Representation

Pentagon Fires War Court Official Who Was Attempting to Negotiate End to Guantánamo Death-Penalty Trial

The sudden firing by U.S. Secretary of Defense Jim Mattis (left) of the Pentagon official who oversaw military commission trials at Guantánamo Bay has raised concerns of political interference in the already tumultuous legal proceedings in the death-penalty trials of the five men charged with plotting the 9/11 attacks on the United States. The New York Times reports that Mattis fired Harvey Rishikof (right), who served as the Convening Authority of the Guantánamo tribunals, as Rishikof was engaged in plea negotiations that would potentially have spared the Guantánamo defendants the death penalty in exchange for pleading guilty to the September 11 attacks. The Pentagon provided no explanation for the February 5 firing, and David Nevin—who represents accused attack-mastermind Khalid Shaikh Mohammed—told The Times that “[t]he firing fairly raises the question" of whether the Pentagon was attempting to unlawfully influence the convening authority. The Office of the Convening Authority is responsible for approving cases for trial, plea agreements, reviewing convictions and sentences, and providing resources to defense teams. Military law prohibits even the appearance of “unlawful command influence” over the handling of a case. Nevin said the defense has "an obligation to try to learn everything we can" about possible improper influence, and he has asked prosecutors to turn over information relating to Rishikof’s firing. At the same time Rishikof was dismissed, the Pentagon's acting general counsel, William S. Castle discharged Rishikof's legal advisor Gary Brown, also without explanation. Brown and Rishikof’s firings have focused renewed attention on the dysfunctional military tribunals at Guantánamo. The death-penalty trial of Abd al Rahim al Nashiri, accused of planning the bombing of the U.S.S. Cole in Yemen, was thrown into chaos in October 2017 when his entire civilian defense team resigned amid allegations that military officials had violated attorney-client privilege by eavesdropping on legal meetings at the Cuban facility. Rishikof intervened in that case after the judge, Air Force Colonel Vance Spath, held the chief defense counsel for the Military Commissions Defense Organization, Marine Brig. Gen. John Baker, in contempt for allowing the resignations. Spath has directed that proceedings in the U.S.S. Cole case continue without expert death-penalty counsel, even though the only remaining member of Nashiri's defense team, Lieutenant Alaric Piette, graduated law school in 2012, does not meet the American Bar Association standards for death-penalty defense, and has never tried any murder case. During a January 2018 pretrial hearing in the case, Spath criticized Piette for seeking a continuance in the case until expert death-penalty counsel could be appointed, telling Piette to “engage in self help” by attending special training to become “more comfortable handling capital matters.” On February 5, Piette, who stayed on the case out of concern for his client’s rights, told The New York Times: “I don’t know if I’ve done the right thing, but I don’t think I really had a choice.” Piette “doesn’t come close to being qualified" to handle the case, according to Ellen Yaroshefsky, a professor of legal ethics at Hofstra University. “So a death penalty case is basically going forward without a lawyer. If that is what we think passes as a court system, we’re in big trouble,” she said. 

BOOK: Death-Row Exoneree Anthony Ray Hinton Publishes “Heart-Wrenching Yet Ultimately Hopeful” Memoir

Anthony Ray Hinton spent thirty years confined on Alabama's death row for murders he did not commit. Three years after his exoneration and release, he has published a memoir of his life, The Sun Does Shine: How I Found Life and Freedom on Death Row, that recounts stories from his childhood, the circumstances of his arrest, the travesty of his trial, how he survived and grew on death row, and how he won his freedom. The book, co-authored with Lara Love Hardin, has earned praise from Kirkus Review as an “urgent, emotional memoir from one of the longest-serving condemned death row inmates to be found innocent in America,” and "[a] heart-wrenching yet ultimately hopeful story about truth, justice, and the need for criminal justice reform." Nobel laureate Archbishop Desmond Tutu called Hinton's book "an amazing and heartwarming story [that] restores our faith in the inherent goodness of humanity." The memoir begins: “There’s no way to know the exact second your life changes forever.” He was arrested in 1985 and capitally charged in connection with the murder of two fast-food restaurant managers, even though he had been working in a locked warehouse 15 miles away when that crime was committed. The prosecutor, who had a documented history of racial bias, said he could tell Hinton was guilty and "evil" just by looking at him. Hinton's incompetent trial lawyer did not know and did not research the law, and erroneously believed the court would not provide funds to hire a qualified ballistics expert to rebut the state expert's unsupported claim that the bullets that killed the victims had been fired from Hinton's gun. Instead, his lawyer hired a visually impaired "expert" who did not know how to properly use a microscope, whose testimony was destroyed in front of the jury. Hinton was convicted and sentenced to death. Hinton speaks candidly about the psychological effect executions of other prisoners had on him as he feared execution for crimes he did not commit. Writing about the 1987 execution of Alabama prisoner Wayne Ritter, Hinton says, “I didn’t even realize they had executed [him] until I smelled his burned flesh.” Faced with this gruesome reality, Hinton realized, “I wasn’t ready to die. I wasn’t going to make it that easy on them.” In 2002, three top firearms examiners testified that the bullets could not be matched to Hinton's gun, and may not have come from a single gun at all. In 2014, the U.S. Supreme Court unanimously held that Hinton had been provided substandard representation and returned his case to the state courts for further proceedings. Prosecutors decided not to retry him after the state's new experts said they could not link the bullets to Hinton's gun. Hinton's lead attorney in the efforts to overturn his conviction and obtain his freedom was Bryan Stevenson, Executive Director of the Equal Justice Initiative and author of Just Mercy. In the forward to The Sun Does Shine, Stevenson writes that Hinton’s story “is situated amid racism, poverty, and an unreliable criminal justice system.” Hinton, he writes, "presents the narrative of a condemned man shaped by a painful and tortuous journey around the gates of death, who nonetheless remains hopeful, forgiving, and faithful." Hinton—the 152nd person exonerated from America's death rows since 1973—says he hopes his story will increase public awareness of the risks of executing the innocent and the irreparable failures of the nation's capital-punishment system. "The death penalty is broken," he writes, "and you are either part of the death squad or you are banging on the bars.”

Justices Appear Sympathetic to Louisiana Death-Row Prisoner Whose Trial Lawyer Conceded Guilt

The justices of the U.S. Supreme Court appeared to be favoring arguments presented by Louisiana death-row prisoner Robert McCoy (pictured), who was convicted and sentenced to death after his lawyer, in the face of repeated instructions from his client to argue his innocence, instead told the jury that McCoy had killed three family members. McCoy's trial lawyer, Larry English, said he ignored his client's instructions and conceded guilt hoping jurors would then vote against the death penalty because McCoy had "serious emotional issues" that prevented him from "function[ing] in society" or "mak[ing] rational decisions." News coverage of the January 17 oral argument in McCoy v. Louisiana reports that the justices were in "broad agreement" with McCoy's position and "seemed sympathetic to his plight." The question debated during the hour-long Supreme Court argument was "whether the right to a lawyer that’s guaranteed by the Constitution is meaningful if, even with the best intentions, he can ignore his client’s wishes." Seth Waxman, former U.S. Solicitor General under the Clinton Administration, argued on behalf of McCoy, saying that "when a defendant maintains his innocence and insists on testing the prosecution on its burden of proof" then the Sixth Amendment right to counsel "prohibits a trial court from permitting the defendant's own lawyer, over the defendant's objection, to tell the jury that he is guilty." The state's attorney, Louisiana Solicitor General Elizabeth Murrill, argued for what the state charcterized as a "narrow exception" that would allow a defense lawyer in a capital case to override the client's wishes and admit the client's guilt if the lawyer believed that was necessary to save the client's life. But even Justices Gorsuch and Alito—two of the Court's most conservative justices—seemed to agree in some respects with McCoy's position. Justice Gorsuch asked Murrill why the error at trial was not "a total denial of the assistance of counsel" and said that the right to counsel included "not to have an agent of the state assist the state in prosecuting you." Justice Alito expressed exasperation that the case had even reached this point, questioning the trial court decisions finding McCoy competent to stand trial and refusing to allow English to withdraw from the case. "[I]f somebody like McCoy really sincerely believes that he did not commit these physical acts, but it was all done by—as part of an elaborate conspiracy, is he—is he capable of assisting in his own defense?," Alito asked. Justices Breyer and Kagan voiced sympathy for English, who they believed was trying to save McCoy's life. Justice Kennedy, often the swing vote in death-penalty cases, asked the Louisiana Solicitor General a single line of questions: was it Louisiana's position that, if "a defendant [in a capital case] wants to plead not guilty, the defense attorney can plead guilty if the defense attorney thinks that's the best way to avoid the death penalty?" When the solicitor general said that a lawyer could not do that, Kennedy followed up, asking "How is that proposition any different from what really happened in this case?" A decision is expected by the end of June 2018.

Co-Chairs of Oklahoma Commission Praise Steps Towards Death-Penalty Reform

Two of the co-chairs of the bipartisan Oklahoma Death Penalty Review Commission have praised organizations in the state for taking "essential steps" towards implementing some of the Commission's recommendations to reform Oklahoma’s death-penalty system. In an article published December 7 in the Tulsa World, former Oklahoma Governor Brad Henry (pictured, left) and Andy Lester (pictured, right), a prominent Oklahoma litigator, spotlighted actions by the Oklahoma Bar Association (OBA) and the state District Attorneys Council that they say "commit to reforms" recommended by the Commission that would improve the quality of death-penalty representation and help reduce the risk of wrongful convictions. The Commission spent more than a year "analyzing, debating and hearing from law enforcement, prosecutors, defense attorneys, judges, families of murder victims, those wrongfully convicted and others" before publishing a nearly 300-page report in April 2017 that included 45 recommendations for reforming Oklahoma's death penalty. The report emphasized that one of the "most significant factors that influence outcomes in capital cases is the quality of a defendant’s attorney," and called for the adoption of performance standards for death-penalty defense counsel. After meeting with the Commission, the state bar association created a task force that drafted minimum standards of capital-defense practice, which have since been approved by the OBA House of Delegates. The OBA's Rules of Professional Conduct Committee is now drafting rules for capital defense lawyers for consideration by the Oklahoma Supreme Court. Henry and Lester write that they "are so pleased" that the OBA's actions have shown that it "understands the importance of a qualified lawyer in death penalty cases." The co-chairs also praised the District Attorneys Council for "undertak[ing] recommendations from the commission." These included conducting a training over the summer on common causes of wrongful convictions and "considering the formation of a best practices committee." Henry and Lester recognize that the Committee's recommendations will not all be implemented overnight, but say they "are encouraged that two major players in Oklahoma’s capital punishment system are working to improve standards and training for defense lawyers and prosecutors. Without effective lawyers on both sides," they say, "we cannot guarantee that our system is just and fair."

NEW RESOURCE: Academy for Justice Report on Reforming Criminal Justice Tackles the Death Penalty

The Academy for Justice has recently released a new four-volume study, Reforming Criminal Justice, featuring research and analysis by leading academics and a wide range of proposals for criminal justice reform. The project, funded with a grant from the Charles Koch Foundation and produced with the support of Arizona State University and ASU's Sandra Day O’Connor College of Law, contains more than fifty chapters covering a wide range of subjects within the areas of criminalization, policing, trial procedures, and punishment—including a chapter on Capital Punishment by renowned death-penalty scholars Professors Carol S. Steiker (Harvard Law School) and her brother, Jordan M. Steiker (University of Texas School of Law). The Steikers—authors of the critically acclaimed 2016 book, Courting Death: The Supreme Court and Capital Punishment, explore the challenges in reforming the institution of capital punishment, which they describe as being "in a state of flux and fragility." They attribute the near ten-fold decrease in new death sentences since 1996 and the near 70% decrease in executions since the peak in executions in 1999 to “growing concerns about the fairness, accuracy, and effectiveness of the capital justice process across the United States.” The Steikers point to endemic arbitrariness and unfairness resulting from the wide discretion afforded to prosecutors and juries in death penalty cases. Prosecutorial discretion, they say, has produced “wildly divergent capital charging decisions” between prosecutorial offices, making geography, rather than the circumstances of a murder, the chief determinant of whether a case is capitally prosecuted. In turn, they say, the practice of "death-qualification" allows prosecutors to exclude jurors who oppose capital punishment, and the jurors who are empaneled in capital cases exercise the broad discretion they are afforded to produce unfair sentences disproportionately influenced by irrelevant factors such as race and gender. The Steikers also challenge the notion that the reduced use of the death penalty means it is being used more effectively when it is imposed. They say that the death penalty is not limited to “the worst of the worst,” and so lacks meaningful retributive value, while its continuing arbitrariness impedes any arguable deterrent effect. Indeed, they say, offenders with mental illness are disproportionately represented on death row and continue to be disproportionately executed, despite widespread public support for excluding the severely mentally ill from the death penalty. They further question the accuracy of death-penalty verdicts, citing research that estimates more than 4% of those sentenced to death may be actually innocent. The Steikers argue that these systemic issues are “difficult to adequately address through constitutional regulation or legislative reform,” concluding that “the most appropriate path forward may well be moratorium or repeal, solutions embraced by a growing number of jurisdictions.” For states that opt to retain capital punishment, they recommend three major policy reforms: the establishment of capital defense offices at all levels (trial, direct appeal, and state postconviction) to “improve the delivery of capital representation services” in compliance with the American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases; centralized state-wide charging processes to combat the politicization of the death penalty by local prosecutors and the resulting geographic arbitrariness in its appliation; and the adoption of legislation to exclude people with severe mental illness from capital prosecution and execution. 

Underfunding of Capital Defense Services in Louisiana Leaves Defendants Without Lawyers

Facing court challenges for underfunding the state's public defender system and pressure from prosecutors angered by the zealous capital representation provided in the state by non-profit capital defense organizations, the Louisiana legislature enacted a law last year redirecting $3 million to local public defenders that had previously been allocated to fund capital defenders. As it has nearly every winter, however, the Louisiana public defender system has run out of money, and the underfunded capital defense offices, already at full capacity, say they cannot take any more cases. As a result, The Marshall Project reports, "[a]t least 11 Louisiana defendants facing the death penalty — including five who have already been indicted — have no defense team and may not have one until new money becomes available in July." And, with Louisiana law requiring prosecutors to seek the death penalty in murder cases unless the prosecutor explicitly decides otherwise, the wait list is expected to grow. Ben Cohen, an attorney with the non-profit The Promise of Justice Initiative likens the situation to “a conveyer belt" of murder cases. He said, "we’re grabbing them off as they come. But with the funding cuts, they essentially pulled some of us away from the line, and now the cases are piling up and crashing to the floor.” “They robbed Peter to pay Paul,” said Jay Dixon, chief defender for the Louisiana Public Defender Board. “We’re still in crisis; it’s just a different crisis ... [and] we could be facing an even greater crisis next year." Hugo Holland, a death-penalty prosecutor who doubles as chief lobbyist for the Louisiana District Attorneys Association, suggests that the capital defenders should lower their standards in providing representation, taking more than the five cases per year recommended by the American Bar Association standard adopted by the state Public Defender Board in 2007. He also argues that the defenders should back off of the ABA-recommended standard of a defense team of two lawyers, a fact investigator, and a penalty-phase mitigation specialist. He rails against the capital defenders as "boutique law firms" whom he believes are "intentionally thwarting the administration of justice." The defense lawyers, he says, should "do [their] f***ing job and provide anyone represented by [them] constitutional representation." Cohen says Louisiana has placed capital-defense lawyers "an awful moral conundrum." It is, he says, "[l]ike a doctor who has to perform 12 heart surgeries in a day, but then his staff gets cut in half. He can either do a crappier job on these life-or-death procedures, or he can take fewer of them and make the others wait." Prior to the new law, the Louisiana Public Defender Board had spent about 28% of its annual budget on capital cases, totaling about $9.5 million two years ago and 8.5 million last year. Louisiana's death penalty has been plagued with problems. Former Louisiana Supreme Court Chief Justice Pascal Calogero has characterized prosecutorial misconduct in capital cases as "endemic and persistent." There are equally persistent allegations of racism in its administration of capital punishment. And since 2000, courts have reversed 96% of the Louisiana death sentences that have completed appellate review. Eleven prisoners wrongly convicted and sentenced to death in Louisiana have been exonerated, the most recent exoneration occurring in April 2017. New Orleans capital defense attorney Nick Trenticosta says that if the state wants to have the death penalty, it has to pay for it. "You can’t try to put a man to death on the cheap."

Lawyer Says North Carolina Client's Brutally Traumatic Childhood Characteristic of Many on Death Row

The life of Terry Ball (pictured) "is worth remembering," says his appeal lawyer, Elizabeth Hambourger. She says Ball's life, which ended October 18 when he died of natural causes on North Carolina's death row, "hold[s] keys to understanding the origins of crime and our shared humanity with people labeled the worst of the worst." His "story of childhood trauma and brain damage" is characteristic of the backgrounds of many on death row, Hambourger says, but "was barely told at trial." Ball was convicted and sentenced to death for the cocaine-induced murder of his pastor's wife and attempted murder of his pastor in 1993, which occurred during a relapse of Ball's cocaine addition. His road to death row began when he was hit by a car at age 10, suffering injuries that kept him hospitalized for eight weeks. The head trauma changed his personality, but the severity of his brain damage was not detected at the time. He and a girlfriend ran away from home when he was 13, during which time he was abducted by a serial rapist, Jerry Wood, and repeatedly raped, kept high on drugs, and forced to steal, until he was able to escape nearly a month later. Rather than receiving mental-health services as a victim of sexual assault, Ball was adjudicated delinquent for running away and was incarcerated in a juvenile detention center, where a state psychiatrist questioned his sexual identity, writing that his month-long "association" with his rapist "raised the question of possible homosexuality." Wood, who was never prosecuted for raping and abducting Ball, was later convicted of raping two other children and sentenced to 45 years in jail. Ball then turned to drugs as self-medication for his trauma. He later enlisted in, but was swiftly discharged from, the Navy and subsequently committed several violent drug-motivated robberies and was jailed for nearly killing two people. After his release from prison, he checked himself in to three treatment centers over the course of three years, all in an unsuccessful effort to overcome his addiction to crack cocaine. Hambourger says that Ball's story is a reminder that "[t]his is who we sentence to death: the most damaged, the most abused; traumatized children who grow into adults without learning how to cope with their fear and anger." In North Carolina, death sentences have fallen from an average of 28 per year in the five years spanning 1992-1996 to an average of one per year between 2012-2016. Hambourger believes that, had Ball's trial been held today, "this mitigating evidence would have been thoroughly presented and likely would have persuaded a jury to sentence him to life without parole instead of death."

U.S. Supreme Court to Hear Louisiana Death Penalty Case Where Lawyer Conceded Guilt Over Client's Objection

The United States Supreme Court will review a Louisiana death-penalty case to answer the question "Is it unconstitutional for defense counsel to concede an accused’s guilt over the accused’s express objection?" On September 27, the court agreed to hear McCoy v. Louisiana, a case in which defense counsel informed the jury in his opening argument that Robert McCoy (pictured)—who was charged with murdering the son, mother, and stepfather of his estranged wife—had "committed these crimes," even though McCoy had consistently maintained his innocence and repeatedly objected to the defense strategy. The case is one of a number of Louisiana death penalty cases in which defense lawyers have told death penalty juries, against the defendant's wishes, that their clients had committed the killing. In McCoy's case, the prosecution offered a plea deal that McCoy turned down against the advice of his lawyer, Larry English. When English later told McCoy that he intended to concede McCoy's guilt, McCoy objected and tried to fire English two days before the start of the trial. The trial court refused to remove English from the case, and also denied McCoy’s request to represent himself. When English conceded guilt during the opening statement, McCoy interrupted, saying the police had killed the victims. He later took the stand and testified that he had been framed for the murders by a drug trafficking ring headed by law enforcement. McCoy's petition for review was supported with amicus (friend of the court) briefs by the Yale Law School Ethics Bureau and the Louisiana Association of Criminal Defense Lawyers. English had argued that he had admitted guilt as part of his ethical duty to try to save McCoy’s life. The Ethics Bureau, however, argued that conceding McCoy's guilt over his express opposition was an "egregious" violation of the lawyer's ethical duty. It wrote that the rules of ethics "do not allow a lawyer to sell out his client in court against their wishes." The brief of the Louisiana defense lawyers, joined by the Promise of Justice Initiative, said the court's refusal to permit McCoy to obtain new counsel was emblematic of a pattern of decisions undermining the right to meaningful representation in Louisiana death penalty cases. The brief pointed to 12 capital cases in which Louisiana courts resolved disagreements between capital defendants and their lawyers in a manner that was detrimental to the defendant. The brief said that, in four cases since 2000, the Louisiana courts had allowed capital defense counsel to concede guilt over their clients’ express objection. In four other capital cases during that time frame, capital defendants were required to represent themselves to avoid having their lawyer concede guilt. Four other times, invoking the same right to personal autonomy over litigation decisions that they rejected in the prior circumstance, the state courts gave capital defendants who wanted to waive rights final say in doing so. “What can be distilled from Louisiana’s approach is that when a question about a defendant’s autonomy arises, Louisiana appears to resolve the question in favor of expediency, rather than autonomy or dignity,” the brief said. "Rather than a principled and consistent commitment to the autonomy and dignity of capital defendants, the Louisiana Supreme Court has adopted a set of rules that ameliorates always to the benefit of the state, and never to the defendant."

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