Mississippi

Mississippi

Supreme Court to Review Mississippi Death-Penalty Case in Which Prosecutor Systematically Excluded Black Jurors

The U.S. Supreme Court has agreed to review whether a prosecutor with a long history of racially discriminatory jury-selection practices unconstitutionally struck black jurors in the trial of Mississippi death-row prisoner Curtis Giovanni Flowers (pictured). On November 2, 2018, the Court granted certiorari in the Flowers’s case on the question of “[w]hether the Mississippi Supreme Court erred in how it applied Batson v. Kentucky,” the landmark 1986 Supreme Court decision barring the use of discretionary strikes to remove jurors on the basis of race. 

Flowers has been tried six times for a notorious 1996 quadruple murder in Winona, Mississippi. He was prosecuted each time by Doug Evans, the District Attorney in Mississippi's Fifth Circuit Court District since 1992. Flowers was convicted by all-white or nearly all-white juries based on questionable circumstantial evidence and the testimony of a jailhouse informant (who has since recanted) that Flowers had confessed to the murders. Court pleadings and the American Public Media (APM) podcast series, In the Dark, have cast doubt upon much of the evidence in the case, and a prominent pathologist who examined the autopsy reports and crime scene photograph has disputed the prosecution’s theory that the murder was committed by a single perpetrator.

In the Dark conducted a study of jury selection in the Fifth Circuit Court District during the 26-year period from 1992 to 2017 in which Evans was District Attorney, analyzing prosecutorial strikes or acceptances of more than 6,700 jurors in 225 trials. APM found that throughout Evans's tenure, prosecutors struck prospective black jurors at nearly 4½ times the rate of white prospective jurors. In Flowers’s case, Evans struck nearly all of the African-American jurors in each trial. In his first three trials, the Mississippi Supreme Court overturned Flowers’s convictions because of prosecutorial misconduct, with courts finding that Evans had violated Batson in two of those trials. The fourth and fifth trials ended in mistrials. In the sixth trial, in June 2010, Evans accepted the first qualified African-American potential juror and then struck the five remaining African Americans in the jury pool. Flowers challenged the prosecution’s jury strikes on appeal, but the Mississippi Supreme Court, over the dissents of three justices, rejected his claim. In June 2016, the United States Supreme Court vacated the state court’s ruling and returned the case to the Mississippi Supreme Court to reconsider the issue in light of the Court’s decision one month earlier in Foster v. Chatman, finding that prosecutors in a Georgia capital case had unconstitutionally stricken jurors because they were black. However, over the dissents of three justices, the Mississippi Supreme Court again affirmed, writing that the prior adjudications that Evans had already twice violated Batson “do not undermine Evans’ race neutral reasons” for striking black jurors in the sixth trial and that “the historical evidence of past discrimination ... does not alter our analysis.” The U.S. Supreme Court has not yet set a date for oral argument in the case.

Questionable Ruling Grants Jeffrey Havard New Sentencing but Not New Trial in Controversial “Shaken Baby” Case

Sixteen years after a notorious and now-discredited forensic witness told a Mississippi jury that Jeffrey Havard had sexually abused and shaken his girlfriend's six-month-old daughter to death, Havard's death sentence—but not his conviction—has been overturned. On September 14, 2018, Adams County Circuit Judge Forrest Johnson ruled that state pathologist Steven Hayne's recantation of his diagnosis that infant Chloe Britt had been a victim of Shaken Baby Syndrome was "not sufficient to undermine this court's confidence in the conviction," but that "there is a cautious disturbance in confidence of the sentence of death, even if slight." Havard's co-counsel, Graham Carner, told the Mississippi Clarion Ledger, "With all due respect, we think the court got it wrong. We are disappointed, but we are not done." Washington Post columnist Radley Balko criticized Johnson's five-page ruling—which repeatedly misspells the expert's name as "Haynes"—as "gutless" and "sloppy." Balko, whose book The Cadaver King and the Country Dentist: A True Story of Injustice in the American South exposed rampant irregularities in forensic testimony in Mississippi murder cases, said, “It doesn’t seem like too much to ask that the judge correctly spell the name of the state’s expert whose testimony is the entire reason that the hearing took place.” During a 2002 trial that rocketed from jury selection to a death sentence in just two days, the state—supported by Hayne's testimony—argued that Havard had anally and orally raped the infant and shaken her sufficiently to cause injuries that would later kill her. The defense presented a single witness who provided all of three pages of testimony, failing to challenge the forensic testimony in the case. Defense counsel also failed to explain to the jury that, as Balko writes, Havard supposedly "anally raped the infant, orally raped her, shook her violently enough cause injuries that would later — but not immediately — kill her, then bathed and cleaned her" so thoroughly that "none of Havard’s hair, skin cells or semen was found on or inside the girl," "dressed her, and tucked her into bed as if nothing had happened" — all in the time it took Chloe's mother to go the store "to buy some burrito supplies." Since the trial, Hayne has recanted his testimony that Chloe was sexually assaulted and says he was wrong to attribute the child’s head injuries to SBS (Shaken Baby Syndrome). Hayne had testified under oath that he regularly performed 1,500 or more autopsies each year, nearly five times the maximum number recommended by the National Association of Medical Examiners. He had never been certified in forensic pathology by the American Board of Pathology and failed the certification exam in 1980. Three other reputable experts who reviewed Hayne’s autopsy report found no evidence of abuse on the infant. In 2008, he was barred from doing autopsies for Mississippi prosecutors and the U.S. Court of Appeals for the Sixth Circuit called his work declared "discredited." At least ten men and women have been exonerated from death rows across the United States after having been wrongly convicted for killing a child. In the cases of Rodricus Crawford and Sabrina Butler, the medical evidence also showed that no crime had occurred, but the defendants were convicted based on false forensic testimony. In April 2018, Vicente Benavides was exonerated from California’s death row after the prosecution presented false forensic testimony claiming that a toddler in his care had been sexually assaulted.

Death-Penalty Juror Describes “Anguish” of Imposing a Death Sentence

Lindy Isonhood (click to enlarge picture) served on the Mississippi jury that sentenced Bobby Wilcher to death in 1994. In a commentary published on Medium, she writes that the decision to condemn Wilcher "continue[s] to haunt me today." Isonhood—whose experience as a death-penalty juror is the subject of a new documentary film, Lindy Lou, Juror Number 2—explains how little she and her fellow jurors knew about the death-penalty system when they were tasked with determining Wilcher's fate. They were unaware of the rarity of death sentences, the lack of adequate counsel, and changing public attitudes toward capital punishment. She describes feeling "guilt and complicity" for her role in Wilcher's execution. "Judges, lawyers, prison guards, families of the victims and families of the condemned — along with ordinary jurors like myself — are swept into a world where judgments of death are handed down, but everyone else is expected to emerge untouched," she wrote. The one-hour film, which will premiere on PBS on July 16, 2018, follows Isonhood's journey to visit other jurors from the case and discuss their experiences. Isonhood met with Wilcher before his execution, and said, "I saw him as a fellow human being, flawed but caring, even towards me." She concludes, "If I was called to serve on Bobby Wilcher’s jury today, I could not sentence him to death. I say this not because of what I learned about him before his execution, but because of what handing down a death sentence can do to people like me. I no longer feel as guilty about my decision in Bobby’s case, but I wish I could have foreseen how it would affect me and my loved ones for the rest of my life."

In Two Mississippi Cases, Justice Breyer Renews Call to Review Constitutionality of Death Penalty

As its 2017-2018 term came to a close, the U.S. Supreme Court declined to review two Mississippi cases that presented significant challenges to capital punishment as implemented in that state and across the country. Over the dissent of Justice Stephen Breyer (pictured), who renewed his call for the Court to review the constitutionality of the death penalty as a whole, the Court on June 29 denied certiorari in the cases of Timothy Evans and Richard Jordan. Reiterating concerns he first voiced in his landmark dissent three years ago in Glossip v. Gross (2015), Justice Breyer wrote: “the death penalty, as currently administered, suffers from unconscionably long  delays, arbitrary application, and serious unreliability.” Two Mississippi cases, he wrote, illustrate the first two of those factors. Evans and Jordan were both sentenced to death in Mississippi’s Second Judicial District, which—according to death sentencing data maintained by Mississippi’s Office of the State Public Defender—has imposed more death sentences than any of the 21 other judicial districts in the state and nearly 1/3 of all the death sentences imposed in the state this century. Evans’s petition for writ of certiorari had argued that his death sentence was unconstitutionally arbitrary because of the geographic disproportionality in the way in which the death penalty was imposed and carried out across the state. Jordan had asked the Court to review the constitutionality of his more than forty-year tenure on Mississippi’s death row for a crime committed in 1976. Jordan’s death sentence was overturned three separate times because of different constitutional violations in each of his sentencing trials. In 1991, after his sentence had been overturned for the third time, a special prosecutor agreed that Jordan should be sentenced to life without parole. However, the Mississippi Supreme Court vacated the life sentence saying the sentence was invalid because it had not been authorized by Mississippi law in effect at the time of the murder. The state then sought and obtained the death penalty against Jordan for a fourth time. “Jordan has lived more than half of his life on death row,” Breyer wrote, living most of that time “in isolated, squalid conditions.” Breyer said the cruelty of the conditions of Jordan’s imprisonment constitute an “additional punishment” that warrants review by the Court to address whether the lengthy delay, in and of itself, violates the Eighth Amendment. The geographically arbitrary death-sentencing practices in the Second District also warranted review, Breyer wrote. “This geographic concentration reflects a nationwide trend. Death sentences, while declining in number, have become increasingly concentrated in an ever-smaller number of counties,” he wrote. This arbitrariness, Justice Breyer explained, “is aggravated by the fact that definitions of death eligibility vary depending on the state.” As a result, in Mississippi, unlike most states, a defendant may be sentenced to death for a felony robbery-murder, which does not require that the defendant actually intended to kill someone. Justice Breyer also found evidence in Mississippi that the death penalty was not reliably administered. He noted that just “[f]our hours before Willie Manning was slated to die by lethal injection, the Mississippi Supreme Court stayed his execution,” and in April 2015, Manning became the fourth Mississippi death-row prisoner to be exonerated. With six more death-row prisoners exonerated throughout the U.S. since January 2017, the unreliability of the death penalty, Justice Breyer argued, provides a third reason for the Court to review the constitutionality of capital punishment. “[M]any of the capital cases that come before this court,” Justice Breyer wrote, “involve, like the cases of Richard Jordan and Timothy Evans, special problems of cruelty or arbitrariness. Hence, I remain of the view that the court should grant the petitions now before us to consider whether the death penalty as currently administered violates the Constitution’s Eighth Amendment.” 

STUDY: Local Mississippi Prosecutors Struck Black Jurors at More than Four Times the Rate of Whites

A new study shows that the Mississippi District Attorney's office that has prosecuted Curtis Flowers for capital murder six times—striking almost all black jurors in each trial—has disproportionately excluded African Americans from jury service for more than a quarter century. Reviewing the exercise of discretionary jury strikes in 225 trials between 1992 and 2017, American Public Media Reports discovered that during the tenure of Mississippi's Fifth Circuit Court District Attorney Doug Evans (pictured) prosecutors have exercised peremptory strikes to exclude African Americans from jury service at nearly 4½ times the rate at which they struck white jurors. APM Reports collected and analyzed data on more than 6,700 jurors called for jury service in the the Fifth District. Its study—which was reviewed before its release by a statistics expert and two law professors who had conducted prior jury-strike studies—found that Fifth District prosecutors struck 50 percent of all eligible black jurors compared to only 11 percent of eligible whites. Looking at potentially race-neutral factors raised during juror questioning, APM Reports found that prosecutors were still far more likley to strike black jurors than similarly situated white jurors (click here to enlarge graph). Controlling for these factors, the study found that the odds prosecutors would strike a black juror were six times greater than the odds that they would strike a white juror. APM Reports prepared the study in connection with its acclaimed podcast series In the Dark, which this season focuses on the Flowers case. Evans' office has been scrutinized for alleged race-related abuses of powers during the course of Flowers' six trials for the murder of four furniture store employees. Flowers has consistently professed his innocence. In his first three trials, Flowers was convicted and sentenced to death by all-white or nearly all-white juries. In each of these cases, the state Supreme Court overturned the convictions and ordered new trials. Just before the second trial, Flowers' parents' house burned down. Shortly afterwards, his mother was told of a threat made by a white resident that, "If they let that n----- go, another house is going to burn." Jurors deadlocked in Flowers' fourth and fifth trials, split along racial lines. All the white jurors voted for death in both of those trials. Only one black juror served on the sixth jury, and Flowers was sentenced to death in that trial. Although it is unconstitutional to exclude jurors from service based on race, the practice is ubiquitous in many jurisdictions that heavily use the death penalty. Over the course of 332 criminal trials in CaddoParish, Louisiana in the decade from 2003-2012, prosecutors struck black jurors at more than triple the rate of other jurors, approximately the same disproportionate rate at which black jurors were struck in 35 cases resulting in death sentences in South Carolina in the fifteen years between 1997-2012. In 173 capital cases tried over a twenty-year period in North Carolina, and in more than 300 capital trials over more than two decades in Philadelphia, Pennsylvania, prosecutors struck black jurors twice as frequently as other jurors. Most recently, in Georgia, Johnny Gates, who was sentenced to death in Columbus, Georgia in 1977, has challenged his conviction with evidence that his prosecutors struck every black juror they could in the seven capital trials they prosecuted between 1976 and 1979, empaneling all-white juries in six of those cases. 

Mississippi, Pennsylvania Courts Grant New Trials to Wrongly Condemned Prisoners

Appeals courts in Mississippi and Pennsylvania have granted new trials to two men who have long asserted their innocence of charges that had sent them to their states' death rows. On October 26, the Mississippi Supreme Court ordered a new trial for Sherwood Brown (pictured, left), after reviewing exculpatory results of DNA testing and evidence that Brown's triple-murder conviction and death sentence had been obtained as a result of misleading forensic testimony. On October 31, the Pennsylvania Superior Court granted a third trial to former death-row prisoner Daniel Dougherty (pictured, right), who had been wrongly convicted of setting a fire in which his two sons died, ruling that Philadelphia prosecutors improperly presented the same questionable arson testimony in his retrial that had caused his first conviction to be overturned in 2013. Brown was sentenced to death in 1995 for the sexual assault and murder of a 13-year-old girl and received life sentences for the murder of the girl's mother and grandmother. Prosecutors had argued that blood on Brown's shoes came from the victims, and a forensic bitemark expert had claimed that a bitemark on Brown's wrist matched the girl's bite pattern. In 2012, the Mississippi Supreme Court granted Brown's motion for DNA testing. The results showed that the blood on Brown's shoe could not have come from any of the victims because it was male DNA and a saliva sample taken from the victim who had allegedly bitten Brown showed no evidence of Brown's DNA. In their motion for a new trial, Brown's lawyers, including lawyers from the Mississippi Innocence Project, argued that "the two pieces of physical evidence that the state alleged at the 1995 trial, linked petitioner to the crime scene—and upon which the state relied to gain a conviction and sentence in this matter—do not in fact link the petitioner to the crime scene, and are not what the state purported them to be." In an act it described as “extraordinary and extremely rare in the context of a petition for leave to pursue post-conviction collateral relief,” the court overturned Brown's convictions without need for an evidentiary hearing on the DNA evidence and returned the case to the DeSoto County Circuit Court for a new trial. The Pennsylvania Superior Court reversed Dougherty's conviction for a second time, ruling that the trial court had improperly permitted prosecutors to use the same testimony an assistant fire marshal had presented in Dougherty's first trial in 2000, even though Dougherty's 2000 conviction and death sentence had been overturned because of his trial lawyer's failure to retain a fire science expert to explain the scientific invalidity of that testimony and the lawyer's resulting inadequate cross-examination of the fire marshal. The court ruled that Philadelphia prosecutors also improperly presented the testimony of another former Philadelphia fire marshal that relied on and prejudicially bolstered the initial questionable arson testimony. At the time of the retrial, Pennsylvania Innocence Project legal director Marissa Boyers Bluestine had said the case against Dougherty "should never have been allowed to go to trial." Boyers had criticized the testimony of the prosecution's experts as having "no scientific validity." She said "To be able to put that in front of a jury today, in 2016, was a travesty." Dougherty's jury in 2016 acquitted him of first-degree murder, determining that he had not intended to kill his children, but convicted him of arson and two counts of second-degree murder, which carries an automatic life sentence in Pennsylvania. Dougherty's current lawyer, David Fryman, expressed gratitude "that the Superior Court righted the errors committed by this trial judge.... We’re hopeful the District Attorney’s office will finally put an end to the pursuit of a case that never should have been brought in the first place," he said.

Jury Vote Spares Death Penalty for Mississippi Man With History of "Chronic and Severe" Mental Illness

A Jackson County, Mississippi judge has sentenced Scotty Lakeith Street (pictured), a capital defendant suffering from chronic paranoid schizophrenia, to life without possibility of parole after his capital sentencing jury did not reach a unanimous sentencing verdict. The sentence is another in a series of notable cases in which jurors presented with evidence of mental illness have spared severely mentally ill defendants the death penalty. Street was convicted murdering a retired special education teacher, stabbing her 37 times. His lawyers presented evidence from family members, caregivers, and mental health experts of his lifelong history of "erratic" behavior and what two psychiatrists called his "chronic and severe" mental illness. Family testimony detailed his repeated mental health hospitalizations, with one sister testifying "Scotty's been institutionalized so much, it's beyond my count." A mental health professional who treated Street testified that as a result of the effects of his schizophrenia, he needed to live in a group home with the services of a caregiver.  Witnesses described some of Street's schizophrenia-induced bizarre behavior, including putting plastic bags on his head "to keep his brain from leaking out," swallowing nails, painting his body, running naked in public, and tying a Coke bottle to his genitalia. A poll released in December 2014 found that Americans oppose the death penalty for people with mental illness by more than a 2-1 margin. That has been reflected in a number of high-profile jury verdicts in the last few years in cases involving severely mentally ill defendants. James Holmes, a severely mentally ill and delusional man who killed twelve people in an Aurora, Colorado movie theater, and Joseph McEnroe, who murdered 6 members of his girlfriend's family near Seattle, Washington, were sentenced to life when multiple jurors in their cases believed their mental illness made the death penalty an inappropriate punishment. Juries returned unanimous life sentences for mentally ill Dexter Lewis in the stabbing deaths of five people in a Denver bar and Christopher Monfort in the murder of a Seattle police officer. An April 2017 study of 21st century executions revealed that 43% of the prisoners executed since the turn of the century had received a mental illness diagnosis at some point in their lives. In 2012, Mississippi executed Edwin Turner, a mentally ill man with a family history of mental illness: his great-grandmother and grandmother were committed to state hospitals and his mother attempted suicide twice. A Florida man, John Ferguson, also diagnosed with paranoid schizophrenia, was executed in Florida on August 5, 2013, despite reportedly having experienced severe hallucinations since 1965. This year, legislation has been introduced in seven states to bar the death penalty for severely mentally ill defendants.

Missouri Execution Pharmacy Calls Sale of Drugs to State 'Political Speech,' Claims First Amendment Right to Secrecy

A pharmacy that has received more than $125,000 in cash payments from Missouri for providing lethal injection drugs that the state has used in 16 executions has argued in a court filing that its identity should remain secret, claiming that selling execution drugs to the state's Department of Corrections is political speech protected by the First Amendment. The supplier's information was requested in a subpoena by Mississippi death row inmates who are challenging that state's execution protocol, and seeking information about other state practices as part of their lawsuit. The pharmacy, which is identified in court documents as "M7," filed a motion stating that its "decision to provide lethal chemicals to the Department was based on M7’s political views on the death penalty, and not based on economic reasons. ...The fact that M7’s expression of political views involves a commercial transaction does not diminish M7’s First Amendment rights." BuzzFeed News reports that Missouri paid the pharmacy $7,178.88 for two vials of pentobarbital per execution, which it describes as well above market value, amid concerns that the cash payments may have violated federal tax laws. Analyzing M7's claim, Bloomberg News columnist Noah Feldman described the pharmacy's constitutional argument as "deeply flawed." Feldman writes that "there’s an enormous difference between speaking and acting—particularly when that action is a for-profit commercial transaction with the government. ... [I]n a democracy, it’s crucially important for the government to disclose its vendors, both to avoid corruption and to promote transparency." M7 asserted in its filing that releasing its identity could subject the pharmacy to harassment and boycotts, relying on statements from a security consultant, Lawrence Cunningham, whose previous statements about the potential threats to execution drug suppliers have been exposed as unsupported or exaggerated. "The M7 situation helps demonstrate why it’s so dangerous to treat corporations as though they have fundamental constitutional rights while doing business," Feldman writes. "Those basic rights are designed to protect individuals against government power. They aren’t supposed to be used to exempt businesses from regulation or publicity whenever it’s convenient for them."

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