Race

Florida Supreme Court Upholds Removal of Prosecutor From Death-Eligible Cases

The Florida Supreme Court has upheld Governor Rick Scott’s (pictured, left) removal of Orange and Osceola County State Attorney Aramis Ayala (pictured, right) as prosecutor in more than two dozen murder cases because of her official policy not to seek to seek the death penalty. Over two dissents, the seven-member Court held that Scott had acted “well within the bounds of the Governor’s broad authority” when he replaced Ayala with Lake County State Attorney and death-penalty proponent Brad King in cases that could be eligible for the death penalty under Florida law. On March 16, Ayala—the first African American elected as a Florida state attorney—announced that her office would not pursue the death penalty in any homicide cases, saying the use of capital punishment was “not in the best interests of this community or in the best interests of justice." That day, Governor Scott issued an executive order removing her from the case of Markeith Loyd, charged in the killing of an Orlando police officer, and appointing King to prosecute the case. He has since issued executive orders removing Ayala and appointing King in at least 26 other murder cases. Against a backdrop of racial discrimination, Ayala—supported by the Florida Legislative Black Caucus and a group of lawyers, legal experts, and retired judges—argued that Scott’s action was a power grab that threatened the autonomy of locally elected prosecutors to exercise their discretion in charging and sentencing practices. The court flatly rejected that argument, saying that “adopting a blanket policy against the imposition of the death penalty is in effect refusing to exercise discretion and tantamount to a functional veto” of Florida’s death-penalty law. The two women on the court, Justice Barbara Pariente, joined by Justice Peggy A. Quince, dissented. Justice Pariente wrote: “This case is about the independence of duly elected State Attorneys to make lawful decisions within their respective jurisdictions as to sentencing and allocation of their offices’ resources, free from interference by a Governor who disagrees with their decisions.” Ayala’s decision “not seek a sentence that produces years of appeals and endless constitutional challenges and implicates decades of significant jurisprudential developments,” she wrote “was well within the scheme created by the Legislature and within the scope of decisions State Attorneys make every day on how to allocate their offices’ limited resources.” Governor Scott hailed the decision as “a great victory.” Shortly afterwards, Ayala issued a statement saying she respects the ruling and announcing the formation of a death penalty review panel that will evaluate first-degree murder cases and recommend whether to seek the death penalty. “With implementation of this Panel,” the statement said, “it is my expectation that going forward all first-degree murder cases that occur in my jurisdiction will remain in my office and be evaluated and prosecuted accordingly."

50 Years After Historic Confirmation to Supreme Court, Thurgood Marshall's Legacy Continues To Shape Future

Fifty years ago today, Thurgood Marshall (pictured) was confirmed as the nation’s first African-American Supreme Court Justice. Marshall’s legacy is indelibly linked to his historic victory in 1954 as counsel in Brown v. Board of Education, breaking down the barriers of "separate but equal" segregated public education. But he is equally associated with his representation of capital defendants in racially charged cases in the Jim Crow South and his longstanding belief—first articulated in a concurring opinion in the Court's landmark 1972 decision in Furman v. Georgia striking down all existing death-penalty statutes—that "the death penalty is an excessive and unnecessary punishment that violates the Eighth Amendment." A grandson of slaves and a survivor of an attempted lynching by Tennessee police officers, Marshall devoted his life to ensuring that all people, irrespective of race, enjoyed the rights of full citizenship and the equal protection of the law. This inexorably drew him to the issues of lynching and capital punishment. Seven days after the Baltimore native received his law license in October 1933, a 23-year-old intellectually disabled black man, George Armwood, who had been in custody accused of the attempted assault and rape of an elderly white woman, was lynched in nearby Somerset County, Maryland. Marshall was one of ten lawyers to petition the governor seeking anti-lynching legislation and call for an investigation into state police involvement in the lynching. Marshall won his first Supreme Court case in 1940, arguing Chambers v. Florida, which established that coerced confessions obtained by police through duress and violence are inadmissible at trial. That year, he founded the NAACP Legal Defense and Educational Fund and served as its first Director-Counsel, representing numerous black defendants charged with crimes in Southern courts. In 1941, Marshall represented W.D. Lyons, an illiterate 21-year-old black sharecropper beaten into confessing to murdering a white family and burning down their home. Enduring racial epithets from an initially hostile white community, Marshall subjected the police who had framed Lyons to withering cross-examination and showed that they had obviously lied on the stand. Lyons was convicted and—after the U.S. Supreme Court denied his appeal—executed, but historians say the case awakened Marshall to the ability of lawyers to empower oppressed communities. Later, Marshall won retrials for three young African-American men who had been falsely accused of raping a 17-year-old white woman in Lake County, Florida. Two of the "Groveland Four" (a fourth young man charged in the case had been lynched by a white mob after escaping from custody) were wrongly sentenced to death; one of them was murdered and the other shot several times by a sheriff while being transported to their retrial. The surviving defendant was convicted and resentenced to death, but received a last-minute commutation. The third defendant—who was 16 at the time—received a life sentence. In April 2017, the Florida legislature issued an apology for the killings and wrongful convictions and asked Governor Rick Scott to issue posthumous pardons for the four. In November 1946, Marshall nearly was murdered. Tennessee law enforcement intercepted his car and placed him in the back of an unmarked car after he had won an acquittal for one of 25 black man charged with riot and attempted murder in the wake of local racial violence. They drove him down isolated roads and, Marshall later said, "were taking me down to the river where all of the white people were waiting to do a little bit of lynching." A white lawyer and a white journalist saw the abduction and followed the unmarked car, foiling the lynching. The Legal Defense Fund won acquittals in 23 of the 25 Tennessee riot cases. Marshall wrote in his concurrence in Furman that "[i]t is evident ... that the burden of capital punishment falls upon the poor, the ignorant and the underprivileged members of society." He firmly believed that the public would do away with the punishment if they understood the facts of how the death penalty actually was applied. The question for him in Furman was "not whether a substantial proportion of American citizens would today, if polled, opine that capital punishment is barbarously cruel, but whether they would find it to be so in the light of all information presently available.”

Florida Death-Penalty Practices, Mark Asay Execution Draw Criticism From Human Rights Groups, Johnson & Johnson

As Florida prepared to execute Mark Asay (pictured) on August 24, the state’s death-penalty practices came under fire from human rights groups, criminal justice reformers, and one of the world’s largest pharmaceutical companies. Asay was executed despite the Florida Supreme Court’s recognition that his death sentence—imposed by a judge after three jurors had voted for life—was unconstitutionally imposed and that the court mistakenly believed both of Asay’s victims were black when it upheld his death sentence for what it believed to have been two racially motivated killings. Asay's execution also drew criticism from Johnson & Johnson, the world’s largest pharmaceutical company. Its pharmaceutical division, Janssen Pharmaceuticals, condemned the state’s proposed use of the drug etomidate, which the company invented a half-century ago exclusively for medical use. Asay’s execution has been described as a twist on Florida’s racially disproportionate use of capital punishment. His execution made him the first white defendant since the state brought back capital punishment in the 1970s to be put to death for the murder of any black victim. In December 2016, African-American Florida Supreme Court Justice James Perry—in dissenting from the court’s decision to lift a stay of execution for Asay—described this “sad statistic” as a “reflection of the bitter reality that the death penalty is applied in a biased and discriminatory fashion, even today.” To date, all 57 white prisoners executed in Florida in the modern era were condemned for killing at least one white or Latino victim. In that same time period, Florida has executed 28 black death-row prisoners, with more than 70% condemned for the interracial murder of at least one white victim. On August 21, Amnesty International issued a new report, USA: Death in Florida, saying that the Asay execution and Governor Rick Scott’s decision to remove Orlando State Attorney Aramis Ayala from 27 homicide prosecutions provided “a moment to reflect upon an often overlooked aspect of Florida’s history—that it was a leader in lynching in the South and slow to eradicate this phenomenon in the 20th century.” The Amnesty report noted that Ayala, the first African American to be elected as a Florida state attorney, had cited systemic racial discrimination as one of the flaws in capital punishment that led to her decision that pursuing the death sentences in first-degree murder prosecutions was “not in the best interests of the community” or “the best interests of justice.” It also highlighted her replacement, Brad King, a white prosecutor whose “well-established” support for the death penalty, Amnesty said, included “act[ing] as lobbyist-in-chief for the Florida prosecutorial community” in legislative efforts to oppose requiring unanimous jury recommendations for death. Asay’s execution was the first ever in which a state has used the injectable sedative etomidate. As part of its three-drug process, Florida then administered rocuronium bromide as a paralytic drug and potassium acetate to stop the heart. In a statement issued on August 21, Janssen said: “Janssen discovers and develops medical innovations to save and enhance lives. … We do not condone the use of our medicines in lethal injections for capital punishment." The human rights organization, Reprieve, issued a statement saying that “Governor Scott should listen to clear and unequivocal statements from Johnson & Johnson and others calling time on this dangerous misuse of medicines, and stay the execution of Mark Asay.” The state and federal courts denied Asay's applications to stay his execution and he was put to death on August 24.

Merck CEO Ken Frazier: Application of Death Penalty Not "Fair and Consistent"

Merck Chief Executive Officer Kenneth C. Frazier (pictured) resigned from the president’s American Manufacturing Council on August 14, saying “[a]s CEO of Merck and as a matter of personal conscience, I feel a responsibility to take a stand against intolerance and extremism.” In a statement posted on Merck’s Twitter account, Frazier said: "Our country's strength stems from its diversity and the contributions made by men and women of different faiths, races, sexual orientations and political beliefs. America's leaders must honor our fundamental values by clearly rejecting expressions of hatred, bigotry and group supremacy, which run counter to the American ideal that all people are created equal." It was not the first time that Frazier, the only African-American CEO of a major pharmaceutical company, has spoken out on matters of social justice. Following his successful pro bono representation of James Willie "Bo" Cochran, a black, Alabama death-row prisoner wrongly convicted of the murder of a white grocery store manager, Frazier wrote that the case showed him that "there can be no fair and consistent application of the death penalty under the current system." Frazier undertook Cochran's representation while a partner at the Philadelphia law firm, Drinker, Biddle & Reath, and remained on the case after joining Merck. Cochran won a new trial after Frazier and his team showed that, in two prior trials, the prosecutor had systematically removed 31 of the 35 potential black jurors because he believed they were less "reliable" and more likely to acquit black defendants. Frazier initially doubted Cochran's proclamation of innocence: witnesses inside the store described the suspect as a black man and, as police converged on the scene, heard a gunshot coming from a nearby trailer park, less than one mile from where Cochran was found with a gun and cash. But Frazier discovered during the post-conviction proceedings that there was no physical evidence against his client, the only bullet recovered near the scene did not match Cochran's gun, and the fatal bullet could not be tested because police had cut it out of the victim's body and removed it before delivering the body to the medical examiner. "He was convicted," explains Frazier, "despite evidence suggesting an accidental police shooting and cover-up." Even though the state only had circumstantial evidence against him, Cochran was tried three separate times for the killing (the first time, there was a mistrial, and the second time his conviction was reversed on appeal). "Although some maintain the criminal justice system is color-blind," Frazier wrote, "the reality is that race plays a substantial role in the judicial process." In Cochran's retrial, a jury that Frazier says "was not selected primarily on the basis of race" acquitted him in less than an hour. 

Missouri Court Denies Condemned Prisoner Stay of Execution, Review of Case Despite Exonerating DNA Evidence

After having previously granted Marcellus Williams (pictured) a stay of execution in 2015 to permit DNA testing in his case, the Missouri Supreme Court on August 15 summarily denied him a new execution stay, despite recently obtained results of that testing that support his innocence claim. Williams—who was convicted and sentenced to death in 2001 by a nearly all-white St. Louis County jury in the highly publicized stabbing death of a former St. Louis Post-Dispatch reporter—presented scientific evidence that excluded him as a contributor to DNA on the knife used to kill Felicia Gayle. Williams had filed a motion in the state court to stay his scheduled August 22 execution, along with a petition seeking the appointment of a Special Master to hold hearings on his innocence claim. His petition was supported by reports from two DNA experts who had determined that DNA evidence on the knife did not match Williams or Gayle, but came from an unknown third person. One expert concluded that Williams "could not have contributed to the detected [DNA] profile" and the other found "a clear exclusion of Marcellus Williams from the knife handle." The petition alleged that the "physical evidence collected from the crime scene”—which included fingernail scrapings from the victim, who had been stabbed more than 40 times—“did not match and could not be linked to" Williams. Williams was convicted and sentenced to death based on the testimony of a jailhouse informant and a prostitute who was an admitted crack addict. He has never been provided an evidentiary hearing on the DNA results. The Missouri Supreme Court denied his petition without any written opinion within one day of its filing, and before Williams had an opportunity to respond to the State's opposition. Kent Gipson, one of Williams's lawyers, said the defense plans to seek review in the U.S. Supreme Court. "It certainly would give most reasonable people pause to say, 'Should you be executing somebody when you've got reasonable evidence suggesting another man did it?,'" Gibson said. Williams also has a case pending in federal court arguing that he should be permitted to re-open his habeas proceedings because he can show he is innocent; he was denied relief in the federal district court and is currently appealing that denial to the U.S. Court of Appeals for the Eighth Circuit. In earlier federal habeas corpus proceedings, the district court had overturned Williams’s death sentence, finding that his trial lawyer had failed to investigate and present significant mitigating evidence relating to Williams’s history of mental deficiencies and chronic abuse throughout his childhood. That decision, however, was reversed by the Eighth Circuit in a split 2-1 decision. Williams had also previously raised a claim alleging that St. Louis County prosecutors had a pattern and practice of striking black prospective jurors, including 6 of the 7 African Americans it had the opportunity to empanel in his case.

Arizona Prisoner Asks U.S. Supreme Court To Declare State's Death Penalty Unconstitutional

An Arizona death-row prisoner has petitioned the U.S. Supreme Court to review the constitutionality of the state's capital punishment statute, arguing that Arizona's sentencing scheme "utterly fails" the constitutionally required task of limiting the death penalty to the worst crimes and worst offenders. On August 15, lawyers for Abel Daniel Hidalgo (pictured) wrote that a study of more than a decade's worth of murder cases from Maricopa County, where Hidalgo was tried, showed that aggravating factors that could make a defendant eligible for the death penalty were present in 99% of all the cases. This, they say, violates the Eighth Amendment requirement established by the Court that a capital-sentencing statute must “genuinely narrow the class of persons eligible for the death penalty.” They wrote that evidence presented to the Arizona state courts showed that "every first degree murder case filed in Maricopa County in 2010 and 2011 had at least one aggravating factor" that made a defendant eligible for the death penalty, and that over the course of eleven years, 856 of 866 first-degree murder cases filed in the county had one or more aggravating circumstances present. In a press statement, Hidalgo's defense team says that, as a result, "geography and county resources—rather than the characteristics of the offender or the crime—play an outsized role in Arizona’s arbitrary application of the death penalty." With the fourth largest death row in the U.S. as of January 2013, Maricopa County imposed the death penalty at more than double the rate per murder as the rest of the state, and its 28 death sentences imposed between 2010-2015 were the third most of any U.S. county. Hidalgo's petition notes that defendants of color accused of killing white victims "are more than three times as likely to be sentenced to death as minorities accused of killing other minorities ... [a]nd a Hispanic man accused of killing a white man is 4.6 times as likely to be sentenced to death as a white man accused of killing a Hispanic victim." This, they say, makes Arizona's death penalty unconstitutionally arbitrary. In the alternative, the petition argues—citing national legislative and sentencing trends—that the death penalty nationwide now offends "evolving standards of decency" and should be declared unconstitutional. The lawyers write, "[t]he long experiment ... in whether the death penalty can be administered within constitutional bounds has failed. It has failed both in Arizona in particular and in the Nation more broadly." 

Oklahoma Prisoners Argue State's Application of the Death Penalty Is Racially Biased, Unconstitutional

Newly available evidence shows that Oklahoma's death penalty unconstitutionally discriminates on the basis of race, according to petitions filed by lawyers seeking to overturn the death sentences imposed on two African-American defendants, Julius Darius Jones (pictured) and Tremane Wood. Jones—a high school athlete and honor student who did not fit the description of the shooter and who has continuously maintained his innocence—and Wood were convicted and sentenced to death for killing white male victims in separate cases. Both men's claims are based on data from a study of race and the death penalty that was released as part of the April 2017 report of the Oklahoma Death Penalty Review Commission showing that, for the period 1990-2012, Oklahoma defendants convicted of killing white victims were more than twice as likely to be sentenced to death as those convicted of killing victims of color. For cases like Jones's and Wood's that involved only white male victims, defendants were nearly three times more likely to be sentenced to death. The study also showed that defendants of color were nearly three times more likely to be sentenced to death if convicted of killing a white victim than a victim of color and nearly twice as likely as a white defendant to be condemned for killing a white victim. Jones's petition argues that his death sentence violates the state and federal constitutions because he "faced a greater risk of execution by the mere happenstance that the victim who he was accused and convicted of killing was white.” Both Jones and Wood were capitally charged in Oklahoma County, one of the 2% of American counties responsible for more than half of all prisoners on the nation's death rows. 54 men and women were sent to death row during the 21-year administration of District Attorney “Cowboy” Bob Macy, who retired in 2001. The judge who presided over Wood's trial has made openly racist remarks, saying in 2011 that Mexicans are “nothing but filthy animals.” Jones was sentenced to death by a nearly all-white jury, following what his current lawyers describe as “pervasive and highly racialized pre-trial media coverage” and “racialized remarks made by prosecutors and at least one juror” during his trial. Jones has also filed a motion with the Oklahoma County court seeking DNA testing on a red bandana that an eyewitness said the shooter was wearing over his face at the time of the murder. His lawyers say the bandana may contain DNA evidence that would identify the shooter and exonerate Jones.

Equal Justice Initiative Report on Lynchings Outside the Deep South Suggests Links to Capital Punishment

Lynching has long been regarded as a regional phenomenon, but in an updated edition of its landmark 2015 report "Lynching in America: Confronting the Legacy of Racial Terror," the Equal Justice Initiative (EJI) has now documented more than 300 lynchings of African Americans in states outside the Deep South. "Racial terror lynching was a national problem," said EJI Director Bryan Stevenson (pictured). More than six million African American migrants fled "as refugees and exiles from terror in the American South," but the racial terror often followed them. "Hundreds of lynchings took place outside the American South," he said. The original EJI lynching report documented more than 4000 racial terror lynchings in 12 Southern states, and described the historical link between lynching and the modern-day death penalty. The new edition tracks lynchings in eight states in the Midwest and Upper South: Oklahoma (76), Missouri (60), Illinois (56), West Virginia (35), Maryland (28), Kansas (19), Indiana (18), and Ohio (15). The pattern of lynchings suggests a continuing link to modern capital punishment: Oklahoma and Missouri rank second and fifth in the number of executions in the U.S. in the last fifty years and have executed far more prisoners than any other states outside the Deep South. Working with Google, EJI has created an interactive website providing audio, video, and maps to tell the stories of the victims of racial terror and illuminate the geographic patterns of lynching. “These lynchings were intentionally barbaric, torturous, gruesome,” Stevenson said, and often whole communities actively participated in the public spectacle. "Our collective failure to acknowledge this history has created a contemporary political culture that doesn't adequately value the victimization of people of color today," he said. In an interview with The Washington Post, Stevenson explained how the legacy of lynching affects today's criminal justice system, and the death penalty in particular. When the U.S. Supreme Court upheld capital punishment in 1976, Justice Potter Stewart justified capital punishment as an advance from "self-help, vigilante justice, and lynch law." “They started trying people inside." Stevenson said, "and they had the same kind of unreliable verdicts and the same kind of death sentencing and the same kind of abuse of people of color in the courtroom that existed outside the courthouse during the lynching era."

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