Chair in Law Jordan M. Steiker, Center Co-Director and Clinical Professor James W. Marcus, and Clinical Fellow Thea J. Posel—identified two related state post-conviction practices that they say "undermine the accuracy and fairness of the death penalty" in the nation's most prolific county for executions: "the reluctance of state trial courts to conduct evidentiary hearings to resolve contested factual issues, and the wholesale adoption of proposed state fact-finding instead of independent state court decision-making." State post-conviction applications typically present affidavits from witnesses and experts containing evidence that could have been, but was not, presented at trial. This evidence may "relate[ ] to the accuracy of the conviction, including forensic, alibi, or eyewitness testimony; or the affidavits might highlight important [penalty-phase] mitigating evidence regarding the inmate’s psychiatric or psychological impairments, abused background, or redeeming qualities." The systemic rubberstamping rejects this evidence, often without any evidentiary hearing into contested factual issues. The "inadequate development of facts" caused by this "one-sided consideration of contested factual issues," the researchers say, "prevents Harris County post-conviction courts from enforcing federal constitutional norms." The sham state-court proceedings also lead to unreliable federal habeas corpus review of Harris County death sentences, the researchers said, "[b]ecause even rubberstamped findings receive deference in federal court." When federal habeas relief is denied and an execution occurs, "prosecutors and newspapers recount the many layers of review undertaken" in the case, notwithstanding the underlying reality that "those layers of review afforded no meaningful consideration of the inmate’s constitutional claims." The reality of rubberstamped state-court factfinding and illusory federal appellate review, they say, "undermines the legitimacy of Harris County executions."

Prosecutors Withdraw Death Penalty, Agree to Guilty Pleas in Two High Profile Cases With Multiple Victims

State and federal prosecutors have agreed to withdraw the death penalty in exchange for guilty pleas by defendants charged with multiple killings in two unrelated high-profile murder cases. On May 4, Lake County, Indiana prosecutors dropped the death penalty against Darren Vann (pictured, left), who had killed seven women. On May 1, federal prosecutors announced they would not pursue the death penalty against Esteban Santiago (pictured right), who killed five people and wounded six others in a shooting rampage at the Fort Lauderdale-Hollywood International Airport in Florida in 2017. Military records reflect that Vann—a former Hawk Missile system operator who had earned a National Defense Service Medal—was prematurely discharged from the Marine Corps in 1993 for conduct described as "incongruent with Marine Corps’ expectations and standards." Vann had been capitally charged in the strangulation deaths of two women after having been released from prison in Texas in 2013 where he had served time for a rape conviction. County prosecutors agreed to withdraw the death penalty in exchange for his admission of guilt in their murders and the murders of five other women in an area of Gary, Indiana, frequented by sex workers and drug users. He was arrested in October 2014 after police found one victim's body in a motel bathtub. Vann told police he had killed six other women and later led authorities to their remains. Marvin Clinton, the longtime boyfriend of one of the victims and father of her child, called the death penalty "the easy way out" and said he preferred than Vann be sentenced to life without parole. "I want him to suffer," Clinton said. "These women will haunt him for the rest of his life.” Federal prosecutors reached a plea agreement that would avoid a protracted death-penalty trial for Santiago, a severely mentally ill Iraqi War veteran who suffers from auditory hallucinations and is being medicated for schizophrenia. Santiago opened fire in the Fort Lauderdale airport two months after having been released from a psychiatric hospitalization in Alaska. At that time, Santiago told local FBI agents in Anchorage that he was hearing voices and thought the government was controlling his mind. Local police then confiscated his handgun, but returned it to him weeks before the airport shooting. Santiago's lawyer, Assistant Federal Public Defender Eric Cohen, said Santiago has expressed remorse for the shooting. U.S. District Judge Beth Bloom has ordered Santiago to undergo a mental health evaluation to ensure he is legally competent to plead guilty and has scheduled a competency hearing for May 23.

Aging of Death Row Raises Humanitarian and Practical Concerns, As Alabama Executes 83-Year Old Prisoner

Death row is aging and increasingly infirm and, as a series of recent death warrants suggest, that phenomenon is raising legal, practical, and humanitarian concerns. One year after executing 75-year-old Thomas ArthurAlabama on April 19 executed 83-year-old Walter Moody (pictured, left), the oldest person and only octogenarian put to death in the United States since executions resumed in 1977. Attempts to execute prisoners debilitated by physical and cognitive impairments exacerbated by aging have proven problematic and inhumane. After canceling his previously scheduled cancer surgery to issue a death warrant, Alabama failed for 2 1/2 hours to set an intravenous line to execute gravely ill 61-year-old Doyle Hamm on February 22. His lawyer moved to bar the state from trying a second time, describing the failed attempt as "torture." Ohio tried and failed to execute terminally ill 69-year-old Alva Campbell (pictured, center) in November 2017. He then died of his terminal illness on March 3. And in late January 2018, the U.S. Supreme Court halted Alabama's scheduled execution of 67-year-old Vernon Madison (pictured, right), who is legally blind, incontinent, and unable to walk independently, and suffers from vascular dementia caused by strokes that have left him with no memory of the offense for which he was sentenced to death. The Court on February 26 agreed to review his claim that his illness leaves him mentally incompetent to be executed. A Washington Post review of Department of Justice data reported that the percentage of death-row prisoners aged sixty or older has more than doubled this century, up from 5.8 percent of U.S. death rows in 2007 to 12.2 percent in 2013. The aging of the row has also affected executions. An Associated Press review of the Death Penalty Information Center execution database found that the median age of an executed prisoner in the U.S. rose from 34 to 46 between 1983 and 2017. A DPIC analysis of U.S. execution data found that only two of the 933 prisoners executed in the United States between 1977 and 2004 were aged 65 or older. That total was matched in a single 35-day period this year between March 15 and April 19, when Georgia executed 67-year-old Carlton Gary and Alabama executed Mr. Moody. In 23 years of executions between 1977 and the close of the 20th century, ten prisoners aged 60 or older were executed. Thirty-six have already been executed this decade, 13 since 2015 alone. The aging of death row raises humanitarian issues, separate and apart from the risk of botched executions. Speaking to Associated Press, DPIC Executive Director Robert Dunham noted that, while many of the prisoners facing execution have been convicted of terrible crimes, the public is "torn between wanting to punish [them] severely and the belief it is beneath us as a nation to kill a frail person who is already dying. It’s a challenge to our morality and our sense of humanity,” Dunham said. The attempts to execute the infirm also have attracted international attention and approbation. When Alabama sought to execute Madison, David O'Sullivan, the European Union's Ambassador to the United States, wrote "an urgent humanitarian appeal" to Alabama Governor Kay Ivey not to execute him. The Ambassador's letter reminded Alabama that "[t]he execution of persons suffering from any mental illness or having an intellectual disability is in contradiction to the minimum standards of human rights, as set forth in several international human rights instruments." When Ohio sought to execute Campbell, his lawyer, assistant federal defender David Stebbins, predicted that the execution could become a “spectacle” if prison staff were unable to find a suitable vein. “All of this in an attempt to execute an old and frail man who is no longer a threat to anyone,” Stebbins said. In a statement that applies to more and more prisoners facing death warrants, Madison’s lawyer, Bryan Stevenson of the Equal Justice Initiative, summed up the issue: “Killing a fragile man suffering from dementia," he said, "is unnecessary and cruel.”

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?” 

Utah Prosecutor Drops Death Penalty in Prison Killing After Corrections Officials Withheld Evidence

A Utah judge has excoriated the Utah Department of Corrections for practices he called “sneaky” and “deceitful” and a state prosecutor has dropped the death penalty after learning that state prison officials had withheld nearly 1,600 pages of prison records from a defendant facing capital charges in a prison killing. Despite a court order to produce all prison records, the department had failed to disclose medical and mental health records detailing psychiatric medication Steven Douglas Crutcher (pictured, right) had been receiving in the months before he killed his prison cellmate. On March 28, 2018, following disclosure of the records, Sanpete County Attorney Kevin Daniels (pictured, left) withdrew the state’s notice to seek the death penalty and Judge Wallace Lee sentenced Crutcher to life. Preparing for an April 9 capital sentencing hearing, the defense learned in mid-February that the department had withheld medical and mental health records that Crutcher’s lawyer, Edward Brass, said “went to the heart” of the defense’s case. Brass alerted Daniels to the prison’s violation of the court order and Daniels, saying he was “irate” about the prison's misconduct, withdrew the death penalty from the case. “I hold myself to the highest ethical standard,” he said, “and any withholding of information is an affront to justice. The whole concept of justice is that you put all the evidence, all the cards on the table, and if you go where the evidence leads you, it’s a just result.” “This could have been a disaster,” Brass told reporters. “If it wasn’t for the integrity of the county attorney, it would have been a disaster.” Judge Lee said he was “beyond angry” over the department’s behavior. “This was totally wrong and makes me doubt the credibility of everything I hear about the Department of Corrections,” he said. In a statement, the department blamed its failure to produce the records on a “misinterpretation” of Judge Lee’s October order, but defense lawyers said medical doctors at the prison had been so difficult to work with that one doctor even refused to tell them what medical school he had attended. The judge questioned how the department could have misunderstood an order that had directed it to produce Crutcher’s “entire file,” including all mental health records. “That is something I would expect from Russia or North Korea, not a society like we have under the Constitution,” Lee said. “It’s got to stop. I’ve worried that if it’s happened in this case, it’s happening in other cases out there.” A prison spokesperson told the media that the department has retrained its clinical services records staff on responding to court orders and records requests and has started reviewing other cases to determine whether court orders had been responded to appropriately. Utah Association of Criminal Defense Lawyers executive director Stewart Gollan said the department also has been uncooperative in releasing prisoners’ medical records in civil rights cases.

U.S. Supreme Court Rules in Favor of Texas Death-Row Prisoner Denied Investigative Funding

In a decision that clarifies the showing indigent prisoners must make to obtain investigative services, the U.S. Supreme Court has ruled in favor of a Texas death-row prisoner who was denied funding to challenge the death sentence imposed in his case. In Ayestas v. Davis, the Court unanimously ruled that the Texas federal courts had applied an overly restrictive legal standard in denying Carlos Ayestas (pictured) funding to investigate and develop his claim that his lawyer had provided ineffective representation in the penalty phase of his trial. Federal law requires habeas-corpus courts in death-penalty cases to provide funding that is "reasonably necessary" to the petitioner's case. The U.S. Court of Appeals for the Fifth Circuit, however, has instead required indigent applicants to demonstrate a "substantial need" for funding. The Court returned the case to the federal appeals court to reconsider Ayestas's request for funding using the proper standard. Ayestas, a 48-year-old Honduran national, was sentenced to death in Harris County, Texas in 1997. His trial counsel conducted virtually no life-history investigation and presented a case for life to the jury that lasted just two minutes and included only a single letter from an English teacher in prison. Both his trial and state post-conviction lawyers overlooked available evidence of mental illness and brain damage—including head trauma and substance abuse—and failed to develop a record of the mitigating evidence that his federal habeas lawyers argued should have been presented in his case. The lawyers appointed to represent Ayestas in federal court sought funding to investigate his background, upbringing, and mental health history, without which, they argued, he would be unable to discover mitigating evidence indispensable to presenting a meaningful case to spare his life. The Texas federal district court, applying the Fifth Circuit's "substantial need" test, denied him funding and dismissed his habeas corpus petition, and the Fifth Circuit affirmed. Justice Samuel Alito, writing for a unanimous Supreme Court, reversed and ordered the federal appellate court to reconsider Ayestas's request for funding. In determining whether a funding request is "reasonably necessary" to the petitioner's case, Justice Alito wrote, federal courts courts should assess "whether a reasonable attorney would regard the services as sufficiently important." This standard "requires courts to consider the potential merit of the claims that the applicant wants to pursue, the likelihood that the services will generate useful and admissible evidence, and the prospect that the applicant will be able to clear any procedural hurdles standing in the way." In a concurring opinion, Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, wrote "to explain why, on the record before this Court, there should be little doubt" that Ayestas had already made a showing sufficient to obtain funding. Trial counsel's obligation to thoroughly investigate possible mental illness, she wrote, "exists in part precisely because it is all too common for individuals to go years battling an undiagnosed and untreated mental illness. ... [T]he troubling failures of counsel at both the trial and state postconviction stages of Ayestas’ case are exactly the types of facts that should prompt courts to afford investigatory services, to ensure that trial errors that go to a 'bedrock principle in our justice system' do not go unaddressed." 

New Polls in Two Florida Counties that Heavily Use the Death Penalty Find Voters Prefer Life Sentences Instead

Recently released poll results from two Florida counties that have heavily used the death penalty suggest that voters actually prefer life-sentencing options instead. Polls conducted by North Carolina-based Public Policy Polling on January 22-23, 2018, indicate that three-quarters of Miami-Dade County respondents preferred some form of life imprisonment rather than the death penalty as the punishment for people convicted of murder, and two-thirds of Pinellas County respondents preferred one of the life-sentencing options. The margin was more than 3 to 1 in Miami-Dade (75% to 21%) and more than 2 to 1 in Pinellas (68% to 30%). Of Miami-Dade respondents who chose a life-sentencing option, a plurality (40%) preferred life without parole, plus restitution; 18% preferred life with the possibility of parole after 40 years; and 17% preferred life without possibility of parole. In Pinellas, 48% preferred life without parole plus restitution; 12% preferred life without parole; and 8% chose life with parole eligibility after 40 years. Sixty-eight percent of Miami-Dade respondents said they would support a decision by their local prosecutor to reduce or eliminate the use of the death penalty, compared to 25% who opposed. In Pinellas, 64% said they would support reducing or eliminating the use of the death penalty, as opposed to 32% against. Pinellas/Pasco State Attorney Bernie McCabe reportedly has filed notice that he will seek the death penalty in 15 pending cases and six re-sentences, with nine death-penalty trials already scheduled for 2018. Floridians for Alternatives to the Death Penalty released the Pinellas County poll on February 27 and the Miami-Dade poll on March 1. The organization's director, Mark Elliott, said “[t]he survey results make clear that the state attorney’s office is ignoring the will of the overwhelming majority of Pinellas County constituents who prefer life sentences for those convicted of murder." Elliott also said that "[e]xpensive death penalty trials do nothing to prevent violent crime, protect law enforcement, or help victims’ families in meaningful ways, and mistakes are also all-too-common.” DPIC reported in 2013 that both Miami-Dade and Pinellas were among the 2% of counties that accounted for more than half of all death-row prisoners and executions in the United States. Both were among the Fair Punishment Project's list of 16 outlier counties that imposed five or more death sentences between 2010 and 2015—more than 99.5% of all counties in the country.

Pages