Alabama

Alabama

Witnesses—Alabama Prisoner Still Moving 20 Minutes Into Execution With Controversial Drug

Alabama executed Torrey McNabb (pictured) on October 19, amid questions of state interference in the judicial process, resulting in another apparent failure by the drug midazolam to render a prisoner insensate during an execution. Alabama prison officials defended the execution—which took 35 minutes—as conforming with state protocol, most of which has been withheld from the public. Montgomery Advertiser execution witness Brian Lyman reported that at 9:17 p.m., twenty minutes into the execution and after two consciousness checks, "McNabb raised his right arm and rolled his head in a grimace" and then fell "back on the gurney." Associated Press reported that his “family members and attorneys who witnessed the execution expressed repeated concerns to each other that he was still conscious during the lethal injection.” Alabama Department of Corrections Commissioner Jeff Dunn dismissed McNabb's responses as "[i]nvoluntary movement," which he said were not unusual. "I’m confident he was more than unconscious at that point," he said. McNabb had been challenging the state's execution protocol in court for more than a year at the time Alabama issued a warrant for his execution. He had won an appeal permitting his case against the state's use of midazolam to move forward to trial, and the Alabama federal courts had issued an injunction stopping the execution so that judicial review of the state's execution process could take place. However, on October 19, the U.S. Supreme Court, over the dissents of Justices Breyer and Sotomayor, lifted the injunction, vacating the stay and permitting the execution to proceed. Two-and-a-half hours after the execution was scheduled to begin, the Supreme Court denied another last-minute stay application, without dissent, and the execution proceeded. The execution capped a dramatic 48 hours during which Texas courts halted two other executions that had been scheduled for October. On October 18, the Texas Court of Criminal Appeals had stayed Clinton Young's October 26 execution to permit an evidentiary hearing on his challenge that newly discovered gunshot residue evidence showed that the state's lead witness was the actual killer in his case, and a Texas trial court had stayed the execution of Anthony Shore to investigate allegations that he may have colluded with another death-row prisoner to falsely confess to the murder for which that prisoner had been condemned. McNabb's execution was Alabama's third and the 21st in the United States in 2017.

Supreme Court Directs Florida to Reconsider Intellectual Disability Decision in Death Penalty Case

The United States Supreme Court has ordered the Florida Supreme Court to reconsider a decision that had denied a death-row prisoner's claim that he was ineligible for the death penalty because he has Intellectual Disability. On October 16, the Court reversed and remanded the case of Tavares Wright (pictured, left), directing the Florida courts to reconsider his intellectual-disability claim in light of the constitutional standard the Court set forth in its March 2017 decision in Moore v. Texas. The decision in Wright v. Florida was the sixth time the Court has vacated a state or federal court's rejection of an intellectual-disability claim and remanded the case for reconsideration under Moore—and the third time it has done so in less than a month. Earlier in October, the Court vacated two decisions by the U.S. Court of Appeals for the 5th Circuit and remanded the cases of Texas death-row prisoners Obie Weathers and Steven Long for reconsideration in light of Moore, and on October 18, the Texas Court of Criminal Appeals cited Moore  as grounds for reconsidering its own prior rejection of intellectual-disability claims raised by Carnell Petetan, Jr. (pictured, right). Moore was expected to have broad impact in Texas, where—the Court unanimously agreed—the state courts had unconstitutionally adopted an unscientific set of lay stereotypes to determine whether a defendant facing the death penalty had impairments in functioning that qualified him or her as intellectually disabled. Five members of the Court also stressed in the majority opinion in Moore that the state had improperly rejected claims of intellectual disability by emphasizing a capital defendant's perceived adaptive strengths, instead of "focus[ing] the adaptive-functioning inquiry on adaptive deficits," as required by accepted medical practice. Lawyers in Harris County (Houston)—which has executed more prisoners than any other county—anticipate that more than a dozen prisoners sentenced to death in that county may be entitled to reconsideration of their death sentences under Moore, and one prisoner, Robert James Campbell, has already been resentenced to life. However, the Supreme Court's recent rulings indicate that its pronouncement in Moore that a state's determination of Intellectual Disability must be "informed by the medical community’s diagnostic framework" is not limited to Texas. In May, the Court vacated a decision of the Alabama Court of Criminal Appeals in the case of Taurus Carroll after his lawyer invoked Moore to argue that Alabama had unconstitutionally deviated from accepted methods of determining intellectual disability. In the Florida case, Wright's lawyers argued that the state supreme court's decision in his case was inconsistent with a line of Supreme Court cases on intellectual disability—Atkins v. Virginia (2002), which declared execution of those with intellectual disability to be unconstitutional; Hall v. Florida (2014), which struck down Florida's approach to measuring the role of IQ in determining intellectual disability; and Moore. Although its order did not set forth the reasons for its decision, the Supreme Court agreed and directed the Florida courts to reconsider the issue.

Federal Appeals Court Upholds Alabama Judge's Race-Based Override of Jury's Life Sentence

The U.S. Court of Appeals for the Eleventh Circuit has upheld the death sentence imposed by an Alabama trial judge who disregarded the jury's 10-2 vote in favor of a life sentence and sentenced Bobby Waldrop (pictured) to death because of his race. When he imposed Waldrop's death sentence, Randolph County Circuit Court Judge Dale Segrest, who is white, referred to three prior cases in which he had overriden jury life verdicts and said: "If I had not imposed the death sentence [in this case], I would have sentenced three black people to death and no white people." In an unpublished opinion issued on September 26, the federal appeals court wrote that the judge's action did not constitute a "fundamental miscarriage of justice" that would allow federal court review of Waldrop's race claim in light of the failures by Waldrop's trial lawyer to have objected at the time of trial or raise the issue in his initial state court appeal. The opinion was issued the same day the U.S. Supreme Court stayed Georgia's execution of Keith Tharpe to determine whether to review his claim that his death sentence had been unconstitutionally tainted by the participation of a white juror who referred to him and other African Americans with a racial slur and said he wondered “if black people even have souls.” In 2014, the Eleventh Circuit refused to review a claim presented by Georgia death-row prisoner Kenneth Fults, saying that his claim of racial bias—based on the signed affidavit of a white juror who said  “I don’t know if he ever killed anybody, but that (N-word) got just what should have happened"—had not been properly presented to the state courts. Fults was executed in April 2016 without receiving any review of that claim. Ten months later, the U.S. Supreme Court ruled in Buck v. Davis that "it is inappropriate to allow race to be considered as a factor in our criminal justice system" and that race-based capital sentences “are a disturbing departure from a basic premise of our criminal justice system: Our law punishes people for what they do, not who they are." Two of the Eleventh Circuit judges involved in the Fults decision also decided Waldrop's appeal. They ruled that the “miscarriage of justice” doctrine, which permits review of otherwise defaulted claims, applies only when the defendant shows “by clear and convincing evidence that, but for [the alleged] constitutional error, no reasonable juror would have found [him] eligible for the death penalty.” The exception did not apply in his case, they wrote, because the jury verdict convicting Waldrop of murder during a robbery had made him death-eligible, even if the jury had overwhelmingly believed he should not be sentenced to death. The third judge on Waldrop's court panel, Beverly Martin, concurred with the court's interpretation of the law, but wrote: "I am at a loss to ... explain how a person being sentenced to death based on his race could be anything other than a fundamental miscarriage of justice."

Capitally Charged, Alabama Man Imprisoned 10 Years Without Trial

In a racially charged case raising questions of prosecutorial overcharging, inadequate representation, and questionable jury practices, Kharon Davis (pictured), an African-American man charged with capital murder in Dothan, Alabama, has been imprisoned for 10 years without trial. Davis—who has consistently maintained his innocence and whose prior offense was driving without a license—was 22 years old when he and two others were arrested for the shooting death of a man from whom they were purchasing marijuana. After refusing a plea deal, Davis’s case has gone through two judges, three prosecutors, four sets of defense lawyers, and nine scheduled trial dates, and he has been placed in segregation in the county jail for minor infractions, faced restrictions on his ability to review legal documents, and been denied visits by his mother. A New York Times report described the pre-trial delays as “among the most protracted” the paper could find, and George Washington University law professor and constitutional consultant Jonathan Turley said “It is impossible to look at [the case] and not find it deeply, deeply troubling.” Houston County’s District Attorney Doug Valeska’s decision to seek the death penalty reignited questions of the county’s overuse of the death penalty. Despite a population of only 103,000, its 17-person death row makes Houston County one of the most prolific death-sentencing counties in the country. The county’s prosecutorial and law enforcement practices have also come under scrutiny: a number of capital cases have been overturned for racially biased jury selection, presenting improper evidence, and improper comments to juries. In 2015, Valeska also was accused of covering up evidence that a group of Dothan police officers with ties to white supremacist groups had been planting drugs on young black men. Davis’s case has been rife with questionable activity. His first lawyer, Benjamin Meredith, was the father of one of the investigating officers in the case and cross-examined his son in the preliminary hearing. That conflict was not disclosed for four years, after a new judge was appointed in the case, when Valeska brought it to the attention of the court. In those four years, Meredith had filed only two motions on Davis’s behalf. In that same time, Davis’s co-defendant, Lorenzo Staley, who told police where to find the gun used in the murder, went to trial in 2009 and was acquitted. A second co-defendant, Kevin McCloud—a childhood friend of Davis’s who had no criminal record—had pled guilty and agreed to testify against Davis to avoid the death penalty, although McCloud later said in a letter that Valeska had asked him to “get on the stand and lie” about Davis’s involvement in the case. The case was further delayed when, looking through the court record of Staley’s trial, new defense counsel discovered a gunshot residue kit that prosecutors had failed to disclose. A new district attorney who had once represented one of the co-defendants was elected in February 2017, requiring the case to be transferred to the attorney general’s office. At that point, the prosecution dropped the death penalty from the case. Finally, on September 19, the trial was again held up amid allegations that some members of the newly empaneled jury of 11 whites and one black may have had improper contact with people connected to the case.

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. 

Mid-Year Review: Executions, New Death Sentences Remain Near Historic Lows in First Half of 2017

As we reach the mid-point of the year, executions and new death sentences are on pace to remain near historic lows in 2017, continuing the long-term historic decline in capital punishment across the United States. As of June 30, six states have carried out 13 executions, with 30 other executions that had been scheduled for that period halted by judicial stays or injunctions, gubernatorial reprieves or commutation, or rescheduled. By contrast, at the midpoint of 2016, five states had carried out 14 executions, and 25 other executions had been halted. 12 executions are currently scheduled for the rest of 2017, with 8 others already halted, and several more death warrants are expected to be issued. Depending on whether Ohio carries out the five executions pending between now and December, DPIC anticipates a slight increase in executions in the U.S. from 2016's 26-year low. However, even with the spate of four executions carried out in Arkansas from April 20-27—that state's first executions since 2005—there will likely be fewer executions in 2017 than in any other year since 1990. New death sentences also remain near historically low levels. DPIC has confirmed at least 16 new death sentences so far in 2017, a pace very close to the record-low 31 new death sentences imposed in 2016. Florida's abandonment of non-unanimous jury recommendations of death and Alabama's repeal of judicial override of jury recommendations for life are expected to substantially reduce the number of new death sentences in those states. The death sentences of nearly 100 Florida death-row prisoners have been overturned as a result of the state supreme court's declaration than non-unanimous death sentences are unconstitutional, and courts in Delaware and Connecticut have continued emptying those state's death rows after their death penalty statutes were declared unconstitutional. Three people have been exonerated from death row in 2017—Isaiah McCoy in Delaware, Rodricus Crawford in Louisiana, and Ralph Daniel Wright, Jr. in Florida—bringing the number of death-row exonerations in the U.S. since 1973 to 159. There have also been three grants of clemency in the first half of 2017, bringing the national total since 1976 to 283. President Barack Obama granted clemency to federal death-row prisoner Abelardo Arboleda Ortiz and military death-row prisoner Dwight Loving, and Virginia Governor Terry McAuliffe granted clemency to Ivan Teleguz. All three are now serving sentences of life without parole. The U.S. Supreme Court has issued three significant decisions in 2017 in favor of death-row prisoners. On February 22, in Buck v. Davis, the Court granted relief to Duane Buck due to racially biased testimony on the issue of future dangerousness. A month later, in Moore v. Texas, the Court unanimously struck down Texas' outlier practice for determining intellectual disability in capital cases. In McWilliams v. Dunn, the Court found on June 19 that James McWilliams' constitutional rights were violated when Alabama failed to provide him assistance of an independent mental-health expert. The Court ruled against Texas death-row prisoner Erick Davila on June 26.

U.S. Supreme Court Rules in Favor of Alabama Death-Row Prisoner in McWilliams v. Dunn

In a 5-4 decision released June 19, 2017, the U.S. Supreme Court ruled that Alabama had unconstitutionally denied death-row prisoner James McWilliams (pictured) the assistance of an independent mental health expert. The Court wrote that its 1985 ruling in Ake v. Oklahoma, which entitles indigent defendants to the assistance of a mental health expert, encompassed a clearly established right to an expert who is "independent from the prosecution." In his opinion for the Court, Justice Breyer wrote that "Alabama’s provision of mental health assistance fell ... dramatically short of Ake’s requirements." The defense had no expert to help it prepare to examine the doctors who testified for the state, and only presented testimony about his mental condition from McWilliams and his mother. After the jury voted 10-2 to recommend the death penalty, the court scheduled a formal sentencing hearing and appointed a state neuropsychologist to examine McWilliams. That doctor prepared a report of the evaluation and consulted with the prosecution. Defense counsel received the neuropsychological report—which stated that McWilliams had “organic brain damage,” “genuine neuropsychological problems,” and “an obvious neuropsychological deficit”—only two days before his sentencing hearing. On the day of the hearing, counsel received extensive prison mental health records that contained evidence that McWilliams was being prescribed anti-psychotic medication. After denying the defense time to consult with an independent expert to develop the mental health evidence for use in mitigation, the court found no mitigating evidence and sentenced McWilliams to death. Justice Breyer wrote, "Ake clearly established that when certain threshold criteria are met, the state must provide a defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively 'conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.'" The Court remanded the case to the U.S. Court of Appeals for the 11th Circuit, which must now determine whether Alabama's violation of McWilliams' right to an independent expert had the "'substantial and injurious effect or influence' required to warrant a grant of habeas relief." Stephen Bright, who argued on behalf of McWilliams before the Supreme Court, said, "Today’s decision is about fairness. The adversarial process cannot function properly if the prosecution can retain mental health experts, but the defense is not even allowed to consult with an expert." He said, "James McWilliams could not have a fair trial without a mental health expert to assess his brain damage and other mental impairments and to help his counsel present that information to the sentencing court." 

Federal Court Grants Lethal-Injection Stay to Alabama Prisoner With Claims of Attorney Abandonment, Flawed Forensics

Robert Melson (pictured), an Alabama death-row prisoner whose clemency petition alleges that abandonment by his post-conviction lawyers prevented him from adequately challenging the flawed forensic evidence in his case, received a stay of execution from the U.S. Court of Appeals for the 11th Circuit on a challenge to Alabama's lethal-injection protocol. Melson was convicted of three murders at a Popeye's restaurant in 1994. A survivor of the crime recognized one of two assailants as Cuhuatemoc “Tempo” Peraita, an acquaintance of Melson's, and described the second assailant only as a black man. More than an hour after the crime occurred, police pulled over Peraita's car, and arrested him along with the black male passenger, Robert Melson. At the suggestion of police, Peraita—a 17-year-old with intellectual impairments—confessed to having been present during the crime, but claimed Melson had shot the victims. (Peraita has since recanted his accusation.) Melson has consistently maintained his innocence. During the interrogation, police took Melson's shoes from him. According to Melson's clemency petition, "Five days later, a police evidence technician belatedly discovered, photographed, and cast footprints in a rainy drainage ditch behind Popeye’s restaurant, which they later said matched Mr. Melson’s shoes." Peraita didn't testify at Melson's trial, and the witness who had identified Peraita did not identify Melson in a photo lineup. No other forensic evidence—such as fingerprints or DNA—linked Melson to the crime. As a result, Melson's conviction relied heavily on the shoeprint evidence, a type of evidence that the landmark 2009 report on forensic science by the National Academies of Science, Strengthening Forensic Science in the United States: A Path Forward, found to be unreliable, unscientific, and susceptible to bias. In addition to the problems inherent with shoeprint evidence, nearly two inches of rain had fallen between the time of the crime and the time police reported discovering the shoeprint. Melson should have been able to challenge the shoeprint evidence during his post-conviction appeal, but was represented by an inexperienced volunteer attorney who was not licensed in Alabama and a local attorney who had a history of malpractice. The lawyers did not properly file Melson's state post-conviction petition, and then, on appeal, they filed the documents in the wrong court, causing his appeal to be dismissed. The error was compounded because the attorneys failed to inform Melson of the dismissal. Melson's time to file a petition for habeas corpus in federal court ran out before he learned his state case had been dismissed. Cases like Melson's raise concerns about Alabama's recently passed "Fair Justice Act," which would potentially exacerbate errors like those made by his attorneys, since state deadlines would be shorter and stricter and all state death penalty appeals would run concurrently. In a separate case, Melson and several other Alabama death-row prisoners challenged Alabama's use of midazolam in executions, highlighting problems that have occurred when the drug was used in past executions. The 11th Circuit stayed Melson's June 8 execution to allow time for it to consider that challenge. [UPDATE: The U.S. Supreme Court vacated the stay of execution, and Melson was executed as scheduled.]

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