Representation

Georgia Approaches Five Years With No Death Sentences

For the first time since Georgia brought back the death penalty in 1973, the state will go five years without imposing any death sentences. No jury has handed down a death sentence since March 2014 and, with no capital trials scheduled for February or March, the state is nearly certain to reach the 5-year milestone. The decline in death sentencing is even more dramatic in light of the fact that, prior to 2015, Georgia had never gone two consecutive years without a death sentence. Experts attribute the decline primarily to two factors: improved death-penalty representation and the availability of life without parole.

Georgia’s Office of the Capital Defender — a statewide death-penalty public defender office — represents nearly everyone facing the death penalty in the state. The capital defender has reduced the number of death sentences by thoroughly investigating the life and mental health histories of its clients and working with prosecutors before trials even begin to reach non-capital dispositions. In December 2015, Jerry Word, who heads the state defender office, credited those efforts with preempting numerous capital trials. Pete Skandalakis, executive director of the Prosecuting Attorneys’ Council of Georgia, told the Atlanta Journal-Constitution in January 2019 that the capital defender’s office “has become real good at identifying mitigating factors for a defendant and talking about that with prosecutors long before lines are drawn in the sand. This has made a real difference, and you save the resources and the time required of a death-penalty case and the victims don’t have to go through the years-long process.” In 2014, only one of the state's 19 potential capital cases ended in a death sentence and, by the end of 2015, that case had been the only one of the preceding 71 cases handled by the capital defender that had resulted in a death verdict. Since 2015, the capital defender has closed 69 death-penalty cases, of which just five went to trial and none resulted in a death sentence.

Both defense attorneys and prosecutors said that the availability of life without parole as a sentencing option also has fundamentally changed the way potentially capital cases are tried and the verdicts juries reach. Prior to 2009, life without parole was not an option in Georgia unless prosecutors actually sought the death penalty. Now, prosecutors may seek life without parole without capitally prosecuting a defendant. Cobb County District Attorney Vic Reynolds said, “[t]he majority of prosecutors around the state are now convinced that a life-without-parole sentence actually means what it says. It’s made a huge difference.” As a result, prosecutors now file notices to seek death much less often. In 2005, Georgia prosecutors filed 40 notices of intent to seek the death penalty. By 2011, that number had dropped to 26, and in 2017, it was just three.

The decline in death sentences paints a sharp contrast between the way cases were handled in the past and how they are handled today. According to Steve Bright, former director and president of the Georgia-based Southern Center for Human Rights, the people on Georgia’s death row did not commit worse crimes than today’s defendants, they simply faced a worse system. The state has executed 19 prisoners since a jury last imposed a death sentence in the state, in cases criticized as out of step with current practices and emblematic of systemic problems with the state’s death penalty. “Those are people who were sentenced to death some time ago often with lawyers who were not qualified to try a death-penalty case,” Bright said, describing Georgia’s death-row prisoners. “They are also people who would not be sentenced to death today.”

New Voices: Former Texas Criminal Appeals Judge Suggests “Pause” on Texas Death Penalty

Retiring Texas Court of Criminal Appeals judge and former prosecutor Elsa Alcala now believes that the death penalty is unreliably and discriminatorily applied in the nation’s most aggressive capital punishment state. In a new Houston Chronicle “Behind the Walls” podcast, Judge Alcala – who calls herself “a Republican hanging on by a thread” – told reporter Keri Blakinger, “I think we know enough right now to even call for a moratorium or just to pause all of this and to say, you know, ‘What is going on? Why does Texas have such a high percentage of people who get the death penalty and are executed as compared to the rest of the country?’”

Hired as a prosecutor by Harris County District Attorney Johnny Holmes, who gained notoriety as one of the nation’s deadliest prosecutors, Alcala spent nine years trying capital cases in the DA’s office of the country’s leading death-sentencing county. She then served as a county trial judge before being appointed by then-governor George W. Bush to serve on the state’s highest criminal court, the Texas Court of Criminal Appeals. As she was exposed to a range of problems in Texas death penalty cases, her views on the capital punishment evolved. She became a skeptic of capital punishment, often dissenting from denials of death-penalty relief and, in the case of Julius Murphy, called on the court to consider whether the state’s death penalty was constitutionally administered. When she left the bench, Judge Alcala accepted a policy role at the Texas Defender Service, where she will advocate for criminal justice reform. In an interview with the Texas Tribune, she joked, “[m]aybe I can have more success at the legislative level to get somebody to understand that there are some real true problems.”

In the podcast interview, Alcala cites a range of factors that changed her views about capital punishment. She discusses ineffective lawyers and parole laws that, at the beginning of her career, forced jurors to choose between a 15-year prison sentence and a death sentence for death-eligible defendants. “What do you do with these people who ... got there back to in the 90s when we know for a fact that the lawyers were not doing what they should have been doing in my mind?” Alcala asked. “And then the question is, as they come up to be executed, are we going to continue to execute them and tolerate the fact that things were done imperfectly? … I think, still percolating through all of that is that a lot of those [cases] are subject to that old parole law.”

When asked about the decline of the death penalty in Texas, Alcala said, “It is on the decline significantly. Whether it will ever go away and when it will go away – I don't know, I think it is imperfect. More accurately, I should say it is unreliable – I have lost faith in the reliability of the death penalty. And that is what underlies my involvement with the Texas Defender Service. It is: If you're going to have the death penalty, then do it correctly. You know, give them a good trial lawyer, give them a good appellate lawyer, give them a good habeas lawyer at the state level, give them a good federal lawyer and don't let racial prejudice at all influence anything that's going on.” The death penalty, she said, “is just not reliable. It’s not something that I can say is being done the way that it should be done to give you confidence in it as a punishment form. … I think, why is Texas so out of line with the rest of the country? It can't be that our people are worse, right? I mean, Texans are good people. Are our crimes worse than the rest of the country? I don't think so. Are our people worse than the rest of the country? I don't think so.  So somehow we are out of line.”

Supreme Court Lets Death Sentence Stand for Prisoner Whose Attorney Presented No Mitigating Evidence

Over a sharp dissent by three justices, the United States Supreme Court has let stand the death sentence imposed on a Georgia prisoner who was suffering from dementia, brain damage, and borderline intellectual functioning, but whose trial lawyer failed to present any mitigating evidence. On January 7, 2019, the Supreme Court denied the petition for writ of certiorari filed on behalf of death-row prisoner Donnie Cleveland Lance seeking the Court’s review of the Georgia Supreme Court's denial of relief in his case. Justice Sonia Sotomayor – joined by Justices Ruth Bader Ginsburg and Elena Kagan – dissented, writing that “the Court’s refusal to intervene permits an egregious breakdown of basic procedural safeguards to go unremedied.”

Lance was sentenced to death by a Georgia court for the 1997 murder of his ex-wife and her boyfriend. Lance’s trial lawyer – a solo practitioner who was convinced he could persuade the jury of Lance’s innocence – asked the trial court to appoint a second lawyer to handle any potential penalty phase. The court denied that request and also denied a defense motion for funds to retain expert witnesses to challenge the range of experts hired by the prosecution in the case. After the court denied his motions, Lance’s lawyer conducted no penalty-phase investigation and did nothing to prepare for the penalty phase. Following Lance’s conviction, counsel made no penalty-phase opening statement, called no witnesses, and presented no mitigating evidence. In his cursory closing argument, counsel asked the jury to think of Lance’s family and to not seek vengeance. 

New counsel represented Lance in his state post-conviction proceedings and presented extensive evidence of Lance’s serious cognitive impairments. Four mental health experts agreed that Lance had brain damage in his frontal lobe, that his IQ was on the borderline for intellectual disability, and that he suffered from clinical dementia. While the three defense experts agreed that Lance’s brain damage significantly impaired his ability to control his impulses and conform his conduct to the law, the state’s expert disagreed about the extent of his impairment. The trial court overturned Lance’s death sentence, ruling that counsel had provided ineffective representation. However, the Georgia Supreme Court reversed, holding that while counsel’s performance was deficient, the presentation of mitigating evidence would have been futile given the facts of the murder. On federal habeas corpus review, the Georgia federal courts ruled that the Georgia Supreme Court had not unreasonably applied Supreme Court precedent when it upheld Lance’s death sentence.

The three-justice dissent from the U.S. Supreme Court’s decision not to intervene argued that the Georgia Supreme Court decision was “an objectively unreasonable application” of U.S. Supreme Court precedent and had “mischaracterized or omitted key facts and improperly weighed the evidence.” The evidence of Lance’s “‘serious’ and ‘significant’” mental impairments, Justice Sotomayor wrote, “reasonably could have affected at least one juror’s assessment of whether Lance deserved to die for his crimes, and Lance should have been given a chance to make the case for his life.” Instead, she said, “Lance may well be executed without any adequately informed jury having decided his fate.”

NEW PODCAST: DPIC’s 2018 Year End Report

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

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

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

Amid Questions of Competency, South Dakota to Execute Special-Olympics Defendant Who Gave Up Appeals

The South Dakota Supreme Court has denied motions that sought to delay the October 29, 2018 execution of Rodney Berget (pictured). As the state prepared to execute Berget, the former public defender who represented him at trial took action to fight a prospective legal guardian’s efforts to keep the former Special Olympics participant from being put to death. On Friday, October 26, Juliet Yackel, a Chicago-based lawyer who had been retained in Berget’s state post-conviction proceedings as a mitigation investigator, filed a pleading called a petition for writ of prohibition that asked the South Dakota Supreme Court to halt Berget’s execution and to appoint her as his legal guardian “because he has an intellectual disability and [is] otherwise incompetent, rendering him ineligible to be executed.” Berget waived a jury trial and pled guilty to murder for his involvement in the death of a prison guard, and is currently attempting to waive his appeals. At the close of the trial, he told the sentencing judge, “I believe I deserve the death penalty for what I’ve done.” Yackel’s petition describes Berget as “intellectually disabled and suicidal.” The motion alleges Berget “is not able to protect his own interests and the attorneys assigned to do so have refused” to do so. On Saturday, October 27, Berget’s trial lawyer, Jeff Larson—whom the court removed from the case after he attempted to continue to represent Berget in appeal proceedings meant to raise issues of his possible ineffective assistance at trial—filed an affidavit from Berget opposing Yackel’s motion and reasserting the reasons why Berget says he wants to drop all appeals. On October 29, the South Dakota high court denied the petition.

In 2002, the U.S. Supreme Court ruled in Atkins v. Virginia that individuals with intellectual disability—then known as mental retardation—may not be executed. Yackel’s petition includes a litany of evidence she says  “clearly demonstrates” Berget’s ineligibility for the death penalty: IQ tests administered during Berget’s childhood in which he scored under 70, public welfare records in which a psychologist noted that “the boy appears ... to be suffering from borderline mental retardation,” Berget’s assignment to special education classes and participation in Special Olympics, and a diagnosis of intellectual disability by several leading national mental health experts. The petition and an accompanying affidavit also set forth evidence that Berget has a “lengthy history of self-harm and suicidality.” “This is one of the clearest-cut cases of intellectual disability that I’ve ever worked on,” Yackel told Liliana Segura, an investigative reporter for The Intercept. “There is no question here. This is not a close call.” 

With Larson describing his client as “very intelligent and quite competent,” Berget pled guilty and waived his right to a jury trial. After Larson was fired from the public defender’s office, he continued to represent Berget pro bono, and did not retain a mitigation investigator to research Berget’s background, upbringing, and mental health history. He presented what Segura describes as “an astonishingly weak defense.” After the court removed Larson from the case, Berget was represented by Eric Schulte, a civil lawyer with no capital case experience, who also failed to present evidence of Berget’s participation in Special Olympics. The trial court rejected the intellectual disability claim raised  by Schulte, relying on testimony from a prosecution psychologist who had employed scientifically unsupported methods for assessing intellectual disability that were similar to those the U.S. Supreme Court struck down in Moore v. Texas in 2017. According to Yackel’s petition, acting on “the advice of his personal spiritual advisor, [Schulte] disregarded the clear need for appellate review and refused to file a Notice of Appeal,” effectively waiving Berget’s right to appeal. Dr. Stephen Greenspan, one of the leading national experts on intellectual disability, called the trial court’s ruling “egregious” and the case “one of the most outrageous” he had seen. 

Another Louisiana Capital Conviction Overturned for Lawyer Conceding Guilt Over Client’s Objection

The Louisiana Supreme Court has unanimously overturned the conviction of death-row prisoner Brian Douglas Horn (pictured), after Horn’s lawyer conceded—over Horn’s explicit objection—that his client had killed and also may have molested 12-year-old Justin Bloxom. The September 7, 2018 ruling is the latest fallout in Louisiana from the U.S. Supreme Court’s decision earlier this year in McCoy v. Louisiana, which declared that such concessions violate a defendant’s Sixth Amendment right to counsel. Prior to and during trial, Horn told his lawyer and filed motions with the court saying that he did not want to concede guilt or admit he committed the crime. Horn’s lawyer ignored his client’s objections, telling the jury during closing argument, “We know that Brian Horn killed Justin Bloxom.… I’m not asking you to let him walk the streets. I’m not asking you to find him ‘not guilty.’” Instead, counsel suggested that Horn was guilty of either second-degree murder or manslaughter, neither of which carry the death penalty as a possible punishment. Louisiana Chief Justice Bernette Johnson wrote that this concession denied Horn the assistance of counsel in his defense and was a “structural error” that required overturning the conviction. “While conceding guilt in the hope of avoiding a death sentence may be a reasonable strategic decision in some cases, the decision to do so belongs to the defendant,” she said. The ruling echoed the language of Justice Ruth Bader Ginsburg's 6-3 opinion for the Court in McCoy in which she stated, “With individual liberty—and, in capital cases, life—at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt.” In dissent, Justice Samuel Alito likened the issue to “a rare plant that blooms every decade or so. Having made its first appearance today, the right is unlikely to figure in another case for many years to come.” However, a friend-of-the-court brief filed by the Louisiana Association of Criminal Defense Lawyers in connection with McCoy’s case described a pattern of Louisiana state court rulings that have permitted capital defense counsel to concede guilt over their clients’ express objection or required capital defendants to represent themselves to avoid having their lawyer concede guilt. In a media statement at the time of the McCoy decision, his lawyer, Richard Bourke, said, “[w]hile rare in the rest of the country, ... Mr. McCoy’s was one of ten death sentences imposed in Louisiana since 2000 that have been tainted with the same flaw.” On June 25, in another of those cases, the U.S. Supreme Court vacated the Louisiana Supreme Court’s decision upholding the conviction of death-row prisoner Jeffrey Clark and returned the case to the state court for reconsideration in light of McCoy. Prosecutors in Horn’s case must now decide whether to appeal the decision and whether to again seek the death penalty if they retry the case.

Justice Sotomayor Criticizes Supreme Court For Failing to Intervene in Texas Death-Row Prisoner’s Case

Over a strong dissent by Justice Sonia Sotomayor (pictured), the United States Supreme Court on June 4 declined to review the case of Texas condemned prisoner Carlos Trevino, who had argued that his lawyer was ineffective for failing to investigate and present mitigating evidence of Trevino’s brain damage and developmental delays from his extensive prenatal exposure to alcohol. Having failed to investigate, Trevino's lawyer presented only a single witness whom he met for the first time the day of the sentencing hearing. That witness, the defendant’s aunt, provided cursory testimony that Trevino was a high school drop out with an alcoholic mother who was on welfare. The Court’s denial of review let stand a split 2-1 decision of the U.S. Court of Appeals for the Fifth Circuit, which found counsel’s failure to present the fetal-alcohol-related evidence had not been not prejudicial because the “double-edged” character of the evidence could have led the jury to believe that Trevino would pose a continuing threat to society. Penning her sixth dissent this term in a death-penalty case the Court had declined to review, Justice Sotomayor—joined by Justice Ruth Bader Ginsburg—called the circuit court's decision “flagrant error.” The Court, she wrote, has “long recognized that a court cannot simply conclude that new evidence in aggravation cancels out new evidence in mitigation.” In May 2013, the Supreme Court had reversed a prior ruling of the Fifth Circuit that had refused to review Trevino’s ineffectiveness claim, and remanded his case to the lower federal court to review the issue. After being presented new mitigating evidence that Trevino had fetal alcohol spectrum disorder caused by his mother drinking 18 to 24 cans of beer daily while pregnant, that he weighed 4 pounds at birth, and that his developmental delays (including wearing diapers until he was 8 years old) and cognitive impairments left him functioning at the level of a person with intellectual disability, the circuit court rejected Trevino’s claim. That court dismissed the mitigating value of the evidence, writing that Trevino’s impairments had contributed to his violent history. Justice Sotomayor wrote that, while Trevino had a past history of violence, the prosecution had already presented that evidence at trial, and the new evidence relating to Trevino’s fetal alcohol spectrum disorder—which the sentencing jury had never heard—was important in contextualizing that behavior. A failure to intervene in this case, Sotomayor said, leaves Trevino “subject to a death sentence having received inadequate consideration of his claim of ineffective assistance of trial counsel, and with no jury having fairly appraised the substantial new mitigating evidence that a competent counsel would have discovered.’ The Court's refusal to intervene is even more “indefensible” in this case, she wrote, because it “sanctions the taking of a life by the state.”

Texas Executes Juan Castillo Without a Hearing on His Claims of Innocence and Ineffective Representation

Texas executed Juan Castillo (pictured) on May 16, 2018, after its state courts stayed his execution to address whether his conviction and death sentence for a botched robbery and murder had been a product of false testimony, but then denied him an evidentiary hearing necessary to prove that claim. No physical evidence implicated Castillo in the murder, and he consistently asserted his innocence. To convict him, Bexar County prosecutors presented testimony from several admitted perpetrators who had been given favorable plea deals, corroborated by the testimony of prison informant, Gerardo Gutierrez, who claimed that Castillo had confessed to him. But in 2013, Gutierrez recanted, admitting in a sworn affidavit that he had lied "to try to help myself." With Castillo facing a December 2017 execution date, the Texas Court of Criminal Appeals granted him a stay on November 28, and directed the trial court to resolve his claim that prosecutors had violated his rights by presenting false or perjured testimony from Gutierrez. Two days later, on November 30, the Bexar County District Attorney's office submitted proposed findings of fact and a proposed order to deny Castillo's petition without a hearing. The next day, on December 1, Judge Maria Teresa Herr adopted the prosecution's proposed findings and order verbatim—changing only the signature line on the order—without permitting Castillo's lawyers to submit proposed findings or to respond to the prosecution's submission. The Texas Court of Criminal Appeals upheld the ruling, and with Texas prosecutors arguing that defects in the state-court process were not a basis for federal review because prisoners "ha[ve] no due process right to collateral proceedings," the U.S. Supreme Court declined to intervene. Castillo also asked the Texas Board of Pardons and Paroles and Governor Greg Abbott to stop his execution. Greg Zlotnick, who represented Castillo in his clemency proceedings, argued that the treatment of Castillo's case by the courts "had been marked by unfair and arbitrary decisions" and the courts had "rubber-stamped" the denial of Castillo's latest petition "with no regard for his opportunity to be heard." Zlotnick argued that Castillo’s trial lawyers "failed to actively investigate the case, speak with witnesses, question police, request additional evidence from law enforcement and district attorney offices, and properly plead legal claims in the courts" and that the post-conviction courts had denied without a hearing Castillo's "common-sense request for DNA testing on physical evidence that could have pointed to another perpetrator." Trial counsel's performance was so bad, Zlotnick said, that "Mr. Castillo even felt compelled to represent himself at sentencing." After the pardons board denied the clemency application, the Texas Defender Service (TDS)—which became involved in the case close to the execution date—sought a 30-day reprieve from Governor Abbott to further develop evidence in the case. In a May 15 letter to the governor, executive director Amanda Marzullo wrote that TDS had discovered additional evidence that contradicted the testimony given at Castillo’s trial, including a video of a woman telling police—contrary to her prior statements—that Castillo had never told her he was the triggerman. Abbott did not act on that request. Castillo was the eleventh person executed in the United States in 2018, and the sixth in Texas.

Pages